State v. Martin
| Decision Date | 12 April 1971 |
| Docket Number | No. 1,No. 55838,55838,1 |
| Citation | 465 S.W.2d 594 |
| Parties | STATE of Missouri, Respondent, v. Melvin Perry MARTIN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Karl F. Lang, St. Louis, for appellant.
WELBORN, Commissioner.
Melvin Perry Martin was found guilty by a jury in the St. Louis Circuit Court of robbery in the first degree with a deadly weapon. Acting under the Second Offender Act, the court assessed punishment of ten years' imprisonment. This appeal followed.
On the afternoon of December 17, 1968, two men entered a Conrad, Incorporated delivery truck after its driver, Richard Chaney, had made a delivery to a retail liquor store in St. Louis. One of the two men pointed a gun at Chaney and told him to get off the seat and into the back. Chaney crouched on the floor of the truck and while the pistol was held at his head, the other man got into the driver's seat and drove the truck away. While the truck was being driven around, Chaney was ordered to give the robbers the money. He surrendered some $46 in currency of his employer and his billfold from which the robbers took the currency and returned the billfold. They also took Chaney's watch.
After driving around for some fifteen to twenty minutes, the robber tied Chaney's hands with strips of toweling and also tied a strip around his head, over his eyes. After a few more minutes of driving, the truck was stopped in an alley to the rear of the 3100 block of Union Boulevard. The driver got out and told Chaney to get into the rear of the truck. The driver had difficulty opening the rear door and then Chaney heard the man with the gun say, 'Let's get out of here.' Chaney thought the man was talking to him and tried to straighten up. Just then he heard a shot fired. He stood up, removed the bindings from his wrists and eyes and saw a police car near the truck.
Chaney did not see a police officer. He got out of the truck and went to the police car and said over the auto radio, He received a reply, 'Go ahead.' Before he could say anything further, he saw a man approaching the police car from the direction from which he had heard the shot. Fearing the person might be one of the robbers, Chaney left the police car and ran down the alley. He met a man who took him to his house to telephone the police. While he was making the call, Chaney saw police cars outside the house and went out and reported what had occurred.
At around 2:00 P.M. on the date in question, Officer Herman Thomas of the St. Louis Police Department was patrolling on Greer Avenue in a marked police car. He saw the Conrad truck in the alley at the rear of 3100 Union. He was suspicious about the presence of the truck at that location and turned his car into the allley and drove toward the truck. As he approached, two men got out of the truck and ran. He parked his car about twenty feet from the truck and ran in pursuit. One of the two men carried a gun in his left hand which discharged during the pursuit. The weapon was not pointed toward the officer who was about two hundred feet away. One of the men got out of the officer's view, but he followed the one with the gun for a block or so. The man crossed Union and the officer could not continue the pursuit because of the traffic. He returned to his patrol car and 'put out' a description of the two men he had seen as 'two Negro males, approximately five foot eight or nine, wearing dark colored clothing.'
Sergeant William Ogborn of the St. Louis Police Department was patrolling in a police car several blocks away and heard Chaney's call over the police radio. As he was trying to trace that call, he heard a voice which he recognized as belonging to one of his officers. The officer was winded and spoke in an agitated voice, saying that he had been pursuing two 'subjects,' wanted for a possible holdup. Sergeant Ogborn heard the officer say that one of the men wore dark clothing and that they were running east across Union at Labadie.
Shortly after hearing the officer's call, Sergeant Ogborn saw a Negro man running through a yard at Norwood and Greer Avenues, about a block and a half from Union and Labadie. Sergeant Ogborn pursued the man in his car and on foot for about a block and a half.
Officer Richard Harvey of the St. Louis Police Department also responded to the police call and saw the same man running across an alley at the rear of 5235 St. Louis Avenue, some three and a half blocks from where the truck had stopped. He ran in pursuit of the man, along with Sergeant Ogborn, into the rear of the yard at 5235 St. Louis Avenue. There he and Ogborn found appellant Martin crouched alongside the porch of the house. Ogborn placed Martin under arrest 'because I thought he possibly could be good for a holdup.' Harvey searched Martin and took from him $66 in currency, forty-six one-dollar bills and two ten-dollar bills. No gun was found on Martin; nor did he have Chaney's watch.
Chaney was brought to where Martin was in custody and identified Martin as the man who held the gun on him in the holdup.
A motion was filed by appellant to suppress evidence obtained by the search on the arrest. The motion charged that the arrest was without probable cause and provided no basis for the subsequent search. Officer Thomas and Sergeant Ogborn testified on the hearing on the motion and the motion was overruled. The trial court's ruling on that issue is challenged on this appeal.
The question thus presented is whether or not Sergeant Ogborn and Officer Harvey had probable cause to arrest appellant. That in turn depends upon whether they had probable cause to believe that a felony had been committed and that appellant was the perpetrator of the offense. 5 Am.Jur.2d, Arrest, § 48, p. 740. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.
Officer Thomas had no precise knowledge of what had occurred when he first came upon the truck and he did not know fully what had happened for several minutes after his pursuit of the two men and his first radio call. However, the circumstances of the presence of the truck at an unexpected location, the flight of the two men from it, and the possession of a weapon by one of the two men would make reasonable the conclusion by Officer Thomas that a robbery had occurred. Appellant acknowledges that Thomas may have had probable cause to arrest the two men at that time. However, Thomas did not do so and the question thus becomes whether or not the information communicated via police radio to other officers afforded reasonable grounds, in the light of the circumstances apparent to such officers, to justify the arrest of appellant. Thomas was asked on the pretrial hearing on the motion to suppress what description of the men he had pursued he had put out on the radio. He replied: '(T)wo Negro males, approximately five foot eight or nine, wearing dark colored clothing.' He was not asked whether his radio call went further. Sergeant Ogborn testified that he first heard Chaney's call on the radio and in a few minutes heard on the police radio a voice which he recognized as one of his officers, talking very winded and agitadly, stating that he had just pursued two subjects, wanted for a posible holdup, and that they were running east across Union at Labadie. Ogborn stated that the description he received was 'vague.' He recalled only that one of the pursued was described as 'wearing dark clothing.' Although Ogborn did not identify the voice as that of Officer Thomas, he did recognize it as the voice of a person under his command and the circumstances warrant the conclusion that the voice was, in fact, that of Officer Thomas. The call which Sergeant Ogborn received was sufficient to direct his attention to appellant. He saw appellant running a short distance from where Officer Thomas reported that he had been pursuing two...
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