State v. Sanders
| Decision Date | 02 December 1975 |
| Docket Number | No. 35734,35734 |
| Citation | 530 S.W.2d 749 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael James SANDERS, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James C. Jones, St. Louis, Christelle Adelman-Adler, Asst. Public Defender, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Michael James Sanders, defendant-appellant (hereinafter defendant) presents this appeal from a finding and judgment of the trial court in a jury-waived trial that he was guilty of carrying a concealed weapon, § 564.610 RSMo.1969, and imposition of sentence of three years in the custody of the Missouri Department of Corrections. We affirm.
Defendant's sole contention on appeal is that the weapon in question was seized from his person as a result of an illegal search and that the trial court erred in failing to sustain his motion to suppress the gun on those grounds.
Prior to the commencement of trial on June 5, 1973, defendant filed a memorandum waiving his right ot jury trial and requested a jury-waived trial. Both sides announced ready for trial and defense counsel requested that the case be heard subject to an oral motion to suppress the evidence 'as unconstitutionally seized' and advised the trial court that he would supply the court with a 'typed motion to suppress.' The trial court advised counsel to make his objection when the evidence was offered. The trial was commenced and since the defendant does not challenge the sufficiency of the evidence to support a conviction we set out a short statement of the facts adduced by the State's evidence.
The State's evidence was that on the early morning of December 23, 1972, the St. Louis Police Department received a report that a suspicious person was in a Chinese restaurant located at 5514 Martin Luther King Drive in the City of St. Louis. Two police officers responded to the report and when they arrived on the scene they were met by an employee of the restaurant, one Anthony Woods, and a security guard, Walter Walker, on the sidewalk in front of the restaurant. These men informed the police officers that they had observed a man 'hanging around' inside the restaurant for about an hour and that they had observed a chrome-plated revolver under this man's coat. The two men pointed out the man, who was still in the restaurant, and the officers approached and advised him to put his hands in the air and face the wall. While the man stood in this position the two officers observed a chrome-plated revolver in a shoulder holster the man was wearing under his jacket. One of the police officers, Officer Hagedorn, reached under the man's jacket and removed a .38 Smith & Wesson revolver, fully loaded, from the shoulder holster and thereupon placed the man under arrest for carrying a concealed weapon. Defendant was the man.
It was admitted by both officers who testified that the defendant was searched prior to the time he was placed under arrest and the reason he was searched was the information furnished them by the two employees of the restaurant that the defendant had a gun on his person concealed from view. When the State offered into evidence the gun, shells and shoulder holster, defendant's counsel objected to their receipt in evidence on the grounds that the defendant's constitutional rights had been violated. The thrust of defendant's argument was that the search preceded the arrest and was therefore unreasonable. Defendant offered no evidence. The trial court took both the motion and the cause under submission, and without specifically ruling on defendant's motion, found him guilty as charged of carrying a concealed weapon and assessed his punishment at three years in the custody of the Missouri Department of Corrections. Defendant's counsel never filed the 'typed motion to suppress' he had stated he would, but he did file a timely motion for new trial which was overruled, and the defendant was sentenced in accordance with the assessment of punishment previously announced by the trial court. This appeal followed.
In the brief filed in this court defendant in his Points Relied On presents the question of the reasonableness of the search and seizure on federal constitutional grounds only, i.e., that his Fourth Amendment rights were violated. The thrust of his argument is that the police officers had no search warrant and the facts of this case do not bring it within the exception carved out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 l.Ed.2d 612 (1972); that therefore the search and seizure was illegal, his motion to suppress should have been sustained by the trial court, and the weapon seized from his person excluded from evidence at trial. He asks that we reverse his conviction and order him discharged.
The State relies on the same authorities cited by the defendant and argues that the facts of this case bring it within the holdings of both Terry and Adams, supra.
The holding of the Supreme Court in Terry v. Ohio, supra, was that a police officer who observes unusual conduct which leads him to reasonably conclude in the light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and...
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...3 L.Ed.2d 327 (1959); State v. Wiley, 522 S.W.2d 281, 288 (Mo. banc 1975); State v. Gant, 490 S.W.2d 46, 48 (Mo.1973); State v. Sanders, 530 S.W.2d 749, 752 (Mo.App.1975). The credence to be given the information received from a third party informant is a factual question to be determined u......
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