State v. Sain, 52151

• Decision Date: 13 March 1967
• Docket Number: No. 2,No. 52151,52151,2
• Citation: 412 S.W.2d 131
• Parties: STATE of Missouri, Respondent, v. Roosevelt SAIN, Appellant
• Court: Missouri Supreme Court

Page 131

412 S.W.2d 131

STATE of Missouri, Respondent, v. Roosevelt SAIN, Appellant.

No. 52151.

Supreme Court of Missouri, Division No. 2.

March 13, 1967.

James A. Bell, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.

EAGER, Presiding Judge.

Defendant was found guilty of the illegal possesion of a narcotic drug. Trial was by the Court, sitting without a jury. Defendant was sentenced to a term of ten years. Section 195.020, RSMo 1959, V.A.M.S., as amended, Laws 1965. A prior federal conviction and imprisonment for a narcotic violation was also alleged, to which we shall refer later. The waiver of a jury trial was shown by entry made of record, in conformity with Criminal Rule 26.01 V.A.M.R.; the Court made general findings as required by that Rule, and also filed a memorandum opinion. No specific findings or declarations were requested. This appeal was taken after a motion for a new trial was overruled. Defendant was represented at the trial by counsel of his own choice, who has also briefed the case for him here.

The sole question raised on this appeal is the alleged error in overruling defendant's motion to suppress evidence and in the admission of certain exhibits, all of which depends upon the existence of probable cause for defendant's arrest. Counsel state that a pretrial motion to suppress was overruled, but the one we consider here, the only one appearing in the transcript, was filed at the beginning of the trial and was heard and ruled upon a part of the trial evidence. It was then overruled and the trial proceeded. The motion alleged that at the time of defendant's arrest he was not committing any felony or misdemeanor, that the police had no warrant, that the arrest and the search incident thereto were unreasonable, unlawful, and in violation of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and of Sections 15 and 19 of Article 1 of the Missouri Constitution, V.A.M.S., and that any evidence so seized should be suppressed.

The facts came solely from testimony of the State's witnesses. Detective William Cox and his partner Detective James Schultz were in a drugstore at 1000 North Sarah in St. Louis on the morning of January 23, 1965. Defendant, whom Cox had known previously, came in; he walked to the service counter where the owner was standing, but began looking around and 'fidgeting'; Cox also testified that he made 'a few gyrations with his body,' the druggist asked him what he wanted, that he stuttered, and he then asked for some cigarettes. At that point the officers moved over to a position a few feet behind the defendant and, while standing at the counter, he began 'rummaging' in and out of his pockets, 'all of them.' He put his hand in his right 'suit coat pocket' and when he pulled it out it contained 'a tinfoil packet, rolled, having a brown piece of paper around it, this being about two inches by two inches; also contained was a piece of wax paper which was approximately one inch by three inches, rolled; * * *.' Upon looking at these things, defendant hurriedly shoved them back in his pocket, glanced around, and continued searching until he found some bills in his pants pocket. He then got some change and purchased his cigarettes, but he kept 'glancing around * * * looking at us.' Defendant then hurried out of the store; the officers followed and called to him; he turned and looked at them but started to 'continue on'; Officer Cox ran up to him, grabbed his arm and 'placed him under arrest,' but as he did so the defendant 'shoved his hand into his right front coat pocket and withdrew these items which I observed previously and attempted to try and throw them; however, I grabbed his hand and he had his fist clenched with it, and after a brief tug I retrieved these objects from his hand.' At this point defendant's counsel was allowed to crossexamine the officer in support of his motion to suppress, and we shall relate anything new or different which was developed. Defendant paid for the cigarettes; the officers had no warrant; they stopped defendant upon a suspicion 'based on experience'; and he was arrested because they suspected him of possession of narcotics; they did not know positively what the packets contained, but they wanted to determine this because of his suspicious actions and because they had seized 'narcotics of this type' before. Officer Cox also testified: that a few months earlier defendant had told him that he had been a user of narcotics; that he stopped defendant and arrested him because he had a 'firm conviction of what these packets contained'; that he had seen numerous packages like that before, having been on the narcotics detail for two years out of district stations, and that he had seen literally hundreds of such packages which had been seized in raids; that some had contained heroin and some amphetamine; that he had seen no similar packages used for anything else; that while in the drugstore defendant had pulled the packages entirely out of his pocket when Cox was two or three feet to his rear. He further described the wax paper packet as being about one inch by three inches with the ends 'curled or folded over into a sort of like sealed package.'

At this point the Court overruled the motion to suppress and the two packets were offered and received as exhibits, having been specifically identified and traced to and from the police laboratory. Officer Cox testified further to certain oral statements made by defendant soon after his arrest; these were to the effect that he was driving a cab, that a man by the name of Hemphill entered it, asked him if he wanted to make some money and upon receiving an affirmative reply gave him the packets in question, told him to buy some gelatin capsules and that they would meet and 'make up the caps' and sell them (later amended by the witness by stating that defendant was to fill the capsules); that he, defendant, knew that the packets contained heroin, but that Hemphill did not keep the appointment. Cox also testified: that they learned that defendant did have a cab outside the drugstore; that he had advised defendant before he made the statements that he need not make any statement which might be used against him; that he was 'allowed counsel' and that they could call one for him; that Detective Schultz was present at the time, and that no threats or promises were made. The Court overruled an oral motion to suppress the statement, which motion was based upon the contention that it was not made voluntarily. The Court thus ruled that the oral statements were voluntarily made.

The other officer, Detective James Schultz, substantially corroborated the testimony of Officer Cox. He, too, saw the defendant remove the two small packets from his pocket in the drugstore; he testified that when defendant was arrested the two packets were taken from him and also a box of gelatin capsules; and he related defendant's oral statements concerning the man in his cab who 'gave him a package of heroin.' At that time an oral motion to suppress the statement was again overruled. This witness testified also: that the packages which they saw in defendant's possession in the drugstore were similar to ones which had contained narcotics to his knowledge in previous cases; that they arrested defendant 'for possession' of narcotics and to determine what he had in the packages.

A chemist from the police laboratory in St. Louis testified that inside the wax paper package there was another piece of paper; that this paper contained 6.05 grams of heroin, a narcotic derived from morphine; that this was enough to fill about 200 capsules of the size found on the defendant. The silver or foil package apparently contained nothing. Both of these exhibits and the green box of empty capsules were received in evidence. Officer Cox, recalled, testified somewhat more specifically to the mode in which the wax paper was folded and 'curled' at the time of defendant's arrest, stating that he had seen that kind of wrapping before and that it was unusual.

It was stipulated that the allegations in the information of a prior conviction were true, and that certain exhibits proffered by the State would so show; these were offered and received but they are not in our transcript. Defendant's counsel contended only that such a conviction was not for an offense which would 'constitute a felony in the State of Missouri,' presumably having in mind our Second Offender Act. Scetion 556.280, RSMo 1959, V.A.M.S. The Court took this contention along with the case. After allowing time for briefs, the Court found that beyond a reasonable doubt defendant was guilty of illegal possession of heroin, and further found: that the defendant had been convicted in January, 1958, in the United States District Court for the Eastern District...