State v. Kelsey, 10723

• Decision Date: 07 December 1979
• Docket Number: No. 10723,10723
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth L. KELSEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 509

592 S.W.2d 509

STATE of Missouri, Plaintiff-Respondent, v. Kenneth L. KELSEY, Defendant-Appellant.

No. 10723.

Missouri Court of Appeals, Southern District, Division One.

Dec. 7, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 28, 1979.

John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Michael A. Scearce, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Edward V. Sweeney, Sweeney & Sweeney, Monett, for defendant-appellant.

TITUS, Presiding Judge.

A Lawrence County jury found defendant, Dr. Kenneth L. Kelsey, guilty of second degree murder in connection with the February 11, 1976, killing of Cynthia Jane Hall at the Aurora home of Vera Ford. The punishment fixed by the jury was imprisonment for 40 years. After denial of defendant's motion for a new trial, the trial court sentenced defendant in accordance with the verdict and he appealed.

One issue on appeal concerns the refusal of the trial court to suppress, as an exhibit of the state, a .25 caliber Colt automatic pistol allegedly used in the killing. The issue principally concerns testimony of undercover narcotic agents Eapmon and Connor who, during the times involved, i. e., March 11 to March 30, 1976, were on assignment by the Drug Enforcement Administration of the Federal Government to investigate averred illegal drug sales being made by defendant.

Defendant and his wife resided in a two-story structure located in Shell Knob, Barry County, Missouri. Inter alia, the ground floor was used by defendant as offices, etc., in his practice of medicine. The second floor (consisting, at least, of a kitchenette, living room, two bedrooms, closets and a bath) was used by defendant et uxor as their home and living quarters.

On March 24, 1976, during the fifth visit agents Eapmon and Connor had with Dr. and Mrs. Kelsey in their office-home, Mrs. Kelsey directed the agents to take a roundabout route in returning to Springfield because their "house was under surveillance by the Barry County authorities (who) were trying to pin a murder rap on Dr. Kelsey because an ex-girlfriend was shot and killed in the month of February in Lawrence County (and on) the night the murder took place . . . Dr. Kelsey was gone (from home) a couple of hours and upon returning to their residence, he handed her a 25 caliber gun and said, 'Hide this because the authorities will be looking for it.' "

Five days later, or on the night of March 29, agents Eapmon and Connor were again talking with Dr. and Mrs. Kelsey in their living room. Agent Connor "displayed a 25 caliber automatic of his own and asked Mrs. Kelsey if that was one like she had . . . . (S)he left the room and came back . . . and said 'Doc, you've been messing with my gun.' (After defendant told her) 'It's downstairs' (she left and) came back with a 25 caliber gun and she had a glove on the hand" with which she was holding the weapon. Each agent examined the pistol produced by Mrs. Kelsey, by prearrangement surreptitiously memorized its serial number and returned it to Mrs. Kelsey who "wiped the gun off with her smock and went back to the (rear) bedroom" before returning to the living room without the weapon.

The following morning, March 30, the agents returned to Dr. Kelsey's offices and were told by the defendant that Mrs. Kelsey "was in Springfield." Agent Connor "asked Dr. Kelsey if he wanted to sell . . . the gun that we had viewed the night before and . . . (defendant) was real upset and he said, 'Do you want to be killed?' . . . Agent Connor said that if it meant that much to him to forget it, and Dr. Kelsey said, 'You don't want it in your possession. It has been used in a murder.' "

After this brief morning encounter with defendant on the 30th, supra, the two agents traveled a short distance to rendezvous with a waiting entourage consisting of "the Federal Prosecuting Attorney," the prosecuting attorneys of Barry and Lawrence counties and various federal and local law enforcement officers. Including agents Eapmon and Connor, the group numbered ten. A "Federal Search Warrant" had been issued and was in the hands of the federal authorities. It authorized a search of Dr. and Mrs. Kelsey's property for "valium, librium" and marked money; the federal warrant did not authorize a search for or seizure of any weapons or the .25 caliber pistol in question. The record indicates an admittedly illegal state search warrant had been issued for "a .25 caliber automatic Pistol . . . used for committing a felony." As a result of discussions had at this meeting, it was determined that the federal search warrant should then be executed and that Dr. and Mrs. Kelsey should be arrested instanter. Following this decision, the heterogenic band of officials hied itself to the Kelsey office-residence.

Upon arrival at the Kelsey property, agents Eapmon and Connor made a second entry, leaving the other officers and officials outside. Ostensibly to separate defendant from his downstairs patients and nurse, Eapmon and Connor used the pretext that agent Connor's billfold was missing and may have been lost the previous night in the upstairs living room. After defendant and Connor went upstairs to search, agent Eapmon summoned the other officers who went upstairs into the residential area of the edifice. When all the officials arrived upstairs or were in the process of doing so, defendant was arrested and the federal warrant was read to him.

While the arrest and reading of the federal warrant to the 65-year-old defendant were taking place in the upstairs living room, agent Eapmon, shortly followed by agent Connor and a deputy sheriff, walked down the 27 to 30 foot long hallway leading to the bathroom and bedroom areas of the house. Albeit Dr. Kelsey had previously told the agents that Mrs. Kelsey was in Springfield, Eapmon said he went into this area of the house "to assure myself no one else was in the residence and to look for controlled substances or marked money." In so walking, the agents and deputy sheriff passed by a bedroom and bathroom which they did not enter or inspect save for a brief glance through open doorways. Upon reaching the second bedroom on this sojourn, agent Eapmon pulled open and searched the drawers of a night stand, a bureau and a chest of drawers. In searching the chest of drawers, Eapmon found a .25 caliber Colt pistol and another handgun. After ascertaining that the .25 caliber pistol bore the same serial number as the one inspected the night before, the gun was given to the deputy sheriff and the agents ceased their search of the bedroom. Immediately thereafter, agents Eapmon and Connor went downstairs to show the location of the drug cabinet to other officers and departed the premises in search of Mrs. Kelsey.

At the hearing on defendant's motion to suppress the .25 caliber pistol as evidence, it was established that the usual modus operandi employed by the involved federal agents, and others, in searching premises via warrants for drugs or marked funds, was to go through "the house room by room." Depending on the number of search personnel available, "one or two agents . . . will search (a) room from top to bottom, and then . . . the officers will switch rooms (with other officers) and they will do the same thing the other officers did in that room to be sure nothing is overlooked." In explaining what a "top to bottom" room search entailed, agent Eapmon explained: "Well, cabinets in the kitchen and valances around the draperies where you find contraband hidden. We start at the top and come all the way down to the bottom, down to the carpet area."

Although not questioned by the state, the thought occurs as to whether the defendant here had standing to raise search and seizure violations proscribed by the Fourth Amendment to the U.S. Constitution and art. 1, § 15, Constitution of Missouri, V.A.M.S., because the .25 caliber pistol was ostensibly owned by Mrs. Kelsey. We conclude that defendant had such standing as it may be demonstrated "By showing . . . a substantial proprietary or possessory interest in the premises searched, or his own presence on the premises when the search occurred." Vol. 67, No. 2, The Georgetown Law Journal, at p. 415, and cases there cited.

The "silver platter" doctrine was overruled in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), which held that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over proper objection in a federal criminal trial. This was shortly followed by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961), wherein the court ruled that as a matter of due process, evidence obtained by state police officers by search and seizure in violation of the Fourth Amendment of the U.S. Constitution is as inadmissible in a state court as it is in a federal court. The converse to these federal holdings has long been the rule in Missouri, i. e., in State v. Rebasti, 306 Mo. 336, 349-350, 267 S.W. 858, 862(7) (banc 1924), it was ruled that an unlawful search and seizure by a federal officer does not become lawful when brought into question in a state court and that the evidence of a federal official, which would be held incompetent in the federal courts on account of the Fourth and Fifth Amendments, does not become competent when offered in a state court.

In this case we are confronted with an uncommon set of circumstances. We have federal undercover narcotic agents, Eapmon and Connor, whose obvious and admitted primary assignment, duty and concern involved illegal drug sales by defendant. Apparently the agents had made "buys" with marked money and their assumedly valid federal warrant only authorized a search for and seizure of valium, librium and marked money. The state officers, sans a valid search...