State v. Kent

• Decision Date: 29 March 1976
• Docket Number: No. KCD,KCD
• Citation: 535 S.W.2d 545
• Parties: STATE of Missouri, Respondent, v. Gregory KENT, Appellant. 27720.
• Court: Missouri Court of Appeals

Page 545

535 S.W.2d 545

STATE of Missouri, Respondent, v. Gregory KENT, Appellant.

No. KCD 27720.

Missouri Court of Appeals, Kansas City District.

March 29, 1976.

Thomas J. Cox, Jr., Kansas City, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The defendant was charged by Count I of an indictment with possession of the controlled substance marijuana and by Count II with possession of the controlled substance emphetamine. The jury convicted the defendant on Count I and assessed his punishment at imprisonment for a term of five years, but acquitted him on Count II of the indictment.

On this appeal, the defendant contends that his arrest was without probable cause and that the search of his luggage which disclosed the contraband was unlawful as not incidental to the arrest.

The train of events which led to the search, seizure and eventual conviction of the defendant was set in motion by a telephone call from Special Agent McCravy ¹ in San Diego, California, to one Sulak, supervisor in the Kansas City, Missouri office of the Drug Enforcement Administration which informed him that on that day, February 7, 1974, he had received a tip from a reliable source that a caucasian male was traveling under the name of Kent Roberts ² enroute by train to Kansas City from San Diego with three suitcases of marijuana in his possession. McCravy related a physical description of the suspect, Gregory Kent, his apparel, and the numbers on the claim checks attached to his suitcases, and that he would arrive in Kansas City on Train No. 4, on February 8, at 5:35 in the morning.

Sulak noted this information on a pad and transmitted it to his immediate subordinate, Dempsey, who in turn related the information to Officer O'Donnell of the Narcotics Unit of the Kansas City Police Department.

On the next morning, O'Donnell, accompanied by other officers, undertook to intercept at the Union Station the person of the given description: a caucasian male, traveling under the name of Kent Roberts, six feet and one inch tall, 175 pounds in weight, between 25 to 28 years in age, dressed in a light brown jacket, maroon shirt and blue trousers, with a full beard and mod cut medium light brown hair. When the train arrived, he saw one alight who answered that description, surveilled him as he moved to the lobby to claim three suitcases in the colors described (one black, another yellow, and the other green) which were then taken to a taxi stand. After the cab driver had asked if the suitcases were his, and received an affirmative reply, O'Donnell placed him in arrest.

The defendant was taken to the security office of the Union Station where a weapons search of his person discovered a small amount of marijuana and amphetamine. One of the suitcases (Exhibit 2, the black luggage) was opened there and disclosed kilo bricks of marijuana. The yellow and green luggage were later opened at police headquarters and were found to carry the same substance. The arrest and search both were conducted without the authority of formal warrant.

The defendant took the stand to explain the circumstances by which the marijuana had come into his possession. He had developed the marijuana practice while doing service in Vietnam. He had earlier refused opportunity as a courier to transport marijuana from California, but when his financial condition became desperate, he agreed to the plan. He was given an airline ticket to San Diego and instructed to meet a man there who was to give him a train ticket and some baggage claim tickets and two keys. On his return, he was to meet a man who would have the key to fit the other suitcases. At the conclusion of the task, he was to be paid $1,000. He knew the bags contained marijuana and that his enterprise was unlawful.

The motion of the defendant to suppress the contents of the three suitcases seized by the police at the Union Station on the morning of the arrest was heard on evidence and denied. Other evidence found in the green bag, a 35 mm canister of small white tablets, was excluded for want of proper identification of custody, and is not a subject on this appeal.

The first contention is that probable cause for the arrest was not established because there was no evidence that the tip which motivated the arrest was reliable or of the underlying basis for the conclusion of the informer that Kent was transporting marijuana; but, probable cause assumed, the right to arrest was nullified by the misflow of the information from McCravy to the officers who eventually made the arrest.

An arrest, with or without authority of formal warrant, is lawful only upon probable cause. There is probable cause to arrest where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief' that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The constitutional requirement of probable cause can be satisfied by hearsay information. Aguilar v. State of Texas,378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). An officer may rely for an arrest on information received through an informant, and is not confined to his direct observations, so long as the circumstances give reason to believe that the informant was generally trustworthy and that the conclusion reached by him was on the basis of information obtained in a reliable way. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. States of Texas, supra, l.c. 114. The Missouri Supreme Court has construed these principles in State v. Wiley, 522 S.W.2d 281, 287(10--11) (Mo. banc 1975) to mean that '(a)s long as there is a substantial basis for crediting the hearsay (of the informant)', probable cause for arrest is shown; nor is there any 'absolute requirement that the informant be one of previous reliability.'

The evidence of Agent McCravy was that the information was a tip from one who over the past two years had informed on more than 40 occasions concerning the traffic in marijuana as the result of which four thousand pounds of the substance were confiscated and seventy-five arrests made. Of those arrested, most were convicted. The informant professed the aptitude to detect the presence of marijuana by smell. The defendant contends that this evidence does not prove the reliability of the informant because it does not show the probability of the correctness of his information on a given occasion.

The answer is found in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) which affords a fact analogy of remarkable similarity. The informant Hereford had for six months supplied information to federal agent Marsh concerning violations of the narcotics law and had always proven reliable. The informant told the agent that Draper was peddling narcotics to addicts in Denver and would be returning to Denver from Chicago by train on either the following day or the day after with three ounces of heroin. A detailed description was given the agent by the informant of the clothing and person of the defendant. The agent was also told that Draper was a fast walker and would be carrying a tan zipper bag.

On the second day, agent Marsh and a local policeman at the Denver Union Station saw a person who fit the physical and appareled description of Draper alight from the Chicago train. The man carried a tan zipper bag and walked rapidly toward the exit. They arrested Draper, searched him, and found two envelopes of heroin in his overcoat. The United States Supreme Court held that since the informant had always given accurate and reliable information, and on the occasion in question, his description of Draper was verified in detail,...