State v. Morin

• Decision Date: 17 July 1975
• Docket Number: No. 47694,47694
• Citation: 538 P.2d 684,217 Kan. 646
• Parties: The STATE of Kansas, Appellee, v. Joe H. MORIN, Appellant.
• Court: Kansas Supreme Court

Page 684

538 P.2d 684

217 Kan. 646

The STATE of Kansas, Appellee, v. Joe H. MORIN, Appellant.

No. 47694.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

1. Probable cause, such as may justify an arrest or a search and seizure without warrant, is a reasonable ground for belief of guilt; and this means less than evidence which would justify condemnation or conviction; probable cause exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

2. The record is examined in a criminal action wherein the defendant was convicted of kidnapping and aggravated robbery and for reasons set forth in the opinion it is held the trial court did not err in admitting evidence obtained through search of defendant's truck or abuse its discretion in admitting evidence which had not been disclosed by the state in violation of a discovery order or in permitting a police officer to testify as to the results of a fingerprint test.

Michael B. Rees, of Moulos & Rees, Wichita, argued the cause, and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal case in which the defendant-appellant, Joe H. Morin, was convicted by a jury of kidnapping (K.S.A. 21-3420) and aggravated robbery (21-3427). The facts in the case are not in dispute and are essentially as follows: On December 15, 1973, Ronald Bennett, Manager of the Old Way Station restaurant in Wichita, interviewed a man calling himself Reed David Taylor for a job as a cook. The man was hired and told to report for work the following day. At the trial Bennett identified the defendant, Joe H. Morin, as being the same person as Reed David Taylor. According to Bennett the defendant reported for work on the following afternoon and worked at the restaurant until it closed at 10:00 p. m. After the restaurant had been cleaned up, Bennett offered to give the defendant a ride home, which offer the defendant accepted. A short distance from the restaurant the defendant pulled a gun from his coat and ordered Bennett to return to the restaurant. There the defendant compelled Bennett to open the floor safe. At defendant's direction Bennett placed the money from the safe in a brown plastic bag produced by the defendant. The defendant then bound Bennett to a chair with adhesive tape and fled the scene in Bennett's car, a white 1967 Ford Galaxie.

Bennett freed himself after about 15 minutes and immediately summoned the police. Bennett gave the police descriptions of the robber and his car which were immediately broadcast over the police network. A few minutes thereafter Bennett's white Ford was found abandoned near the East Wichita interchange of the Kansas turnpike. The Kansas Turnpike dispatcher was notified by telephone of the abandoned car and was given a physical description of the robber. In turn the dispatcher radioed this information to all turnpike interchanges near Wichita. The East Wichita interchange on receipt of this information notified the turnpike dispatcher that a man matching the description of the robber had entered the turnpike at the East Wichita interchange driving a blue pickup truck. Not long thereafter the turnpike dispatcher was notified by the Wellington turnpike interchange that a man answering the broadcast description and driving a blue pickup truck bearing red and white license plates had left the turnpike at the Wellington interchange taking highway 160. This information was overheard by the Wichita police dispatcher who immediately inserted it into an all-points bulletin. The Wellington police dispatcher, who had received the all-points bulletin from the Wichita police, notified the Oxford, Kansas, police department giving a description of the suspect and the blue pickup truck. Two Oxford officers in a police car heard the broadcast, drove to the outskirts of town, and waited by highway 160. Soon a blue pickup truck bearing red and white license plates drove by. The officers immediately stopped the truck and asked the driver to step out. He complied. The driver was the defendant. The defendant was informed that he was a suspect in an armed robbery in Wichita. One of the officers conducted a pat-down search of the defendant and found a cocked gun in his right-hand jacket poket. The police broadcast heard by the Oxford officers had stated that the stolen money had been placed in a brown plastic bag. One of the officers looked through a window into the camper where he observed a brown plastic bag. The defendant was placed under arrest and taken to the Oxford police station. The truck was tempuorarily left behind but after a short interval of time one of the police officers returned and drove the truck to the police station. There the truck was searched. A brown plastic bag containing two canvas bags of money and a wig were found under the front seat. At the trial this money was identified as the stolen money. The defendant was found guilty as charged. The defendant has appealed to this court complaining of trial errors.

The first point raised on the appeal is that the district court erred in failing to suppress the physical evidence seized from the defendant and his vehicle. The defendant filed a motion to suppress the evidence obtained in the search prior to the trial. An evidentiary hearing was held on this motion and the motion was denied. The defendant's primary concern was the admission into evidence of the brown plastic bag, the stolen money, and the wig. The defendant challenges the legality of the search of his person and his truck on the basis that the search was not incident to a lawful arrest nor was there probable cause to conduct the search. Accordingly he argues that the evidence obtained from the search should have been suppressed. The primary issue for us to determine is whether or not the arresting officers had probable cause to arrest the defendant and search his person and his truck. On the record before us we have concluded that the arresting officers had probable cause to search the defendant's person for weapons and further to search the vehicle to discover the fruits or instrumentalities of the crime. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, the United States Supreme Court defined probable cause in the following language:

"The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' . . . And this 'means less than evidence which would justify condemnation' or conviction, . . . Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. . . .' (pp. 175, 176, 69 S.Ct. p. 1310.)

This court set out similar requisites of probable cause in State v. Little, 201 Kan. 94, 439 P.2d 387, where we said:

'. . . Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested.' (Syl. 1.)

In State v. Frizzell, 207 Kan. 393, 485 P.2d 160, we stated in regard to the existence of probable cause:

'There is probable cause to search when there exist facts and circumstances sufficient to warrant a reasonable prudent man to believe that an automobile contains contraband or items which offend against the law.' (Syl. 3.)

For recent cases involving probable cause in the search of an automobile see State v. McCollum, 211 Kan. 631, 507 P.2d 196; State v. Undorf, 210 Kan. 1, 499 P.2d 1105; State v. Tygart, 215 Kan. 409, 524 P.2d 753; and State v. Mall, 216 Kan. 287, 532 P.2d 1048.

When we turn to the evidentiary record before us it is clear that the Oxford police officers had the following information at the time they stopped the blue pickup truck which the defendant was driving: They knew that an armed robbery had been committed in Wichita that evening, that the suspect was armed with a pistol, and that the money taken had been put in a brown plastic garbage bag. They knew that the robber was a bearded white male, 5 6 tall, 140 to 160 pounds, stockily built, with shoulder length brown hair which may have been a wig, and wearing gold rim glasses and a jacket with pencils in a sleeve pocket. They also had been informed that the robber had left the scene in a stolen white 1967 Ford Galaxie which shortly thereafter had been found abandoned near the East Wichita turnpike interchange. They had been informed that a man answering the description of the robber had entered the East Wichita turnpike interchange driving a blue pickup truck and that a blue pickup truck bearing red and white license plates driven by a man answering the broadcast description had left the turnpike at the Wellington interchange and had taken highway 160. In a matter of a few minutes the alert Oxford police officers observed a blue pickup with red and white license plates traveling on highway 160. They immediately stopped...