State v. Pennington

• Decision Date: 03 December 1982
• Docket Number: No. 63456,No. 2,63456,2
• Citation: 642 S.W.2d 646
• Parties: STATE of Missouri, Respondent, v. Edward H. PENNINGTON, Appellant
• Court: Missouri Supreme Court

Page 646

642 S.W.2d 646

STATE of Missouri, Respondent, v. Edward H. PENNINGTON, Appellant.

No. 63456.

Supreme Court of Missouri, Division No. 2.

Dec. 3, 1982.

Rehearing Denied Jan. 11, 1983.

Application for Transfer to Court

En Banc Denied Jan. 11, 1983.

Anne Hall, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Sandra Stratton, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Edward Pennington was convicted by a jury of robbery in the first degree, section 569.020 RSMo 1978; his punishment was fixed at life imprisonment. § 558.011.1(1) RSMo 1978. Sentence and judgment were rendered accordingly. Appellant charges the trial court erred in admitting into evidence items recovered from his automobile under an invalid search warrant and in failing to strike a venireman for cause. Affirmed.

The evidence shows that Pennington entered the North American Savings and Loan Association in Kansas City on January 30, 1981, wearing a trench coat and carrying a briefcase. He proceeded to Teller Jenkins' window where he displayed a handgun and demanded the money in her drawer and in the adjacent drawer of Teller Williams, seated nearby at a desk. After placing the cash, which included "bait money" in the briefcase, he ordered both women to the back of the bank and fled. A hidden camera, triggered by Teller Jenkins when she removed the "bait money" from the drawer, recorded the proceedings.

Four days later police officers in Salina, Utah, stopped a green Buick for speeding. Pennington was driving, his wife and two children were with him. The back seat of the car was filled with personal belongings. Because Pennington expressed concern for a sick baby, the officers first escorted the car to a nearby clinic. While doing so they ran a check on Pennington's driver's license. The officers received information that Pennington was wanted in connection with the Kansas City armed robbery. Upon arriving at the clinic and finding it closed for the lunch hour, Pennington was advised to follow the officers to the City building.

Upon arrival at the office of the Chief of Police, Pennington was informed of the Kansas City warrant and placed under arrest. The Police Chief then called the Kansas City police and received a description of the suspect, serial numbers of the bait money taken during the robbery, and a request for a search for a number of other items associated with the robbery, including a small automatic pistol and a trench coat. The Chief then applied for a search warrant, using this information in the supporting affidavit.

The green Buick had been impounded by police pending a determination of ownership. The car was searched pursuant to the search warrant, and an inventory was made according to department policy at the same time. The search revealed money hidden in the toes of shoes in a knapsack, a knee-high trench coat, briefcase and a .357 magnum. A .25 automatic and some drug paraphernalia had been discovered earlier in a routine search of a shaving kit which the police supposed contained personal items Pennington would need for his stay in jail.

Prior to trial, defendant moved to suppress the search warrant; that motion was overruled. At trial the defendant was identified by both bank tellers as the robber. Photographs of defendant taken during the robbery by the security camera and serial numbers of the bait money taken in the robbery were entered into evidence. The serial numbers corresponded to serial numbers on some of the $6,200.00 found in defendant's car.

I

Appellant charges the trial court erred in admitting into evidence items recovered from his automobile, the briefcase, the knapsack in which the money was hidden, the trench coat and the .25 automatic gun, because the search warrant was based on a defective affidavit. ¹ He argues the affidavit did not provide enough of the underlying circumstances of the robbery to determine if there was probable cause to search the automobile; the affidavit and search warrant did not describe the items with sufficient particularity; and the affidavit did not establish that the items were likely to be stored in the auto or that the car was involved in the robbery.

Probable cause is to be determined from the complaint and, if filed, the supporting affidavits. State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971). The magistrate judge on application for a search warrant is entitled to a common sense reading of the entire supporting affidavit. Id. The Utah affidavit contained statements of fact sufficient to find probable cause for issuing this search warrant: an identification of the suspect, the existence of a warrant for his arrest for armed robbery, the location of a robbery, a description of the car he was driving, a request to search for specific items related to the robbery case and the identity of the Kansas City police officer supplying the information.

Recognizing that only the probability, and not a prima facie showing of criminal activity, is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); that affidavits of probable cause are governed by less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967); and that the determination of probable cause should be accorded deference by reviewing courts, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); it cannot be said that the affidavit was fatally defective with respect to probable cause.

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