State v. Rankin, 56569
| Citation | 477 S.W.2d 72 |
| Decision Date | 13 March 1972 |
| Docket Number | No. 56569,No. 2,56569,2 |
| Parties | STATE of Missouri, Respondent, v. Finis Sylvester RANKIN, Appellant |
| Court | United States State Supreme Court of Missouri |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Kansas City, of counsel.
HOUSER, Commissioner.
Finis Sylvester Rankin was convicted by a jury of second degree murder, his punishment was fixed at life imprisonment, and sentence and judgment were rendered accordingly.
The sole point preserved for review on this direct appeal is that the court erred in overruling appellant's motion to supress a pistol as evidence for the reason that his arrest was unlawful and the search of his automobile and seizure of the pistol violated rights guaranteed him by Article I § 15, Constitution of Missouri, 1945 and Amendment XIV to the Constitution of the United States. At the hearing on the motion to suppress there was evidence from which the court could have found these facts:
About 9:30 o'clock at night on February 9, 1970 Officers Hoffecker and Kun of the Kansas City Police Department, returning in a police car from a call, approached the area of 31st Terrace and Wyandotte. There is a barking lot next to the Interstate Vending Company (at No. 30 West 31st Terrace) on which trucks frequently parked. The officers knew that there had been several cases of larceny of trucks from that place; 'several alarms had gone off' at Interstate Vending Company. The officers had made it a practice to stay in that area 'as much as possible.' As they approached the parking lot, which they 'used to write reports and such,' the officers observed a 1963 Chevroled parked in the lot at the west side of No. 30 West 31st Terrace, next to several large moving-van type trucks parked on the lot. There were two persons in the Chevrolet. Its lights were off. As the police car began to turn into the parking lot and approach the Chevrolet the headlights of the Chevrolet were turned on, the Chevrolet started, and it proceeded out of the parking lot and north through an alley towards 31st Street at a speed of 25--30 m.p.h. When the Chevrolet turned right on 31st Street its speed accelerated. The suspicions of the officers were aroused by the fact that the persons in the Chevrolet left at about the time the police car showed up; that the speed at which they made their exit was 'rather fast for a parking lot'; because the officers had been keeping a close surveillance of this parking lot on account of the numerous acts of vandalism, burglaries and thefts of trucks which had occurred there, and because it was 'sort of out of way and unusual for anybody to be in there.' The officers were apprehensive because of the presence of the two men in this particular parking lot at that time of night and the possibility that they were in the process of or contemplating criminal activity in connection with the parked trucks. The officers followed the Chevrolet down the alley, and around the corner. At the trial Officer Hoffecker testified to one additional fact calculated to arouse suspicion and justify temporary detention for investigation, namely, that as the police car was following the Chevrolet he saw the passenger in the Chevrolet (Brown) 'bend forward, and it appeared that he was either placing something or removing something from the front of the seat.' Using the siren and red light, the officers stopped the Chevrolet just west of the intersection of 31st and Main. The Chevrolet stopped ahead of the police car. Appellant was driving. Kenneth Brown was seated in the right front seat. Officer Hoffecker, driver of the police car, got out of the police car and approached the Chevrolet on the right side. Officer Kun walked to the left front of the Chevrolet, asked the driver (appellant) to step out of the car, which he did. Officer Hoeffecker made the same request of passenger Brown. Officer Kun motioned both men to the back of the police car. There he asked to see appellant's driver's license, asked for 'some identification,' checked their identification and asked questions about what they were doing there. When Brown stepped out of the Chevrolet Officer Hoffecker observed what appeared to be a weapon lying on the floor board of the front seat of the Chevrolet. The barrel was under the seat, the handle of the gun 'sticking forward.' The handle of the gun was in plain sight. The officer, by looking inside the car, could see it in the light from nearby street lights, without the aid of a flashlight--'it was pretty well lit up.' Officer Hoffecker reached down and picked up the gun from the floor of the Chevrolet. (A .25 calibre automatic pistol, shown by ballistic tests to have been the weapon used in the killing, and shown by other evidence to have been in appellant's possession prior to the alleged murder.) Officer Hoffecker then placed the two men under arrest for carrying concealed weapons. After the arrests the officers searched the persons of Brown and appellant and found a jackknife on appellant's person. (Brown and appellant subsequently entered pleas of guilty to municipal court charges of carrying a concealed weapon--the pistol in Brown's case; the knife in appellant's case.) After the arrest the officers also searched the Chevrolet without a warrant, for other contraband, but found none. Appellant was the owner of the Chevrolet, which was properly registered.
At the time the officers observed, followed and stopped the Chevrolet no specific criminal activity had been reported to the officers on the radio, no crime was in progress, the officers were not investigating any particular crime, and the Chevrolet was not violating any traffic regulation.
Appellant argues that the pistol was not proper evidence because it was the fruit of an illegal search not made as an incident to a lawful arrest; that the arrest was unlawful because appellant had not committed a misdemeanor in the officers' presence;...
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