State v. Williams
| Decision Date | 13 November 1972 |
| Docket Number | No. 2,No. 57559,57559,2 |
| Citation | 486 S.W.2d 468 |
| Parties | STATE of Missouri, Respondent, v. Edward Leslie WILLIAMS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Larry R. Marshall, Columbia, for appellant.
HOUSER, Commissioner.
Edward Leslie Williams, charged with illegal possession of Marijuana, tried and convicted by the court without a jury, and sentenced to two years' imprisonment has appealed. We have jurisdiction of this felony appeal because the notice of appeal was filed prior to January 1, 1972. Constitution of Missouri, 1945, Art. V, § 31, V.A.M.S.
In April, 1969 appellant was convicted of malicious destruction of property, a misdemeanor. Paroled by the judge of the Randolph County Circuit Court, his parole was revoked in June, 1970 and he was incarcerated in the county jail. In October, 1970 he was again paroled by order of that circuit court conditioned that he maintain residence at Halfway House in Columbia, a regional treatment center operated by the state board of probation and parole for high-risk parolees and probationers. The primary reason the parole officers recommended that appellant be placed in residence there was their feeling that appellant needed 'very intensive supervision.' The residents of Halfway House were under the direct supervision of board officer Kauffman, who lived with his wife on the premises in an apartment on the first floor. Kauffman's entire case load consisted of the 7 or 8 residents. A treatment-oriented facility, Halfway House is an older home with four bedrooms and a bath on the second floor, Kauffman's living quarters on the first floor, and four rooms, including a kitchen and bedroom, in the basement. Officer Kauffman was responsible to his supervisor and ultimately to the court for all the people residing there; for physically taking care of the home; maintaining the property; dealing with the residents; trying to help the individuals to deal with society, keep out of prison and avoid further trouble with the law. As a part of his responsibility Kauffman frequently visited all parts of the house to see whether the residents were keeping their rooms clean, whether repairs were necessary, etc. Appellant and two other parolees occupied one of the upstairs bedrooms, which had a common walk-in closet. Individual rooms were not equipped with locks and keys. Appellant signed documents agreeing to abide by certain rules while living at Halfway House, such as keeping his room clean, not possessing liquor or narcotics, etc. These documents did not expressly waive appellant's constitutional rights as to unreasonable searches and seizures. Residents were required to pay a certain percentage of their earnings as rent and were told to consider Halfway House to be their home. Officer Kauffman conducted group therapy sessions with the residents from time to time, and communicated with and observed appellant's behavior 'every day practically speaking.' Officer Perry, Kauffman's immediate superior, spoke to appellant twice about drugs, prior to the latter becoming a resident of Halfway House. On these occasions appellant told Officer Perry his feelings about drugs, stating that he had used drugs; that he felt the laws pertaining to marijuana were 'unrealistic'; that it was unfair for society to have laws making it illegal; that it was a matter for individual decision whether or not to use drugs, and that in his opinion there was nothing wrong with using drugs, particularly marijuana. After becoming a resident of Halfway House appellant on several occasions expressed the same views to Officer Kauffman, who concluded that appellant's attitude was one of disagreement with the laws, and that he had a propensity to be involved in drugs. Although Kauffman had never seen appellant with marijuana or other drugs in his possession or on the premises he became suspicious of his behavior and actions, considering appellant's past experience with drugs and his views on drug use, the fact that twice liquor had been found on the premises, and that on the day in question two people (hippie types, with long hair and bizarre clothing) stopped at Halfway House, asked to see 'William Edwards,' and when told there was no one residing there by that name looked confused and said he had told them he lived at that address. On the evening of November 5, 1970, in the absence of appellant and without his consent, Kauffman 'decided to just take a look around.' He entered appellant's room without a search warrant or arrest warrant and searched for what he thought might be contraband. Kauffman thought he had a right to make the search as a parole officer and for the further reason that he was responsible for the house and for each resident; 'responsible for anything they might do while living there that (might) reflect upon other residents or the facility in general.' Kauffman went into the closet and examined the contents of appellant's knapsack, which he found on top of a dresser in the closet. At the bottom of the knapsack, under some dirty laundry, Kauffman found a paper bag containing eight packets of material which laboratory examination proved to be marijuana. Kauffman reported to his superior, Officer Perry, who suggested that the city police be called and that appellant be picked up on a parole violation warrant. Kauffman made out and signed such a warrant, directed to the police chief, and took it to the police station. Three uniformed city police officers then took appellant into custody about 1:15 or 1:30 a.m. on November 6 and the three police officers, together with Officer Kauffman, brought appellant to the police station. There he was interviewed in the reception room by Parole Officers Perry and Kauffman for about 20 minutes. Officer Perry at that time advised appellant that he did not have to answer any questions; that if he did what he said could be used against him in court; that if at anytime during the questioning he chose not to answer he did not have to do so and that he had a right to have an attorney persent during questioning. He omitted to inform appellant that the court would appoint an attorney if he could not afford one. In the course of the conversation appellant stated that the marijuana found in his room was in fact his and that he obtained it from a friend who owed him a debt for past favors.
Sometime between 9 and 10 a.m. on November 6 Officer Kauffman delivered to the Columbia Police Department the substance found in the search. City Police Officer Muse interrogated appellant, beginning about 10 a.m. on that date. Before doing so he fully advised appellant with respect to his constitutional rights, including his right to appointment of counsel if unable to afford a lawyer, following which he took written statements in which appellant admitted his guilt of possessing marijuana. No promises, offers, threats or coercive measures were employed and appellant was cooperative.
A motion to suppress the evidence gained by the search was filed and overruled. Thereafter a motion to suppress the incriminating oral and written statements was filed, taken with the case and eventually overruled.
Appellant asserts that although a parolee he was entitled to certain basic constitutional rights against unreasonable searches and seizures and self-incrimination; that the court erred in admitting in evidence the marijuana and the testimony of the parole and police officers because the narcotic and the incriminating statements were the fruit and product of an unlawful seizure and arrest of appellant; that the search was made without probable cause, warrant or other lawful authority and not as an incident to a lawful arrest; that the evidence was obtained in violation of appellant's privilege against self-incrimination; that appellant was not properly advised that he had a right to remain silent and anything he said could be used against him in a new felony proceeding, and that he did not knowingly, intelligently and voluntarily waive his right against self-incrimination; that the statements were obtained in violation of his constitutional rights to counsel, in that he was not advised that an attorney would be appointed for him if he could not afford one, and that he had a right to have counsel present during questioning and did not waive that right; that the oral statement constituted the fruit of an unlawful search because the arrest resulted from an unlawful search and seizure; that the subsequent written statements introduced in evidence were a direct result of the previous illegally obtained oral statement to the parole officers.
We start out with the State's concession that the warrantless, exploratory search, not made as an incident to a lawful arrest, 'would have been illegal if an ordinary citizen had been the subject of the search' because of lack of probable cause. Noteworthy is the further fact that appellant's conviction did not suspend his civil rights under § 222.010 1 for the reason that he was convicted of a misdemeanor and sentenced to imprisonment in a county jail (and not to imprisonment in 'an institution within the department of corrections'). Finally, the search was instituted and made by a parole officer acting on his own initiative, so we do not have the complicating factor of a search conducted by a parole officer acting as the agent, tool or 'front' for the police, or at the instigation of or jointly with the police.
In this background and under the particular circumstances of this case the court did not err in overruling the motions to suppress the fruits of the search and in admitting in evidence the marijuana.
The first broad question is whether this parolee, living under close, daily supervision and surveillance of a parole officer in a state-operated treatment facility under a restricted regimen designed to serve the twin purposes...
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