State v. Meeks, 55115

• Decision Date: 12 April 1971
• Docket Number: No. 55115,55115
• Parties: STATE of Missouri, Respondent, v. Leroy MEEKS, Jr., Appellant.
• Court: Missouri Supreme Court

Page 65

467 S.W.2d 65

STATE of Missouri, Respondent, v. Leroy MEEKS, Jr., Appellant.

No. 55115.

Supreme Court of Missouri, En Banc.

April 12, 1971.

Rehearing Denied May 10, 1971.

John C. Danforth, Atty. Gen., Harvey M. Tettlebaum, Asst. Atty. Gen., Jefferson City, for respondent.

Charles C. Allen, Jr., James W. Herron, St. Louis, for appellant.

SEILER, Presiding Judge.

Appeal from conviction and sentence of five years' imprisonment for possession of marijuana, Sec. 195.020, RSMo 1969, V.A.M.S. The decisive issue is whether the search of the automobile which produced the marijuana was lawful under state and federal constitutional limitations. We hold that it was not.

At 1:45 p.m. on April 20, 1969, Officer Marbs of the St. Louis Police Department, driving his police auto on Easton Avenue, noticed a 1962 Buick about two car lengths ahead, bearing a Missouri registration plate which had expired in March 1969. Officer Marbs turned on his red light and the Buick immediately pulled to the curb. The driver remained erect behind the steering wheel, in clear view, and made no motion toward the center of the car. Nothing was thrown from the car. Officer Marbs stopped a few feet behind the Buick, with the intention of issuing the driver a summons 'for expired state license plate'. He approached the Buick, going to the door on the driver's side. There were two occupants, both in the front seat. Defendant Meeks, the driver, produced his driver's license and said it was his car. Marbs then had Meeks get out of the car and told him he was under arrest for 'expired state license plate'. The officer next searched Meeks' person, found nothing, and then had both Meeks and the passenger step onto the sidewalk. Marbs then proceeded to search the automobile.

In a closed 'console', located between the driver and passenger seats, Marbs discovered a plastic vial containing a small amount of a substance he believed to be marijuana. In the closed glove compartment, he found a yellow paper containing a white powder. Marbs then placed Meeks under arrest for possession of marijuana, and he and the other officer (Marbs had earlier called an assist car) took defendant to the police station. The police laboratory analysis showed the vial contained three milligrams of marijuana. The composition of the white powder could not be determined. Meeks was charged with possession of the marijuana.

A motion to suppress the use of the marijuana as evidence was filed on constitutional grounds. There was a hearing on the motion, at which Officer Marbs was the only witness. He testified to substantially the above recital of the circumstances of Meeks' arrest. The motion was overruled.

The evidence at the trial was essentially a repetition by Marbs of his testimony on the motion to suppress. A technician testified that laboratory examination of the substance in the vial showed it to be marijuana. No evidence was offered by the defendant. The defendant stipulated to facts from which the application of the Second Offender Act was found. The jury returned a verdict of guilty of the offense charged and the trial court sentenced defendant to five years' imprisonment.

The issue here is the validity of a search of the appellant's car and not the validity of a search of his person.

Officer Marbs was the only witness on appellant's motion to suppress, and, taking the officer's testimony as true, we have, in short, the following situation: In the daylight hours on a certain date, the officer saw an expired state license on the rear of appellant's car, and upon signal from the officer, appellant pulled to the curb promptly and remained in the driver's seat; the officer asked appellant to get out of the car and appellant did so. On request, appellant produced a valid driver's license. Appellant was personally searched and no weapon or anything else of significance was found. Appellant was properly and routinely arrested for expired license plates. He was then asked to stand on the sidewalk, which he did. The foregoing constitutes the complete evidence upon which we are asked to uphold the validity of the next event, which was the thorough search of appellant's car.

Without attempting ad seriatim to list all that the evidence did not show, the presence of which in other cases has justified a search of a car, it is significant there was not a single fact or circumstance in evidence which was even claimed by the officer to raise any suspicion that appellant had done, was doing, or was about to do any illegal act, other than driving his car with expired plates. There were no facts in evidence upon which anyone could believe the officer was in any danger from the contents of the car. Both appellant and his passenger were completely outside the car when appellant was arrested. When asked what he was searching for, the officer replied that he 'was not technically looking for anything.'

Under the evidence, the search of the car constituted nothing more or less than a purely exploratory venture--a fishing expedition, and was not justified as incidental to this particular arrest nor as based on probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.

To uphold the search of the car here would mean that every citizen who is validly arrested for any minor violation any place in Missouri and regardless of the circumstances, is automatically subject to having his car thoroughly searched. We can find no Missouri or other case in which a search of a car, without a warrant, after the arrested person has been removed from it, has been upheld upon a showing of nothing more than the mere isolated fact of arrest for a minor violation. Annotation, Search of Vehicle--Traffic Violation, 10 A.L.R.3d 314.

Were we to approve constitutionally this search of appellant's car, it would be tantamount to announcing that, insofar as searching automobiles is concerned, the provisions of Art. I, Sec. 15, of the 1945 Constitution of Missouri, V.A.M.S. and the Fourth Amendment of the United States Constitution are wholly impotent in Missouri once one event occurs, to wit: a valid arrest. We decline to do so.

The state cites State v. Moody (Mo.Sup.) 443 S.W.2d 802; State v. Robinson (Mo.Sup.) 447 S.W.2d 71, and the Durham cases, consisting of the original appeal in State v. Durham, 367 S.W.2d 619, and the post-conviction opinions in 386 S.W.2d 360; Durham v. Haynes, D.C., 258 F.Supp. 452, and 8 Cir., 368 F.2d 989. These cases, while upholding convictions resting on evidence obtained in a search following an arrest for a traffic violation, are not authority for upholding search of the automobile in the present case. State v. Moody is carefully limited to its precise facts, 443 S.W.2d l.c. 804. The search there, following a traffic arrest, involved only search of the person of the driver. State v. Robinson was stated to be governed by State v. Moody, 447 S.W.2d l.c. 73, and it, too, involved only a search of the person, even though there was a much more aggravated traffic violation than in the Moody case. The Durham case did involve a search of the vehicle, with apparently no search of the person of the driver or his two companions. The car search differed from the search before us in several respects: first, when the driver opened the door of the car to get out after being stopped by the highway patrol for driving with a partially obscured rear license plate, a corner of the pile of stolen goods which were hidden under a blanket in the rear seat was exposed to the officer's view, without any search; second, the search of the Durham car was justified as reasonably necessary to insure the safety of the arresting officers, as they had the three suspects drive their own car to the police station, trailing the patrol car.

The motion to suppress should have been sustained and the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by SEILER, J., is adopted as the Opinion of the Court.

SEILER and BARDGETT, JJ., concur.

FINCH, J., concurs in result and concurs in separate concurring opinion filed.

MORGAN, J., concurs in result and concurs in separate concurring opinion of FINCH, J.

DONNELLY, J., dissents.

HOLMAN, J., dissents in separate dissenting opinion filed.

HENLEY, C.J., dissents and concurs in separate dissenting opinion of HOLMAN, J.

FINCH, Judge (concurring).

This case involves the important and difficult question of protecting citizens from constitutionally prohibited searches, on the one hand, and providing proper protection to arresting police officers, on the other. I have concluded to concur only in the result reached in the principal opinion for the reasons which follow.

At the outset, it is clear that the state does not seek to and cannot justify the search in this case on the ground that the officer had probable cause to believe the vehicle contained articles he was entitled to seize; hence cases such as Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, have no application.

The view expressed in Judge Holman's dissent is that the search was proper because a valid arrest (even though for only a traffic offense) authorized an incidental search for weapons of the portion of the vehicle from which arrestee might gain possession of a weapon.

Although I subscribe fully to the statement in State v. Moody, Mo., 443 S.W.2d 802, 804, 'that police officers, while in the performance of their official duties, are entitled to all the safety and protection we can give them within constitutional limitations,' I cannot join in the dissenting opinion herein for two reasons. In the first place, I...