State v. Jackson

658 S.W.2d 54, 1983 Mo. App. LEXIS 4163
Missouri Court of Appeals·Decided September 6, 1983·No. No. WD 34259·Published·Cited by 1 cases

Opinion

KENNEDY, Judge.

This is an appeal from a conviction for possession of a Schedule II controlled substance, Sec. 195.020, RSMo 1978, upon which [55]*55defendant was sentenced to two years’ imprisonment.

The issue presented by the appeal is the validity of a search conducted by the police at the time of defendant’s arrest, which disclosed the contraband pills in a plastic container in defendant’s waistband. Defendant claims that the court erred in refusing to suppress the same as the product of an unreasonable search and seizure.

We find that the court ruled correctly in denying defendant’s motion to suppress and we affirm the judgment.

The facts are as follows:

At 11 o’clock a.m. on September 29, 1981, police officer Carl Fordyce was called to the 3000 block of Prospect, Kansas City, Missouri. There he met with Ronnie McGar-rah, foreman for the Wilson Plumbing Company. McGarrah reported a theft of a tool box from one of his trucks parked on that block. McGarrah and his crew were there apparently doing some sewer work.

McGarrah informed Officer Fordyce that an unknown “older” black man (“just somebody walking down the street”) had told him that, at approximately 10:15 a.m., he had seen two black men take a tool box out of the truck and put it in their car. The man had identified the car as a 1974 to 1976 brown Cadillac with a California license plate, No. 166-KG4.

Fordyce left McGarrah at 11:30 a.m. and began to search for the described automobile.

At approximately 11:40 Fordyce spotted a 1974 white-over-beige Cadillac with a California license plate, No. 166-KGU at 24th and Brooklyn. Two black men were in the car, the defendant a passenger. Fordyce spotted the car about seven or ten blocks from the scene of the theft. He followed the car for approximately five blocks, about ten minutes. Fordyce stopped the car and asked the two men to get out. Neither of the men resisted nor did they say anything. “As common practice goes,” Officer For-dyce then searched both men for weapons. While searching the defendant, Fordyce felt, in his front waistband under his shirt, a pill bottle.

Officer Fordyce stated that this was something that “felt out of place.” He stated that “he didn’t know what it was at that time,” but that it “was the same shape as a shotgun shell.” Fordyce removed the bottle from the defendant’s waistband. It contained eight yellow-colored tablets of a then unknown substance. Fordyce stated that he did not know what the pills were at that time. No weapons were found during the frisk.

Fordyce arrested both men for larceny. None of the tools stolen were ever found in the car.

We hold that defendant’s arrest was lawful.

The basic question here is the presence of “probable cause” for the warrantless arrest for larceny.

On that subject our Supreme Court said in State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975):

The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists ‘where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.’ Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, [555], 39 A.L.R. 790 (1925).” Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963).
Whether there was probable cause to arrest the appellant along with others in the apartment depends on the information in the officers’ possession prior to the arrest. Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause. Whether there is justification for probable cause to arrest without warrant must [56]*56be determined by practical considerations of everyday life on which reasonable men act and is not to be determined by hindsight by legal technicians. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The determination of probable cause depends upon the particular facts and circumstances of the individual case and no ready “litmus paper test” can be applied. Probable cause may be based on hearsay. There is a broad gulf between what is required to prove guilt and the requirement of probable cause.

Probable cause may be based upon hearsay, but the hearsay may not be accepted uncritically. It must have some inherent credibility, upon which a reasonable prudent and cautious person would act. The trial judge found in this case that the information upon which the officers acted in arresting the defendant furnished a substantial basis for a reasonable belief that an offense had been committed and that the arrestees were the culprits. In our reviewing role, we find that the trial court’s determination of this question was supported by the evidence.

That a box of tools was missing from the Wilson Plumbing Company truck was established by foreman McGarrah himself, who reported the same to Officer Fordyce. As to the defendant’s being the culprit, this depended upon the reliability of a hearsay report from an “older” black man who had told McGarrah he had seen the theft. The description of the car and its occupants had been quite specific. The 1974-1976 brown Cadillac might fit a great many automobiles, but the class was sharply contracted when he added the California license plate feature. When the first five of the reported characters were those on the license plate; when the car was occupied by two black males; when it was seven to ten blocks from the scene of the theft one and one-half hours after the theft — the informant’s report, relayed to the policeman by McGarrah, was in harmony with and corroborated by the other facts observed by the policeman.

It was possible, of course, that the informant was a mere mischief maker, that he had made up his story out of whole cloth, but on the whole it quite reasonably seemed to the policeman that the informant was more likely telling the truth than not. It was not after all necessary that the policeman have in hand sufficient evidence to convict the defendant upon trial. The information the policeman had in this case was at least as reliable as that held sufficient in State v. Wiley, supra, to furnish probable cause for a lawful arrest. There the anonymous tipster had telephoned into police headquarters the information upon which the police based the defendant’s arrest. See also State v. Finley, 588 S.W.2d 229, 232 (Mo.App.1979); and State v. Vineyard, 497 S.W.2d 821, 825 (Mo.App.1973).

We hold therefore that the arrest of the defendant for larceny was based upon probable cause.

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State v. Jackson, 658 S.W.2d 54, 1983 Mo. App. LEXIS 4163 (Mo. Ct. App. 1983).

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