State v. Venezia

515 S.W.2d 492, 1974 Mo. LEXIS 699

Opinions

HOLMAN, Judge.

Defendant-Appellant was charged with the offense of carrying a concealed weapon. See Sec. 564.610 RSMo 1969, V.A.M.S. He waived a jury. Upon trial before the court he was found guilty and punishment was fixed at imprisonment in the St. Louis Medium Security Institution for ninety days. Defendant appealed to the St. Louis District of the Court of Appeals which court adopted an opinion affirming the judgment. Upon the certificate of a dissenting judge the case was transferred to this court. Rule 83.01, V.A.M.R. It will be finally determined here the same as on original appeal. We affirm.

At 7:15 p. m. on July 28, 1972, St. Louis Police Officer Farrell observed defendant urinating against the rear wall of the building located at 5221 Waterman. Farrell testified that defendant “walked back to the car. By the time I got out of the police car he was getting back into his car. I walked back and asked him to get out of the car. When he got out of the car I placed him under arrest for Lewd and Indecent Conduct.” Officer Farrell further testified that there were three negro males in the rear seat of the car whom he told to get out; that he saw a small yellow envelope on the driver’s seat; that he had been trained in the identification of narcotics and thought this envelope contained marijuana; that he opened the envelope and it appeared to contain marijuana and he arrested defendant for violating the controlled substance law; that he then opened a zipper-type carrying case which was on the front seat and found a fully loaded .38 calibre revolver therein; that defendant admitted that he owned the revolver and he then arrested him on the weapons charge.

The only evidence offered by defendant was the testimony of William Lee. This witness stated that he had been an employee of defendant and was in the car at the time in question; that the revolver had been lying exposed on the front seat but when he saw the officer approaching he had placed it in the zipper-case.

Defendant’s first point is that “The court erred in not sustaining defendant’s motion to suppress and in admitting the pistol in evidence.” The evidence offered on the motion was about the same as heretofore stated except that defendant testified that he had started to drive away when the officer honked his horn, and motioned for him to stop and that he then voluntarily got out of the car. The officer also stated that when he arrested defendant he was “standing right beside his car.” We also' desire to point out that the recent case of State v. Achter, 512 S.W.2d 894 (Mo.App.1974) contains a very complete collection of the cases dealing with the warrantless search of automobiles incident to a valid arrest in traffic cases.

We rule that an officer making a lawful warrantless custodial arrest of the driver for a minor offense may, as an incident thereto, search such part of the interior of the automobile from which the driver might obtain a weapon; and that is true even though the arrestee has been required to get out of the car and is standing nearby.

The Fourth Amendment to the U. S. Constitution and Art. I, Sec. 15 of the Missouri Constitution, V.A.M.S., undoubtedly prohibit unreasonable searches and it is well settled that evidence obtained by a search that violates those provisions is inadmissible in a state court prosecution. The conventional method, of course, to lawfully search for items that may offend against the law is by use of a judicially issued search warrant.' There are, however, well established exceptions to the search warrant requirement, one of which is a search incident to a lawful arrest. A search of the person arrested was approved in the early case of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) wherein the court stated that the right to make such a search had been uniformly maintained in many cases. A few years later the right was expanded in Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925) the court stating that: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.” In Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) the court pointed out that in considering whether searches are unreasonable there is “a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or au tomobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

The case of Chimel v. California, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) involved a search of a home and the decision restricted the area which could be searched incident to an arrest. In its discussion the court stated: “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment o,r destruction. And the area into which an arrestee might reach in order to grab a weapon or evi-dentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain posession of a weapon or destructible evidence.” 395 U.S. 762, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685. In Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) the court said that “Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. . . . and, to an extent depending on the circumstances of the case, to the place where he is arrested, . . . The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control.” Other more recent cases which tend to support our decision are Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 413 U.S. 433 (1973).

Defendant relies solely upon the case of State v. Meeks, 467 S.W.2d 65 (Mo.1971) in support of his contention that no part of an automobile may be searched following an arrest for a minor offense. The principal opinion in Meeks supports that contention but only two judges concurred therein. Two other judges concurring in result stated that they would permit a search after a traffic arrest only if there was “something more” in connection with the operation of the car or other suspicious actions. The dissenting judges had the view that it is reasonable to search that portion of the interior of the automobile which is accessible to the driver or other arrestee. The dissenting opinion states the following:

“ ‘The right to search incident to arrest is deeply rooted in the common law. The rule reflects, as Justice Cardozo once observed, a “shrewd appreciation for the necessities of government.” As a practical matter, tte "courts recognized that a police officer must have some power to conduct an immediate search following arrest in order to remove any weapons from the reach of a suspect and to prevent him from destroying evidence of the crime. While early decisions limited the search to the person of the accused, the doctrine was extended in later years to things within the “immediate possession” or “control” of the suspect.’ Hotis, Search of Motor Vehicles, Dickinson Law Review, 1969, p. 421. And I approve the statement of Burton Agata in St. Louis University Law Journal, 1962, p. 6, that ‘The necessity to search for weapons or other instrumentalities for use in escape creates a situation where the interest of privacy is subordinated to the need for providing an arresting officer with an effective means to protect himself from bodily injury and, perhaps death. What then is the basis for suggesting that a person properly arrested has a claim to privacy which is greater than the interest in preserving the arresting officer’s life, merely because the arrest is for a traffic violation ?’ The recent decisions in State v. Moody, Mo.Sup., 443 S.W.2d 802, and State v. Robinson, Mo.Sup., 447 S.W.2d 71, sustain the validity of the search of the person of the driver as an incident to the lawful arrest of the driver for a traffic offense. One basis of the holdings expressed in Moody is the necessity for providing the arresting officer with protection against injury or death.” 467 S.W.2d 69.

As indicated by our heretofore stated holding the view advocated in the dissenting opinion in Meeks is now adopted as the rule in this state. We think that conclusion is dictated by the principles stated in the recent decision in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed. 2d 427 (December 1973)¹ which considerably clarified previous search restrictions. In that case the officer made a full custody arrest of the driver of a car for a driver’s license violation. In searching the ar-restee’s person he found heroin in a cigarette package in a coat pocket. It was held that such a search was not only an exception to the warrant requirement but was also a reasonable search under the Fourth Amendment. While we recognize that Robinson deals with a search of the person we think a reading of the opinion clearly indicates that its principles would apply equally to a search of the area of a car under the control of the arrestee.

The court at the outset stated that “It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” 414 U.S. 224, 94 S.Ct. 471. Thereafter the opinion cites with approval a number of cases which state that it is permissible to search the area under the control of the ar-restee. Concern for the safety of arresting officers was indicated by a quotation of statistics to the effect that 30% of the shootings of police officers occur when an officer stops a person in an automobile. The court stated further: “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. . . . Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to [possess] dangerous weapons than are those arrested for other crimes. . . . The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, . . .”

The view we take of the effect of Robinson is the same as that expressed by the court of appeals in Achter, supra, 512 S.W.2d 901 [14]. A number of other courts have already stated the view that the effect of Robinson is to authorize a search of more than the person of the arrestee. See United States v. Artieri, 491 F.2d 440 [1] (2nd Cir., 1974) and United States v. Kaye, 492 F.2d 744 (6th Cir., 1974): See also United States v. Greene, 371 F.Supp. 570 (Dist.Ct.N.J.1974), State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 [7, 8] (1974) and 68 Am.Jur.2d, Searches and Seizures, Sec. 96, p. 750.

As indicated, we have the view that the trial court did not err in overruling the motion to suppress and in admitting the weapon in evidence. To the extent that State v. Meeks, supra, is in conflict with this decision it should no longer be followed.

Defendant’s .remaining point is that the court erred in failing to sustain his motion for judgment of acquittal filed at the close of the case. In support of this contention he says that “. . . there was no evidence adduced by the state or the defense that the Appellant committed any overt act to conceal the pistol. In addition, there were no facts adduced on behalf of the state or the defense from which it could be inferred that Appellant possessed a criminal intent to conceal the pistol.” There is no merit in either suggestion. The intent to conceal may be inferred from the fact that the pistol was concealed in the manner detailed in the evidence, State v. Crone, 399 S.W.2d 19 [4] (Mo.1966). It was shown by the evidence that the gun belonged to defendant and was actually concealed in his carrying case which was lying on the front seat of defendant’s car within his reach. That evidence was sufficient to support a finding of guilt, the trial judge having obviously rejected the testimony of defendant’s.witness Lee. State v. Rice, 490 S.W.2d 27 (Mo.1973).

Judgment affirmed.

DONNELLY, C. J, and MORGAN, HENLEY and FINCH, JJ., concur. SEILER, J., concurs in result in separate concurring opinion filed. BARDGETT, J., concurs in .result and concurs in separate concurring opinion of SEILER, J.

Footnotes

1

. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) was decided the same day as Robinson and is a similar holding.