State v. Speed

• Decision Date: 14 September 1970
• Docket Number: No. 54286,No. 2,54286,2
• Citation: 458 S.W.2d 301
• Parties: STATE of Missouri, Respondent, v. William SPEED, Appellant
• Court: Missouri Supreme Court

Page 301

458 S.W.2d 301

STATE of Missouri, Respondent, v. William SPEED, Appellant.

No. 54286.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1970.

Motion for Rehearing or for Transfer to Court En Banc Denied

Oct. 12, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Elliott & Marks, Murry A. Marks, Forriss D. Elliott, St. Louis, for appellant.

DONNELLY, Presiding Judge.

In this jury-waived case, appellant, William Speed, was convicted of unlawful possession of narcotics under § 195.020, RSMo 1959, V.A.M.S., by the Circuit Court of the City of St. Louis, and his punishment was assessed at imprisonment in the custody of the State Department of Corrections for a term of five years. § 195.200, RSMo 1959, V.A.M.S. An appeal was perfected to this Court.

The primary question presented is whether the search of an automobile which produced the evidence on which the conviction rests was constitutionally permissible.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (decided June 22, 1970), the United States Supreme Court re-emphasized that the search of an automobile, even though not incident to an arrest, may be constitutionally permissible if there is probable cause for the search. The Court said:

'In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers and entitled to seize. * * * The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:

'The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' 267 U.S., at 158--159, (45 S.Ct. 280).

'Finding that there was probable cause for the search and seizure at issue before it, the Court affirmed the convictions.

'In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.'

In Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, the United States Supreme Court held that probable cause 'has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543.'

We turn then 'to the question of whether or not the record in the case before us can support a finding of probable cause' for the search. Beck v. Ohio, 379 U.S. 89, 92, 85 S.Ct. 223, 226, 13 L.Ed.2d 142. We have reviewed the record on appeal and believe there is substantial evidence to support the following findings of the trial court:

'Two St. Louis police officers, John Jones and Robert Loehr, kept a lookout for Defendant William Speed for parts of several nights prior to July 28, 1967. To accomplish this purpose they hid in a walkway on the south side of Enright Avenue between two buildings, 4060 and 4066 Enright Avenue, from which point of vantage they could see the ground floor front entrance to Defendant Speed's apartment located on the west side of Sarah Street, a short distance north of its intersection with Enright, in the central part of St. Louis. The police watched Defendant Speed's doorway through two sets of seven power * * * binoculars. Since they were about 60 to 70 yards to the southeast of that entry to Speed's apartment, and the electric light was sufficient, they had an adequate opportunity to see persons and objects in the doorway area.

'On the evening of July 28, 1967, while keeping such a binocular surveillance, both policemen saw Defendant Speed on the sidewalk of Sarah Street immediately in front of the doorway to Speed's apartment. As they watched him through the seven power binoculars, both officers saw Speed go from the sidewalk to the doorway, reach up in the area of the interior lintel of the opened doorway and take in his, Speed's hand, some items including several small manila envelopes * * *.

'The officers thereafter continued to watch Defendant Speed and saw him put these manila envelopes in his trouser pocket, then walk out onto the sidewalk and hand them to one William Cannon who put such items in his shirt pocket. Both Cannon and Speed then walked south on Sarah Street.

'Officer Jones went south through the gangway between 4060 and 4066 Enright and from a position in the rear of those buildings * * * Officer Jones saw Cannon open the trunk of Cannon's automobile parked at the east curb of Sarah headed north, a short distance south of Enright Avenue. Cannon took the manila envelopes from his shirt pocket and placed them in an upturned hat in the trunk of that automobile * * *.

'The two police officers then followed Cannon and Defendant Speed south on Sarah to Delmar (one block south of Enright) and...