State v. Porter
| Decision Date | 13 July 1968 |
| Docket Number | No. 45207,45207 |
| Citation | 443 P.2d 360,201 Kan. 778 |
| Parties | STATE of Kansas, Appellee, v. Lee T. PORTER, a/k/a Barney Porter, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way.
2. Incriminating statements or admissions which are made freely and voluntarily without threat of force or compulsion are not barred under the rules set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but are admissible in evidence.
3. The possession and control of a pistol contemplated by K.S.A. 21-2611 is the exercise of dominion thereover, or the right and authority to possess, control and manage its use and disposition.
4. Possession of a pistol within the purview of K.S.A. 21-2611 may be joint as well as individual and two or more persons may have the power of control and intend to manage, control and use it jointly.
5. Where a previous conviction of felony has been relied upon to establish a violation of the felony firearms statute (K.S.A. 21-2611) it may not also be used to invoke the provisions of the Habitual Criminal Act. (K.S.A. 21-107a.)
6. The record is examined in an action wherein the defendant was convicted of violating K.S.A. 21-2611 and for reasons appearing in the opinion it is held: (1) The defendant's incriminating statement was admissible in evidence; (2) the defense of entrapment is not available under the circumstances of this case; (3) the judgment of conviction is supported by the evidence; and (4) the sentence pronounced against the defendant is invalid and a corrected sentence must be imposed.
P. A. Townsend, Topeka, argued the cause and was on the brief for appellant.
Robert D. Hecht, County Atty., argued the cause and was on the brief for appellee.
This case chronicles another episode in the eventful life of Lee T. Porter, also, and perhaps better known to certain residents of Topeka, as Barney Porter.
On April 3, 1967, a search warrant was issued to search Mr. Porter's residence for a pistol, and a bevy of five police officers proceeded to descend upon Porter's premises to execute the mandate of the warrant.
As Mr. Porter greeted the officers upon their arrival, one of the policemen, Captain Ray Pope of the Topeka Police Department, told Porter that he wanted, or had a search warrant for, his pistol. To this verbal communication Mr. Porter replied 'You can't have my pistol.' Upon being handed the search warrant, Porter examined the same and then led the officers to a locked bedroom, unlocked the door, walked to a dresser, opened the third drawer and started to reach for a pistol which was lying there. However, one of the officers reached in, took possession of the pistol and unloaded it.
Following the discovery of the loaded pistol, the defendant was placed under arrest and was escorted to jail. In due course of time an information was filed in district court charging Mr. Porter under K.S.A. 21-2611 with having a pistol in his possession and under his control, having previously been convicted of third degree manslaughter.
The case was tried to the court, where the state's evidence reflected the facts we have just related. At the conclusion of the state's case, a motion for discharge was interposed, which was overruled by the court. No evidence was introduced by or on behalf of the defendant, and the trial court found Mr. Porter guilty as charged. Two prior convictions were introduced at time of sentence and the defendant was sentenced to a term of not less than fifteen years as a 'three time loser,' pursuant to the provisions of the Habitual Criminal Act.
Bitter complaint is lodged against the admission into evidence of the defendant's statement directed to Captain Pope that 'You can't have my pistol.' This statement, it will be recalled, was made by Porter in reply to Pope's verbal advice that they had come for 'his' pistol. It was and is contended that Porter's response was in the nature of a confession or an admission, made to an officer during custodial investigation without an appropriate warning having first been given. In other words the defendant maintains he should have been given a 'Miranda' warning, failing which his statement was inadmissible.
The defendant does not contend that his remark, which we may consider as inculpatory, was either coerced or involuntary. Indeed, such a claim would be absurd, for clearly the statement bears no mark of force or compulsion in its making. The entire thrust of Porter's argument is that the incriminating exclamation was made during custodial interrogation and hence, at its inception, was tainted with inadmissibility under the authority of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
In our opinion, the defendant's position is untenable. While it is true that Porter was given no warning, and was not advised of his rights at the time the police arrived, the officers came not to question Porter but to search his house for a gun. Accordingly, no questions were asked of him; he was merely told the purpose of the visitation. We think it apparent that Porter's privilege against self-incrimination had not been placed in jeopardy when he spontaneously spoke his mind to Captain Pope.
An in-custody interrogation of a suspect is one conducted while he is held in custody at a police station, jail or similar facility, or while his freedom of action is otherwise significantly limited or curtailed. In Miranda v. State of Arizona, supra, the term is thus defined:
'* * * By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. * * *' (p. 444, 86 S.Ct. p. 1612.)
It is our view that the circumstances under which Porter uttered his incriminating comment do not bring this case within the ambit of the Escobedo and Miranda decisions. Although five officers were in attendance at Porter's residence, we find no suggestion in the record that their presence was oppressive or created an aura of compulsion. Furthermore, they initiated no process of interrogation against the defendant.
The Miranda rule is not intended to vitiate admissions voluntarily made and unattended by threat of compulsion. This was forcefully pointed out by Justice O'Connor in the recent case of State v. Little, 201 Kan. 94, 439 P.2d...
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State v. Long
...State v. Knowles, 209 Kan. at 678, 498 P.2d 40; State v. Brown, 203 Kan. 884, 885-86, 457 P.2d 130 (1969). See also State v. Porter, 201 Kan. 778, 781, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805 (1969); State v. Phinis, 199 Kan. 472, 430 P.2d 251 (1967). 5......
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...on constructive possession, the State relied on several cases, two of which are particularly helpful to our analysis—State v. Porter, 201 Kan. 778, 443 P.2d 360 (1968), cert. denied393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805 (1969), and State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985......
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...of our cases have spoken in terms of 'dominion' and 'control' of a firearm in defining the concept of possession. In State v. Porter, 201 Kan. 778, 443 P.2d 360, cert. den. 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805, the court 'The possession and control of a pistol contemplated by K.S.A. ......
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...holding that custody began when the defendant was taken to the police station and informed she was in custody. See State v. Porter, 201 Kan. 778, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805 In State v. Carson, 216 Kan. 711, 533 P.2d 1342 (1975), we set fort......