STATE оf Missouri, Respondent, v. David VALENTINE, Appellant.
No. 60349.
Supreme Court of Missouri, En Banc.
July 17, 1979.
RENDLEN, Judge.
David Valentine appeals his convictions of robbery in the first degree,
On December 17, 1976, about six o‘clock in the evening, a black male 25-30 years in age, approximately six feet two inches in height with a thin build and short Afro-style haircut entered the Tip Top Cleaners on Clayton Road in Richmond Heights, Missouri. Showing the clerk, Patricia Edwards, a pair of tan slacks he asked whether they could be cleaned the following day and when told they could, he produced a pistol and demanded the cash in the register. As soon as Miss Edwards cоmplied, he ran from the front door with the money. At the time of this incident it was dark outside and the interior of the establishment was lighted. No other individuals were present in that part of the building and a fellow employee in the rear was unaware of the robbery at the time. Patricia Edwards notified the police of the robbery and provided them the gunman‘s description.
Approximately one month later, on January 14, 1977, Detective Gerald Mueller of the University City Police was on a stakeout in an unmarked car about 5:30 p. m. in the 7500 block of Delmar Blvd. Several other officers were in the vicinity in unmarked cars near cleaning establishments in an effort to find the person or persons responsible for ten or eleven armed robberies in the preceding three to four weeks. Most of these robberies had occurred between five and six in the evening. The police thought two persons might be in involved. Four composite pictures of holdup suspects had been prepared, and Detective Mueller was familiar with all of them. One of these pictures was prepared from Miss Edwards’ description.
During the stakeout Detective Mueller heard another detective say in a radio transmission that he had observed a white Mustang make several passes in front of one cleaning establishment near Mueller‘s location. The detective stated it was suspicious and he was going to follow the auto; Detective Mueller movеd in to help. A police captain patrolling in an unmarked car pulled behind the Mustang and stated in a radio transmission he intended to stop it and Mueller reached the location in time to assist. Detective Mueller observed no traffic violations or other infraction by the driver of the Mustang before it was stopped.
Appellant Valentine was driving the auto. The officers approached him with guns drawn and ordered him to the back of the car, where they patted him down for weapons. Shortly after he was stopped and before Detective Mueller searched the auto, appellant was advised he was under arrest. Observing appellant as he alighted from the car, Detective Mueller noted his resemblance to one of the composite photos. Also, appellant stated he was going to the Inner Belt (west of the arrest scene), but when arrested he was traveling eastward. One of the descriptions of suspects had mentioned a flat top hat, and when stopped, appellant was wearing a hat of that type.
At the hearing on appellant‘s motion to suppress identification testimony and physical evidence, Patrica Edwards testified thаt about 10:00 p. m. on the night of appellant‘s arrest, Detective Ronald Pfeiffer of the Richmond Heights police stopped at Miss Edwards’ residence and asked her to accompany him to a lineup. There she looked at each of the men and identified appellant as the man who had robbed her that day. Miss Edwards testified appellant was the only man in the lineup who fit her description of the robber.
At trial, witness Edwards identified appellant to the jury as the armed robber without objection and testified without objection to her previous identification of him at the lineup. In addition, the State introduced, over appellant‘s objection, the pistol found in defendant‘s automobile, and Patricia Edwards was quite positive in her identification of the pistol as that used in the robbery.
I.
Appellant‘s multi-faceted attack on the armed criminal action statute,
mandate of
It is next urged that charges of armed criminal action and armed robbery arising from the same incident put him twice in jeopardy for the same offense in violation of the fifth amendment to the United States Constitution and
The principal flaw in appellant‘s attack on Treadway is that it does not advancе his double jeopardy claim. Whatever the legislative intent as to punishment for first degree robbery, the legislative result of the armed criminal action statute has been (as held in Treadway) to create a separate and distinct crime. Therefore appellant Valentine was not twice put in jeopardy for the same offense.
Finally, appellant presses the argument that
II.
Appellant‘s second attack on his conviction involves Patricia Edwards’ trial
On the other hand, counsel vigorously objected to the prosecution‘s attempt to bolster Patricia Edwards’ identifications and now argues the court erred by allowing it. The challenged sequence of questions and answers was as follows:
Q. (Mr. Adler) Pat, in the month immediately preceeding [sic] December 17, 1976, right bеfore, how many times were you robbed?
A. Twice.
Q. Now this Defendant is not the person that committed either of those robberies, is that correct?
A. Right.
Q. When those robberies were committed, did the police come and take reports?
A. Yes.
Q. And did they ask you certain questions?
A. Yes.
Q. They asked you to describe the person?
A. Yes.
Q. Did they ask you to tell them his height?
A. Yes.
Q. His weight? and his build?
A. (Nods.)
Q. Did they ask you about guns?
A. Yes.
* * * * * *
Q. Did you remember the questions the police asked you when you were looking at the person who was robbing you December 17, 1976?
A. Yes.
Appellant contends that this line of inquiry introduced evidence of prior crimes and (1) “implied the highly questionable and prejudicial proposition that the identification witness was a cool and experienced observer in the face of a gun, simply because she had been robbed before and knew what to look for,” (2) “got across the highly inflammatory but non-probative information that the 17 year old female victim had been held up three times in one month,” and (3) “implied, although the prosecutor professed ardently that this was not his purpose, intent, or effect, that appеllant was possibly implicated in all of the mentioned robberies.”
The rule against introducing evidence of other crimes (except for certain limited purposes) is designed to protect defendants from convictions founded on acts for which they are not on trial. The second question and answer, quoted above, obviated the danger that appellant would be connected with the prior robberies; the witness bluntly stated he was not.
Further the principle that irrеlevant acts of third persons should be excluded from the trial (res inter alios acta) has no application here. While it has been said that proof of such collateral matters normally does not have relevance sufficient to outweigh its prejudicial effect, State v. Lamb, 468 S.W.2d 209, 211 (Mo.1971); State v. Cox, 360 S.W.2d 668, 671 (Mo.1962), in this case the focus of the line of questioning was Miss Edwards’ increased awareness of what to note about a suspect‘s appearance, gained from prior experiencе and contact
From this we find no error in the admission of the above testimony as the prior actions were expressly dissociated from appellant and the testimony was relevant to the central issue of the identification of appellant. The contention is denied.
III.
For his third main point appellant decries the introduction of the gun in evidenсe claiming it was seized in violation of his rights under the fourth amendment to the U. S. Constitution and
Fitting Opperman to our case requires that the lawfulness of police custody of the vehicle be demonstrated, which in turn begins with the legality of the stop and arrest. The information on which the University City police initially stopped Valentine‘s car was a detective‘s observation that the car had passed by, turned and again passed the same cleaning establishment several times at the same time of evening several earlier robberies had occurred, and it was because of the robbery problem in the neighborhood that several police cars were on “stаke out.” Under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), this information was enough for an investigative stop. Once Valentine was stopped, the police needed no more than to see him as he alighted from his vehicle to establish probable cause for his arrest, because as Detective Mueller testified, he immediately noticed the resemblance of Valentine to one of the composite photos of wanted robbery suspects. Valentine‘s obviously fabricаted story of where he was going buttressed the cause to arrest him. When they had validly arrested Valentine, the police reasonably acted to secure his car by making the decision to tow it from the street, and only after that decision was made did Mueller search it. Mueller testified at the suppression hearing that when a car is to be towed a search like this is standard police procedure in University City. These circumstances place this case within the holding in Opperman, аnd appellant‘s challenge under the United States and Missouri Constitutions must be rejected.
The judgment of the circuit court of St. Louis County is affirmed.
BARDGETT, C. J., MORGAN, J., and FINCH, Senior Judge, concur.
DONNELLY, J., dissents in separate dissenting opinion filed.
SEILER, J., dissents in separate dissenting opinion filed.
WELLIVER, J., not participating because not a member of the Court when cause was submitted.
The principal opinion relies on South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), to support its conclusion that the search of appellant‘s auto and seizure of the gun found hidden in the auto were not in violation of the Fourth Amendment to the United States Constitution. This reliance is misplaced.
A reading of Opperman and of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) indicates to me that the inventory search exception to the Fourth Amendment warrant requirement created by five members of the Court in Opperman is limited to searches and seizures made in a “non-criminal context.” See Opperman, 428 U.S. supra at 370, n.n. 5, 6, 96 S.Ct. 3097 at n.n. 5, 6 (opinion of Burger, C. J.), and at 382-383; 96 S.Ct. at 3103-3104 (Powell, J. concurring); Chadwick, 433 U.S. supra at 10, n. 5, 97 S.Ct. at 2483, n. 5. The search and seizure in the present case, by contrast, cannot be said to have occurred in a non-criminal context. Opperman, therefore, does not exempt the search and seizure which occurred in thе present case from the warrant requirement of the Fourth Amendment.
We need not speculate whether the U. S. Supreme Court would exempt an inventory search in a criminal context from the warrant requirement of the Fourth Amendment. Appellant also challenges the search under
“That the people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures; and no warrant to search any plаce, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”
As Justices Marshall, Brennan, Stewart, and White pointed out, in dissent in Opperman, “this Court‘s holding does not preclude a contrary resolution of this case or others involving the same issues under any applicable state law,” Opperman, 428 U.S. supra at 396, 96 S.Ct. at 3110; see also North Carolina v. Butler, 441 U.S. 369, 376 n. 7, 99 S.Ct. 1755, 1759 n. 7, 60 L.Ed.2d 286 (1979). I would resolve the issue of “inventory searches” under
The remedy in Missouri for illegal searches and seizures has long been exclusion of the evidence seized, State v. Owens, 302 Mo. 348, 357, 259 S.W. 100 (banc, 1924) (interpreting
Accordingly, I respectfully dissent.
SEILER, Judge, dissenting.
I concur in the dissenting opinion of Judge Donnelly.
In addition, even if the interpretation given the Opperman case by the principal opinion is correct, the facts here do not fit. Opperman mentions three police needs that justify making an inventory of the contents of an automobile: the protection of the owner‘s property; the protection of the police from potential danger; and the protection of the police against claims or disputes that property has been lost or stоlen while in police custody. Thus, in Opperman, the Supreme Court found that on the record before it, which showed that the search was indisputably conducted as a caretaking search of a car lawfully impounded for multiple parking violations, the owner was not present to make arrangements for its safety, the inventory was prompted by the presence of a number of valuables in plain view, and there was no claim that the inventory was a pretext covering an investigаtory police motive, the search was reasonable. Id., 428 U.S. at 375-76, 96 S.Ct. 3092.
In this case, the officer testified that he simply searched the car prior to towing it because it was standard police procedure to do so. When asked by the prosecution: “Did you make an inventory of that car when you searched it of the things you found?“, the officer answered “Not a written inventory, no“, but that he had made “a report” about it. There is no evidence as to what was in the report.
An “inventory” is “a detailed list of articles of property; a list or schedule of property, containing a designation or description of each specific article; . . .,” Black‘s Law Dictionary 959 (4th rev. ed. 1968). Nothing of this sort occurred here. Rummaging through the car of another cannot be justified simply on the basis that it is standard police procedure to do so. There is no showing that what thе officer did was in an effort to protect the owner‘s property or to protect the police against false claims of loss. Therefore, we are upholding this warrantless search without requiring the state to justify its action as being within the exception relied on, even if there should be such an exception. If all it takes to support a search is a leading question from the prosecutor suggesting that the officer was making an inventory, the way is open for сomplete disregard of the Fourth Amendment with respect to automobile searches.