State v. Novak, 53230
| Decision Date | 10 June 1968 |
| Docket Number | No. 53230,No. 1,53230,1 |
| Citation | 428 S.W.2d 585 |
| Parties | STATE of Missouri, Respondent, v. Andrew NOVAK, Jr., Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Lindell R. Church, Sp. Asst. Atty. Gen., Springfield, for respondent.
Homer N. Mastorakos, Robert J. Koster, St. Louis, Cook, Murphy, Lance & Mayer, St. Louis, of counsel, for appellant.
HIGGINS, Commissioner.
Appellant was convicted by a jury of burglary second degree and stealing. Sections 560.070 and 560.110, V.A.M.S. Pursuant to that verdict and upon finding nine prior felony convictions for burglaries, carrying concealed weapons, and possession of burglary tools, the court assessed appellant's punishment at imprisonment for ten years for burglary and five years for stealing, and sentenced him to the custody of the Department of Corrections, the sentences to be served concurrently. Sections 556.280, 560.095, 560.110, V.A.M.S.
Appellant does not question that the state made a case and the record contains ample evidence to sustain the conviction.
Prior to trial defendant filed Motion for the Suppression of Evidence alleging that on October 18, or 19, 1966, at defendant's home, 809 Allen Street, St. Louis, Missouri, certain articles of merchandise were unreasonably, illegally, and unlawfully seized, and intended to be used against defendant; that the articles were taken by St. Louis police officers prior to issuance of an arrest warrant and under such circumstances that the police had no reasonable suspicion that any crime had been committed or that defendant had committed any crime; that the search, made without a warrant, was exploratory and not incident to lawful arrest; that the search and seizure were without warrant or any lawful authority and before the 'unlawful' arrest of defendant and in violation of his constitutional rights; and that the articles so seized should be suppressed against use as evidence against defendant. An evidentiary hearing on this motion was held by a judge other than the trial judge after which the motion was overruled. The motion was submitted to the trial judge at the time of trial and was again overruled. Defendant also objected in trial to receipt in evidence of the items seized at his apartment and was overruled; and the motion to suppress, resubmitted at the close of the state's case, was still denied.
A view of the evidence adduced in this connection, favorable to the state and the court's ruling, supports the following statement.
On October 18--19, 1966, Officer Michael Johnson and Patrolman Wayne Keasling of the St. Louis Police Department were on duty together. At about 1:00 a.m., October 19, 1966, they were checking a car at 11th and Allen when Officer Johnson observed a truck which came out of Tenth and turned east on Allen and, later, a person running at about the intersection of Eighth and Allen. The policemen proceeded east on Allen in their patrol car. 'At about Ninth Street, we saw two or three men * * * carrying boxes from a truck that was parked on the south side of Allen in the 800 block, and as we approached the men began running north towards an areaway, at which time I stopped the car and jumped out and began to pursue them through this areaway which was at 809 Allen.'
The areaway or gangway was shown to be an enclosed space leading from the front or south side of the building numbered 809 Allen Avenue to the north or alley side of the building. At the south or street side there was a door through which the passage was entered. The passage widened after entry and, at its north end, one could go into the alley or yard or turn sharply right, back to the south, and proceed up a wooden stairway to the second floor. There was an area or landing and two apartments at the top of the stairs. The door of one apartment, the south apartment, was immediately south across the landing. The other, the west apartment, had its door about four feet to the right of the stairs on the west side of the landing. There was a window to the right of each of the apartment doors opening onto the landing.
Officer Johnson lost sight of the two men he pursued in the gangway but heard footsteps, 'it sounded like somebody running upstairs,' and found wet footprints leading up the stairway. They led toward the west apartment where defendant ultimately was found. 'It had been raining all night into the early morning, and at this time, there was a light drizzle falling.' Officer Johnson walked upward one step and saw the two doors, each half glass and half wood, leading off the landing at the top of the stairs. By use of a miniature portable radio he then called for help and, within 'a minute or two minutes,' Lieutenant Kleine and Sergeant Long arrived. (Patrolman Keasling had pursued the third man fleeing from the truck west on Allen Street.) 'After the lieutenant had arrived, I explained to him--I was still in the rear yard there keeping the stairway under surveillance--and I explained the facts, what had happened, to him. * * * Sergeant Long also joined us, the lieutenant and myself--walked towards Allen Avenue, towards this areaway again. * * * As we were walking out, we found a large box laying in this areaway right next to the entrance. * * * it had a Carp's Department Store sticker on it, so we had knowledge that there was a Carp's Department Store in our district. Lieutenant Kleine knowing this requested the radio dispatcher to send a car by the Carp's Department Store in our district to ascertain if there was a burglary in that store. * * * We walked out to this truck I mentioned previous, this pickup truck, and we looked in the back and we saw four or five other boxes similar to the one that was found in the areaway, also bearing Carp's Department Store stickers. Now, it was raining this night, from the time we went to work until the time this occurred, and these boxes were not very wet, in fact most of them were still partially dry. Anyway, after we found these boxes and the box in the areaway, the lieutenant requested a car to go by to check the department store to see if it had been burglarized. About five minutes later the car called back and informed the radio dispatcher Carp's Department Store had been burglarized. * * * it was about 1:35 that we found out. * * * Myself, Lieutenant Kleine and Sergeant Long ascended the stairs at the rear of 809 Allen and we began knocking on the two doors, and we received no response. * * * at this time there was a light in the middle room--there was no light but there was light coming from another part of the (west) apartment. * * * We heard movement in the apartment but we received no response to our knock. * * * we only heard movement in the west apartment. * * * Sergeant Long stationed himself on the second floor landing, there is a stairway leading to the third floor, what appeared to be an attic area. * * * myself and Lieutenant Kleine descended the stairs and went to the house in the rear * * * which we found to be vacant except for one apartment and we interviewed a man there as to who lived--* * * Lieutenant Kleine and myself then walked to the front of 809 Allen and stationed ourselves against the building. * * * it was about 1:40 approximately. * * * After a period of about four or five minutes we heard Sergeant Long over the miniature radio put out a call for emergency, that he needed assistance, at which time myself and Lieutenant Kleine ran through the areaway and up the stairs, where we observed Sergeant Long struggling with a white female. Now, at this time he said, 'Andy Novak is in there, go in.' * * * So we observed that the glass had been broken * * * so Lieutenant Kleine tried to reach down to unlock the door. * * * he was unable to, at which time he instructed me--he said, 'Kick the door down.' * * * I kicked it open. * * * it opened into a room which was dark. * * * I shined my light around to make sure there was no one in there, * * * so I proceeded to the second room, which would be the middle room, which was also dark. I again shined my light around. I could hear movement coming from the third room, which would be the front room facing Allen Avenue. I identified myself as a police officer and told them to come out. * * *
'Q (By Mr. Mastorakos) When you went in the apartment then and saw the lady did you tell the people you were a police officer? A Yes, sir. Q Did you tell them what your purpose was for being there? A I said they were under arrest. * * *
'Q And did you find out that that was Andy Novak's home? A He said it, it was his apartment. * * *
'Q Officer, when you placed them under arrest did you tell them what they were under arrest for? A For burglary. Q What grounds were there, what facts or circumstance or what was in the apartment that led you to believe that they had committed a burglary? A In the middle room of the apartment we found three boxes similar to the one found in the areaway, also bearing Carp's stickers. * * *
When Officer Johnson went into the apartment there were four people present, Andrew Novak, Thomas Maddox, Sharon Lyons, and Dorothy Dickson. Prior to entering the apartment he 'knocked on the door many times stating we were police officers, that I was a police officer; heard movement inside, and we still got no answer.'
Lieutenant Virgil Kleine was first called to assist in this case about 1:15 a.m., October 19, 1966, while patrolling in the area of Seventh and Geyer. He drove immediately to 809 Allen and conversed with Officer Johnson on the sidewalk there. It was raining at the time. Officer Johnson 'pointed out some footprints that led back into the dry hallway, leaving an impression in the pavement, and they led northward to the...
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