State v. Whitnah, 34663
| Decision Date | 13 March 1973 |
| Docket Number | No. 34663,34663 |
| Citation | 493 S.W.2d 32 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jon Rande WHITNAH, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Shaw & Howlett, Terry J. Flanagan, Keith W. Hazelwood, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., Allen D. Seidel, Asst. Atty. Gen., Jefferson City, Gene McNary, Pros. Atty., Robert E. Ritter, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
Jon Rande Whitnah, the defendant, was charged under the Second Offender's Act with carrying a concealed weapon. Trial to a jury resulted in a verdict of guilty, and the court assessed punishment at five years in custody of the Missouri Department of Corrections. Defendant appeals contending error in admission into evidence of the weapon, in the state's final argument, and in the refusal of one of defendant's instructions.
The weapon was found in a search of an automobile after an arrest of defendant for traffic violations. Officer Stegen of the Missouri State Highway Patrol had drawn onto the inside lane of southbound Highway 21 in St. Louis County to follow the defendant's truck. When the truck speeded up to 70 miles per hour in a 60 mile per hour zone, Stegen turned on his red lights and spotlight. At this time defendant in his truck turned across the outside lane of the highway in front of another southbound car and then onto a side road to his right. While in this maneuver, he turned out his lights. Stegen immediately applied his brakes, turned to the rear of the southbound car, and followed defendant's truck. The truck stopped about two-tenths of a mile after the turnoff. Stegen jumped out of the patrol car and commanded the defendant to come out of the truck very slowly. Stegen then conducted a search of defendant's person, placed handcuffs on him and informed him that he was under arrest for speeding, driving without lights, and failure to signal for a turn. Another trooper arrived and stayed with defendant-appellant while Stegen returned to look at the interior of the truck cab. The door of the truck had been left open by defendant when he got out. With the door of the truck open, Stegen could see the barrel of a shotgun protruding from under the seat. He then looked under the seat with his flashlight and saw a revolver. On the floor of the cab was an old muzzle-loading type rifle. Stegen then proceeded to take out the shotgun barrel which he found to be only a barrel and inoperable. When he removed the revolver he found it to be a short barrel P.38 nine millimeter automatic pistol. On the seat was a box of ammunition that fit the pistol.
In response to a motion to suppress, a hearing had been held prior to trial. At this hearing, Corporal Wheeler of the Missouri State Highway Patrol, the officer who had assisted Stegen at the time of defendant's arrest, testified that he, Wheeler, was conducting a surveillance of defendant's house. He did not have a warrant for Whitnah's arrest, but wanted to talk to him about a stolen automobile. When he saw defendant leave his home, Wheeler notified Officer Stegen and it was pursuant to that radio call that Stegen followed Whitnah on Highway 21. Wheeler had checked the defendant's past criminal record and had found that he had been arrested for carrying concealed weapons, burglary, and auto theft. Wheeler warned Stegen on the radio that the defendant might have a gun. Stegen testified that he saw the shotgun barrel sticking out from under the seat of the truck before he made any search of the cab. The motion to suppress evidence produced by the warrantless search was denied.
Defendant contends on appeal that the pistol was the product of an illegal search and seizure, and that the court committed prejudicial error in failing first to sustain his motion to suppress the evidence seized as the result of this illegal search and seizure, and second because the court overruled defendant's objection to the introduction and admission into evidence of the pistol as an exhibit. He relies on the case of State v. Meeks, 467 S.W.2d 65 (Mo. banc 1971). In Meeks, the police stopped a car because it had an expired license plate. Meeks himself was searched but nothing was found on his person. He was arrested for driving with an expired license plate and then, while he was out of the car standing on the sidewalk, the police searched the car, finding marijuana in the closed 'console' located between the two front seats. There the search and seizure of the marijuana was successfully challenged because it was a purely exploratory venture and was not justified as incident to the arrest based on probable cause. Here, however, Office Stegen saw the barrel of a shotgun protruding from under the seat of the truck in plain view when defendant left the door of the truck open. Upon peering under the seat, with flashlight, Stegen discovered the pistol. The protruding shotgun barrel, even though it was later found to be inoperable, would be sufficient probable cause to support a search for other weapons as being the 'something more' to which Finch, J., referred in his concurring opinion in Meeks, supra, 467 S.W.2d, l.c. 68. The case at bar is actually very similar to the facts in State v. Smith, 462 S.W.2d 425 (Mo.1970), where the arresting officer saw a rifle in the car and a large object in the open trunk covered with a rug. Previously the automobile had been stopped and defendant arrested because of a stolen license plate appearing on the automobile. After defendant was arrested for stealing a license plate, he was taken to the district police station. Meanwhile, an officer searched defendant's automobile and seized the rifle, some clothing, some binoculars and a color television set which had been in the trunk under the rug. Under such circumstances, the officers had proper knowledge that the contents of the automobile contained items which, in the words of Carroll v. United States, 267 U.S. 132, 45...
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State v. Achter
...against the law and thus justify a complete search of the automobile irrespective of probable cause to make an arrest. State v. Whitnah, 493 S.W.2d 32 (Mo.App.1973) (driver's evasive action and observance of suspicious articles in car); State v. Hornbeck, 492 S.W.2d 802 (Mo.1973) (numerous ......
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...considered by the trooper when reaching the level of probable cause for a warrantless search of the automobile. State v. Whitnah, 493 S.W.2d 32, 35 (Mo.App.1973). This Court, as did the trial court, views the circumstances in their totality as they unfolded that night on Highway 44. The tro......
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