State v. Vineyard

• Decision Date: 23 July 1973
• Docket Number: No. 9221,9221
• Parties: STATE of Missouri, Respondent, v. Donald Gene VINEYARD, Appellant.
• Court: Missouri Court of Appeals

Page 821

497 S.W.2d 821

STATE of Missouri, Respondent, v. Donald Gene VINEYARD, Appellant.

No. 9221.

Missouri Court of Appeals, Springfield District.

July 23, 1973.

Motion for Rehearing or to Transfer to Supreme Court, Denied

Aug. 6, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar Special Asst. Atty. Gen., St. Louis, for respondent.

Harold F. Glass, Springfield, James C. Snapp, Pleasant Hope, for appellant.

TITUS, Chief Judge.

Defendant was charged and convicted by a jury of burglary in the second degree (§ 560.070 RSMo 1969) and stealing. § 560.156 RSMo 1969. Having also been tried under § 556.280 RSMo 1969 (Second Offender Act), the trial court imposed concurrent sentences of five years for stealing (§ 560.110 RSMo 1969) and ten years for second degree burglary. § 560.095(2) RSMo 1969. Defendant appeals.

On January 13, 1971, Joy Beaver was the renter-occupant of a house numbered 433 W. Portland, Springfield, Missouri. The southward facing house, situate on the north side of east-west Portland, consisted of two west bedrooms, a living room and kitchen in the middle, and a garage and utility room on the east. A driveway ran north from Portland into the garage which had at least one east window located seven feet six inches from the west wall of the next door abode occupied by the Thompsons. A bedroom with a west window was in the southwest corner of the Thompson residence allowing a person standing in that room visual entrance into the Beaver garage through its east window.

Near 9 p.m. on the day in question the Thompsons, preparing to retire, heard a noise and looked from their southwest bedroom to state the curiosity aroused by the din. They observed an unlighted green Buick bearing several males being backed toward the open unilluminated Beaver garage. Upon extinguishing the bedroom light, the Thompsons saw that the Beaver garage lights 'went on' but momentarily 'went off' while a city bus passed by the houses. The Thompsons saw six men 'all told' in the Beaver garage 'but part of the time there were only four.' These men were observed by the Thompsons to 'go toward the front of the garage, pick up something, (then) go to the back of the garage and come back toward the front, as if they (were) carrying something with some weight. And then after awhile we saw a bag, shaking out bags, plastic bags. . . . Well, it looked as if it might be shirts or blouses (in the bags). They were folded up, done up, it looked like, in individual plastic containers.'

After observing these next door activities for some time, Mr. Thompson telephoned the Springfield Police Department at 9:45 p.m. to report his sightings. Via radio, the police dispatcher sent four police cars to the Beaver residence admonishing the officers that 'a possible house burglary (was) in progress' and that several subjects were involved. The first arrival at the Beaver residence was Officer Woods who was quickly joined by Patrolman Brinkman and his police canine, Major. Woods, standing east of the Beaver garage, told Brinkman to go to the front while he covered the rear. As Brinkman and Major were passing the garage window, Brinkman looked inside and saw one Morelock, a known convicted felon, 'sacking up some type of articles' in the garage. Prior to seeing Morelock in the garage, Brinkman knew that Morelock had claimed the Pioneer Hotel as his residence; Brinkman had also previously seen Morelock riding in the green Buick that was parked in the Beaver driveway.

By the time Patrolman Brinkman and Major reached the front door of the Beaver residence, other policemen had arrived on the scene. Looking through the front door glass, Brinkman espied Morelock coming from the kitchen into the front room. Apparently Morelock saw the patrolman at about the same time because he turned back towards the kitchen. Without knocking or otherwise announcing himself, Brinkman opened the unlocked front door, 'entered the house and hollered at Morelock to stop and come back here, he was under investigation for burglary and larceny.' Morelock complied and was turned over to other policemen who had followed Brinkman and Major into the house. Brinkman then went into the kitchen and utility room in search of the other reported subjects. As he stepped into the utility room he 'observed shirts stacked up in the garage, through an open door from the utility room through to the garage.' Defendant Vineyard was discovered by Brinkman hiding in the utility room. 'He was crouched down underneath (a) box lid. I took the box lid off and placed him under arrest.'

Patrolman Larbey, also summoned to the scene, passed by the Beaver garage window and saw Morelock and defendant Vineyard in the garage. Larbey knew Morelock and Vineyard by sight and had been Vineyard's jailer two nights before when the defendant represented that he lived at '400 something South Golden.' After entering the house, Larbey started for the garage but was met by Officers Brinkman, Dishman and Foster with the defendant and Morelock in tow. Because more subjects were reported in the house, Larbey continued searching and found George Miller 'lying down behind the couch' in the living room. Officers Dishman and Crocker inspected the bedrooms 'searching for the others' and found Bobby Joe Ross 'crouched down with some clothes throwed over him in the corner of the closet . . . making himself very small.'

After defendant Vineyard and the others found at the Beaver residence had been removed from the house, the officers inspected the shirts they had seen in the garage while searching for the reported subjects. They discovered 'approximately 1,400 shirts.' Some were in plastic bags the others loose; they were labeled with the name 'Dillard' Brown-Duncan.' Later investigation that night revealed that Dillard's warehouse in Springfield had been broken into and the shirts in question stolen therefrom. It had rained on January 13, 1971, and mud had been tracked into the warehouse. Samples of the mud inside and outside of the warehouse were obtained by the police; defendant's muddy shoes were taken from him and delivered, together with the mud samples, to the 'Highway Patrol Crime Laboratory' for analysis.

When the officers entered the Beaver residence they had no arrest warrant and no search warrant and knew nothing of the burglary and stealing at Dillard's warehouse for which defendant was tried and convicted.

I

Defendant's first point relied on is that the trial court erred in overruling his motion to suppress and in admitting into evidence the stolen shirts, mud samples, defendant's shoes, photographs of the Beaver residence and of the warehouse because 'said items were taken and obtained pursuant to and by an unlawful search and seizure and an unlawful arrest.' Contrary to the requirements of Rule 84.04(d), V.A.M.R., applicable in criminal cases per Rule 28.18 (State v. Orr, 493 S.W.2d 374, 376 (Mo.App.1973)), we are not advised 'why' it is claimed the arrest, search and seizure were allegedly unlawful. Nevertheless, our gratuitous search of the argument portion of the defendant's brief indicates, in substance, that the averred search was improper and it was not made pursuant to a lawful arrest because the arrest was predicated on information obtained from an informer of unknown reliability, and because there was, in fact, no burglary of the Beaver residence and hence no reasonable grounds for the officers to believe that there was a burglary and larceny of the house in progress or that such crimes had been committed.

Legal principles dispositive of defendant's first point are not disputed. The evidence in issue to be admissible must be the product of a lawful arrest in the absence of a search warrant, and, in turn, the lawfulness of the arrest sans a warrant, is to be based and tested upon probable cause. State v. Novak, 428 S.W.2d 585, 591(2, 3) (Mo.1968). Police officers may arrest without a warrant if reasonable cause exists for them to believe that the person arrested is guilty of a recent felony (State v. Hammonds, 459 S.W.2d 365, 369 (Mo.1970); State v. Johnson, 420 S.W.2d 305, 308(2) (Mo.1967)), and 'Dealing with probable cause for arrest requires dealing with probabilities which are not technical but 'are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. * * * Probable cause exists where 'the facts and circumstances within . . . (the officers') knowledge and of which they have 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,' Brinegar v. United States, 338 U.S. 160, 175--176(4), 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, and 'The substance of all the definitions (of probable cause) is a reasonable ground for belief of guilt,' Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543.' State v. Novak, supra, 428 S.W.2d at 591(6, 7).

Defendant's claim that the arrest was based on information obtained from an informer of unknown reliability is untenable for a variety of reasons, the first being that the so-called informant's information was not all the pre-arrest information the officers relied on and the second being that '(i)n the absence of exceptional circumstances not present in this case an informant who states that he is an eyewitness to the commission of an actual crime may be reasonably deemed by an officer to be reliable.' Smith v. Swenson, 328 F.Supp. 747, 752(7) (W.D.Mo.1971). Since that information was reliable it did not lose its reliability when it was transmitted via radio (State v. Ward, 457 S.W.2d 701, 706 (Mo.1970)) by the police dispatcher receiving it to the police officers who effected the arrest. ". . . (W)here reliable information is originally imparted to the police, the fact...