State v. Preston

• Decision Date: 11 June 1979
• Docket Number: No. 10889,10889
• Citation: 583 S.W.2d 577
• Parties: STATE of Missouri, Respondent, v. Earl Lee PRESTON, Appellant.
• Court: Missouri Court of Appeals

Page 577

583 S.W.2d 577

STATE of Missouri, Respondent, v. Earl Lee PRESTON, Appellant.

No. 10889.

Missouri Court of Appeals, Southern District, Division One.

June 11, 1979.

Betty A. Pace, Springfield, for appellant.

John D. Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Chief Judge.

A jury found defendant Earl Lee Preston guilty of the offense of sodomy (§ 563.230) ¹ and recommended a sentence of 25 years' imprisonment which the trial court imposed. Defendant appeals.

The first of defendant's six "points relied on," none of which is valid, is that the trial court erred in receiving into evidence, over defendant's objection, a jacket and a pair of tennis shoes. The objection was presented initially in a pretrial motion to suppress (§ 542.296 Laws 1974, § 8, p. 922) on which a hearing was held. The objection, renewed at the trial, was based in essence, on the ground that the jacket and shoes were seized by police officers in violation of defendant's rights under § 15 of Art. I of the Constitution of Missouri, and the Fourth and Fourteenth Amendments to the Constitution of the United States.

The circumstances leading up to the seizure by the officers of the jacket and shoes involve two offenses, the felonious stealing of a purse and its contents on June 24, 1977, and the sodomy which was committed on July 27, 1977. The victim of the stealing was Johnna Wheeler. The victim of the sodomy was a ten-year-old boy named Wesley. Both offenses were committed in Springfield, Missouri.

Detective Ted Hobson of the Springfield police department was assigned to the investigation of the stealing case. Detectives Dan Wilson and Tony Glenn, under the supervision of Sgt. Ayers, were assigned to the investigation of the sodomy.

On June 24, 1977, detective Hobson interviewed Johnna Wheeler who was a church secretary. Johnna told Hobson that she always kept her purse under the desk in the lobby of the church; that a black man named Earl Lee Preston had come to the church several times begging for money; that Preston was in the church on the day the purse was stolen. The purse was taken sometime during a period of two or three minutes while Johnna was away from the lobby. Preston was in the lobby when Johnna left it but was not there when she returned. The contents of the purse were of such value that the unlawful taking was a felony. Johnna described Preston as being a black man, about 20 years old, "short hair, kind of fuzzy beard, weighed about 200 pounds, about 5'9 or 5'10 , very stocky and muscular."

Hobson obtained information to the effect that Preston had been living "at the Missouri Motel and also at the Seville Hotel" but efforts by Hobson to find him there has been unsuccessful.

On July 28, 1977, the day following the sodomy offense, detectives Glenn and Wilson interviewed Wesley, the victim. Wesley described his assailant as being a black man, 5'8 or 5'9 , muscular build, short hair, and weighing approximately 150 pounds. Wesley told the officers that his assailant wore a dark leather jacket and a pair of brown tennis shoes with ribbed soles. Another boy, Lance, had told Glenn and Wilson that he had seen a black man in the wooded area where the sodomy took place on the day before that offense was committed. The black man had told Lance that his name was "either Lee or Leroy." Lance described the man as being a male Negro, 5'10 or 5'11 , very large build, very muscular, short hair with facial hair and very dark complexion.

On July 29, 1977, detective Hobson overheard a conversation among officers Glenn and Wilson and Sgt. Ayers concerning the sodomy case, including their description of the sodomy suspect. Hobson informed the other officers that the description fit that of Earl Preston whom Hobson was seeking on a "grand theft charge."

A telephone call to the Seville Hotel elicited information from the clerk to the effect that Preston was registered there and that his room number was 322. Officers Hobson, Glenn and Wilson made one trip to the hotel but Preston was not there at that time.

Later the same day, July 29, officers Glenn and Wilson returned to the Seville Hotel. They did not have a search warrant or an arrest warrant. They knocked on the door and a black man opened it. He was in his 20's, approximately 5'10 or 5'11 , and had a "large build." He told the officers his name was Earl Lee Preston. The officers identified themselves as members of the Springfield police department and asked permission to enter the room. After Preston granted the request the officers informed him that they were placing him under arrest for grand stealing.

While this conversation was taking place the officers "had occasion to observe the contents of room 322" which was a small room. The closet door was standing open and on it was hanging the dark blue jacket in plain view. Sitting under the edge of the bed, also in plain view, was a pair of brown tennis shoes which had ribbed soles. The officers then informed Preston that they wanted to talk with him with regard to a sexual assault which had occurred in Springfield and they told him they were looking for a weapon which had been used in connection with that assault. Glenn testified that he asked Preston "if we could have his permission to search the room" and that Preston "told us we could search it." No weapon was found in the search of the room but the officers took possession of the jacket and shoes. Although the officers were armed they did not draw their weapons but the record is silent on whether the weapons were visible. The officers took Preston and the jacket and shoes to the police station. Before Preston consented to the search, officer Glenn informed him that he had a right to refuse to allow the search.

Defendant does not challenge the legality of his arrest. His argument is that the warrantless seizure of the jacket and shoes was invalid because the requirements of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) were not met.

Chimel imposed limitations upon the scope of a warrantless search justified as being incident to a valid arrest. The Supreme Court of the United States held that a search incident to a valid arrest may extend to the area within the immediate control of the arrestee, that is the area from within which he may gain possession of a weapon or destructible evidence.

In State v. Epperson, 571 S.W.2d 260, 263 (Mo. banc 1978) these principles were stated: In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions; the burden is on the state to show an exception exists; among the exceptions are seizures of evidence in plain view.

This court holds that the seizure was justified under the plain view exception. It is therefore unnecessary to determine whether it is justifiable under other exceptions mentioned in Epperson, including "searches incident to a valid arrest" and "searches with consent."

The plain view exception, or doctrine, received lengthy discussion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Supreme Court of Missouri, summarizing its requirements, has said:

"(Coolidge ) is authority for the proposition that plain view alone is not enough to justify a warrantless seizure. It is necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence be inadvertent and (3) it is apparent to the police that they have evidence before them." State v. Collett, 542 S.W.2d 783, 786 (Mo. banc 1976). ²

Requirement (1) is met in the case at bar because both the jacket and the shoes were in the plain view of officers Glenn and Wilson and the presence of the two of them in defendant's hotel room was with the permission of the defendant himself ³ thus the officers had a right to be there.

Equally clear is the fact that requirement (3) is met. Upon seeing the jacket and the shoes, in light of the information previously given them by Wesley, the officers knew that they had "evidence before them." The fact that the evidence pertained to an offense other than the one for which defendant had been arrested is of no moment. United States v. Simpson, 453 F.2d 1028, 1031(7-8) (1972); Ramirez v. Rodriguez, 467 F.2d 822, 824 (1972).

Requirement (2) is met if it may properly be said that the discovery of the jacket and shoes was "inadvertent." In Coolidge, supra, the supreme court did not define the term "inadvertence." ⁴ That omission is discussed at length and sought to be clarified in United States v. Hare, 589 F.2d 1291 (1979). There the United States Court of Appeals for the Sixth Circuit rejected the contention that the supreme court was using the word "inadvertent" as a synonym for "unexpected" or "unanticipated." Instead, said the court of appeals, the supreme court was using the word "inadvertent" as a synonym for "unintentional."

"We conclude, then, that 'inadvertence' in this context means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise-justified search. There are many times when a police officer may 'expect' to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery." United States v. Hare,...