State v. Witherspoon

Decision Date14 December 1970
Docket NumberNos. 54102,54103,No. 1,s. 54102,1
Citation460 S.W.2d 281
PartiesSTATE of Missouri, Respondent, v. Robert WITHERSPOON and Harold Hamilton, Appellants
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.

Floyd L. Sperry, Jr., Clinton, for appellant.

HENRY A. RIEDERER, Special Judge.

Defendant Robert Witherspoon was tried and convicted jointly with defendant Harold Hamilton, but each has appealed separately. They were both found guilty of possession of burglar tools by the same jury, which was unable to agree on the punishment. The trial court thereupon, and after allocution, sentenced each to five years in the custody of the Missouri department of corrections. Since the same facts and law apply to both cases, we consolidate these two cases for the purpose of these appeals.

Before the consolidated jury trial began, identical motions to suppress evidence were filed and consolidated and evidence heard thereon, after which they were overruled by the trial court. This action was the sole point preserved for review. Defendants claim prejudicial error because at the time the burglar tools in question were seized without a search warrant therefor, probable cause or other lawful constitutional basis did not exist for the search and seizure. Additionally, Witherspoon claims he had not been placed under arrest, and thus the search could not be incident to an arrest as to him.

The evidence on the motion to suppress came only from the arresting officer and disclosed the following:

Defendant Witherspoon was riding in the front seat of a '68 Plymouth driven by co-defendant Hamilton south on 71 highway when stopped by a state highway patrolman about a mile north of Passaic. The patrolman had previously--just five minutes before--been advised by a female informant, previously unknown to him, that the car in which defendants were riding was being driven 'at a high rate of speed, coming up on hills, being on the wrong side of the road, attempting to pass when it shouldn't be, and generally driving in a reckless manner and a high speed.'

The informant also reported having seen the Plymouth 'stop and throw out trash'. This intelligence was given the patrolman at 8:25 p.m. at Adrian, which is 3.7 miles north of the point the Plymouth was stopped at 8:30 p.m. on May 9, 1969. In the five minutes the patrolman checked by radio and found the license number given by the informant was issued to a named person, of Independence, for use on a '49 Chevrolet. The patrolman did not observe or detect the driver of the Plymouth in question speeding or driving in a careless and reckless manner, or driving on the wrong side, or attempting to pass at the wrong time, or violating any law before he stopped the Plymouth.

When the Plymouth was stopped, the patrolman asked to see the operator's license of the driver, Hamilton. A valid license was produced. The patrolman asked Hamilton if he were the owner, and Hamilton replied negatively--saying it was owned by a female friend. The patrolman then advised that his records showed it was owned by a man from Independence, and Hamilton stated he did not know that person.

It was then that the patrolman advised Hamilton he was under arrest for using an improper license plate, and placed him in the patrol car to the rear of the Plymouth. He did not search Hamilton for weapons, but did recheck the license registration 'to make sure that I had the proper information, and it come back exactly the same way. * * *' He did not mention the trash throwing allegation to Hamilton.

Then the patrolman went forward to the Plymouth to identify the passenger, whom the found by a valid driver's license to be defendant Witherspoon. He then inquired if Witherspoon thought he could operate the vehicle, and received the reply that Witherspoon felt he could if it was all right with Hamilton. He did not place Witherspoon under arrest at that time, or search him or the Plymouth for weapons at any time before the contested search of the trunk. He reported nothing in open view inside the car that caused him to be suspicious, or caused him to believe it necessary to search the trunk, either to protect himself or to aid in the investigation of the improper license plate charge; in fact, he admitted the search could not have aided such investigation.

Rather, the patrolman asked Witherspoon, who had scooted under the wheel, 'if there would be anything in the trunk they would care if I looked at'. To this Witherspoon replied negatively, and handed the officer the keys--according to the direct examination; or the officer took the keys from Witherspoon--according to the cross-examination. Hamilton, still in the patrol car behind, was not asked about the search of the trunk or the keys thereto.

The patrolman unlocked the trunk lid with the keys obtained from Witherspoon and found the trunk to contain: a two-wheel metal dolly with rubber tires, two tan colored car seat belts, three large pry bars, two large screwdrivers, an 18 inch pipe wrench, a small leather bag containing numerous tools, screwdrivers, vise-grips, punch, wire cutters, flashlight, two pairs of gloves and a brake adjustment tool.

These items were described in slightly different language informations against each defendant, as being 'material implements and mechanical devices adapted, designed and commonly used for breaking into a safe, warehouse, store, shop, office or dwelling house contrary to Section 560.115, Missouri Revised Statutes'. They were also the objects of the motions to suppress in question here.

The patrolman did not mention, or speak of, or accuse either defendant of any crime which he observed or detected before stopping the car. Nor did he testify to any facts which by any construction could mean he had a reasonable belief or probable cause to believe they had committed any felony. There was never a suggestion the car was stolen, although the highway patrol is required by statute (Sec. 301.230 V.A.M.S.) to keep a record of stolen cars which information could also be obtained by radio.

The patrolman disclosed no known reason to believe, and did not express the belief at the hearing, that the trunk contained any contraband or evidence which could be used in the prosecution of a felony he had probable cause to believe had been or was being committed. He stated that he searched the trunk only for weapons, because conflicting stories of the defendants made him suspicious, although he did not search the persons of defendants for weapons, and checked the interior of the car 'only by eyesight'.

After searching the Plymouth trunk, the patrolman returned to his patrol car and summoned help from Butler, the county seat. A deputy sheriff arrived in 15 to 20 minutes, and then Hamilton was removed from the patrol car and placed in the deputy's car. Then Witherspoon was removed from the Plymouth for the first time, handcuffed and placed in the patrol car.

Then it was that Witherspoon, the passenger, was advised by the patrolman he was under arrest for investigation of possession of burglar tools. Then Hamilton, the driver, was advised he was under arrest for the same charge.

The patrolman had previously written up a traffic ticket on the improper license charge, but it was never delivered to the driver, Hamilton. The record does not disclose any prosecution on that or any other charge arising out of this incident. It does disclose that the patrolman did not advise appellants, or either of them, of their constitutional rights, including the right not to be unreasonably searched. There is no evidence showing any suspicion, much less belief, that the stopped car contained any contraband before the trunk search; or that the appellants, or either of them, were fugitives from justice on any felony violation.

Was the search in this case reasonable or unreasonable? There was no warrant for the arrest or the search. The state maintains the search and subsequent seizure were valid because incident to a lawful arrest and that such a search was necessary for the protection of the officer and to prevent the destruction of contraband. Its second point is that appellants consented to the search of the vehicle.

The prohibition of the Fourth Amendment against unreasonable searches and seizures is enforceable against the states through the due process clause of the Fourteenth Amendment, and hence a state has no power to sanction searches and seizures prohibited by the Fourth Amendment. Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Appellants have the burden of establishing the illegality of the official action; that the search was unreasonable. State v. Holt, 415 S.W.2d 761 (Mo.1967); State v. Gailes, 428 S.W.2d 555 (Mo.1968). But where, as here, the search is without warrant, the burden is on those seeking to come within one of a few specifically established and well-delineated exceptions to the Fourth Amendment warrant requirement to establish that their acts are, in fact, exempt from the rule that magistrates rather than police officers should determine when searches should be permitted and what limitations should be placed on such activities. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, 1669; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1952); Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685, 693 (1969).

The state cites the excellent article on 'Search of Motor Vehicles' by F.B.I. agent John B. Hotis in 73 Dickenson Law Review 363 (Spring 1969). In it we note that: (l.c. 366) '* * * It is important to understand that a warrantless search is tolerated by the Courts in...

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