State v. Wiley
| Decision Date | 14 April 1975 |
| Docket Number | No. 58613,58613 |
| Parties | STATE of Missouri, Respondent, v. Ronald Lee WILEY, Appellant. |
| Court | Missouri Supreme Court |
Richard E. Snider, Cape Girardeau, Peter L. Statler, Jackson, for appellant.
John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
I.
Appellant was arrested, charged and convicted of two counts of possession of controlled substances in violation of Chapter 195, RSMo 1969, V.A.M.S., in the circuit court of Cape Girardeau County. Punishment was assessed at five years confinement on each count with the sentences to run concurrently. On appeal, the Court of Appeals, St. Louis District, affirmed in an opinion by Judge Simeone; and, then transferred the cause to this court pursuant to Rule 83.02, V.A.M.R., 'because of the general interest or importance of a question involved in the case.'
That opinion without benefit of quotation marks follows:
On March 10, 1972, Ronald Wiley and Keith Umfleet were charged in a two count information with willfully, unlawfully and feloniously having 'in their joint possession a controlled substance'--three bottles of morphine sulfate and 50 capsules of Fiorinal with Codeine #1. The cause was severed. Defendant Wiley filed a motion to suppress the evidence alleging that the search and seizure conducted by the officers violated his constitutional rights; he also filed a motion to 'surpress' (sic) statements, confessions or admissions made by him.
On December 1, 1972, a hearing was held on the motions to suppress. The motions were overruled and trial commenced before the court and the jury.
This case presents a great dilemma confronting modern society--that of a conflict between the privacy of individuals and their guests in a private home and the ferreting out of illegal drugs and the enforcement of the laws relating to the possession of controlled substances, the possession of which is declared by our General Assembly to be illegal and detrimental. How to balance these two societal goals--the protection of the privacy of the home and the enforcement of the drug laws is the difficult task we must resolve.
During the afternoon of February 2, 1972, at about 3:30--3:45 p.m., a telephone call came in to the police department of Cape Girardeau, Missouri, on what is known as the 'tip' line, a line provided for the citizens of the community wherein informants may call a particular number and inform the police concerning crime, and especially crimes involving drug offenses. The informant in this case was anonymous. Lieutenant William Stover of the Cape Girardeau Police Department spoke to the individual making the tip who told him the following:
(1) That the third floor apartment at 215 N. Ellis Street was rented to Mr. and Mrs. Gary Moore.
(2) That 'Keith Umfleet, Ronald Wiley and a Gary Moore had drugs stored in the refrigerator at the third floor north apartment 215 North Ellis' in Cape Girardeau.
(3) That 'they were eating a meal there at that time and after they finished the meal they were going to go to Carbondale (Illinois), to dispose of the drugs.'
(4) That 'there was a Volkswagen car located at the rear of the apartment building and they weren't sure whether this was going to be their transportation to Carbondale or not because it had been giving them trouble.'
(5) That an incinerator was located in 'the back of this apartment.'
This first telephone call lasted about three minutes.
Based upon this information Lieutenant Stover went to the prosecuting attorney's office and at some point verified certain of the information of the caller. Lieutenant Stover verified (1) that the apartment was rented to Mr. Moore, that Mr. and Mrs. Gary Moore lived in the apartment mentioned by the caller, and that it was rented to them, (2) that there was a red Volkswagen there, (3) that there was an incinerator in the back of the apartment, and the location of the incinerator. Lieutenant Stover had knowledge that Keith Umfleet had a reputation of trafficking in drugs and that he was arrested during a May 12th drug raid in Scott County and that the defendant Ronald Lee Wiley had the general reputation in the community as a 'user and supplier of drugs' which reputation was obtained from 'competent informants,' but he did not know of 'any tangible acts' on the part of Wiley which would lead to this reputation.
At least one more telephone call from the informant was received. Stover stated that, after a report from Officer Albert C. Moore of the Police Department who had been assigned to 'stake out' the apartment at about 4:30 p.m., one David Hill was 'seen in and about that apartment'; that the informant stated that a sale had just been made. Officer Moore, however, testified that David Hill was seen by him to 'walk down Broadway in front of the telephone building.'
Lieutenant Stover, shortly thereafter, went to the prosecuting attorney's office for the purpose of obtaining a search warrant. At about 4:00 p.m. the prosecutor attempted to contact two judges to obtain a search warrant but the attempt was unsuccessful. Lieutenant Stover testified that the usual time necessary to obtain a search warrant was an hour and a half to two hours. At that time the prosecutor and Lieutenant Stover were in the process of preparing affidavits to present to a judge.
Officer Moore, while parked on a parking lot near the apartment from about 4:50 to 5:30 p.m., did not see any of the persons named in the informant's call enter or leave the apartment, but did see David Hill, a known user of drugs, walk down Broadway in front of the telephone building presumably 'in and about that apartment' and he also observed an orange Pinto with Illinois license plates pull into the parking lot, the occupants of which
At about 5:30 p.m., Lieutenant Stover and Officer Moore and three deputies of the sheriff's office--Lieutenant Walter Kinder, Deputies Jim Green and David Gaither--went to the apartment at 215 North Ellis. No search warrant had been obtained and the officers had neither an arrest nor search warrant in their possession.
Three of the officers--Stover, Officer Moore and Deputy Kinder--went to the front door and Deputies Green and Gaither went to the back door of the apartment. Either Lieutenant Stover or Deputy Kinder knocked on the front door; the door was opened by a person inside, the officers announced that they were police officers, and Deputy Kinder stated they were under arrest for the possession of controlled substances and advised them of their rights. At the time of the entry the evidence indicated that, except for Gary Moore who was just inside the door, the individuals were seated on couches and chairs in the living room. Later, Gary Moore followed the officers to the doorway of the kitchen and at the tiem of the seizure he was standing there. Lieutenant Stover walked through the living room to the kitchen and admitted Deputies Green and Gaither through the back door. Immediately thereafter Stover 'opened the refrigerator in the kitchen' and removed a 'white plastic bag of drugs from the lower compartment of the refrigerator.' The bag was a white zipper top plastic bag about eight by ten inches in size containing glass bottles. When Lieutenant Stover came in, he went 'straight to the back door and then straight to the ice box.' This took no more than 'a couple of minutes.' The individuals in the apartment were not searched and no other search of the place was made.
The individuals were then taken to the police station.
The sheriff of Cape Girardeau County, Sheriff McLain, testified on both the motion to suppress and before the jury. He testified that after the defendant was arrested, the defendant went to a hospital but later, on February 16, 1972, when he was returned to jail, the defendant told him he wanted to speak to him--the sheriff. The sheriff and the prosecutor did speak to the defendant in the sheriff's office. No promises were made, the defendant was advised of his constitutional rights, he initiated the conversation, no threats were made, he was not under the influence of alcohol or drugs, he was mentally alert, and in this conversation the defendant told the sheriff that 'I know about them drugs that was in that refrigerator.' The sheriff testified that the defendant stated that the drugs were 'Keith's (Umfleet) and someone else's, his and Moore's, his and Kieth's, I believe.' The defendant stated that 'him and Keith went up in Detroit and got them,' and that 'they had to keep them over there (in the apartment) because Keith's trailer was too hot to keep them in.'
A report of the conversation made by the sheriff was introduced. That report stated that Wiley 'stated that he knew the dope was in the refrigerator and that he has helped Kieth (sic) sell it before and he got his own supply by helping to sell to others . . . He (Wiley) also stated they kept the stuff in Moore's house instead of Umfleet's housetrailer because Umfleets Housetrailer was hot.'
During the State's case, Dr. Robert C. Briner, a chemist and director of the criminalistics laboratory at Southeast Missouri State College in Cape Girardeau, testified. He first testified that morphine sulfate is a controlled substance under Missouri law, and that it is a scheduled drug. He said while morphine sulfate is not listed in schedule I of the statute, it is one of the derivatives of morphine which is listed in schedule I. He said that morphine sulfate is a salt of morphine. The bottles taken at the apartment were sealed and of the type 'that would normally occur in hospital type pharmacies.' They were labeled morphine sulfate. Tests resulted in confirming the presence of morphine,...
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