State v. Norris

460 S.W.2d 672, 1970 Mo. LEXIS 776

Opinions

HOLMAN, Judge.

Defendant was charged with the unlawful possession of a narcotic drug, to wit: cannabis, commonly known as marijuana. He was also charged with a prior felony conviction. See §§ 195.020, 195.200, and 556.280, V.A.M.S. At the conclusion of a hearing outside the presence of the jury the court found that, on January 15, 1958, defendant was convicted of the felony of unlawful possession of a narcotic drug in the Circuit Court of Cook County, Illinois, and sentenced to imprisonment for a period of two years and was thereafter imprisoned. The jury found defendant guilty of the offense charged. The court fixed his punishment at imprisonment for a period of 15 years. Defendant has duly appealed. This case has recently come to the undersigned upon reassignment.

The marijuana here involved was found in a search of defendant’s residence. Prior to trial defendant filed a motion to suppress the evidence relating to it, alleging that the police did not have a search warrant and no reasonable ground to search, and hence such was in violation of federal and state constitutional provisions. The court heard evidence on that motion and it was overruled. After the appeal was submitted here we made an order directing the trial court to hold an additional hearing on the issue of the relationship of the arrest and the scope of the search, and to make findings of fact thereon. That has been done and the transcript thereof and findings have been filed in this court. In our statement of facts relating to the motion to suppress we will combine the evidence adduced at the two hearings, as follows:

A warrant was issued for the arrest of the defendant for the sale of marijuana on August 15, 1967. The officers went to his home at 5723 McHenry Street in Kin-loch twice during the next week but were unable to find defendant at home. On August 22, three St. Louis County officers went to the residence of defendant. Defendant answered the door, the officers entered, and he was immediately placed under arrest. No other person was in the residence except defendant’s wife. The officers proceeded at once to search the residence. The residence was a one-story house with a basement. There were four rooms and a bath, all entering into a central hallway. There was a living room in the northeast corner, an empty room in the southeast corner, a bedroom in the south- . west corner, a kitchen in the northwest corner, and a bathroom between the bedroom and kitchen. The officers found a quantity of marijuana in a portable metal closet in the bedroom. It was found about ten minutes after the search began and at that time defendant was standing in the hallway about 20 feet away. The officers spent about 30 minutes searching the house. At sometime after the marijuana was found a Kinloch policeman arrived and took defendant to the Kinloch police station and booked him. He then returned defendant to his home where the St. Louis County police officers again took him into custody and transported him to the county police station. The officers were at the defendant’s home about one and one half hours that morning.

It was brought out at the second hearing that the sale for which the warrant had been issued had been made through an informant whose name was Gary Blackwood. The officers did not have a search warrant on the occasion in question.

At the conclusion of the second hearing the trial court made a finding which detailed the relevant facts and concluded with the finding that “the search of the premises incidental to the arrest of the defendant was proper and reasonable under the then existing law and further that said search was reasonably related in scope to the arrest of the defendant on the prior sale of a narcotic drug, to wit: marijuana.”

At the trial of the case the two police officers who had testified at the hearing on the motion to suppress testified to about the same facts as heretofore stated. One additional fact is that the officers gave defendant a warning concerning his constitu tional rights, and then, in response to a question, defendant stated that he resided at that address. Additionally, Robert Roi-ther, a police department chemist, testified that he had examined and tested the contents of a package delivered to his office by the police and found it to be marijuana. The package delivered to the chemist had been properly identified as containing the substance that had been found in defendant’s residence.

The defendant offered no evidence.

The first point stated by defendant in his brief is that “the trial court erred in failing to suppress as evidence State’s Exhibit ‘A’ [marijuana] that was seized by police officers after a search without a warrant because: A. The search and seizure were not incidental to the arrest. B. There was no probable cause to believe the offense of possession of narcotics was being committed.” It is undisputed that the arrest of defendant, made under the authority of a warrant, was lawful. “It is further well settled that when a person has been lawfully arrested, a search without a warrant may be made of the person and of the premises where he was arrested.” State v. Jefferson, Mo.Sup., 391 S.W.2d 885, 888. See also State v. Novak, Mo.Sup., 428 S.W.2d 585 [9]; State v. Edwards, Mo.Sup., 317 S.W.2d 441 [2, 3]; State v. Darabcsek, Mo.Sup., 412 S.W.2d 97 [4, 5, 6]; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743 [2]; State v. Hadlock, 316 Mo. 1, 289 S.W. 945 [4], and State v. Pinto, 312 Mo. 99, 279 S.W. 144 [6].

The Supreme Court of the United States has said that “[w]hat is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. Reasonableness is in the first instance for the District Court to determine. We think the District Court’s conclusion that here the search and seizure were reasonable should be sustained because: (1) the search and seizure were incident to a valid arrest; * * * ” United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 2d 653. We have difficulty in understanding the contention that this search was not incidental to the arrest. “Incident” has been defined as “dependent on or appertaining to another thing: directly and immediately relating to or involved in something else though not an essential part of it.” Webster’s Third New. International Dictionary. In this case the search took place immediately after the arrest of defendant and the marijuana was found 10 or 15 minutes thereafter. The search was reasonably conducted in that it involved a small house, was done in an orderly fashion with defendant present, and was concluded within a relatively short time. In the argument portion of his brief defendant first says the search was unlawful because the-police had no search warrant, but of course that is not true where, as here, it was incident to a lawful arrest. He next says that this search does not come within that exception because the arrest and search did not take place contemporaneously. That is obviously not supported by the facts. The next assertion is that the search was not justified because “there was time for the arresting officers to obtain a search warrant.” This contention was ruled adversely to the defendant in Rabinowitz, supra, as follows: “Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. In a recent opinion, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, this Court first enunciated the requirement that search warrants must be procured when ‘practicable’ in a case of search incident to arrest. On the occasion of the previous suggestion of such a test, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, the Court had been scrupulous to restrict the opinion to the familiar situation there presented. * * * A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystalized into a sine qua non to the reasonableness of a search. * * * Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required.” 339 U.S. 64, 65, 66, 70 S.Ct. 434, 435. In support of his contention defendant cited the Trupiano case but frankly conceded that it had been rejected by Rabinowitz.

The final contention relating to the search is that “the arresting officers had no probable cause for believing that the appellant had narcotics in his possession.” Under this point defendant makes the contention that the police officers did not have sufficient information in their possession to have constituted probable cause upon which they could have obtained a search warrant. We consider that discussion to be totally irrelevant. It is conceded that the officers did not have a search warrant and that the validity of the search depends on it being incident to a lawful arrest.

The foregoing disposes of defendant’s contentions in regard to the search and, as indicated, we rule that the evidence obtained was admissible because the search was lawful and did not violate the constitutional provisions against unreasonable searches. Defendant has cited a number of decisions of the Supreme Court of the United States in support of his various contentions relating to the search. We have considered all of them but find that they are not applicable because of distinguishing fact situations. In addition to the cases we have cited we think our ruling is supported by Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, and Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668.

It should be noted that after the submission of this case the United States Supreme Court decided Chimel v. State of California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, which restricts the permissible area of search as an incident to a lawful arrest. We will not discuss that case because we do not consider it applicable to this decision. This, for the reason that it has not been held that Chimel should be applied restrospectively, and, in our judgment, it should not be so applied. See Spidle v. State, Mo.Sup., 446 S.W.2d 793, and Halliday v. United States, 394 U.S. 831, 89 . S.Ct. 1498, 23 L.Ed.2d 16. Also, it should perhaps be mentioned that some of the cases we have read attach significance to the object and purpose of the officers in making a search incident to an arrest. As shown by our factual statement there was no evidence relating to the object in this case. Defendant has made no contention that the object here was illegal or improper and if he had desired to do so he would have had the burden to offer evidence to prove such. State v. Duisen, Mo.Sup., 403 S.W.2d 574 [2], In that connection we call attention to the fact that in this instance the officers, in making the search and seizing the marijuana, were obeying the mandate of § 195.135(2), RSMo 1959, V.A.M.S., which provides: “Any peace officer of the state, upon making an arrest for a violation of this law, shall seize without warrant any narcotic drug * * * in the possession or under the control of the person or persons arrested, providing said seizure shall be made incident to the arrest.”

The next point briefed is that the court erred in giving Instruction No. 1. Portions of that instruction are as follows:

“The Court instructs the jury that if you find and believe from the evidence in this case beyond a reasonable doubt and in the light of these instructions of the Court that in the County of St. Louis and State of Missouri on the 22nd day of August, 1967, the defendant, Robert Nelson Norris, did wilfully, unlawfully and feloniously have in his possession and under his control a certain narcotic drug, to wit: approximately eleven grams of cannabis sativa, otherwise known as marijuana, as mentioned in the evidence, then you will find the defendant guilty of Unlawful Possession of Narcotic Drug. Unless you so find the facts to be as aforesaid, you will acquit the defendant.

“‘Feloniously’ as that term is used in these instructions, means wickedly and against the admonition of the law, that is, unlawfully.

“ ‘Possession’ as that term is used in these instructions and in its legal sense, means having the actual control, care and management of something to the exclusion of others, and not a mere passing control fleeting and shadowy in its nature. However, it is not necessary to prove ownership in order to prove possession. Furthermore, in order to prove the alleged offense the evidence need not show actual physical possession on the part of the defendant. The illegal possession, if you so find, may be constructive.”

The instruction is supported generally by statements and rulings in State v. Virdure, Mo.Sup., 371 S.W.2d 196; State v. Worley, Mo.Sup., 375 S.W.2d 44, and State v. Young, Mo.Sup., 427 S.W.2d 510. Defendant specifically complains that the instruction uses the word “constructive,” as relates to possession, without defining it. He cites the case of City of St. Louis v. James Braudis Coal Co., Mo.App., 137 S.W.2d 668, which holds that when words are used in a peculiar or technical sense in an instruction they should be explained.

We have concluded that the court did not err in failing to specifically define the word “constructive.” A reading of the entire paragraph relating to possession will show that it does actually explain constructive possession. When that explanation of the word “possession,” as used in a legal sense, is considered in connection with the fact that there was no contention in this case that the drug was on defendant’s person, we think the instruction was not confusing. We think any juror would reasonably have understood that the question for determination was whether the drug found in the bedroom was in the “possession” of defendant.

Another contention of error is that the instruction did not require a finding that defendant possessed the drug “knowingly and intentionally” and that the court should not have refused his offered Instruction “A”, which included those words. We do not think it was necessary for the instruction to include the words mentioned. This because it required a finding that the possession was had wilfully, unlawfully, and feloniously. The word “wilful” is defined as “done deliberately: not accidental or without purpose: intentional.” Webster’s Third New International Dictionary. Its meaning is well known. The words “feloniously” and “unlawfully” also import intentional acts.

As indicated, we rule that the court did not err in giving Instruction No. 1.

The final point is that the trial court erred in failing to require the State to produce the unidentified informant at the pretrial hearing of the motion to suppress. There is nothing in the transcript to support a consideration of this point. Nothing in the record indicates that defendant made any request that the informant be produced. It is therefore obvious that the contention is without merit, and it is accordingly denied.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by HOLMAN, J., is adopted as the opinion of the Court.

HENLEY, C. J., and FINCH, DON-NELLY, MORGAN, HOLMAN, and BARDGETT, JJ., concur. SEILER, P. J., dissents in separate dissenting opinion filed.