State v. Spraggins, No. 60570

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGRIMM
Citation839 S.W.2d 599
PartiesSTATE of Missouri, Plaintiff/Respondent, v. Charles SPRAGGINS, Defendant/Appellant.
Docket NumberNo. 60570
Decision Date21 July 1992

Page 599

839 S.W.2d 599
STATE of Missouri, Plaintiff/Respondent,
v.
Charles SPRAGGINS, Defendant/Appellant.
No. 60570.
Missouri Court of Appeals,
Eastern District,
Division Two.
July 21, 1992.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 19, 1992.

Page 600

Elizabeth Haines, St. Louis, for defendant, appellant.

William L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for plaintiff, respondent.

GRIMM, Presiding Judge.

In this jury waived case, the trial court found defendant Charles Spraggins guilty of second degree burglary, misdemeanor stealing, and two counts of possession of a controlled substance. Defendant was sentenced as a persistent offender pursuant to § 558.016. *

On appeal, he alleges the trial court erred in (1) overruling his motion to suppress certain evidence and identifications because they were the fruits of an illegal search and seizure, (2) convicting him of stealing under $150.00 and enhancing his sentence because these charges were added

Page 601

through an improperly amended information and because the statute of limitations had run on the stealing charge, and (3) denying his motion for acquittal on the controlled substance charges because the State presented insufficient evidence to prove he knowingly possessed the drugs. We reverse the stealing conviction, but otherwise affirm.

I. Background

On May 3, 1990, shortly after 12:30 p.m., Marian Paxhia was in her home when she heard a thud from the general direction of the rear bedroom. She walked to the rear of the house and looked out the window. She saw a man "on our sidewalk in our yard walking towards the alley." The man was about forty feet away, wore a hooded jacket and blue jeans, and carried "a sack or something in his hand." She watched him walk about thirty feet, and then he disappeared from her sight.

Mrs. Paxhia called her security service and reported a trespasser. She then went to the basement, where she noticed the door window was broken and the laundry room had been disturbed. She called the police. Less than five minutes later, an officer arrived.

In the meantime, upon receiving Mrs. Paxhia's call, the security service had contacted one of its guards. The guard immediately drove to the alley behind the Paxhia residence. There, the guard saw defendant exiting from Mrs. Paxhia's yard. He carried a bag and wore a hooded jacket and blue jeans. The guard attempted to stop defendant by hollering and honking the horn. Defendant quickened his pace and threw the bag, containing tools, into an ash pit. The bag and its contents were later identified as belonging to the Paxhia's.

Eventually, the guard caught up with defendant and asked him what he was doing. The guard also asked him for identification and conducted a pat down search for weapons.

The guard then called the police station to run "a check" on defendant. The dispatcher told him there was an active warrant out for defendant. The guard arrested defendant, read him his rights, and told him he was turning him over to the police. The guard then called the police station and told the dispatcher he had the person who was wanted on the warrant.

The dispatcher suggested the guard take defendant to a nearby location where some police officers were investigating a burglary. Upon arrival, the guard took the defendant out of the car and started walking him to a police car. Mrs. Paxhia saw defendant and spontaneously said, "[T]hat's the guy that came out of my backyard."

A police officer then arrested defendant. The officer searched defendant and found, among other things, part of an aluminum can. Laboratory analysis indicated residue in the can contained cocaine and heroin.

On June 6, 1990, the State filed an information charging defendant with second degree burglary. Almost a year later, on May 14, 1991, the State filed an amended information alleging defendant was a persistent offender; it also added one count of stealing under $150.00.

That same day, May 14, 1991, the State filed another information under a separate case number. It charged defendant with possession of cocaine, heroin, and drug paraphernalia. The two cases were consolidated for trial.

II. Arrest and Search

In defendant's first point, he asserts the trial court erred in denying his motion to suppress. He claims the evidence and identifications were "fruits of an illegal seizure and search ... [because the police] lacked probable cause to arrest [him] when they directed the security guard ... to transport [him] to the crime scene."

Defendant alleges he was arrested unlawfully three times and searched unlawfully twice. He claims the first unlawful arrest occurred when the guard arrested him. However, Fourth Amendment protection against unreasonable searches and seizures attach only when there is governmental conduct. State v. Overby, 432 S.W.2d 277, 279 (Mo.Div. 1 1968). The guard was employed by a private security

Page 602

service. Because governmental conduct was not involved, Fourth Amendment protection did not come into play.

Defendant alleges the second unlawful arrest occurred when the police directed the guard to take defendant to where police were investigating Mrs. Paxhia's complaint. He contends this direction transformed the guard into a government agent. We disagree.

The "Fourth Amendment applies if a [private] person ... may be regarded as an instrument or agent of the state." State v. Woods, 790 S.W.2d 253, 259 (Mo.App.S.D.1990). "Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities ... a question that can only be resolved 'in light of all the circumstances.' " Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639, 658 (1989) (citations omitted).

Here, the guard initially called police to run a "check" on defendant. After discovering an active warrant, he arrested defendant and contacted the police again. There was no evidence that the police directed the guard to arrest defendant. The guard testified:

I told the police I had the subject that was wanted for the warrant from out of Wellston. And they told me that they had a burglary that had occurred down...

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6 practice notes
  • State v. McCleod, No. WD 64945.
    • United States
    • Court of Appeal of Missouri (US)
    • March 21, 2006
    ...gives rise to an inference that he or she had knowledge of the presence and character of the controlled substance. State v. Spraggins, 839 S.W.2d 599, 603-04 (Mo.App. E.D.1992). Thus, "[a] prima facie case of knowing possession of a controlled substance is made out by the prosecution s......
  • State v. Aziz, Nos. 59612
    • United States
    • Court of Appeal of Missouri (US)
    • September 21, 1993
    ...Sidebottom, 753 S.W.2d 915, 923 (Mo. banc 1988), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 804 (1990); State v. Spraggins, 839 S.W.2d 599, 602 (Mo.App.1992). A citizen who provides information after witnessing a crime is usually deemed reliable. State v. Cole, 662 S.W.2d 297,......
  • State v. Glass, No. ED 100398.
    • United States
    • Court of Appeal of Missouri (US)
    • September 2, 2014
    ...to support possession conviction where trace amount of cocaine was found in a straw in defendant's bedroom); State v. Spraggins, 839 S.W.2d 599, 603–04 (Mo.App.E.D.1992) (where possession conviction was supported by evidence of cocaine and heroin residue on the bottom of aluminum can found ......
  • State v. Smith, No. 62100
    • United States
    • Court of Appeal of Missouri (US)
    • March 16, 1993
    ...facts support the conclusion that defendant possessed the cocaine with the requisite knowledge and intent. See State v. Spraggins, 839 S.W.2d 599, 604 (Mo.App.1992). Defendant's mistaken belief that she had used all the cocaine on the mirror does not deprive her of the requisite knowledge f......
  • Request a trial to view additional results
6 cases
  • State v. McCleod, No. WD 64945.
    • United States
    • Court of Appeal of Missouri (US)
    • March 21, 2006
    ...gives rise to an inference that he or she had knowledge of the presence and character of the controlled substance. State v. Spraggins, 839 S.W.2d 599, 603-04 (Mo.App. E.D.1992). Thus, "[a] prima facie case of knowing possession of a controlled substance is made out by the prosecution s......
  • State v. Aziz, Nos. 59612
    • United States
    • Court of Appeal of Missouri (US)
    • September 21, 1993
    ...Sidebottom, 753 S.W.2d 915, 923 (Mo. banc 1988), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 804 (1990); State v. Spraggins, 839 S.W.2d 599, 602 (Mo.App.1992). A citizen who provides information after witnessing a crime is usually deemed reliable. State v. Cole, 662 S.W.2d 297,......
  • State v. Glass, No. ED 100398.
    • United States
    • Court of Appeal of Missouri (US)
    • September 2, 2014
    ...to support possession conviction where trace amount of cocaine was found in a straw in defendant's bedroom); State v. Spraggins, 839 S.W.2d 599, 603–04 (Mo.App.E.D.1992) (where possession conviction was supported by evidence of cocaine and heroin residue on the bottom of aluminum can found ......
  • State v. Smith, No. 62100
    • United States
    • Court of Appeal of Missouri (US)
    • March 16, 1993
    ...facts support the conclusion that defendant possessed the cocaine with the requisite knowledge and intent. See State v. Spraggins, 839 S.W.2d 599, 604 (Mo.App.1992). Defendant's mistaken belief that she had used all the cocaine on the mirror does not deprive her of the requisite knowledge f......
  • Request a trial to view additional results

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