State v. Peterson

• Citation: 583 S.W.2d 277
• Decision Date: 11 June 1979
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant. 30270.
• Court: Court of Appeal of Missouri (US)

Page 277

583 S.W.2d 277

STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant.

No. KCD 30270.

Missouri Court of Appeals, Western District.

June 11, 1979.

Robert G. Duncan, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.

Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.

CLARK, Judge.

Gerald D. Peterson appeals from his conviction of burglary second degree and stealing. Reversed.

The case against defendant was based on circumstantial evidence consisting of stolen articles and burglary tools. In this appeal defendant contends that the incriminating evidence was obtained by unlawful search and seizure in violation of rights protected by the Fourth Amendment and that the trial court erred in failing to suppress such evidence in response to defendant's motion.

A summary of the evidence presented at the suppression motion hearing is necessary to define the legal issues. That evidence consisted of a stipulation of facts filed by counsel and the testimony of witnesses called by defendant. In certain particulars hereafter identified, the evidence was conflicting. Facts not in controversy follow.

Between August 29 and September 1, 1975, the Poucher residence in St. Joseph was burglarized and personal property including a coin collection was taken. On the suggestion of an informant, officers conducted a search of a Kansas City residence owned and occupied by one Hamon. The search was made during early morning hours on September 9, 1975. Hamon gave his consent to the search. Although a search warrant had been obtained, it was neither served upon nor disclosed to Hamon. At the time of the search, defendant was not a suspect and was not present.

Among the areas of the Hamon residence searched was a basement room accessible from inside the house through an unlocked door and from an outside door which was locked. Hamon informed the officers that the basement room was rented to the defendant, that defendant had recently been in the room and that defendant carried a key to the outside door. Stolen articles and burglar tools were seized after a search of the basement room.

As a result of evidence obtained from the Hamon residence, a warrant was issued for defendant's arrest. The evening of September 9, 1975, a parked automobile was located matching a description broadcast of defendant's car. After a neighborhood investigation, defendant was found in a nearby apartment and was arrested.

At the time of defendant's arrest, his automobile was legally parked on a residential street and was locked. The police ordered the car towed to an impoundment area and obtained the keys from defendant to facilitate the towing. Before the car was moved, an officer conducted an inventory search and identified for this purpose several items which included a notebook found on the rear seat of the car. The officer read through the notebook and found that it contained a listing of coins by year, denomination and value corresponding with the inventory of coins reported stolen in the Poucher burglary.

After defendant's automobile was towed to the police garage, a warrant to search the car was obtained based on an affidavit which recited the contents of the notebook and the other events described above. A search of the vehicle pursuant to the warrant resulted in the recovery of numerous coins and coin containers, all identified as the property of Poucher and missing after the burglary.

Defendant's motion to suppress the evidence seized from the basement room at the Hamon residence and from defendant's automobile was overruled. The case proceeded to trial before the court, defendant was found guilty and this appeal followed.

Defendant first challenges the validity of the warrant issued for the search of the Hamon residence on the grounds that the application for the warrant failed to comply with Sections 542.271 and 542.276 RSMo 1969 and that neither the reliability of the undisclosed informant nor the information conveyed by him through an intermediary was shown. These defects in the process which generated the warrant are apparent but do not present issues for resolution in this case. Under the agreed facts, the warrant was never executed and its existence was unknown to Hamon until after the search had been concluded and the officers had left the premises with the articles seized. Validity of the warrant is immaterial.

As the police officers failed to employ and rely on the warrant as the basis for their entry and search of the residence, availability to the state in this criminal prosecution of the evidence seized depends on a valid consent to the otherwise impermissible intrusion. The record, while not devoid of suggestive circumstances, does not permit a conclusion that Hamon's consent to the search was involuntary or coerced. The pertinent inquiry is as to Hamon's authority to consent to the search of the basement room and defendant's standing to assert a constitutional right to protection against the search without a warrant and without defendant's consent.

Evidence presented to the trial court on the motion to suppress was in conflict regarding defendant's status as a tenant in the basement room. While the parties did purport to stipulate as to relevant facts, the witnesses in their testimony did not adhere to the stipulation. Such stipulation included the following:

"13. Detective Austin testified at the preliminary hearing that * * * (Hamon) stated that defendant had not used the room for over two months and had not paid rent until one week prior to September 9, 1975 * * * ."

Significantly, the stipulation did not purport to conclude the issue of defendant's status as a tenant, only the fact of Austin's previous testimony. Indeed, when Austin subsequently testified at the suppression motion hearing conducted at the request of the trial court, his evidence was in apparent contradiction of the stipulation. He there related Hamon's statement as being to the effect that defendant had ceased being a rent-paying tenant a month and a half to two months before and defendant's recent access to the room was only on Hamon's consent that defendant could "store some stuff there". This latter version was confirmed by the testimony of detective Reed.

Hamon, called by defendant to testify in support of the motion to suppress, denied making the statements described by the officers and stated that defendant was, at the time of the search, a tenant in the basement room, had not vacated the premises and was current in his rent. In explanation of evidence which indicated Hamon's access to the room, he acknowledged entry to the room on occasion to "look around".

The warrantless search of a private dwelling can survive constitutional inhibition only upon a showing that the surrounding facts brought the search within one of the exceptions which excuse the requirement of the warrant. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Initially, the entry of the officers was validated by the consent of Hamon who admitted them and permitted the search. As to the basement room, however, defendant contended by his motion that the consent was ineffective and it was therefore incumbent upon defendant to show a sufficient interest in the premises to establish himself as a person aggrieved and as one entitled to a reasonable expectation of privacy. Rakas et al. v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); In re J.R.M., 487 S.W.2d 502 (Mo. banc 1972).

The evidence, as previously noted, presented an issue of fact as to defendant's use, occupancy and tenancy in the basement room. The only direct evidence was that of Hamon and, if believed, would have established defendant's interest in the premises sufficient to avoid the warrantless search of the room and invalidate for evidentiary use the articles seized. Hamon's testimony was, however, impeached by testimony of the officers who related an earlier and contradictory statement by Hamon describing defendant's occupancy and rent-paying status.

Although the trial court here made no express findings of fact, the order overruling defendant's motion to suppress the evidence seized from the basement room must necessarily have been premised on disbelief of Hamon's testimony. The trial court is, of course, entitled to accept or reject on grounds of credibility the testimony of any witness and such belief is binding on this court. State v. Oldham, 546 S.W.2d 766 (Mo.App.1977); State v. Alewine, 474 S.W.2d 848 (Mo.1971). Upon failure of Hamon's testimony, defendant having not been present at the time of the search and having otherwise shown no interest in the premises, he lacked standing to invoke Fourth Amendment rights or to complain that Hamon's consent to the search was deficient. The articles seized from the basement room were therefore properly received in evidence and no error is found in the trial court's order overruling the motion to suppress such...