State v. Mick

• Court: Missouri Court of Appeals
• Writing for the Court: Before DIXON; DIXON
• Citation: State v. Mick, 506 S.W.2d 35 (Mo. App. 1974)
• Decision Date: 04 February 1974
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Larry Gene MICK, Appellant. 26250.

Page 35

506 S.W.2d 35

STATE of Missouri, Respondent, v. Larry Gene MICK, Appellant.

No. KCD 26250.

Missouri Court of Appeals, Kansas City District.

Feb. 4, 1974.

Christopher Dye, Kansas City, for appellant.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., PRITCHARD and SOMERVILLE, JJ.

DIXON, Chief Judge.

Defendant Mick appeals from a five-year sentence imposed by a jury on conviction of second degree burglary.

Defendant raises issues of faiulure to suppress evidence, insufficiency of the evidence, admission of evidence and erroneous argument. The judgment of conviction is affirmed.

The defendant's car was first observed by police officers traveling south on Burlington Avenue, or Highway 169, shortly after 4:00 a.m., on October 14, 1970. Officer Claude Fine of the Clay County Sheriff's Department and Trooper Fredrick Mills of the Missouri Highway Patrol were positioned in a parking lot on the northwest corner of the first controlled intersection north of the ASB Bridge, just across the street from an all-night service station, when the automobile driven by the defendant entered that station. All of the lights on the rear of the vehicle were out, both the taillights and the light to illuminate the license plate. After a few minutes, the officers observed the car pull from the service area still without any tail-lights or license plate illumination, and they pursued and stopped the vehicle with the intention of arresting the driver for operating the car without proper lights.

When Officer Fine approached the driver, he asked to see his operator's license. The defendant informed the officer that he had no license and produced several traffic tickets issued by the Kansas City, Missouri, Police Department, indicating that he was already charged with driving without a valid license. The defendant did produce other identification, however, which indicated that his name was Larry Mick.

Officer Fine recognized the defendant's name from information obtained at the Sheriff's office; Mick was wanted for questioning in connection with a burglary in Holt, Missouri, but no warrant for his arrest had been issued. The defendant was immediately arrested for operating an automobile without a valid license, and he was asked to step from the car. Officer Fine then radioed his dispatcher confirming that Mick was wanted in connection with the Holt burglary investigation, and also verifying that the license plate on the vehicle was issued to the defendant. In addition, it appears the car was not registered to the defendant and the license plate was issued to another make of car.

While in the process of approaching the automobile, questioning the defendant and as the defendant opened the door to alight from the car, the officers observed in plain view, from the outside of the car and with the aid of flashlights, certain items in the rear seat and on the floor boards of the rear seat and on the floor boards of the two flashlights, pliers, a large screw driver, two pairs of brown cotton gloves, a tire tool, and two or three shirts.

With these facts in mind, Officer Fine took the defendant to the rear of the car along with the only passenger in the car, the defendant's minor brother; and Trooper Mills searched the interior of the vehicle. The search turned up a brown paper bag containing about twenty-four dollars in change concealed under the driver's side of the front seat and a dagger with a ten-inch blade hidden under the dash. At that point the defendant and his brother were arrested for investigation of burglary, the bag of change and dagger were seized, and the automobile was towed into custody. However, the record does not clearly reveal whether the defendant was informed that he was under arrest in connection with the Holt burglary investigation before the search was undertaken; the officer's accounts appear to conflict on this point.

The sundry tools, gloves, and items of clothing observed by the officers before the search was conducted were not removed from the car until morning after the car had been impounded. The bag of change was taken to the Clay County Sheriff's Office and counted by Officer Fine, revealing it contained twenty-three dollars and fifty-six cents in loose currency and one wrapped roll of fifty pennies--a total of twenty-four dollars and six cents ($24.06).

At trial, the State's evidence revealed that a building owned by Kindred Chevrolet and Oldsmobile, Inc., was broken and entered sometime between closing time on October 13, 1970 and 7:30 a.m., on the 14th of October, when the loss was discovered. The cash box in the office had been opened and twenty-one dollars and ninety-six cents ($21.96) had been removed, and the soft-drink machine had been broken open and an unknown amount of change was taken. The bookkeeper at the auto dealership indicated that one roll of fifty pennies wrapped in red paper similar to the roll seized at the defendant's arrest was present in the cash box before the crime and missing the next day. The amount of change found in the automobile was twenty-four dollars and six cents ($24.06). The Kindred dealership is located near the junction of routes 169 and 92 in Clay County within the corporate limits of Smithville, and the defendant was arrested in North Kansas City--some distance from the scene of the crime, but on a direct route to the Kindred business establishment.

The officers assigned to the investigation indicated that the showroom door of the building had been pried open and that this appeared to be the way the burglars gained access to the inside. A faint trail of footprints was discovered leading from the east of the building through a beanfield and to Commercial Avenue or old 169 Highway, which was about one thousand feet behind the building. The ground in the area was relatively soft and the footprints were not difficult to follow. A tire print was discovered near the edge of the street, which had a distinctive characteristic. It had a piece of tread missing in a strip approximately two inches wide and eight inches long with a triangular shape at one end. A photograph of a tire on the impounded vehicle was introduced into evidence to demonstrate that the tire had a piece of missing tread in exactly the same configuration as the photograph of the tire print from Commercial Avenue. Furthermore, the investigator testified that the beanfield was filled with cockleburs; samples of the cockleburs taken from the field were introduced into evidence along with equivalent samples removed from the clothing seized from the impounded vehicle.

The defendant's first point on appeal concerns the claimed error committed in overruling his motion to suppress the physical evidence removed from the automobile and the photograph of the car's tire. He correctly argues that a warrantless search of a motor vehicle is unreasonable per se and as a consequence violative of the Fourth Amendment of the United States Constitution unless the State can carry its burden of showing it falls within one of the enumerated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). State v. Witherspoon, 460 S.W.2d 281 (Mo.1970). State v. Koen, 487 S.W.2d 562 (Mo.1972).

First, defendant contends that his arrest for a traffic offense does not justify the search as incident to that arrest because an arrest for a minor traffic offense does not justify a search for weapons, and, since there could have been no other evidence of the offense of driving without a permit contained in the vehicle, the search cannot be justified as an attempt to search for additional evidence of the crime incident to the arrest. It is true that a full search of a motor vehicle for weapons requires something more than a valid arrest for a traffic offense. State v. Meeks, 467 S.W.2d 65 (Mo.banc 1971). United States v. Story, 463 F.2d 326 (8th Cir. 1972). Furthermore, the defendant contends that the search cannot be justified as incident to an arrest for investigation of the Holt burglary principally because the officers lacked probable cause to make that arrest. The questions concerning the justification of the search as incident to a valid arrest need not be decided since the conduct of the officers was proper for another reason.

If an officer has probable cause to believe that an automobile contains articles that offend against the law, he is entitled to conduct a warrantless search and seize any contraband discovered, notwithstanding the fact that the search might not be justified if a motor vehicle were not involved. Carroll et al. v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). State v. Mesmer, 501 S.W.2d 192 (Mo.App. decided October 1, 1973). State v. Hornbeck, 492 S.W.2d 802 (Mo.1973). Furthermore, when a search is justified on these grounds, the officer need not choose between a possibly inadequate search at the scene and impounding and holding the car until a warrant arrives; the search and seizure may be...