State v. Norris, 54349

• Decision Date: 14 December 1970
• Docket Number: No. 54349,54349
• Parties: STATE of Missouri, Respondent, v. Robert Nelson NORRIS, Appellant.
• Court: Missouri Supreme Court

Page 672

460 S.W.2d 672

STATE of Missouri, Respondent, v. Robert Nelson NORRIS, Appellant.

No. 54349.

Supreme Court of Missouri, En Banc.

Dec. 14, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City, for respondent.

John G. Doyen, Clayton, for appellant.

HOLMAN, Judge.

Defendant was charged with the unlawful possession of a narcotic drug, to wit: cannabis, commonly known as marijuana. He was also charged with a prior felony conviction. See §§ 195.020, 195.200, and 556.280, V.A.M.S. At the conclusion of a hearing outside the presence of the jury the court found that, on January 15, 1958, defendant was convicted of the felony of unlawful possession of a narcotic drug in the Circuit Court of Cook County, Illinois, and sentenced to imprisonment for a period of two years and was thereafter imprisoned. The jury found defendant guilty of the offense charged. The court fixed his punishment at imprisonment for a period of 15 years. Defendant has duly appealed. This case has recently come to the undersigned upon reassignment.

The marijuana here involved was found in a search of defendant's residence. Prior to trial defendant filed a motion to suppress the evidence relating to it, alleging that the police did not have a search warrant and no reasonable ground to search, and hence such was in violation of federal and state constitutional provisions. The court heard evidence on that motion and it was overruled. After the appeal was submitted here we made an order directing the trial court to hold an additional hearing on the issue of the relationship of the arrest and the scope of the search, and to make findings of fact thereon. That has been done and the transcript thereof and findings have been filed in this court. In our statement of facts relating to the motion to suppress we will combine the evidence adduced at the two hearings, as follows:

A warrant was issued for the arrest of the defendant for the sale of marijuana on August 15, 1967. The officers went to his home at 5723 McHenry Street in Kinloch twice during the next week but were unable to find defendant at home. On August 22, three St. Louis County officers went to the residence of defendant. Defendant answered the door, the officers entered, and he was immediately placed under arrest. No other person was in the residence except defendant's wife. The officers proceeded at once to search the residence. The residence was a one-story house with a basement. There were four rooms and a bath, all entering into a central hallway. There was a living room in the northeast corner, an empty room in the southeast corner, a bedroom in the southwest corner, a kitchen in the northwest corner, and a bathroom between the bedroom and kitchen. The officers found a quantity of marijuana in a portable metal closet in the bedroom. It was found about ten minutes after the search began and at that time defendant was standing in the hallway about 20 feet away. The officers spent about 30 minutes searching the house. At sometime after the marijuana was found a Kinloch policeman arrived and took defendant to the Kinloch police station and booked him. He then returned defendant to his home where the St. Louis County police officers again took him into custody and transported him to the county police station. The officers were at the defendant's home about one and one half hours that morning.

It was brought out at the second hearing that the sale for which the warrant had been issued had been made through an informant whose name was Gary Blackwood. The officers did not have a search warrant on the occasion in question.

At the conclusion of the second hearing the trial court made a finding which detailed the relevant facts and concluded with the finding that 'the search of the premises incidental to the arrest of the defendant was proper and reasonable under the then existing law and further that said search was reasonably related in scope to the arrest of the defendant on the prior sale of a narcotic drug, to wit: marijuana.'

At the trial of the case the two police officers who had testified at the hearing on the motion to suppress testified to about the same facts as heretofore stated. One additional fact is that the officers gave defendant a warning concerning his constitutional rights, and then, in response to a question, defendant stated that he resided at that address. Additionally, Robert Roither, a police department chemist, testified that he had examined and tested the contents of a package delivered to his office by the police and found it to be marijuana. The package delivered to the chemist had been properly identified as containing the substance that had been found in defendant's residence.

The defendant offered no evidence.

The first point stated by defendant in his brief is that 'the trial court erred in failing to suppress as evidence State's Exhibit 'A' (marijuana) that was seized by police officers after a search without a warrant because: 'A. The search and seizure were not incidental to the arrest. B. There was no probable cause to believe the offense of possession of narcotics was being committed.' It is undisputed that the arrest of defendant, made under the authority of a warrant, was lawful. 'It is further well settled that when a person has been lawfully arrested, a search without a warrant may be made of the person and of the premises where he was arrested.' State v. Jefferson, Mo.Sup., 391 S.W.2d 885, 888. See also State v. Novak, Mo.Sup., 428 S.W.2d 585(9); State v. Edwards, Mo.Sup., 317 S.W.2d 441(2, 3); State v. Darabcsek, Mo.Sup., 412 S.W.2d 97(4, 5, 6); State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743(2); State v. Hadlock, 316 Mo. 1, 289 S.W. 945(4), and State v. Pinto, 312 Mo. 99, 279 S.W. 144(6).

The Supreme Court of the United States has said that '(w)hat is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are 'unreasonable' searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. Reasonableness is in the first instance for the District Court to determine. We think the District Court's conclusion that here the search and seizure were reasonable should be sustained because: (1) the search and seizure were incident to a valid arrest; * * *' United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed.2d 653. We have difficulty in understanding the contention that this search was not incidental to the arrest. 'Incident' has been defined as 'dependent on or appertaining to another thing: directly and immediately relating to or involved in something else though not an essential part of it.' Webster's Third New International Dictionary. In this case the search took place immediately after the arrest of defendant and the marijuana was found 10 or 15 minutes thereafter. The search was reasonably conducted in that it involved a small house, was done in an orderly fashion with defendant present, and was concluded within a relatively short time. In the argument portion of his brief defendant first says the search was unlawful because the police had no search warrant, but of course that is not true where, as here, it was incident to a lawful arrest. He next says that this search does not come within that exception because the arrest and search did not take place contemporaneously. That is obviously not supported by the facts. The next assertion is that the search was not justified because 'there was time for the arresting officers to obtain a search warrant.' This contention was ruled adversely to the defendant in Rabinowitz, supra, as follows: 'Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. In a recent opinion, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, this Court first enunciated the requirement that search warrants must be procured when 'practicable' in a case of search incident to arrest. On the occasion of the previous suggestion of such a test, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, the Court had been scrupulous to restrict the opinion to the familiar situation there presented. * * * A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystalized into a sine qua non to the reasonableness of a search. * * * Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required.' 339 U.S. 64, 65, 66, 70 S.Ct. 434, 435. In support of his contention defendant cited the Trupiano case but frankly conceded that it had been rejected by Rabinowitz.

The final contention relating to the search is that 'the arresting officers had no probable cause for believing that the appellant had narcotics in his possession.' Under this point defendant makes the contention that the police officers did not have sufficient information in their possession to have constituted probable cause upon which they could have obtained a search warrant. We consider that discussion to be totally irrelevant. It is conceded that the officers did not have a search warrant and that the validity of the search depends on it being incident to a lawful arrest.

The foregoing disposes of defendant's contentions in regard to the search and, as indicated, we rule that the evidence obtained...