State v. Reagan, 47521

• Citation: 328 S.W.2d 26
• Decision Date: 12 October 1959
• Docket Number: No. 1,No. 47521,47521,1
• Parties: STATE of Missouri, Respondent, v. Edward John REAGAN, Appellant
• Court: United States State Supreme Court of Missouri

Page 26

328 S.W.2d 26

STATE of Missouri, Respondent, v. Edward John REAGAN, Appellant.

No. 47521.

Supreme Court of Missouri, Division No. 1.

Oct. 12, 1959.

Leonard Swade, Carl E. Laurent, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Jerry B. Buxton, Asst. Atty. Gen., for respondent.

HYDE, Presiding Judge.

Defendant was convicted of stealing property of the value of more than $50 (Secs. 560.156; 560.161) and under the habitual criminal statutes and sentenced to ten years in the penitentiary. (556.280 and 556.290; all statutory references are to RSMo and V.A.M.S.) Defendant has appealed and assigns error in refusing his motion for directed verdict, in connection with which it is claimed that evidence was used which was obtained by illegal search and seizure.

Evidence was heard on a motion to suppress, which was overruled. The evidence on this issue was substantially the same as the testimony at the trial. The following facts were shown by the State's evidence. On September 12, 1958, Detective Sergeant Dowd (not in uniform) was driving west on Ninth Street in Kansas City when a panel truck, owned by defendant and driven by M. J. Pettit, crowded his car over the curb at Ninth and Benton. He followed the truck to Ninth and Prospect, where it stopped at a filling station. When Pettit got out of the truck, Dowd got out of his car and asked Pettit 'why he drove like that'; and, when Pettit paid no attention to him, he told him he was under arrest. Dowd checked Pettit's driver's license and then went over to the truck on the driver's side and saw defendant sitting in the center of the driver's seat. The truck had windows on each side of the front at the driver's seat and there was no partition behind the seat. Dowd could see in through the driver's window and 'saw a large propeller, which appeared to be a motor propeller, sticking out from under a rug, * * * back probably a foot and a half [behind the driver's seat].' He stated he then had the following conversation with defendant: 'I said, 'What do you have there under the rug?' He said, 'An old outboard motor.' I said, 'What are you going to do with it?' He said, 'Sell it.' I said 'How much do you want for it?' He said, '$50.00.' I said, 'Do you mind if I look at it?' He said, 'No." Dowd went to the rear of the truck, opened the back doors and pulled the rug off the motor. He said: 'I looked at it. It had a tag on it, a tag with directions, and appeared to be a brand new motor, maroon and white, 35 horsepower Elgin. He told me it was an old motor he was going to sell for $50.00, and it looked like it was worth about $400.00 or $500.00.' Defendant was then arrested and taken to the police station. Defendant said it was his truck and he would take full responsibility so Pettit was released.

E. N. Russell identified the motor by brand, size and serial number, as one he had bought about a week before for $475. He said that he had locked it in his station wagon, parked in front of his apartment, on the night of September 11, 1958, intending to take it on a week-end trip the next day. He saw it there at 8:00 P.M. and the next morning at 6:15 A.M. it was gone. The window vent on the right-hand front door of his car was broken and the door was unlocked. The motor was new and had never been used; Russell had taken it out of its crate that night to put it in his car.

Defendant testified that he was playing cards all night (September 11-12, 1958) with two men who so testified. Defendant said he got the motor from a man named Roy Williams, who wanted to sell it to him and who offered to give him a commission of $20 if he could sell it for $100. Defendant said he found a man who was interested, on the afternoon of September 12th, and wanted to see the motor. Defendant said he got the motor from Williams in an alley about a quarter of a block beyond Ninth and Prospect just a few minutes before he was arrested. Defendant said he asked Pettit to drive his truck because Pettit had a driver's license and he did not. It was not explained what had become of Williams.

At the hearing on the motion to suppress, defendant and Pettit testified that Dowd found the motor by opening the back doors of the panel truck and removing the rug, which defendant claimed completely covered the entire motor including the propeller. However, Pettit did admit that 'it is possible to see all throughout the truck standing outside looking in the window' at the driver's seat; and Dowd's testimony was that he saw the propellor of the motor, right behind the front seat, not covered by the rug, while standing by the driver's seat. As we said of a similar situation in State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 692: 'Under these facts defendant's contention as to unlawful and unreasonable search and seizure cannot be sustained. Constitutional guaranties against unreasonable search and seizure apply where seizure is brought about by an unlawful search. Those guaranties are not infringed where the recovery and possession of property theretofore stolen in accomplished without search and where such property lies fully disclosed, open to the eye and in plain view. Where the evidence of an unlawful act is discovered by the officer without a search there is no violation of those constitutional guaranties. A search, within the constitutional provisions invoked, basically involves 'of necessity, a quest for, a looking for, or a seeking out of, that which offends against the law. It implies a prying into hidden places for that which is concealed.' Observation of that which is open to view is not a search. A search (such as is prohibited by the constitutional provisions invoked) is not made by merely looing at that which can be seen.' See also State v. Harris, Mo.App., 325 S.W.2d 352, 356, and cases cited. Furthermore, in this case, Dowd's testimony was he removed the rug only after defendant suggested selling the motor to him and after he had then asked for and received defendant's permission to open the rear doors and look at the motor. All this was after he had seen the propellor through the driver's window. Under these circumstances, as shown by the above cited cases, it is immaterial that Dowd did not arrest defendant until after he inspected the motor. See Searches and Seizures in Missouri, Scurlock, 20 Univ. of Kansas City Law Review 227, 275, 280. Cases cited by defendant, such as State v. Smith, 357 Mo. 467, 209 S.W.2d 138; State v. Cuezze, Mo.Sup., 249 S.W.2d 373, where the articles seized could not have been seen or found without a search are not in point. Moreover, the Smith case, 209 S.W.2d loc. cit. 140, holds that voluntary testimony at the trial concerning possession, such as was given by defendant herein, is a waiver of any right to complain that the motor was obtained by an unlawful search. See also 20 Univ. of Kansas City Law Review 287, and cases cited. We, therefore, hold that defendant's claim of unlawful search and seizure cannot be sustained and that this evidence was properly ruled admissible and received.

Defendant further contends there was no substantial evidence to connect him with the stealing of the motor. Defendant cites cases holding that mere constructive possession of property is insufficient (State v. Wyre, Mo.Sup., 87 S.W.2d 171, 173, and cases cited); and holding that to create an inference of guilt there must not only be exclusive possession but there must be other evidence to connect defendant with the offense. State v. Oliver, 335 Mo. 173, 195 S.W.2d 484; State v. Jordan, Mo.Sup., 235 S.W.2d 379; State v. O'Brien, Mo.Sup., 252 S.W.2d 357. Defendant argues that it was only shown that he was a passenger in the truck when the motor was found in it. However, defendant overlooks the facts that he was the owner of the truck in which the motor was found; that the truck was being driven by Pettit at his request and according to his directions; and that he assumed full responsibility for the motor being in the truck and, in fact, exercised such dominion over it as to try to sell it. This showed exclusive possession under the rules established by the cases cited by defendant. Furthermore, as to other evidence, when Dowd saw only the propellor, defendant said it was an old motor and offered to sell it for $50, when actually it was a brand new motor...