State v. Thompson, 52958
| Decision Date | 11 March 1968 |
| Docket Number | No. 52958,No. 1,52958,1 |
| Citation | 425 S.W.2d 80 |
| Parties | STATE of Missouri, Respondent, v. Michael Alvin THOMPSON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Austin B. Speers, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Daniel P. Reardon, Jr., St. Louis, for appellant.
WELBORN, Commissioner.
This is an appeal from a judgment of conviction for possession of narcotic drugs, with punishment, under the second offender act, of seven years' imprisonment.
On July 26, 1966, at around 9:30 in the evening, the appellant, Michael Alvin Thompson, was noticed by St. Louis police officers as he started his 1964 Oldsmobile convertible at the stop light at Delmar and Goodfellow. Because Thompson 'squealed' his tires as he made a left turn from Goodfellow onto Delmar, the police officers, riding in a police car, pursued Thompson, with their red spotlight flashing. Thompson made a right turn into DeBaliviere Avenue, one block east of Goodfellow. The officers noticed Thompson throw a small package out of his auto after he turned onto DeBaliviere. Shortly after he did so, his auto came to a stop with the police vehicle behind it and one of the officers got out and told Thompson that he was under arrest for 'improper starting.' The other officer walked back some seventy feet to the vicinity of where Thompson had thrown the object from his auto and found a small envelope containing a substance which he believed was marijuana. The officer returned to where Thompson and the other officer were at the automobile and Thompson was told that 'he was going to be charged with the additional charge of possession of marijuana.' Thompson was taken to a police station where he was booked on that charge. At the police station, his clothing was taken from him. Subsequent examination at the police laboratory of the shirt and trousers which Thompson wore revealed traces of marijuana.
After an information had been filed, charging Thompson with illegal possession of a narcotic drug, based upon the quantity of the contents of the package found in the street, Thompson filed a motion to suppress the use in evidence of marijuana in the hands of the police on the grounds that such evidence had been obtained in a search at a time when appellant had not been subject to a lawful arrest. A hearing was held on the motion, at which it was shown that, in addition to the marijuana found in the street, a search of Thompson's auto at the scene of his arrest had uncovered a quantity of the drug which was then in police hands. The judge who heard the motion to suppress concluded that there was no valid basis for an arrest of the appellant for 'improper starting,' there being no evidence that the start had endangered persons or property. The court held that the evidence obtained in the search of the vehicle should be suppressed, but that the contents of the package were not the result of any search incident to an arrest and overruled the motion as to that item.
When the case came to trial, the motion to suppress was renewed with respect to the defendant's clothing and the evidence obtained on analysis thereof. The motion was overruled by the trial court, apparently on the theory that at the time that defendant's clothing was taken he had been made the subject of a valid arrest for possession of marijuana and the taking of the clothing was a proper incident of such arrest.
At the trial the two police officers testified to the circumstances of the arrest. They identified the package which they saw defendant throw from his auto and which was found by the police laboratory technician to contain 2.59 grams of 'Cannabis Sativa, known as marijuana.' The laboratory technician also testified that 'microscopic examination of debris removed from the shirt pocket and the pants pockets showed the presence of marijuana.'
The case was submitted on such evidence, the defendant electing to stand on a motion for acquittal at the close of the state's case. The jury returned a verdict of guilty. The court fixed the punishment at seven years' imprisonment. After motion for new trial had been overruled, this appeal followed.
The first assignment of error on this appeal relates to the court's failure to suppress the evidence found in the street and in defendant's clothing. Appellant contends that the arrest, search and seizure were illegal. The foundation of his complaint is the court's finding on the first submission of the motion to suppress that the arrest for 'improper starting' was invalid because there had been no violation of the ordinance on which that violation was allegedly based. The appellant's theory is that, if such arrest was illegal, so was the pursuit which preceded it, and that, if the defendant did throw the package into the street, 'he was forced to do so * * * because the police indulged in an illegal pursuit and arrest of the defendant.'
Appellant cites no authority which supports, even remotely, the ingenious argument which he advances. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, is cited for the well-known proposition that illegally obtained evidence is excluded in state criminal proceedings by virtue of federal constitutional protections. The facts of Mapp are in no way comparable with this situation.
McNeely v. United States, CCA 8th, 353 F.2d 913, cited by the state, closely resembles the situation here presented. In McNeely, a policeman saw a suspicious looking automobile at night. When the driver did not stop at the officer's order, the police car gave chase. During the pursuit, a kit of tools was jettisoned by a person sitting on the passenger side in the front seat. Eventually the vehicle was stopped and the occupants placed under arrest for littering. A short time later the jettisoned tools were found to be adapted for use in burglary and the defendants were arrested for possession of burglary tools. Subsequent investigation showed that the tools had been used in a post office burglary and the occupants of the auto were tried for that offense. McNeely, the driver, argued that only his passenger could have been guilty of littering and that therefore McNeely's arrest was illegal and the burglary tools could not be introduced in evidence against him. The court concluded that there would have been reasonable grounds for inclusion of McNeely in the littering arrest. However, the court also stated:
(emphasis supplied) 353 F.2d 918(12).
We are of the opinion that appellant's arrest here for the marijuana stood on a sound basis, without regard for the validity of the 'improper starting' arrest. As one of the officers went to appellant's auto and advised him of his arrest on that charge, the other went back and found the package in the street which he recognized as containing marijuana. He immediately returned to the presence of the appellant and told him that he would also be booked on the marijuana charge. Although there is no testimony that the officer stated explicitly that he placed the appellant under arrest on the marijuana charge, the statement testified to was sufficient to advise appellant of that fact. See Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976, 979(5).
The alleged 'illegal pursuit' would not taint the discovery of the packet in the street. At the time that he threw away the package, the appellant would not have had any knowledge of the reason for the police signalling him to a stop. What he did is reaction to the police order and his reason therefor was wholly within the control and knowledge of the appellant. Tossing the package into the street was the product of the appellant's knowledge of matters with which the police were not then concerned. He cannot avoid responsibility on the grounds that it was the police who were at fault.
Appellant also argues that the arrest was based in part upon the marijuana found in the defendant's car and which the trial court suppressed. He contends that it is impossible to determine whether the arrest for marijuana possession was based solely upon the packet found in the street. However, the only evidence is the record is that defendant was placed under the second arrest after the police officer examined the contents of the packet found in the street. There is nothing to support the contention that such arrest followed a search of ...
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