State v. Harden

639 S.W.2d 90, 1982 Mo. App. LEXIS 3689
CourtMissouri Court of Appeals
DecidedJune 15, 1982
DocketNo. 43517
StatusPublished
Cited by6 cases

This text of 639 S.W.2d 90 (State v. Harden) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Harden, 639 S.W.2d 90, 1982 Mo. App. LEXIS 3689 (Mo. Ct. App. 1982).

Opinion

SATZ, Judge.

Defendant was convicted of five counts of robbery, first degree, § 569.020, RSMo 1978. On each of the first four counts, he was sentenced to 10 years, to be served consecutively. On the fifth count, he was sentenced to 10 years, to be served concurrently with the sentence on Count I. Defendant appeals. We affirm.

Defendant raises three points on appeal. He contends the trial court erred (1) in failing to grant his motion to suppress evidence obtained by a warrantless search; (2) in admitting into evidence a gun which was found near him at the time of his arrest; and (3) in admitting into evidence a wristwatch found in the possession of a co-defendant and identified as an item taken during the robbery.

On February 29, 1980, five victims at the Bee Line Truck Company were robbed by three men. On March 6, 1980, defendant and another man, Haven Herring, were arrested together on a charge unrelated to the Bee Line Truck Company robberies. At the time of the arrest, the police seized a gun which was on a windowsill approximately one foot from defendant. As part of the routine prisoner processing, both defendant and Herring were required to turn over valuables on their person to the booking officer for safekeeping. The booking officer inventoried two rings and an Elgin watch as part of defendant’s personal property and inventoried a Seiko watch as part of Herring’s property., While defendant remained in custody, Herring gave the police information which implicated defendant in the Bee Line Truck Company robberies. Herring released to the police the Seiko watch from his property envelope and acknowledged that it was taken from a Bee Line employee during the robberies. He also told the police that the jewelry in defendant’s personal property envelope was taken during the same robberies. Subsequently, under the ostensible authority of a subpoena duces tecum, the police obtained defendant’s property envelope and seized the jewelry contained in it. Defendant, Herring and a third man were charged with the Bee Line Truck Company robberies. In his case, defendant filed a motion to suppress the jewelry as the product of an illegal search and seizure. This motion was denied.

At trial, the state’s evidence revealed that three men took part in robbing the employees of Bee Line Truck Company. Two of the victims identified defendant as a participant in the robberies. One of the victims testified that defendant was armed with a “chrome” or “silver” barreled gun, and the gun seized at defendant’s arrest “looked like” and “had the same appearance” as the gun used in the robberies. The two rings and Elgin watch seized from defendant’s property envelope and the Seiko watch released by co-defendant Herring were identified as part of the robbery loot and all were admitted into evidence over defendant’s objections.

Defendant first challenges the search of his property envelope and the seizure of the jewelry it contained. Defendant argues this search and seizure violated his right to a reasonable expectation of privacy guaranteed by the Fourth Amendment. Defendant admits the jewelry in question was viewed and inventoried by the police during the booking process. Nonetheless, defendant argues, once the booking process was completed and the jewelry placed in a sealed, opaque envelope, he had a reasonable expectation of privacy that the jewelry would thereafter be free from a warrantless search. We disagree.

The subpoena duces tecum used to seize the jewelry in question was invalid process. The parties do not dispute this. Thus, the jewelry was seized during a warrantless search. The question here is whether the jewelry taken during the inventory search remained “fair game” for a warrantless search while defendant was incarcerated. 2 [92]*92LaFave, Law of Search and Seizure, § 5.3(b), p. 311 (1978).1

The Supreme Court appeared to give an affirmative answer to this question in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In Edwards, the defendant was arrested late at night for attempting to break into a United States Post Office. The following morning the police took his clothing from him. Paint chips found on his clothes matched those found at the scene of the crime and were admitted into evidence. In validating this search, the Court stated: L.C. 807-808

“[OJnce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” (Emphasis added).

Given the facts of Edwards, the reach of this language is uncertain. However, the Court’s assumption appears to be that when an item lawfully comes into plain view during an inventory search and later investigation establishes that this item has evidentia-ry value and “the item remains in police custody as a part of the arrestee’s inventoried property, then it is permissible for the police, without a warrant, to retrieve that object and thereafter deal with it as an item of evidence.” 2 LaFave, supra at 315. Our courts, e.g., State v. Harmon, 587 S.W.2d 355, 356 (Mo.App.1979); State v. Gordon, 527 S.W.2d 6, 8-9 (Mo.App.1975); State v. Achter, 512 S.W.2d 894, 905 (Mo.App.1974) and the majority of the federal courts, e.g., United States v. Jenkins, 496 F.2d 57, 73 (2d Cir. 1974); United States v. Grill, 484 F.2d 990, 991 (5th Cir. 1973) follow this interpretation. The reasoning used by these courts is direct and straight forward. The courts reason that the items in question are first viewed under unobjectionable circumstances during an inventory search. This view dissipates any reasonable expectation of privacy and, thus, a second look cannot breach a reasonable expectation of privacy. As stated in State v. Achter: L.C. 905

“Once items have been exposed to police view under unobjectionable circumstances (inventory) then no reasonable expectation of privacy is breached by an officer taking a second look at such items.”

Defendant’s complaint against the warrant-less search has no merit.

Defendant next contends the court erred in admitting into evidence the gun found next to him at the time of his arrest. He argues the state failed to connect the gun to the crimes charged. We disagree.

Admittedly, the state is not permitted to introduce evidence seized during the arrest of a defendant unless the evidence is probative in establishing the defendant’s guilt.

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State v. Cheatam
81 P.3d 830 (Washington Supreme Court, 2003)
Harden v. State
765 S.W.2d 692 (Missouri Court of Appeals, 1989)
State v. Wilson
750 S.W.2d 560 (Missouri Court of Appeals, 1988)
State v. Merritt
735 S.W.2d 399 (Missouri Court of Appeals, 1987)
Ex Parte Hilley
484 So. 2d 485 (Supreme Court of Alabama, 1985)

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Bluebook (online)
639 S.W.2d 90, 1982 Mo. App. LEXIS 3689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harden-moctapp-1982.