State v. Young

• Decision Date: 11 March 1968
• Docket Number: No. 1,No. 52907,52907,1
• Citation: 425 S.W.2d 177
• Parties: STATE of Missouri, Respondent, v. Robert W. YOUNG, Appellant
• Court: Missouri Supreme Court

Page 177

425 S.W.2d 177

STATE of Missouri, Respondent, v. Robert W. YOUNG, Appellant.

No. 52907.

Supreme Court of Missouri, Division No. 1.

March 11, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Edward J. Wynne, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Dean S. Johnston, Joplin, for appellant.

SEILER, Judge.

This case involves a question of search and seizure. From a conviction by a jury upon an information charging prior felonies and a current offense of unlawful possession of burglar tools (§ 560.115, RSMo 1959, V.A.M.S.), with a sentence of four years by the court, defendant appeals. Specifically, the information charged possession of 'a coal chisel, an electric drill, one extension cord, one flashlight, one pry bar, two pair of gloves, several drill bits, one ball pean hammer and one large hammer, several crescent wrenches and several screw drivers.' Defendant's primary contention is that the court erred in overruling his motion to suppress certain evidence found in a search of his car by the police which was the basis of his conviction. We agree with his position and reverse the judgment.

The facts are substantially as follows: On January 2, 1967, about 12:30 a.m. defendant and his passenger, Eugene Janzer, both transients, were northbound on Main Street in Joplin, in defendant's automobile, a 1950 Cadillac. Police Officer Norman Boyd, who was southbound on Main at Seventh Street, noticed that defendant's car did not have a license plate in the usual place on the rear bumper. Boyd followed defendant's car and stopped it with his red light near Fifth and Main, about two blocks north of where he first observed it. Defendant was driving at a reasonable speed and was not violating any Joplin traffic ordinances. Defendant and his passenger were unknown to Officer Boyd. Boyd informed defendant why he was stopping him and asked for his driver's license and also for his papers for the vehicle. Defendant showed Boyd his Utah driver's license and the sales papers on the car, both of which were in order. According to these papers the car was purchased in Salt Lake City, December 13, 1966. The car had no license plate but there was a Utah temporary motor vehicle registration permit, approximately 11 5 inches in size, mounted in the rear window of the car, which Officer Boyd had not noticed until defendant called it to his attention. This permit was still in force and it was made out for defendant's vehicle. When defendant got out of the car to hand Officer Boyd his papers, the interior light went on and Boyd saw an electric drill and two small screw-drivers lying on the rear floor.

According to Officer Boyd, Young was neat in appearance, had not been drinking, was polite and had not committed any felony that Boyd knew of. Boyd was not in pursuit of any felon at the time and had no report of any felony which had been committed that evening within his beat.

About the time Boyd was checking defendant's papers, another Joplin policeman, Officer Lawless, southbound on Main Street in a police car, with a police dog, happened by and was flagged down by Officer Boyd. Boyd had Lawless look over defendant's papers, 'wondering whether they were * * * in order'. Lawless could not find any irregularities. A third Joplin policeman, Officer Gunn, was also present. He stood on the sidewalk, keeping defendant's passenger under observation. Boyd asked Young what type of work he did and where, but was unable to recall defendant's answer or explanation for the tools, except defendant said they were his. Defendant's testimony on the hearing on the motion to suppress was that he was an electrician, a trade which he had learned in rehabilitative training while an inmate of the Utah State Penitentiary. He produced a card from 'the Board' showing 1056 hours of 'industrial electricity'. Boyd said defendant told him he was going to Kansas City. Defendant testified they were 'just passing through' Joplin on U.S. 66 en route to Kansas City, but 'had to go through Pittsburg, Kansas'. Officer Boyd asked defendant if he would open the trunk. Boyd said that defendant said, 'It is silly', that 'He didn't do it right at first, just made an expression as if he didn't exactly want to, but which he did on his own free will', and then took the key from the ignition switch and opened the trunk. Defendant said he agreed to open the trunk, but not until he had told Officer Boyd he did not want to open it to begin with, that he 'didn't like people looking through my private stuff', but the police said 'We are going to be looking at them now whether you like it or not', and rather than have the car 'mistreated', defendant opened the trunk. While Officer Boyd was going through the trunk, Officer Lawless was searching the car. In the trunk there was a tarp with a spare tire, a tire tool and a bar, pointed on one end and U-shaped and flat on the other. There was also a small trunk with clothing, apparently belonging to the passenger, several cans of oil, and a battery box, containing the following: a twenty inch screwdriver, four pairs of pliers, two eight inch crescent wrenches, four open end wrenches, a chuck for an electric drill, a piece of wire, a lock washer, and a nut. Officer Lawless searched the glove compartment and underneath the front seat. Under the front seat he found a sledge hammer with a short handle, a large screwdriver and a ball peen hammer. In the glove compartment he found a green electric cord, three bits for an electric drill, two screwdrivers, three pairs of pliers and one coal chisel. Later in the day at the police station, another officer also found under the front seat a chrome flashlight, still another screwdriver, and a pair of gloves. The contents of the box, the glove compartment and the various tools were marked as exhibits and shown the jury.

Officer Boyd testified that when he first talked to defendant he did not place him under arrest. He said '* * * the minute I observed the tools in the trunk of the car I placed him under arrest for possession, in the possession, the possession of burglary tools. That is when Officer Lawless went around to the passenger side and looked in the front of the vehicle.' Prior to that time Officer Boyd said he had not arrested Young for any charge. Boyd asked defendant whether he had any previous criminal record but not until after he had placed defendant under arrest. The police also arrested defendant's passenger on a charge of possession of burglar tools, but later released him.

Officer Lawless heard Officer Boyd place defendant under arrest. This was after the trunk had been opened and when Boyd and defendant were standing about six feet to the rear of the car. Lawless did not know of any previous record on Young's part at this time, either.

At the trial the state put in evidence defendant's first degree burglary conviction in Arizona in 1958, from which he was paroled in 1960, a conviction for second degree burglary in Utah in 1960, a conviction for assault in Utah in 1961, and a conviction for escape from the Utah State Penitentiary in 1962. He was released from the Utah penitentiary December 12, 1966.

In ruling on the motion to suppress the trial court stated '* * * when he (the officer) asked for identification, the driver license, he was enabled to see tools that are commonly used in burglary cases, and that on the opening of the trunk he then saw other tools which were suitable to use as burglary tools, and at that time he arrested the defendant, and after that the car was searched. I think the motion to suppress will be overruled.'

Officer Boyd was justified in halting defendant's vehicle, because it appeared the car was being operated without a license, which would be a misdemeanor under § 301.130(5) and § 301.440, RSMo 1959, V.A.M.S. Whether this halting was a technical 'arrest' or not, once halted, however, the question about the license was resolved in defendant's favor. Defendant produced a valid driver's license and valid ownership papers on the car and when Officer Boyd told defendant why he was being stopped, defendant pointed out the temporary permit in the rear window of the car, which Officer Boyd had failed to observe. The permit appeared to be valid and in order. At this point, therefore, there was no more investigation needed so far as the suspected offense for which defendant was stopped was concerned. We need not attempt a general rule as to just now much searching of a vehicle can lawfully be done when an automobile is stopped for a traffic or license violation, as it is clear no further searching was justified on the basis of the supposed license violation. The justification for any further detaining of the defendant on this ground vanished when it became apparent that the car was not being operated without a license, as Officer Boyd had first suspected. And there is no claim made by the state that the officers' subsequent actions were in any way connected with any further investigation of the license matter.

Although Officer Boyd saw the electric drill and two screwdrivers on the floor of the car when the door was opened, the situation at the moment was that he did not know of any recent burglary, he did not know defendant or his companion, he knew nothing of any previous criminal record of defendant, defendant had not been drinking, his manner was 'real nice' and the vehicle when halted was proceeding on a route consistent with the avowed destination of defendant and companion. The electric drill seen by Officer Boyd was exhibited to this Court during the oral argument. It is the ordinary type, hand size, portable electric drill which is available in any hardware store. The two screwdrivers are not before us, but apparently they are ordinary screwdrivers. ¹ We...