A jury found defendant James Delbert Fingers, Jr., guilty of robbery in the first degree as defined and denounced by former § 560.120, RSMo 1969, V.A.M.S.
On February 4, 1976, about 8:00 p. m., two men came upon the premises of the Pasco Service Station in Springfield, Missouri. Robert Havens was the attendant on duty at the station. Havens was in the process of replacing cigarettes in a vending machine, heard the men enter, “turned thinking they were just a customer” and confronted the two men, one of whom told Havens “that he wanted the money or he’d kill [Havens].” Havens described the two men, one of whom (defendant) was “male, Caucasian, had hair . . . down toward the shoulders.” This man was about 5'9" tall, weighed between 160 and 170 pounds, and appeared to be “around” 25, 27 years of age, “somewhere around in there.” The other man, or boy, was also a male Caucasian, “blond, light-colored hair,” “about five feet tall, about [13] or [14] years-old.” Havens immediately recognized the older man as a person who attempted to rob the service station previously.
Havens refused the robbers’ demand. He attempted to leave the premises, but was seized and restrained by the defendant. The defendant told his accomplice, who he addressed as “Rodney,” to “find something to hit [Havens] with”; Rodney found the “handle to a squeegee [used] to clean windows.”
Havens told the defendant where the cash receipts were, “exactly,” and defendant “went in and got it” while Rodney sat on Havens and held the screwdriver to Havens’ neck. Defendant and Rodney took $500 to $600 belonging to the service station and Havens’ wallet which contained about $74.
The State also had evidence from David Oetting, manager of the service station. Oetting testified that attendants at the station normally kept cash receipts in their wallets until an unwieldy amount accumulated, at which time the receipts were secreted at locations selected by the individual attendants. Oetting further testified that defendant had worked for him at the Pasco Service Station from September 1974 until February 1975, and was familiar with Oetting’s method of handling cash.
Two points are advanced on appeal. They are: 1) that the trial court erred in failing to suppress and in receiving State’s exhibit 7 — an everyday white plastic hard hat — because the exhibit was the product of an unlawful search and seizure, and 2) that the trial court abused its discretion in receiving evidence of defendant’s attempt to rob the Pasco station in December 1975, because the prejudicial effect of such evidence far outweighed its probative value. We review only the allegations of error briefed on appeal. Rule 28.02, V.A.M.R.
The first assignment of error is overstated, but requires some discussion. There was evidence that in December 1975, the defendant had attempted to rob the Pasco station. Havens recalled the incident. He remembered that the would-be robber had worn a white uniform and a white hard hat. Havens struggled with the aspiring robber, who finally fled. In flight, the man dropped his hard hat, but “turned and picked it up like he needed it for work.” When the defendant appeared on the date of the completed robbery, Havens recognized him as the person who had attempted to rob him earlier. Specifically, Havens remembered the defendant’s concern for his hard hat.
One Brinkman, an experienced police officer, testified at the suppression hearing. Brinkman had investigated both the attempted robbery and the completed robbery. When the attempted robbery occurred, Brinkman . had the suspect’s description . . . and part of the description [was] that the suspect was wearing a white, plastic helmet.” Brink-man also discussed the identity of the robbers with Havens after the completed offense was committed. Havens then advised Brinkman that two men had participated in the completed offense. One of the men, the older of the two, was the same man who had attempted to rob Havens in December 1975. The older man had addressed his abettor as “Rodney.” Havens described Rodney; Brinkman associated the description with one Rodney Rogers.
A day or two after the completed robbery, Brinkman took Rodney in custody at the Rogers residence. A “mustard-gold” colored station wagon was observed parked in the driveway of the Rogers house. The investigating officers were told the station wagon belonged to a member of the Rogers family. The license tag on the vehicle did not “check to” the defendant.
Thereafter defendant was identified from a “mug shot” and officers took him in custody at an automobile auction lot in south Springfield. After the officers took the defendant to jail, they returned to the auction lot. There they found the “mustard-gold” colored station wagon. A white plastic hard hat was detected, inevitably, “In the rear portion [sic] of the vehicle that was open to public view.’’ (Emphasis added). A photograph taken prior to the search — it is before us as State’s exhibit 1 — shows that part of the hard hat was visible to the officers standing outside the vehicle before it was searched. Another of the photo
There is doubt that the assignment of Fourth Amendment error was properly preserved for review. A trial court’s ruling on a preliminary motion to suppress is interlocutory, and therefore our inquiry is whether the hard hat was admissible when it was received in evidence. State v. Howell,
In his brief, the defendant seeks to condemn the seizure of the hard hat as a violation of the “plain view” doctrine. The plain view principle has limitations; it justifies some warrantless searches and seizures if the officers are lawfully in the place from which the evidence is seen, the discovery is inadvertent, and the item or items seized are immediately recognizable as evidence. Coolidge v. New Hampshire,
As it is, the Coolidge decision does not state all the law concerning the Fourth Amendment, and that case, while it is undoubtedly relevant, is not controlling here. The present state of the law dealing with vehicular searches was admirably put in general terms in United States v. Helberg,
“In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Supreme Court has insisted upon probable cause as a minimum requirement for a reasonable search. The Court has also generally required that a search be preceded by the judgment of a magistrate on the probable cause issue and by the issuance of a warrant. Chambers v. Maroney,399 U.S. 42 , 51,90 S.Ct. 1975 ,26 L.Ed.2d 419 (1970). . [hjowever, an exception to the warrant requirement has developed around automobiles. This exception [is] based on two distinct vehicular characteristics: mobility, which may create exigent circumstances rendering a warrant impractical, and the diminished expectation of privacy associated with the automobile. [Citations omitted].
Nevertheless, ‘[a]utomobile or no automobile, there must be probable cause for the search.’ Almeida-Sanchez v. United States,413 U.S. 266 , 269,93 S.Ct. 2535 , 2537-38,37 L.Ed.2d 596 (1973).”
General contemporary commentary upon vehicular searches and seizures mir
Did the officers have probable cause to search the station wagon? We believe the record justifies a finding they did. At the suppression hearing, officer Brinkman testified that the vehicle was the same color as the station wagon seen in Rodney’s driveway; other distinctive markings also appeared and were noted. It was reasonable to suppose it had been used by the defendant or Rodney in the commission of the robbery. A casual glance showed the vehicle contained a white hard hat, and the officers, having obtained a positive identification of the defendant as the robber and information that one of the participants had a hard hat which he apparently used in his work, had probable cause to search. We conclude and hold that there was no plain error in admitting the hard hat on the grounds urged here.
The defendant’s other point is that the trial court erred in admitting evidence of the defendant’s attempted robbery because such evidence amounted to an attempt to prove the commission of the completed robbery by proof of a separate, distinct offense. Defendant readily concedes such evidence is competent to prove the specific crime if it tends to establish motive, intent, common scheme or plan, or identity of the person charged with the commission of the crime on trial. State v. Mitchell,
We find no prejudicial error in any respect briefed or argued in this court. Accordingly, the judgment is affirmed.
Notes
. Which read, in pertinent part: “[E]very person . . . who shall be convicted of feloni-ously taking the property of another from the person of his . servant, clerk or agent, in charge thereof and against the will of such . servant, clerk or agent by violence to the person of such . . servant, clerk or agent, . . . shall be adjudged guilty of robbery in the first degree.” Former § 560.135, RSMo 1969, V.A.M.S., provided that the punishment for first-degree robbery not involving use of a dangerous and deadly weapon was imprisonment for not less than five years in the penitentiary.
. The “squeegee handle,” in evidence here as State’s exhibit 1, is essentially a black plastic cylinder about 16" long. It is threaded at one end; the other end is molded into a grip resembling the grip of an ordinary square-bar screwdriver. The circumference of the grip is about 4"; that of the shaft is about 3". The gross weight of the “squeegee handle” is 3½ oz.
. Many of the recently reported cases deal with the seizure of “contraband,” i. e., drugs or weapons. Some precedents strongly indicate, however, that given the existence of probable cause, the officers may seize other items linking the defendant to the offense charged. See, e. g., Texas v. White,