State v. Phelps

• Decision Date: 14 December 1964
• Docket Number: No. 50372,No. 1,50372,1
• Citation: 384 S.W.2d 616
• Parties: STATE of Missouri, Respondent, v. Herbert PHELPS, Appellant
• Court: Missouri Supreme Court

Page 616

384 S.W.2d 616

STATE of Missouri, Respondent, v.Herbert PHELPS, Appellant.

No. 50372.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1964.

Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.

Gene A. DeLeve, Kansas City, for appellant.

HENLEY, Judge.

By an amended information alleging that defendant had previously been convicted of burglary in the second degree and stealing and thereafter sentenced therefor to two years in the penitentiary on each conviction to run concurrently and paroled (Section 556.280), the defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon.Section 560.120.Prior to trial day, evidence was heard on defendant's motion to suppress the use in evidence of articles described in the information, and other articles, and to suppress the testimony of certain police officers and any information gained by them in a search of his person and the seizure of said articles, which motion was overruled.His trial by a jury resulted in a verdict of guilty as charged.The trial court heard evidence of the prior convictions in July, 1961, in the Circuit Court of Jackson County, Missouri, but did not make a finding of record that defendant had prior thereto been convicted, sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor.The court assessed his punishment and sentenced him to serve fifteen years in the Department of Corrections.Defendant was represented at the trial by able counsel appointed by the court.His trial counsel indicated an interest in prosecuting defendant's appeal and, with defendant's approval, was reappointed by the trial court for that purpose.On defendant's motion, he was permitted to appeal in forma pauperis and a transcript was furnished at the expense of the State.Defendant's motion for new trial was overruled and he appeals.

The first assignment of error is that the court erred in overruling his motion to suppress the use in evidence of a .32 caliber revolver and three .32 caliber shells seized from his person for the reason that the search of his person and the seizure of the articles constituted an unlawful search and seizure and violated his rights preserved by Sec. 15, Article I of the Constitution of Missouri, V.A.M.S., and that the use of said articles as evidence would compel defendant to testify against himself in violation of Section 19, Article I of the Constitution of Missouri.Included within this assignment is the further contention that the court erred in overruling his motion to also suppress the testimony of police officers relating to the search, the articles seized, and the place and circumstances under which the search and seizure was made for the same reasons stated above.

The evidence heard by the court on defendant's motion to suppress was substantially as follows and would warrant the court finding: In the process of investigating an armed robbery that occurred at about the noon hour on January 21, 1963 on the west side of Troost Avenue in the area of 31st and Troost in Kansas City, Missouri, and in an effort to apprehend those guilty of that offense, Captain Mark Ruckel and Detectives Fred Hauser, Sidney Harlow, and Carl Halteman of the Kansas City Police Department went to Apartment 203at 3125 Tracy occupied by Frank Gibson and his wife and children as tenants at about 5 o'clock p. m. that day.Earlier that day and before the noon hour Della McCollum, manager and janitor of this apartment building, had reported to the police department that on the evening before she had seen Frank Gibson, and another man about Gibson's height whom she did not recognize, in a new Ford Galaxie parked in her back yard; that she knew Gibson did not own a car; that she took down the license number of the car and then she observed Gibson change the numeral '4' on the license plate to look like a '1', and furnished the police with the license number.This witness also testified that she knew the defendant and in reply to a question by defendant's counsel as to whether defendant was the man with Gibson in the Ford the evening before she said, 'I would say it was not him [defendant].'She further testified that defendant was not a tenant of the apartment building, that 'he just visited there.'After the noon hour the police department received a report of the armed robbery of J. Winston Thompson in the area of 31st and Troost at or during the noon hour by two young white men, one of whom had held up Mr. Thompson on the sidewalk while the other remained in an automobile close by.The hold-up men had escaped from the scene in a late model Ford meeting the description and having the license number furnished that morning by Della McCollum.

With this information and knowledge and a general description of the hold-up men the four officers went to 3125 Tracy to interrogate and probably arrest Frank Gibson and another man for the robbery of Mr. Thompson.On arrival Captain Ruckel and Detective Harlow went in the building, and Detectives Hauser and Halteman remained outside for a few minutes.Before going upstairs to the Gibson apartment, the Captain and Harlow first talked with Della McCollum who described to them the floor plan of the Gibson apartment on the second floor and the location of a clothes closet of that apartment across the hall from the Gibson bathroom.

The Captain and Harlow then went to the Gibson apartment where, after identifying themselves, they were admitted to the apartment and arrested Gibson.In addition to Gibson, his wife and another lady, there was present in the apartment another man whom the officers recognized as a professional bondsman from Kansas City, Kansas, who was not arrested.With Gibson's permission these two officers searched the apartment, but did not go to is closet in the hall.About ten minutes after the Captain and Harlow entered the building, Detectives Hauser and Halteman entered the back door and met Mrs. McCollum who described to them the floor plan of the Gibson apartment and the location of its hall closet.On reaching the second floor hall the detectives noticed that the closet door 'was closed but not securely shut.'Detective Hauser, with his pistol drawn, opened the closet door and there, lying on his back on the closet floor, was Herbert Phelps looking into the barrel of Hauser's pistol.He was directed to 'get up easy' and told that he was under arrest for investigation of the armed robbery of Mr. Thompson earlier that day.Detective Halteman then searched defendant and took from his left breast pocket a .32 high-shot owlhead fully-loaded pistol.After handcuffing him, his person was further searched and three or four hypodermic needles, and other articles commonly used by drug addicts, were found and seized.

The description of one of the two hold-up men matched somewhat the descriptions of both the men seen the evening before by Mrs. McCollum in and around the Ford automobile bearing the same license number of the automobile seen to leave the hold-up scene.The officers knew one of the men around this automobile the evening before was Frank Gibson and the description met that of Gibson; they went to the Gibson apartment to arrest Gibson and, if they could find him there and identify him, to arrest the second man known to have participated in the Thompson robbery, whoever he might be; and, in the opinion of the officers, defendant also met the description of one of the hold-up men.

Considering the above related facts and circumstances in their totality the court could find, as it did, that the arrest of the defendant without a warrant was lawful, and that the subsequent search of his person and seizure of the articles described in the information were incidental to that arrest.

Officers may arrest, without a warrant, one whom they have reasonable cause to believe is guilty of a recent felony.State v. Campbell, Mo., 262 S.W.2d 5;6 C.J.S.ArrestSec. 6, page 587.This court has said, 'What constitutes 'a reasonable and probable ground of suspicion is incapable of exact definition, beyond saying that the officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes.In other words, he must be actuated by such motives as would influence a reasonable man acting in good faith; * * *.'Russo v. Miller, 221 Mo.App. 292, 3 S.W.2d 266, 269.'State v. Cantrell, Mo., 310 S.W.2d 866, 869.There was reasonable cause for the officers to believe defendant was one of the hold-up men and the court did not err in overruling the motion to suppress for the assigned reason that the arrest was unlawful.

When a person has been lawfully arrested officers may take from him articles of evidentiary value without violating his constitutional guaranties against unreasonable searches and seizures.State v. Raines, 339 Mo. 884, 98 S.W.2d 580;79 C.J.S.Searches and SeizuresSec. 26, page 795;State v. Cantrell, supra.The .32 caliber revolver and the three .32 caliber shells were lawfully seized as a result of a lawful search incidental to a lawful arrest.The use of these articles in evidence would not, as defendant contends, compel him to testify against himself in violation of his constitutional rights.22A C.J.S.Criminal LawSec. 650, pages 544-545;State v. Charles, Mo., 268 S.W.2d 830, 834-835.

The arrest, search and seizure were lawful; therefore, the testimony of the police officers relating to the search, the articles seized, and the place and circumstances under which the search and seizure was made was competent evidence.State v. Cochran, Mo., 366 S.W.2d 360, 362[3, 4];State v. Davenport, Mo., 360 S.W.2d 710, 711;State v. Hands, Mo., 260 S.W.2d 14, 20;State v. Raines, 339 Mo. 884, 98 S.W.2d 580, 584-585;State v. Charles, supra;22A C.J.S.Criminal LawSec. 657(7), page 598.Defendant's further contention that the...