State v. McDaris

• Decision Date: 11 January 1971
• Docket Number: No. 55346,No. 2,55346,2
• Citation: 463 S.W.2d 813
• Parties: STATE of Missouri, Respondent, v. Jerry Wayne McDARIS, Appellant
• Court: Missouri Supreme Court

Page 813

463 S.W.2d 813

STATE of Missouri, Respondent, v. Jerry Wayne McDARIS, Appellant.

No. 55346.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 8, 1971.

John C. Danforth, Atty. Gen., Frank P. Cihlar, Asst. Atty. Gen., Jefferson City, for respondent.

Neale, Newman, Bradshaw & Freeman, Paul L. Bradshaw, Jerry L. Redfern, Springfield, for appellant.

RICHARD P. SPRINKLE, Special Judge.

On November 4, 1969, a jury in Greene County convicted the defendant of possession and control of a bomb. Defendant was tried as an offender under the habitual criminal act and sentenced by the court to a ten-year term in the Missouri Department of Corrections. Defendant appeals from this conviction and sentence.

The testimony reveals that on August 25, 1969, one Joan Hester was transported to Mount Vernon, Lawrence County, Missouri, by sheriff's deputies from Springfield, Greene County, Missouri. She was taken there to testify in a preliminary hearing against the defendant, Jerry McDaris, who was charged as an aider and abettor in stealing sixty-three dollars ($63.00) (a crime independent of the matter under consideration here).

On the way to the hearing, Joan Hester and the deputies discussed threats that had been made by the defendant and his brother against Joan Hester.

At the preliminary hearing, Joan Hester was the only woman to give evidence against the defendant. A Clarence Gwinn also testified against the defendant. After the hearing, but while still in the courthouse, Gwinn overheard the defendant state to his brother, 'Let's get that goddamned bitch.' Gwinn reported this statement to both the judge and the Lawrence County Sheriff.

Thereafter, while Joan Hester was being returned to Greene County by a Lawrence County deputy, a radio dispatch (on a frequency used by the sheriffs of both counties) was received by the transporting officer. The information received was that the McDaris brothers were going to make an attempt on the witness Hester.

Immediately thereafter, a white 1960 Chevrolet was seen behind the deputy's car. The deputy advised Joan Hester to lie down in the rear seat of the car and becan to accelerate his automobile, reaching speeds of 95 to 100 miles an hour, with the white Chevrolet following.

The two cars traveled at these high speeds for about twenty minutes until Greene County was reached and the following vehicle was stopped. The two McDaris brothers were in the car. However, no arrests were made.

After bring returned home, Joan Hester was advised to call the Greene County sheriff's department if any of the McDarises came to her house. About 5:00 p.m., the McDaris brothers, in the company of Karen Bacon, drove up in front of the Hester house. Karen Bacon came to the door, and was answered by Joan Hester's sister. Threats were made against the person of Joan Hester. In response to earlier directions, Joan Hester called the sheriff's office, telling them of the visit and the threats.

During the course of this same day, the radio dispatcher in the sheriff's office received four other calls all from unidentified persons reporting that the defendant had been seen in a white Chevrolet and that he was armed and drunk. These calls were received at various times during the evening. Operating under what is called a 'good check', meaning to stop and frisk a suspect, the dispatcher sent out such a call to enforcement authorities in the area. The 'good check' order went out following the call from Joan Hester and the first phone warning. However, the subsequent arrest of the defendant was later that evening after all the calls had been received.

The defendant was known to the police and prior 'good check' orders had been issued with respect to him.

Several of the calls reporting the defendant at a service station in the white Chevrolet proved to be accurate. Two deputies in an unmarked car followed the defendant from the station. While they were following, city policemen stopped the defendant, searched him, his brother, the car and the other passenger, Karen Bacon. Being suspicious of Karen Bacon's actions, a city patrolman found a stick of dynamite, fused and with detonator in place, concealed in the waistband of her slacks.

Karen Bacon did not testify at the hearing on the motion to suppress evidence of the dynamite. However, her testimony at trial reveals that while her car was being stopped by the police, the defendant produced the dynamite wrapped in a sock and told her to hide it in her clothes.

Defendant's first assignment of error deals with the trial court's overruling his motion to suppress evidence of the dynamite. The thrust of this assertion is that the arrest was without warrant, without probable cause and no crime had been committed in the presence of the arresting officer, thus the fruits of the subsequent search were unlawfully obtained. Defendant devotes much of his brief to this issue, and seems taken with the thought that his arrest and the search disclosing the dynamite all stemmed from one unidentified phone call.

For two reasons, the court sees no merit to this contention. First, the receipt of numerous facts and the happening of several events led to the arrest, not just an isolated call. Second, the defendant has no standing to complain about the search. The search was of a car not owned or driven by the defendant, and the dynamite was not found on the defendant but was found on the person of Karen Bacon.

The defendant, in his brief, cites numerous federal cases dealing with arrest, search and seizure. The defendant also discusses the question as to whether there was probable cause for the officers to arrest the defendant.

The cases relied on by the defendant are United States v. Mitchell, W.D.Mo. (1969), 299 F.Supp. 1395, 1402(10, 11); Spinelli v. United States, 393 U.S. 410, 427, 89 S.Ct. 584, 21 L.Ed.2d 637; Wrightson v. United States, 95 U.S.App.D.C. 390, 392, 222 F.2d 556, 558(2) and White v. Swenson, W.D.Mo., 301 F.Supp. 447, 463--464(7).

The defendant also cites the recent Missouri case of State v. Goodman, 449 S.W.2d 656, which relies on the case of Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. All of these cases deal with, inter alia, the question of probable cause to make a warrantless arrest. This court does not take issue with those findings based on the facts in each case, but they are each patently distinguishable from the case at bar.

The court deliberately extracted from the testimony of the witnesses who testified at the motion to suppress those facts which clearly show numerous grounds of probable cause for the defendant's arrest and the search which followed.

The dispatcher in the sheriff's office issued the 'good check' order only after the following events took place.

Joan Hester discussed with the sheriff's deputies threats that had been made against her by the defendant and his brother.

Following her testimony at the preliminary hearing, Clarence Gwinn overheard the threat made by defendant against Joan Hester. This informant was known to the sheriff's office and it was known he was physically in a position to overhear such a threat. He related this information to both the sheriff and the judge.

On the way back to Springfield, the defendant and his brother followed or chased the sheriff's car containing Joan Hester. This was a high speed chase and the defendant's presence in the chasing automobile was know to the sheriff's deputy and to Joan Hester.

After her return home, Joan Hester saw the defendant drive up in front of her house and one of the defendant's companions came to the door and delivered a threat. The sheriff's office was notified of these events.

Early in the evening of defendant's arrest, the dispatcher received a call from an unknown person advising that the defendant was carrying a weapon.

The defendant was previously known to the sheriff's office and 'good check' orders had been issued on him before.

A basic premise of defendant's argument is that since the order to stop and frisk went out following the first anonymous call, then in considering probable cause for the subsequent arrest the court should not consider the other three calls warning that the defendant was armed.

To affirm this position would be to declare invalid all other proper sources of information unless the 'good check' order was issued after each bit of information was received. Otherwise a reviewing court could only consider limited information, even though the defendant was not subjected to any arrest or search until a number of events confirming the right to arrest had taken place. In this case, the sheriff's office received several calls after the 'good check' order was sent out. The statistics received from these callers proved to be accurate, because the defendant was located where the caller said he was and the description of the vehicle he was riding in was correct.

These calls can all be considered as additional grounds for probable cause in the defendant's arrest, and the search that followed. It is not necessary that a 'good check' be issued after each call in order to make valid the warrantless arrest and search.

To accept the premise of defendant's argument, that is, that there was such a paucity of justifiable cause for the actions of the enforcing authorities would be tantamount to subjecting the general public to systematic annihilation. In our overzealous desire to protect the rights of all persons, who are suspect, from the capricious whims of the police authorities, too often the equally or perhaps greater duty to protect the victim is forgotten. Possibly there exists an unspoken or unacknowledged distinction between the right to arrest and search a suspect after the commission of a crime as opposed to the exercise of that same right in order to prevent serious injury to the known innocent victim. Such authority can be exercised...