State v. McMahan

• Decision Date: 03 May 1979
• Docket Number: No. 10659,10659
• Citation: 583 S.W.2d 540
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Steve E. McMAHAN and Michael Roy McMahan, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 540

583 S.W.2d 540

STATE of Missouri, Plaintiff-Respondent, v. Steve E. McMAHAN and Michael Roy McMahan, Defendants-Appellants.

No. 10659.

Missouri Court of Appeals, Southern District, Division One.

May 3, 1979.

Motion for Rehearing or to Transfer Denied June 15, 1979.

Richard D. Bender, Springfield, for defendants-appellants.

John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

WELDON W. MOORE, Special Judge.

Defendants Steve E. McMahan and Michael Roy McMahan were convicted in a jury-waived trial of burglary and stealing. Each defendant was sentenced to five years on each charge, the sentences as to each defendant were to run concurrently. The only question raised on this appeal is the propriety of the ruling of the trial court denying defendants' motion to suppress the use of certain evidence that was in an automobile and statements made by defendants.

During the evening of February 7, 1977, or the early morning of February 8, 1977, Herrman Lumber Company of Springfield, Missouri was burglarized. Among the items taken were a money bag, a black faced true temper sledge hammer and a pry bar.

In Conway, Arkansas, at about 11:30 p. m. on February 8, 1977, Sergeant Clark of the police department of that city was leaving the police parking lot by a narrow private drive. At that time he saw a 1966 GTO Pontiac begin a left turn into the private drive. The GTO swerved to the right to avoid a collision with his patrol car. The sergeant got behind the GTO, turned on the blue lights of the police car and stopped the GTO for erratic driving. The GTO was occupied by the two defendants, one of whom presented a drivers license at the request of the officer. No tickets were issued or charges made for erratic driving. The officer requested the defendants to step out of the car, which they did. At that time the officer saw a little jug of souvenir "corn whiskey" in the inside of the car. The whiskey did not contain an Arkansas liquor tax stamp. There is dispute as to whether the jug of whiskey was in "plain view" as claimed by the officer or in a sack containing other souvenirs from Silver Dollar City near Branson, Missouri, as claimed by defendants. The officer asked if there was any more whiskey in the car and was told there was not. The officer asked Steve McMahan if he could take a look and was told to "look anywhere you want to."

Officer Clark was joined by fellow officer Bradley, who was in civilian clothes. Officer Clark asked Steve if he would mind opening the trunk and he said "no" and walked around and opened the trunk. Officer Clark observed exhibits numbers 1 and 2, which were a true temper sledge hammer and a pry bar. Officer Bradley obtained a money bag later marked exhibit number 3, from the glove compartment of the car. After he saw these "burglary tools" in the trunk, officer Clark arrested both defendants for possession of untaxed liquor.

Defendants were taken to the police station prior to 1:30 a. m.

Detective Helton of the Conway Police Department arrived at the police station about midnight or a little later. After he arrived the Miranda warning was given to each defendant and each defendant signed written Miranda waiver forms. Defendant Steve McMahan, after signing a written Miranda waiver form, signed a consent to search form. Detective Helton and Sergeant Clark searched the Pontiac GTO and removed a sledge hammer, a pry bar, a pair of leather gloves and a knife from it. The officers returned to the police station and arrested defendants on a charge of criminal attempt (apparently a charge similar to a charge of possession of burglary tools). It was learned that each defendant had multiple felony convictions and each had served prison sentences and each defendant had been convicted of burglary. An investigation was launched to determine if some crime had been committed that involved the defendants. This investigation included the search of a Little Rock motel room with consent of defendant Michael Roy McMahan. A Morriltown, Arkansas robbery was investigated. The motel search was fruitless and defendants were not connected to the Morriltown robbery.

During the time the defendants were in custody they were questioned principally by detective Helton. Defendant Michael Roy McMahan said one of the officers said something to him that made him mad and "I told them to just take me back to my cell because I didn't have nothing to say to them. I wasn't going to tell them anything." "Q: And did he take you back to your cell? A: Yes, sir, a short time later."

Defendant Steve McMahan testified that one of the officers yelled at him and "I just told him I don't have anything to say . . . and they took me and locked me back up."

Defendant Steve McMahan advised the officer that he was in need of medical care and he was taken from the jail to the emergency room of the hospital where he saw a doctor, was examined or treated, and was given a prescription. He also requested and was granted permission to stop at a service station and buy cigarettes.

At approximately 3-4 p. m. on February 9, 1977, detective Helton returned to the Conway police station and learned of the burglary of Herrman Lumber Company at Springfield, Missouri. Detective Helton then confronted defendant Michael McMahan with this fact and this defendant indicated he wanted to talk to his brother before discussing the matter. The defendants were permitted to confer between themselves. Thereafter, detective Helton took written statements from defendants Michael McMahan and Steven McMahan, state's exhibits "7" and "9" respectively, which involved them in the Herrman Lumber Company burglary.

Defendants were returned to Greene County, Missouri, and charged with burglary and stealing. They waived the right to jury trial. A motion to suppress was heard and overruled and the court allowed both physical evidence of the crime seized from the car and the statements given to the officer by the defendants in evidence and both were found guilty of burglary and stealing.

The issue presented is whether the discovery of the items in the Pontiac GTO and the statements of the defendants constituted an unreasonable search and seizure within the ambit of the United States and Missouri Constitutions.

In this court-tried case, deference is given to the findings of the trial judge on credibility of witnesses and resolution of conflicts in testimony. State v. Rose, 535 S.W.2d 115 (Mo.App.1976). Rules 73.01(3)(b) and 28.18.

Through the due process clause of the Fourteenth Amendment the prohibition of the Fourth Amendment against unreasonable searches and seizures applies to the states. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Witherspoon, 460 S.W.2d 281, 283-284 (Mo.1970). It is well established that a search conducted incidental to a lawful arrest or with consent of the person is constitutionally permissible. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and State v. Virdure, 371 S.W.2d 196 (Mo.1963). Here the search was without a warrant and the burden is on the state to show that search comes within one of a few established exceptions to the Fourth Amendment requirement. Consent must be freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Consent must be voluntary, unequivocal and free from coercion, either express or implied. State v. Witherspoon, 460 S.W.2d at 289.

The courts have not laid down a hard and fast rule by which it can be concluded there was or was not consent. Determination of consent involves many factors including but not limited to whether or not threats were made by the officers, the number of officers present, the degree to which the officers emphasized their authority, whether or not weapons were displayed, was there fraud or misleading on the part of the officers, what the person consenting said or did and the experience and education of the consentee. See discussion in 9 A.L.R.3d 858.

Sergeant Clark had a right to stop the GTO Pontiac because of erratic driving. Defendants consented to the search of the vehicle at that time. Reviewing the factors and the search here, we agree with the trial court that the consent to search was voluntary as orally given and as given in writing. At the scene where the car was stopped only two officers were present, one of...