State v. Moore, WD

• Decision Date: 02 August 1983
• Docket Number: No. WD,WD
• Citation: 659 S.W.2d 252
• Parties: STATE of Missouri, Respondent. v. Dennis B. MOORE, Appellant. 32966.
• Court: Missouri Court of Appeals

Page 252

659 S.W.2d 252

STATE of Missouri, Respondent. v. Dennis B. MOORE, Appellant.

No. WD 32966.

Missouri Court of Appeals Western District.

Aug. 2, 1983.

As Modified Oct. 4, 1983.

Phillip R. Gibson (argued), Kansas City, for appellant.

William N. Marshall (argued), Harrisonville, for respondent.

Before SOMERVILLE, C.J., and SHANGLER, PRITCHARD, DIXON, TURNAGE, MANFORD and NUGENT, JJ.

NUGENT, Judge.

Defendant was convicted by a jury of possession of marijuana, § 195.020, ¹ sentenced to thirty days in jail, and fined $500. He argues both that his warrantless arrest was unlawful and that the subsequent warrantless search and seizure of evidence in his home was unlawful. We reverse.

At 1:30 a.m. on October 13, 1980, Deputy Sheriff John Lucas of the Cass County Sheriff's Department was sent to a residence in Belton, Missouri, to inform Mr. Richard Bailey, thought to reside therein, that his car was on fire in a school parking lot. As he approached the house, Officer Lucas passed a front window through which he could see one person asleep on a couch and another asleep in a chair. Between them was a coffee table on which rested an open fruitcake can containing a green, leafy substance believed by the officer to be marijuana. He knocked at the door which was answered by the defendant, the person seen sleeping on the couch. The defendant, Mr. Moore, informed the officer that Mr. Bailey was not there but took the message.

Officer Lucas then left, returned to the Belton Police Department, and consulted with Detective Jack Harris. Mr. Harris called the Cass County prosecuting attorney who advised him that probable cause existed to arrest the owner of the house for possession of marijuana.

Officer Lucas, Detective Harris and a third officer, Sgt. Wright, then returned to the house at about 2:30 a.m. Officer Lucas and Sgt. Wright each carried a service revolver and Detective Harris carried a .12 gauge shotgun. As they walked by the front window, they again saw the defendant asleep on the couch, but neither the second sleeper nor the fruitcake can was visible. In response to their knock, defendant answered the door. Although on direct examination at trial Officer Lucas testified that the defendant "came out on the porch," he also described defendant's position as "half in the house and half out of the house," with "the biggest part of him" outside. The officer told Mr. Moore that he had seen the marijuana on his previous visit, advised him that he was under arrest for possession of a controlled substance, and read him a Miranda warning.

Defendant "made a motion with his hand," said something to the effect of "Oh, shit," turned around, and went back into the house. Officer Lucas interpreted defendant's gesture to mean he should follow so the three men entered the house. They followed Mr. Moore into the living room area where he reached under the couch, retrieved the can and handed it to Officer Lucas. The contents were later analyzed and found to be less than thirty-five grams of marijuana.

The other sleeper was found behind the couch, apparently still asleep, and was placed under arrest.

The defendant presented no evidence at trial. The jury returned a verdict of guilty and defendant was sentenced to thirty days in jail and fined $500.

In defendant's first point, that his warrantless arrest was unlawful, he relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), for the rule that absent consent or exigent circumstances, warrantless arrests within the confines of one's home are unconstitutional. Although we have serious doubts as to the applicability of Payton to this case where the defendant was at least partially outside of his home at the time of the arrest, in light of the fact that Payton carefully drew a "firm line at the entrance to the house," referring to it as "that threshold [which] may not reasonably be crossed without a warrant," Id. at 590, 100 S.Ct. at 1382, the point is one we need not decide. We find defendant's warrantless arrest to be unlawful for a more fundamental reason--lack of probable cause.

In Missouri, a warrantless arrest is authorized only if it is based on probable cause, State v. Garrett, 627 S.W.2d 635, 641 (Mo.1982) (en banc); State v. Olds, 603 S.W.2d 501, 505 (Mo.1980) (en banc), a proposition said in Garrett to be "so well recognized that it needs no authority."

Probable cause for an arrest without a warrant carries two requirements. First, the facts within the arresting officers' knowledge must be sufficient to warrant "a man of reasonable caution in a belief that an offense has been or is being committed." Second, the facts must warrant a belief "that the person arrested is guilty of that offense." State v. Olds, supra, at 505. See also State v. Garrett, supra, stating that probable cause requires facts sufficient to warrant a belief that "the person being arrested had committed the offense for which he has been placed in custody" (emphasis added), and State v. Berry, 609 S.W.2d 948, 952 (Mo.1980) (en banc), stating that probable cause requires facts sufficient to believe that the defendant has committed an offense.

In other words, reason to believe, or even certainty that an offense has been or is being committed does not constitute probable cause to arrest a particular individual unless reason also exists to believe that that individual committed the offense. Although "[a] broad gulf exists between what is necessary to prove one guilty and the requirement of probable cause of a warrantless arrest ... [B]are suspicion ... is not enough to support a finding of probable cause for a warrantless arrest." State v. Grady, 548 S.W.2d 601, 608 (Mo.App.1977).

A police officer with some training and experience in the recognition of controlled substances who sees through a window material he believes to be marijuana has probable cause to believe that someone inside is or recently was unlawfully in possession of a controlled substance. The question here, however, is whether probable cause exists in that circumstance to believe that the first person to answer the door is, in fact, the possessor. We think not.

Probable cause must, of course, be analyzed according to the facts known at the time of arrest, not according to facts learned later. At the time the officers here arrested Mr. Moore, they knew that he had been sleeping in the house (although not in the bedroom), that he had answered the door earlier and that a Mr. Bailey was not present. They did not know whether defendant resided in the house (either as tenant or owner) or was a mere guest. All they knew for certain was that he was present in a dwelling where contraband was located. Our analysis of probable cause, then, must proceed on the basis that at the time of arrest the officers had no reasonable basis for a determination of defendant's status other than his mere presence. Whether he was the owner, a tenant, a guest or a trespasser was a matter of surmise.

The United States Supreme Court addressed the relationship of presence and possession in United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), in which, during a raid of an industrial complex, the defendant was found standing a few feet away from a still. He was charged with possession of an illegal still and convicted on the basis of 26 U.S.C. § 5601(b) which provided that the presence of the defendant at the site "shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury." The Court found such a statutory inference unconstitutional, stating at 144, 86 S.Ct. at 284 that

It may be ... that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. The crime remains possession, not presence, and with all due deference to the judgment of Congress, the former may not constitutionally be inferred from the latter. (Emphasis added.)

The holding in Romano provided the basis for the reversal of a conviction for possession of marijuana in United States v. Wynn, 544 F.2d 786 (5th Cir.1977). Officers there found forty to fifty marijuana plants growing one hundred yards from an occupied house. While gathering the plants, the officers observed defendant Wynn driving up to the house. Asked if he owned the residence, Wynn said he did not but that a friend of his was the owner. When asked if the friend was home, defendant suggested they all go to the house to find out. They did so. Inside were three persons sleeping in various rooms, with marijuana in plain view. All the occupants were arrested for possession of marijuana, including the defendant who admitted having a "coming and going" relationship with the owner of the house. On review, the court held at 791 that defendant's conviction could not stand:

His offense was no more than selecting an unfortunate time to visit a friend.... A contrary holding would exalt mere presence to a sufficient basis for an arrest for a crime of possession. The Supreme Court had held that presence alone, unilluminated by other facts, is insufficient proof of possession [citing United States v. Romano ]. Appellant's "coming and going" relationship with the owner of the residence ... may not be extrapolated into establishing any greater probability of possession than would be furnished by mere proximity to the thing allegedly possessed.... The probability of possession by Wynn in the present case was an insufficient basis for a legal arrest. (Emphasis added.)

Even more specifically, the Supreme Court has considered the sufficiency of probable cause for a warrantless arrest for possession of controlled substances made before the arresting officers knew whether the defendant was the sole occupant of the living quarters and has found such probable cause lacking. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, ...