State v. Sims

• Decision Date: 06 July 1982
• Docket Number: No. WD,WD
• Citation: 639 S.W.2d 105
• Parties: STATE of Missouri, Respondent, v. Alfred SIMS, Appellant. 32301.
• Court: Missouri Court of Appeals

Page 105

639 S.W.2d 105

STATE of Missouri, Respondent, v. Alfred SIMS, Appellant.

No. WD 32301.

Missouri Court of Appeals,

Western District.

July 6, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Aug. 31, 1982.

Byron Neal Fox, Robert J. Edwards, Kansas City, for appellant.

John Ashcroft, Atty. Gen. Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P.J., and MANFORD and KENNEDY, JJ.

CLARK, Presiding Judge.

Alfred Sims was jury tried and convicted of possession of a controlled substance, an offense proscribed by § 195.240, RSMo 1978. He now appeals the judgment of conviction and sentence of four years. Affirmed.

The state's evidence in the case was adduced from one witness, a Kansas City police officer. While in an unmarked police car, the officer observed a Cadillac automobile occupied by four persons and parked in front of a residence known to the officer to be a location where drugs had been used. The hour was late evening and the interior of the car was illuminated. As the officer approached to question the occupants, the car drove off at high speed. During the pursuit which followed, the Cadillac attempted to negotiate a turn, spun out of control and collided with a tree.

As the occupants emerged from the Cadillac, the officer informed them they were under arrest. Each was then subjected to a pat-down search. When the officer detected a bulge in one of Sims' socks, he was asked to remove the object, later found to be a roll of currency. In removing the money from his sock, Sims dislodged a plastic bag which fell to the pavement. On subsequent examination, the content of the bag was found to be heroin.

In his first point, Sims contends the trial court erred in failing to suppress the packet of heroin because that evidence was disclosed during an illegal search. Sims asserts that the police officer "lacked the necessary reasonable suspicion, based on objective facts, that appellant was involved in criminal activity that would be required to stop, detain and arrest him in the first instance."

In his Fourth Amendment contention, Sims relies principally on Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). The defendant in Brown was observed by police officers in an area, particularly an alley, known to be frequented by traffickers in illicit drugs. When stopped for questioning by the officers, the defendant refused to supply information about himself. He was thereupon arrested and charged with violation of a statute requiring persons lawfully detained to give identification on request. The charge was held to be constitutionally infirm because no objective facts within the purview of the officers supported any reasonable suspicion that the defendant was engaged in wrongdoing. Sims contends that he, like Brown, had done nothing to arouse conjecture of unlawful conduct and that the pursuit and investigative "pat-down" search violated Fourth Amendment guarantees.

The facts here are sharply at variance with Brown. Even were it to be assumed that the assembly of Sims and three companions in the automobile outside the suspect residence was not reasonably provocative of legitimate police inquiry, the immediate departure of the vehicle when the officer approached and the attempt to elude pursuit amply justified belief by the officer that criminal activity was afoot.

Investigative detention is lawful if, in the totality of the circumstances, a particularized suspicion results that the person stopped is engaged in wrongdoing. The retrospective evaluation takes into consideration the inferences which would be drawn by a trained police officer and the evidence is to be viewed as seen by one versed in law enforcement. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). ¹

In the present case, the suspicion of the officer aroused by the parked automobile with four occupants was validated when the car sped off and attempted to avoid interception. That series of events, although not particularized in focusing attention on any one of the persons in the car, was sufficient to justify the officer's pursuit and the subsequent inquiry as to the activities of those found to have been in the vehicle. The investigative stop was lawful because the facts justified a police officer in a belief that some criminal act had been or was being committed and the persons in the car were involved.

Once the automobile had been stopped, questioning of the occupants outside the vehicle was permissible. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Although there was then no objective proof on which an arrest could have been made, except for the traffic offenses and failure to stop on police direction, the officer was entitled to conduct a limited search of the persons of the detainees for weapons if, under all the circumstances present, the officer was warranted in believing that his safety would be in danger. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that Sims and his companions were suspected to be involved in narcotics dealing, the violent maneuvers and reckless operation of the Cadillac under police pursuit and the numerical disadvantage of the lone police officer combine to justify a preliminary search of the suspects for protection of the officer's safety. Sims has no constitutional basis to complain that the contraband was discovered during the limited body search which accompanied the investigative detention.

Irrespective of the foregoing, Sims has no factual basis to complain that the drug packet was the product of an unlawful search and seizure. While the officer testified that the packet fell when inadvertently dislodged by Sims in the course of removing the roll of currency from his sock, Sims testified that he had never seen the packet before, that he had no knowledge as to how the packet came to be found on the ground, but that it certainly did not come from his person. Assuming that version of the facts consistent with the verdict for conviction, discovery of the incriminating evidence was inadvertent and fortuitous. Evidence which inadvertently comes into the view of an officer lawfully acting in connection with another crime or for some different purpose may be used in the prosecution of a crime to which that evidence is pertinent. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

In his second point, Sims asserts he was entitled to a dismissal of the case "because of prosecuting official's use of peremptory challenges to systematically exclude blacks from the jury without cause." The argument contends all black members of the panel were stricken when the state employed its peremptory challenges and this exclusion of a cognizable group denied Sims a representative jury drawn from a cross section of the community.

The theory which Sims espouses is articulated in a California case, People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), which he cites. The California Supreme Court, in the interpretation and application of the California state constitution, holds in Wheeler that counsel may raise the issue of representative jury composition upon a showing that jurors peremptorily challenged share only the one characteristic of group association and that group bias alone formed the basis for challenge. Once evidence on the issue has been presented sufficient to raise the reasonable inference of a prima facie case, the burden shifts to the opposing party to demonstrate that peremptory challenges were used, not on grounds of group bias, but on facts relevant to the particular case, the parties or witnesses.

Sims cites no Missouri case in point. ² For several reasons, we find the contention to be without merit.

The record in this case contains no evidence, even under the theory of the Wheeler case, sufficient to raise any inference that the state's peremptory challenges were used to produce a trial jury of homogeneous composition. Sims bases his claim solely on the statements made by his counsel during argument which statements gratuitously noted the apparent racial origin of four panel members stricken by the state. The record includes no voir dire and no stipulation of facts and no evidence whatever that blacks were systematically excluded. This dearth of proof is fatal to the contention. State v. Johnson, 566 S.W.2d 510, 514 (Mo.App.1978).

Even were it to be assumed that the jury panel summoned included only four persons of the Negro race and that those persons were removed by exercise of the state's challenges, it is the burden of the contestant under the California theory of group association also to show that the panel members stricken are as heterogeneous as the community as a whole, that is, they are males and females and are of a variety of ages, occupations and social or economic...