State v. Watson
| Decision Date | 14 December 1964 |
| Docket Number | No. 1,No. 49971,49971,1 |
| Citation | 386 S.W.2d 24 |
| Parties | STATE of Missouri, Respondent, v. George Lawrence WATSON, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.
David A. Yarger, Versailles, for appellant.
Defendant was convicted of possession of burglar's tools (Section 560.115 RSMo 1959, V.A.M.S.) and sentenced to imprisonment in the Penitentiary for a term of five years. He appeals that sentence and judgment as a poor person, the transcript on appeal being furnished him at the cost of the public. He was represented by counsel at both the trial and appellate levels. Trial counsel filed a timely motion for new trial containing eleven assignments of error and thereafter defendant, pro se, stating that he had released his trial attorney, filed an amended motion containing four additional assignments of error. Defendant's brief and supplemental brief as well as his appellate counsel's reply brief rely on twenty-six points some of which, as we shall see, are directed to issues presented to and ruled upon by the trial court and some are not, and many are, in part, duplications of others.
Prior to trial day the defendant filed a motion to suppress the use in evidence of certain articles described in the information seized by police as a result of an alleged unlawful search. Out of the hearing of the jury this motion was submitted to the Court, evidence heard thereon, and overruled immediately before the trial of the case on the merits. The evidence presented on this motion was substantially the same as that produced at the trial and would warrant a finding of the following facts.
On the morning of February 7, 1962, Detective Phil Ratcliff of the Kansas City, Missouri police department was 'staked out' across the street from and had under surveillance a basement apartment at 3439 Charlotte occupied by Larry Dean Foster and wife. The police had a warrant for the arrest of defendant on a charge of burglary and apparently had good reason to believe that defendant would appear at the Foster apartment for, later that morning, a black 1955 model Plymouth automobile being driven by defendant accompanied by Raymond Booth pulled up to the curb and stopped directly in front of the apartment. Detective Ratcliff watched the defendant and Booth leave the automobile and enter the apartment building and then summoned Lt. Mark Ruckel in charge of the burglary unit. Within a few minutes Lt. Ruckel, Detective Billy Witcig and another officer arrived on the scene and Detective Ratcliff briefed these officers on what had transpired. Entering the building the officers were admitted to the Foster apartment by Larry Foster and after a search they found defendant hiding in a closet of the rear bedroom. Defendant was arrested, his person searched, and within a few minutes the Plymouth automobile was searched by Detectives Ratcliff and Witcig. When the police requested the keys to the Plymouth, the defendant stated he did not have the keys, denied owning the automobile, denied knowing anything about the automobile, and, denying the he had driven the automobile to the apartment, he stated that he had walked there. Through the automobile windows Detectives Ratcliff and Witcig saw certain of the tools described in the information on the floor and in the back seat of the automobile and on a ledge above the back seat. These tools, with a pistol in a glove found under the front seat, were removed from the automobile and with the keys found in the ignition switch the car trunk was unlocked and searched resulting in the seizure and removal of more similar tools. After this search and seizure was completed, the automobile was towed by the police to a garage. The evidence is not clear as to which of the tools seized were those seen by the officers through the car windows and which were those removed from the locked trunk. As the search of the automobile was being completed, Lt. Ruckel and other officers with defendant in custody left the apartment building enroute to police headquarters.
Ownership of the automobile and the tools in it was claimed by the defendant's sister and her husband, but defendant negotiated the automobile's purchase and paid for it.
The defendant admits that his arrest pursuant to the warrant was lawful, but contends that the search of the automobile and the seizure of this evidence was illegal and in violation of his constitutional rights, and that, therefore, the Court erred in overruling his motion to suppress the evidence. He also contends that the Court erred in failing to exclude from the evidence the tools later offered and admitted in evidence over his objection. In support of his contentions defendant cites Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; State v. Edmondson, Mo., 379 S.W.2d 486; and State v. Hunt, Mo., 280 S.W.2d 37. In Preston the petitioner and two others occupying an automobile which had been parked in a business district for approximately five hours were arrested at about 3 a. m. on a charge of vagrancy, their persons searched for weaspons, and taken to police headquarters. The automobile was not searched at the time of the arrest but was taken in charge by an officer and driven by him to the police station and thereafter towed to a garage. After the three men were booked at the police station, the police made two trips to the garage and on the first trip found two loaded revolvers in the glove compartment. On the second trip, they searched the automobile trunk by entering the trunk through the back seat and seized a stocking with holes for mouth and eyes and other items which presumably would be useful in performing a robbery. Later one of petitioner's companions confessed that he and two others (not naming petitioner) intended to rob a bank in a nearby town. Against the Government's contention that this search and seizure was justified as incidental to a lawful arrest, the Court held that the search was too remote in time or place to have been made as incidental to the arrest, and that the search of the automobile without a warrant failed to meet the test of reasonableness under the Fourth Amendment rendering the evidence obtained inadmissible. In Edmondson the defendant was arrested at a motel in Albuquerque, New Mexico, for an alleged felony committed in Missouri. Defendant's automobile was parked on a public parking lot about 10 feet from the front door of his room. After he was arrested and taken in custody the police took charge of the automobile and drove it to the police department garage where it was searched by the police without a search warrant some three or four hours later. A piece of paper found under the driver's seat was identified as an article taken in the Missouri robbery and was admitted in evidence over the defendant's objection that this search and seizure violated his Federal and State constitutional rights. In Edmondson, as in Preston, the search of the automobile was too remote in time and in place to have been made as incidental to the arrest. This Court there held that the search violated the Fourth Amendment to the Federal Constitution and that the piece of paper obtained as a result of the search was inadmissible. In Hunt, supra, the trial court sustained a motion to quash a search warrant and suppress evidence obtained by unlawful search, but admitted testimony pertaining to the articles unlawfully seized. Following the Federal rule excluding evidence obtained as a result of an illegal search including oral testimony of facts gathered during an unlawful search, adopted by this court in State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383, this Court held that the testimony pertaining to the articles was inadmissible and reversed and remanded the case. Obviously the Hunt case is not applicable and does not support defendant's point.
The facts in this case and those in Preston and Edmondson, supra, are also obviously different and the rule applied in those cases is not applicable here. Here the automobile was parked at the curb directly in front of the Foster apartment, where defendant had been seen to leave it only a few minutes before. Immediately after defendant's arrest it was searched and articles seized at this spot before defendant was taken to police headquarters and later it was towed to a garage. Had the officers not searched the automobile and removed therefrom the items mentioned in evidence as burglar's tools there would have been nothing to prevent others (who could and later did claim ownership of the automobile and tools) from removing the same and destroying the evidence seized by the officers. In Preston the court again stated the rule that when a person is lawfully arrested the police have a right to make a contemporaneous search of his person, of things under his immediate control, and, depending upon the circumstances, of the place where he is arrested. The court repeated that the rule 'allowing contemporaneous searches is justified, * * * by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime', but held that '* * * these justifications are absent where a search is remote in time or place from the arrest.' In this case the search of the trunk of the Plymouth was immediate in point of time and place and was contemporaneous with and incidental to what was admittedly a lawful arrest. State v. Edwards, Mo., 317 S.W.2d 441, 445[2, 3].
Also, the officers had only to look and see and did, without a search, look through the automobile windows and see, lying in plain view on the floor, the back seat and a ledge above the back seat many of the items described as burglar's tools likely to connect defe...
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