State v. Wiley

STATE of Missouri, Respondent, Lee WILEY,

Ronald Appellant.

No. 58613. Missouri,

Supreme Court

En Banc.

April 14, 1975. Snider, Girardeau, Cape Peter

Richard E. Statler, appellant. L. Jackson, for Danforth, Gen., Paul Atty. C. John Gen., Otto, Atty. Robert Asst. Jefferson Blackmar, Atty. City, Sp. Charles B. Asst. Gen., Louis, respondent. St. PER goals CURIAM: these protection two societal —the privacy of the home and the enforce- drug ment of laws is the task difficult

I. we must resolve. The Facts During February the afternoon of p. m., at about telephone 3:30-3:45 arrested, Appellant charged police department call came in to the possession convicted two counts Cape Girardeau, Missouri, on what controlled substances in violation of Chap- line, “tip” provided known as the a line 1969, V.A.M.S., in ter RSMo the cir- community the citizens in- wherein Cape County. cuit court of Girardeau particular formants call number years Punishment assessed five con- crime, inform the concerning finement on each count the sentences especially involving drug crimes offenses. appeal, concurrently. to run the Court On anonymous. informant in this case was Appeals, District, Louis affirmed in St. Cape Lieutenant William Stover of the opinion Simeone; and, an by then Judge Department spoke Girardeau Police pursu- this transferred the cause to court making tip individual who told him 83.02, V.A.M.R., to Rule ant “because following: general importance of a interest or question involved in the case.” (1) apartment That at the third floor 215 N. Ellis was rented and Street to Mr. opinion quota- That benefit o‘f without Gary Mrs. Moore. marks tion follows: Umfleet, (2) Wiley That “Keith Ronald 10, 1972, Wiley March Ronald On and and Gary drugs a had in the Moore stored charged Keith Umfleet in a two were apart- at third floor north willfully, count information with unlawful- ment .Cape 215 North Ellis” in Girardeau. ly having joint “in feloniously and their possession a controlled substance”—three (3) That “they eating a meal there morphine capsules bottles sulfate at that time after they finished of Fiorinal with Codeine #1. The cause they going go meal to Carbondale Wiley severed. Defendant filed mo- [Illinois], dispose drugs.” suppress alleging tion to the evidence (4) That “there was a Volkswagen car the search and seizure conducted the of- apartment located at the rear of the build- rights; ficers violated his constitutional ing weren’t sure whether this was filed a “surpress” also motion to [sic] transportation gоing to be their to Carbon- statements, confessions admissions made dale or it had giving not because been by him. them trouble.” ' On December a hearing was (5) That an incinerator was located suppress. held the motions to The mo- “the apartment.” back of this tions were trial overruled and commenced jury. before court and the This telephone first call lasted about three minutes. This, presents great dilemma con- fronting modern society of a conflict Based information Lieutenant —that privacy between of individuals and their attorney’s prosecuting Stover went to the guests private in a ferreting home point office and at verified certain some of illegal out drugs and the enforcement of information of caller. Lieutenant relating possession the laws to the of con- apartment was Stover verified that the (1) substances, trolled possession Moore, of which rented to and Mrs. Mr. Mr. is declared Assembly our General to be Gary apartment Moore lived men- illegal and caller, detrimental. How balance tioned and that it by the was rented lot, “looked occupants of which pаrking red them, there was a Volkswa- building real apartment the front of the there, an incinera- there was gen (3) that appeared to look and started what apartment, close in the back of tor spotted me. place parking Lieutenant of the incinerator. location hurry.” very big They left then knowledge that Keith Umfleet had Stover trafficking reputation had a m., p. Lieutenant Stover At about 5 :30 May during a arrested and that he was deputies of and three Moore and Officer County and drug 12th raid in Scott Walter the sheriff’s office—Lieutenant Wiley Lee had Ronald the defendant Kinder, and David Deputies Green Jim community as general reputation in the at 215 to the Gaither—went reputa- supplier drugs” “user and been search warrant North Ellis. No “competent inform- from tion was obtained had neither and the officers obtained ants,” “any tangible but he did not know of posses- in their nor search warrant Wiley would part on the acts” sion. reputation. to this lead Stover, Officer Three of officers— telephone from one more call At least Deputy Kinder—went Moore and Stover stated the informant received. Deputies Gaither Green and front door that, report Albert C. after a from Officer apartment. back door of went to the Department who Moore of the Police Deputy Kind- Either Lieutenant Stover assigned to “stake out” the door; door front er knocked on the m., p. one David Hill was at about 4:30 inside, opened by person apartment”; in that “seen and about that officers, that were announced just the informant stated that a sale they were under Deputy and Kinder stated however, Moore, testi- been made. Officer sub- possession of controlled arrest for by him to that David Hill was seen fied rights. of their them stances and advised Broadway tele- “walk down in front of the indi- entry the time of the At the phone building.” that, except Gary Moore who cated door, the individuals just was inside thereafter, Lieutenant Stover, shortly in the couches and chairs were seated on went to prosecuting attorney’s office Later, Gary followed Moore living room. purpose for the obtaining of a search war- doorway of the kitchen the officers to the rant. p. At 4:00 the prosecutor about m. he was stand- thе seizure and at the time of attempted judges contact two to obtain walked Stover ing Lieutenant there. attempt search warrant but the unsuc- was kitchen and through living room to cessful. Lieutenant testified that Stover and Gaither Deputies Green admitted necessary the usual time to obtain a Immediately there- through back door. warrant was an hour and a half to two in the “opened the after Stover prosecutor hours. At that time the and bag plastic a “white kitchen” and removed process Lieutenant of Stover were of compartment lower drugs of from the preparing present judge. affidavits to to a a white bag was refrigerator.” eight ten bag about top plastic zipper Moore, parked Officer park- while aon bottles. containing glass inches in size ing lot near from about 4:50 in, he went came Lieutenant When Stover m., p. any per- to 5:30 did not see straight and then back door “straight to the sons named in the informant’s enter or call than more This took no to the ice box.” apartment, leave the but did David see in individuals couple “a of minutes.” Hill, drugs, a known user of walk down and not searсhed were Broadway telephone in front of the build- place was made. other search of the ing presumably apart- “in and about that ment” and he orange also observed an Pinto to the then taken were The individuals plates pull with Illinois license into the police station. Cape County, normally hospital sheriff Girardeau “that would in occur McLain, the mo- type pharmacies.” testified on both

Sheriff They were mor- labeled suppress jury. phine tion to and before the He confirming sulfate. Tests resulted in that ar- presence testified after the defendant was morphine, and deter- “we rested, hospital the defendant to a but morphine morphine went mined it as and not later, February he Morphine was . sulfate. was jail, told him he returned defendant morphine, those bottles” and his three speak to him—the sheriff. The wanted opinion is listed schedule I. speak prosecutor and the sheriff did capsules, possession As to the office. No defendant the sheriff’s information, charged in Dr. was made, were was ad- promises defendant Briner that tests testified were rights, constitutional initiat- vised his acid derivative with сodeine “barbituric conversation, made, ed the no threats present” (§ and schedule 3 of the statute of alcohol he was under the influence 195.017) lists a “derivative of barbituric alert, drugs, mentally he was acid, any salt of a derivative of barbi- the sheriff the defendant told conversation acid,” drug. is a turic schedule three drugs “I know about them trade “Fiorinal codeine 1” is a No. testified refrigerator.” The sheriff name. the defendant stated that “Keith’s someone [Umfleet] examination, On redirect Dr. Briner else’s, Moore’s, Keith’s, be- his and his and I bot- stated that substance the three ' that “him lieve.” The defendant stated morphine tles can be “derivative of w;ent got up and Keith in Detroit methylbromide” capsules are and the 50 them,” keep “they them had to After derivatives barbituric acid. apartment] because there over [in requested testimony, the court was keep them trailer too Keith’s hot judicial 195.017(3) did take notice §§ in.” 195.017(6) (a), RSMo V.A. M.S. report A made the conversation ver- The defendant moved a directed report

the sheriff was That introduced. dict which overruled. Wiley stated that that he knew “stated was in and that he doрe refrigerator argument, instructions and After helped and he Kieth it before has sell both jury guilty [sic] a verdict of on returned supply by helping his to sell to got own I and defendant’s Counts and assessed II . also stated [Wiley] others He punishment years but on Count II at five kept in house in- they the stuff Moore’s jury the members of the were unable of because Um- stead Umfleet’s housetrailer punishment On agree on the on Count I. fleets Housetrailer was hot.” 1973, pun- 5, January the court fixed the years I to run ishment on Count at five case, During the Robert C. State’s Dr. and new concurrently after the motion for Briner, a chemist and director crim- afford- trial was overruled and allocution inalistics Missouri laboratory at Southeast depart- ed, the defendant to the sentenced Girardeau, College Cape in State testified. ment of corrections. morphine He first testified that sulfate is a law, controlled substance Missouri defendant, having given been leave drug. it is a He said and scheduled poor person, appeal appealed. as a morphine in while is not listed sulfate II. statute, I of the one of the

schedule is is morphine listed derivatives The Contentions morphine He sulfate schedule I. said that morphine. is a taken at Appellant appeal salt The bottles contends on type were sealed and (1) should be reversed because conviction

287 suppress physical the motion evi- cers had no search The lawful- warrant. turn, warrant, dence should have been sustained and the ness of without the arrest cause, prob- upon probable excluded there was no must be evidence since based appellant, cause arrest the that the exists able 'where “the facts and circumstances ap- knowledge search and seizure was in violation of within their [the officers’] pellant’s rights, trustworthy constitutional no search reasonably of which obtained, having warrant sufficient in themselves information [are] search, if even to an incidental arrest to warrant a caution man reasonable overbroad, (2) was insuf- that the evidence the belief an offense has been or that” being Brinegar ficient to make case and submissible committed.’ v. United overruling States, 160, 175, 176, the court erred in motion 69 S.Ct. 338 U.S. 1879, 1302, 1311, (1949), a directed verdict since he wаs L.Ed. 1890 93 possession joint States, quoting control of the 267 exclusive v. United from Carroll premises, prove hence knowl- the state must 69 L.Ed. U.S. S.Ct. prohibited edge of and actual control Cali- [555], (1925).” Ker v. A.L.R. substance, fornia, 23, 34-35, (3) court erred in over- ruling the motion for directed verdict be- (1963). L.Ed.2d prove the state the exis- cause failed to probable there was cause Whether charged

tence of the substances appellant along to arrest others prohibited illegal substances apartment depends on information under Missouri law. possession prior in the to the ar officers’ brief, appellant in his As states the basic course, all the rest. Of information appeal issues on this (1) whether possession all reason of the officers and officers who searched the with- pertinent able inferences therefrom are grounds a warrant reasonable out probable determine cause. there is Whether appellant apart- entering before probable justification to arrest cause ment, so, if (2) whether the search must be determined without warrant and seizure of the materials from the on practical everyday life considerations incidental kitchen be men act and is not to which reasonable arrest and admissible hindsight by legal techni determined whether the search and seizure within Draper v. United cians. of a lawful seizure and not bounds L.Ed.2d 327 place took overbroad when the seizure de cause The determination kitchen, having been ar- defendant particular and cir pends facts apartment— in another room of rested and no individual cumstances room, living appellant whether applied. ready paper test” “litmus can subject responsibility to criminal hearsay. Probable cause based joint in or control of he was not exclusive re gulf is between what is There a broad premises, and whether state prove guilt requirement quired proved pro- existence charged probable deal con cause. We here with hibited substances. In such officers trolled substances. cases informers, depend may well special special and on own employees III. their Kancso, 252 experience. States United v. 220 (2nd 1958). F.2d Cir. Legality of Arrest an here based on arrest was tip came anonymous be evidence to admissible informer’s an community’s tip “product must be of a on the Whether this case line. in- upon tip of arrest, made may to a since the offi- incident lawful substantial search warrant basis great confusion was former has caused based on an informant’s information when authorize law the one hand to courts. On the information was corroborated other by arrest a citizen enforcement officers to of a strength of an sources which reduced the chances and enter his home on prevaricating long mockery of reckless or a tale. As anonymous “tip” would make a crediting Amendments. as there is substantial basis for the Fourth and Fourteenth hearsay, the information is not to ‍​​‌‌​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​‌​‌​​‌‍be a malicious tip may prevarication, A be a busy deemed insufficient. local statement the work of the principles of true to the body. To hold Draper v. United an ar- Constitutions, an ar our Federal and State upheld rest solely without a warrant upon rest, invasion and search and seizure upon the informant’s de- statement that the tip be coun a mere of an informer cannot narcotics, peddling fendant was as corrobo- hand, deny law tenanced. On other by rated that the informant’s de- fact arrest, power enforcement scription appearance of the defendant’s informa based such search and seize morning, given of where he would be on a consequences may tion result serious totally in- matters which of themselves are ferret officers to inability and the of such nocuous, agreed with the observa- officers’ community and activity in the out criminal tions. dangerous A bal substances. to control proper ance must therefore be struck. requirement There is no absolute on infor may rely is that an officer test previous that the informant be one of reli informant, through an mation received Harris, ability. United States v. long “so rather than on direct observation (1971).1 91 S.Ct. 29 L.Ed.2d 723 reasonably as the statement informant’s matters within corroborated other inquiry The true therefore knowledge” there is sub officer’s present informa whether the informant’s hearsay. crediting stantial basis long tion is reliable. As as the corrobora 257, 269, States, 362 v. United Jones through tion of the informаtion other 725, 735, 4 L.Ed.2d 697 sources, in though the matters are even Jones, of the guest held that a it was nocuous, reduces the chances a “reckless standing to premises had owner information, tale,” prevaricating nar seizure of the search and complain of hearsay, the basis of though even form he was in which room cotics found probable for an arrest. cause just of the Govern present. interest “No rigorous enforce ment the effective pro the evidence Under hampered law will ment of the criminal ceeding we believe that there legitimately on recognizing anyone including ap occupants cause to arrest the may chal premises a search occurs where pellant Ellis. at at 215 North motion by way of a lenge legality its provided by the informant The information to be proposed suppress, its fruits persons were specific certain —that S. against used him.” 362 U.S. in the re apartment, M., 487 S.W.2d In re R. Ct. at 734. eating persons frigerator, J. Ross, 438 S.W. 1972); State v. (Mo. finished, banc meal, they were that when dispose that there also held going Jones to Carbondale (Mo.1969). 2d Texas, Whiteley Aguilar Apрellant involved relies on formant was credible. arrest; complaint 1509, 108, on which the 84 S.Ct. 12 L.Ed.2d warrant of U.S. support Whiteley Wyoming a find could not and v. Warden of issued the warrant ing arresting Penitentiary, 560, probable of cause once the 91 S.Ct. State 401 U.S. of tending any 1031, (1971). Aguilar possess in factual data did not 28 L.Ed.2d 306 ficer tip. cases These the informer’s based an affidavit to corroborate volved search warrant Compare Aguilar, underlying here. not determinative without some circumstances of Harris, supra. v. in United States from concluded that officer drugs, Volkswagen that there was a at the Agnello incident to a lawful arrest. rear, 20, that a and sale had made. United U.S. S.Ct. rely did not infor- merely officers on the 70 L.Ed. 145 mation, but verified much informa- In Robinson, United States v. persons tion were aware that (1973), S.Ct. 38 L.Ed.2d 427 suppliers drugs. of

named were users or Supreme Court the United States apartment verified that held, “It is well settled that a search Moore, inci- rented was to Mr. and Mrs. dent ato lawful arrest is a address, traditional ex- they resided at that that the de- ception requirement to the warrant fendant, reputation Umfleet and Hill had a Fourth Amendment.” relating drugs, that a automо- particular parked was bile at and that But when we deal not with a search of Hill, a known user was seen person, area, but with the immediate about innocuous —matters recognized there are limitations. themselves. An effort made to obtain judge a search warrant but a was not California, Chimel v. 395 U.S. available, and said that Lieutenant Stover (1969), L.Ed.2d 685 experience in his it takes about an hour officers armed with a warrant of arrest half to two to obtain one. hours but no warrant to search went to de- episode whole about two hours took fendant’s home and searched the house of from the time that first the informant Supreme defendant. The Court held to the time entered the called the officers invalid, stating: search “When an ar- apartment. made, rest is it is reasonable for the ar- circumstances, all the we believe Under resting person officer to search the arrest- to make the ar- there cause ed in any weapons order remove rests. might latter to use in seek order re-

sist arrest or his escape. effect addition, it is entirely reasonable for the IV. arresting officer fоr to search and seize any evidence on the person arrestee’s Validity the Search prevent order to its concealment or de- turn to the the arrest issue whether We struction. And area into which an ar- cause, having upon probable been made might restee in order grab reach search seizure of the controlled sub- weapon evidentiary must, items permissible. stances course, governed by a like rule. ample justification, . There is ap The Fourth Amendment as therefore, for a arrestee’s plicable protects right to the States person and ‘within the area his immediate to be secure in their residences people phrase construing that to mean control’— that search warrants shall providing might gain the area from which he within upon probable supported by cause obtained possession weapon of a destructible evi- Despite the clear oath or affirmation. dence. preference of the for searches autho law comparable despite justification, “There is search warrants rized however, for routinely searching any room general principle to search order seize, than that in the arrest occurs be obtained from other a warrant is to —or, matter, searching magistrate, there a neutral detached through all the desk or other drawers been carved out a few well-delineated in that it- well-recognized exception closed or concealed areas room exceptions. One ...” at self. person a search be made of the is that immediate area the search and the 290 The circumstances contained ar incident an finding the search here further record are search unjustified, Supreme Court such rest may justified well-recog be within another beyond far

stated, here went “The search exception re from nized to the search warrant the area petitioner’s person and quirement. exception That to the warrant- either might obtained he have within which exigent less is that of circum have search could weapon something that a or “exigent there are certain stances. When against him. as evidence been used circumstances,” may was, a search warrant search scope . . . The be United dispensed with. v. the Fourth therefore, under ‘unreasonable’ Johnson 14-15, 367, States, 10, 92 333 68 S.Ct. U.S. peti and Amendments and Fourteenth (1943); 436 McDonald United L.Ed. v. cannot stand.” tioner’s conviction 191, 451, U.S. 69 S.Ct. 93 L.Ed. 335 768,2 at 2043. 89 S.Ct. Jeffers, 153 v. 342 (1948); United States case, place in this arrest took (1951) When the 72 96 L.Ed. 59 U.S. room, living (recognizing principle). individuals the officers Gary Moore and later followed is kitchen. There doorway exception thoroughly This discussed near persons that the were so showing no Rubin, States 474 262 United v. F.2d and seizure the search (3rd 1973), controlled Cir. substances abe could controlled substances That case a situation where case. involved lawful incident the arrest. search quantity there was reason believe dwelling

hashish was threatened to traced destroyed. The court removed or un compelled to hold We dealing exception, and cases with the a search and der the authorities that when agents, . concluded that “when lawful seizure made incident to a arrest is however, cause believe obtained, warrant is and search addition, and, contraband is per search be made the arrestee’s based on the or surrounding circumstances area within his immediate con son hand, reasonably the information at trol, area from meaning that immediate will be de- conclude ‍​​‌‌​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​‌​‌​​‌‍might gain pos within which the arrestee stroyed removed secure before can weapon evi session of a or destructible warrant, is search warrantless search Chimel, supra, dence. Pursuant justified.” court 474 at 268. The F.2d authorities, the search other we believe a number relevant circumstances listed was, here, beyond the record ap- bemay when the doctrine determine permissible was over- area of search and plied among number included broad. is belief that the contraband “reasonable However, Chimel, we do not believe 474 F.2d at 268. about to removed.” before us. search. disposes upheld court the warrantless Cupp Murphy, 2. v. is conducted in an area within the ar- not (1973), control, the Su 36 L.Ed.2d 900 immediate con restee’s area so language reemphasized preme tiguous might gain has Court of a control indicating destroy evidence) ; People weapon Chimel that a warrantlеss v. Wil Ill.App.3d liams, area limited incident to an 297 N.E.2d 783 might (1973) (weapon shelf, which an reach.” 93 S. “into arrestee concealed on kitchen jurisdictions Ct. at Other have simi ten feet from was not considered an accused beyond larly control) ; to be held such searches area v. within immediate Norton scope permissible (de State, (Okl.Cr.App.1972) area. United States P.2d 1973) (where Mapp, (2nd police car, v. 476 F.2d 67 Cir. fendant confined in search of beyond empty area). closet it was closed officer was between car defendant) State, ; Compare Carenza, Hunter v. 127 Ga. Chimel State v. App. (search (1972) S.E.2d 680 Mo. S.W.2d State permissible (Mo.1967). Ciarelli, as incident to arrest 416 S.W.2d 944 drugs imper- this record shows search and seizure of was prosecutor distinguishable. the officers and the missible. Funk is Funk, process in order to ob- preparing papers (1) the search was not be- sustained preceded arrest, testi- cause the tain a search thus warrant. Lieutenant Stover pre- period violating fied ex- takes a of time to “classic statement of the ception warrant; pare permitting a in- papers and obtain а warrantless search parties cidental to an officers had information that the includes a flat re- quirement precede would soon after the arrest leave the point time,” proceed meal search in at was finished in order to 490 S.W.2d 358; (2) the officers entered the house Illinois order to sell the substances. search, precise purpose episode making of the whole from the time purpose not primary for the making first the officers information to time arrest; thorough took was knocked on the door of the house, made of the entire about officers en- as well as the two hours. When the apartment, dresser in the tered the bedroom where the defend- Lieutenant Stover ant was directly refrigerator went and took found. out the controlled substances. Here the refrigerator search of the was made subsequent to an there proge- arrest and

We do not believe Chimel and its was no ny premises. control the search of the entire situation The thrust here. There was not per- even a search person of Chimel was the arrest of a sons in the at home could not residence. officers went justify routine search. directly Chimel and seized the did not involve situation where officers, information, controlled substances. having certain particular particular searched a area for The validity of the search and seizure in Chimel, evidence. In there was no indica- these limited circumstances be sus- tion of circumstances which indicated to tained ground. analogy another An the officers that removal or destruction of can be made to those decisions in which the evidence was imminent or threatened. suspect officers are entitled to take a opinion Nowhere in the does the Court victim of an offense for immediate view- suggest exceptional ex- circumstances ing and an immediate confrontation. isted which evidence was threatened to State, Grant v. (Mo.1969) 446 S.W.2d 620 be removed destroyed. or example, situation, in such a our Su- preme stated, Court “The had the In this case there was evidence that such responsibility ascertaining identity circumstances existed when the officers Their having criminal. attention had to determine whеther proceed with- appellant, been directed to having and he out warrant wait or until a warrant could custody, been taken important into it was be obtained. Under all the evidence we early those investigation moments of the believe that exceptional circumstances that he either be detained suspect as the existed and therefore the search and sei- released investigation and the continued zure of the controlled substances . .” 446 at S.W.2d 621. an unreasonable one—the ultimate test un- bar, In the case at the officers had in- der the Constitution as to whether the concerning formation a violation of the search and impermissible. seizure was law; much of the information was verified Appellant Funk, on key relies State v. 490 and much of it was innocuous. The S.W.2d (Mo.App.1973) specific where the Kan- information was the location City sas held refrigera- District that a search of the controlled substances defendant, Grant, residence of the including supra, As in deci- tor. and other bedroom, sions, dresser important early drawer unjus- it was these mo- Relying Chimel, tified. held the Court ments after the arrest that the defendant recently has stated in ence State released either be detained and others Funk, People continue, quoting infor- from investigation if the and the Nettles, 23 Ill.2d sub- v. 178 N.E.2d concerning location of the mation “ ** * experience Human It reason- 363 (1961). false. proved stances to be ever, rarely, if immedi- teaches that are narcotics able therefore for the officers person’s living unaccountably to which found in a ately the location examine one verify quarters.” directed to their attention accuracy the information. the of principle person same that a The hold, therefore, the restricted under We may possession be of the deemed have here, inform- when the fact situation that premises may on be substance found the concerning the provided information ant applied does not even when the defendant substances, a of the exact location premises, have exclusive control of the unreasonable. We of that location not since there control with joint in- not, however, that had determine do сonsequences same as if there were exclu the substances formation of the location of But, Funk, sive states control. apart- general, as been more such joint if is control then there there ment, a search of the entire that must be or some “further evidence admis room have or even the entire would of ille connecting sion the defendant with the warrant. a search been warranted without drugs.” gal merely say under the restricted We that ac- here not find circumstances we do circumstances So unreason- tion of have been the officers to guest a in the here. defendant was able. being apartment. Merely guest a Moore of not be suf the household another would totality the circumstances Under the of of possession ficient to sustain conviction record, con- presented in this we cannot person of controlled substances. Where clude, sei- therefore, that the search present premises drugs on are is where zure found of the controlled substances use or found does not exclusive but one. unreasonable was an possession premises, may not be of of the knowledge inferred that he had V. control, presence so drugs or is Addi that no submissible made. case the Evidence Sufficiency of de required. tional Where the factors are premises and if fendant on the that appellant next raises the issue independent factors there are additional for a should motion directed verdict control, then showing knowledge his ab- have been that sustained for reason that is sufficient withstand motion possession sent premises exclusive justify a directed verdict. conviction To joint control, make failed to state any possession it is charge on a submissible case to the defendant. convict knew necessary prove the accused evidence, reviewing we presence of substance the forbidden must light view the most evidence control. the same under his give favorable to the state and the state incriminating In the circum absence the benefit of all reasonable inferences. stances case made. no Here, sub on narcotics controlled testified that sheriff cases, pol stance February 16, 1972, the law developed has desired the defendant icy person speak being him, in exclusive control of that after warned premises pos rights, will deemed to have promises his and with or threats made, session being and control of the found testified that substance the sheriff premises. stated, on the them The basis for this infer- know about defendant “I refrigerator” that was VII. that “It was Keith’s and some- [Umfleet] As other indicated, courts have we do else’s, Keith’s, Moore’s, one his his and any way importance minimize the I He stated “him believe.” and Keith protection Fourth Amendment’s “in went up got to Detroit and them.” That shielding the citizen from unwarranted “they keep had to them over there pri- intrusions into [and unreasonable] too because Keith’s trailer was [Moore’s] vacy.” Rubin, United States v. F.2d at keep hot to them in.” only We decide facts of case.

This presented is more than mere circumstances this record being present premises. sufficiently compelling evi- protect This socie- jury question dence raises a tal totality as to knowl- interests. the cir- Under edge by and control having the defendant. cumstances and examined thе rec- ord, briefs, argument and decisions We have examined by cited cases appellant, cited we conclude that the appellant They in his are distin- brief. judgment should be affirmed. guishable dispositive and not of the issues here. Reargument of the case in court fo- primarily validity cused on the war- We hold that the did court not err from the rantless seizure of the narcotics overruling the motion for directed ver- refrigerator. dict at the close of the state’s case. emergency exigency or was doctrine VI. accepted initially by this court in State v. Sutton, 454 (Mo. 1970) S.W.2d banc Illegality the Substances factually a case which was far removed present from one. that case de- appellant Wiley’s last conten ceased, having been shot his wife and tion is the court erred in overruling died, op- before he contacted an ambulance motion for directed verdict because erator and “. . said his wife . that state prove failed to the existence help. To shot him. That needed charged substances illegality con- quickly.” come The ambulance driver substances, morphine sulfаte and Fiorinal marshal, turn con- tacted the town who in with Codeine # 1. We rule this conten sheriff; tacted the drove to the deceased’s tion against appellant. Dr. Briner stated and, unconscious; de- home and found him of morphine derivatives listed hospital. him The marshal livered to the schedule Chapter I of 195 and that mor after the and sheriff at the home arrived phine morphine, sulfate a salt of They ambulance had seized left. morphine present was in the three bottles help later at trial to con- which was used morphine of the list one involuntary wife of vict the deceased’s ed in schedule I. He stated that the sub manslaughter. This court held stance in the bottles is a “derivative justified the officers’ emergency situation morphine methylsulfonate.” He stated also the evi- entry and seizure of the house into that Fiorinal with 1 is Codeine No. a trade plain view dence was name performed and that the tests showed effect, re- opinion, That house. the substance to be a barbituric acid deriv Gauper, F.2d 361 versed Root v. ative with codeine and schedule the defendant (8th 1971), wherein Cir. three “says either а derivative or a salt corpus after of habeas released on writ of a derivative barbituric acid.” emergency an situa- finding that a factual We the mar- proof longer believe there was at the time sufficient tion existed However, that illegality show the of the controlled sub- shal and sheriff arrived. stances. reject doctrine court did or contraband threatened with re- find- predicated this court had its moval . .” destruction. ing. John- 10, 15, son v. United Thereafter, Blake, in United States v. 367, 369, 92 L.Ed. denied, 1973), (8th F.2d Cir. cert. this case [T]he 3076, 41 L.Ed.2d 669 purse prob- or risk the find the white (1974), upheld the court a warrantless ability that contraband would be re- narcotics. involving search and seizure destroyed. Although moved or the offi- apart agents case federal went purse see cers here did not the white ment of one with warrant Willie Vales chute, one being tossed down the clothes agents of the knocked his arrest. One officer see the defendant with the did the front door purse reen- white when the defendant purpose identified himself ‍​​‌‌​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​‌​‌​​‌‍and the balcony from the tered the presence, forcibly and then entered. While porch and anothеr officer observed the occurring foregoing was one open defendant in front of clothes agents, balcony other stationed below gave chute. facts rise to These apartment, at the rear of Vales’ observed might cause to that defendant believe step bal- out onto the the defendant Blake possessed narcotics and constituted cony begin change a white to throw exceptional or situation circumstance purse agent over the side. The ordered search of the warrantless allowed stop him ducked back and the defendant seizure of the white the basement and apartment. agent into the who initial- The purse. ly through entered door saw the front “emergency” The second case in open hallway defendant in next to an Miller, state was 486 S.W.2d 435 State v. agent clothes ar- chute. The third aid going (Mo.1972), but involved party, apartment, resting entering after hoped objective of and not the another a through went a door the kitchen down preserving of evidence. flight of into the basement. He saw stairs open purse change white “exigent cir A rеcent of the statement opened He clothes chute and seized it. exception cumstances” is found United purse plastic bag containing a and found a Davis, (3rd Cir. States v. F.2d powdery agent be- substance which 1972), to-wit: 1.c. lieved was a narcotic. After all this situations, generally certain [I]n transpired, defendant was arrested. grouped heading “exigent cir- under the agents federal had neither a search war- cumstances,” there need be warrant. nor an for the defend- rant arrest warrant protects only amendment fourth (although they ant did have an arrest war- against and sei- unreasonable searches rant Vales). for Willie 8th Circuit therefore, police It, requires zures. exigent used circumstances rationale to they only to obtain warrants when have in the case validate the search and seizure opportunity without time and to do so l.c. to-wit: apprehend obstructing their efforts to and the or fruits Therefore, criminals evidence question whether Therefore, exception- their crimes. when facts in this case constitute an criminal, pursuit” are in “hot al that allowed the war- circumstance frisk,” they “stop . when Before rantless search of the basement. attempt to secure . or their when the search basement and seizure of the sufficiently might delay them a warrant did purse, the officers the white get away or de- to cause the criminal to defend- probable have cause arrest crime, stroy the fruits or find and However, failure to ant. proceed they may without lead purse seize have the white would warrant. possible a situation in which “evidence BARDGETT, correctly J., The state in its defines dissents and concurs in brief separate problem, SEILER, dissenting opinion to-wit: J. nature, “By very its the ‘doctrine of exi- SEILER, Judge (dissenting). gent is not a rule circumstances’ courts are able to limit advance Assuming cause situations; specifiably detailed concrete along to arrest the with the oth- defendant instead, but warrantless search each apartment,11 respectfully ers in the dissent light must be determined portions as to the search seizure unique required circumstances which it. opinion principal grounds on these : simply recognition This is of the fact that law enforcement officers are con- stаntly dealing infinitely varying I circumstances. this doctrine is Because opinion is to principal The effect not an arbitrary or flat rule but involves police, have arrested allow the the weighing of the interests of the need probable cause believe he defendant on for effective law enforcement and the dwelling, in his has narcotics concealed right need for a privacy, citizen’s portion dwelling search whatever circumstances facts surrounding the nar- have reason to believe each indepen- warrantless search must be justification cotics are hidden. dently examined on case basis this warrantless said to be the to determine if competing these interests emergency exigency possi- found correctly weighed po- ble removal or destruction of the contra- lice officers.” practical band or evidence. The conse- very Courts have been reluctant to rec- quence is that a warrantless search is au-

ognize that any par- circumstances exist every thorized in almost which oc- ticular justify case which would a warrant- plaсe, beyond curs in a far dwelling less search. exercising such While re- imposed by California, limits 395 Chimel v. straint, appeals the court of identified the 752, 2034, U.S. 89 23 S.Ct. L.Ed.2d 685 factual calling situation in this case as one always (1969), as it can be said there is application “exigent doctrine.” possibility the of removal or destruction of With agree. this we police required evidence if the ob- to tain a warrant. judgment

The is affirmed. us, police

In the case the before arrested everyone in the and took them DONNELLY, J., HOLMAN, C. to the There was no one station. HENLEY, FINCH, JJ., concur. left in the destroy remove or to refrigerator. narcotics in the opinion expressly states the search was J., MORGAN, separate concurs con- made subsequent to arrest. Yet it is curring opinion filed. on the basis that narcotics going were destroyed

to be or removed after the arrest SEILER, J., separate dissents dissent- that the emergency found. There is no ing opinion filed. reason to believe the narcotics would be re 2075, (1971), 1. The unknown and therefore informant was S.Ct. 29 L.Ed.2d 723 there previous reliability, had no record unlike was no clue as to whether he claimed have to Draper States, 307, by imрortant portions tip v. 358 79 United U.S. come of his by 329, personal merely by 327 S.Ct. 3 L.Ed.2d Jones recent observation or 257, 725, States, surmise, any v. United U.S. 362 rumor or there nor was inherent (1960). addition, support reported 4 L.Ed.2d unlike 697 for what nature of Harris, 573, against United v. 403 U.S. 91 States declaration interest. 296 obtained, present. three Within about else could one a warrant before moved minutes, mother and brother defendant’s Coolidge v. required under a circumstance 460-64, groceries 443, home carrying 91 returned 403 Hampshire, U.S.

New impending informed arrest (1971), for 2022, 564 L.Ed.2d 29 S.Ct. bed- A search made of rear theory. It search. then emergency application quantity po room revealed narcotics. simple have left would reversed remanded. warrant Court a search guard while liceman on that There is no obtained. established that Court first be allowed person had or would any other permissible not search was within these apartment.2 Under access arrest, scope a search incident to Chimel “. conditions, said it cannot be California, stated, supra, and then v. a warrant attempt secure [the officers’] 34-35, U.S. at 90 S.Ct. at sufficiently to cause delay thеm might Supreme thought “The Louisiana Court destroy the fruits away get criminal supportable independently be- the search .”, Unit of the crime of evidence narcotics, easi- cause it involved which are 1026, Davis, v. 461 F.2d ed States removed, hidden, destroyed. ly It would principal opin 1972), cited (3rd Cir. unreasonable, the Louisiana court con- emergency might have existed ion. An cluded, require ‘to the officers persons respect secure facts of the first a search involved, the arrests accom but once premises, searching warrant before as being plished, and it conceded time inasmuch essence as the of- thereto, “Be not incident then search was anyone ficers never know whether there is founded, lief, article however well premises be searched could who house dwelling in a sought is concealed very La., easily destroy the evidence.’ 252 justification for furnishes no at 1070, So.2d, at 816. Such a ration- Agnello place v. without warrant.” case, apply ale could 33, 4, States, 269 S.Ct. United U.S. since their own arresting account (1925). basic “That rule L.Ed. officers satisfied themselves one that no questioned in this ‘has never been Court’ else house first en- Louisiana, .”, Vale tered premises.. apart But entirely 26 L.Ed.2d 409 point, from that past our make decisions only clear specifically ‘a few estab- has Supreme situations, Court United States lished and well-delineated’ Katz a search and seizure ruled invalid v. United 88 S. here, 507, closely the but 576, may resembles facts which Ct. 19 L.Ed.2d a warrantless principal opinion. search of a dwelling is discussed withstand constitu Louisiana, scrutiny, supra, police, In tional though Vale v. even the authorities house, watching have were defendant’s ob- who cause to conduct it. The they on suspected was sale of burden rests served what to State show the exis exceptional narcotics and a known tence of such between defendant situation. house, California, addict Chimel outside after defend- v. at 395 U.S. 762, gone brought 2039; had into ant the house and S.Ct. at United States v. Jef fers, 48, They 51, 93, something out to addict. arrest- U.S. 95, 72 S.Ct. 96 L. 59; Ed. steps, ed defendant at the front informed McDonald United v. house, 451, 456, they going 191, 193, him were search U.S. 93 L.Ed. cursory and one of the made a And the us record before discloses inspection any- of the hоuse to ascertain if none.” being search, Jeffers,

2. This warrantless burden 72 S.Ct. 96 L.Ed. proof justification (1950) ; Witherspoon, as to is on v. the state. State 460 S.W.2d Louisiana, infra; (Mo.1970). Vale v. United v. States principal opin- and on in similarity between Vale The cases relied factual only doubt for their lan- general little room for are cited at bar leaves ion the case fact, emergency doctrine controlling here. In the Su- guage recognizing it is se, are ‍​​‌‌​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​‌​‌​​‌‍dis- significance per but the facts those cases saw no preme Court opinion principal mother fails tinguishable, that defendant’s and the possibility brother, danger not under of remov- but an immediate who were establish arrest, destroy narcot- under the might remove of evidence al or destruction here, ics, v. lacking is as all the In States a risk which this case. United facts of occupants 1972), Davis, (3rd were custo- Cir. 461 F.2d 1026 person of the dy. on the were found narcotics immediately area or within the defendant does illustrate circum- A case which defendants, control contemplated by emergency' stances to be inci- seized was held evidence all the Murphy, 412 Cupp v. doctrine Chimel, id. at arrest under to a lawful dent 36 L.Ed.2d 900 Davis emergency involved 1034. The police investigat- There the the de- only the arrest of pertinent by strangulation defend- ing the murder and not to search. fendants The defendant volunteered a ant’s wife. Blake, 484 F.2d 50 States United information, but refused to great deal virtually 1973), agents the federal (8th Cir. police sample scrapings take a from let throw the narcotics the defendant saw police fingernails, his having noticed The court stated a clothes chute. down thought spot finger his dark obtained “The officers could have might Upon refusing, be blood. defendant warrant, defendant however the him, put appeared his hands rub behind have re- under arrest could was not together put them then his hands purse destroyed the white moved or [which pockets his and a metallic sound was then delay ob- contained narcotics]. heard, keys such as coins rattling. certainly taining could a search warrant police thereupon scrap- fingernail took the fatal.” ings over protest his without war- scrappings rant. The incrimi- contained Rubin, 474 F.2d 262 United States v. nating traces which werе introduced ev- 1973), agents federal watched de- (3rd Cir. against up- idence defendant. The Court they be- a statue which transport fendants search, held the ground but on the that de- airport contain narcotics from lieved to attempting fendant was destroy what Defendant then left his home home. he evidence could attracting without fur- gas several and drove blocks to a station ther attention and hence the appeared agents where he was justified making the search which was persons present. to some of the known “necessary preserve the highly evanes- arrested, yelled, my “Call When broth- cent finger- found under his agents er.” knew that at least one necessity nails.” This missing in our person, custody, other who was not in case. The narcotics in refrigerator, been left at the dwelling, defendant’s occupants after the the court stated at “It was not unrea- arrested, were “highly not evanes- agents sonable for to believe that this cent.” might signal persons well be a to alert still factual nearby The situation in the Blake case is onto a roof while the officers were also similar chasing to cases where the officers are him. This is what the officers would closing suspect in on a present see him they throw have in done the seen case object away. nothing There is open unusual in one of in those the the re- permitting object, frigerator the officers it, to though retrieve the door and then close even example Harris, as for in they actually State v. put anything 325 S.W. did not him see (Mo.App.1959), 2d 352 refrigerator. where the officers re- in the bag trieved the which the defendant tossed

298

at 1819 South 9th Street of A argument similar was rejected [defendant’s] in police and of imminent Hamilton, intervention United States v. 490 F.2d . into their activities . .” (9th case, 601 1974). Cir. In that gov- the justify ernment tried to the warrantless The Blake Rubin cases thus demon- search of a compartment secret ain truck emergency strate situations where is there which, (in agents by were told an in- very a real threat of destruction or remov- formant, they marijuana) would find on by persons custody al of evidence not in ground provided that the information with access this to contraband. thus stated, verified. The court “It is case, such there was no threat. hornbook pоst law ex facto verifica- tion does not opinion satisfy the Amend- principal Fourth establishes much States, Wong ment. Sun concept too broad If v. United 371 emergency. a it U. (1963).” S. 83 9 prevails, S.Ct. L.Ed.2d 441 then as said the United States Supreme uphold Court when asked to principal opinion analogy sees an to police procedures, “If doubtful the officers State, 446 Grant v. (Mo.1969), S.W.2d case this were excused from the consti analogy apt. but the is not That was a duty tutional presenting their evidence rape neighbor- case. The ran victim to a magistrate, it to difficult think aof ing farmhouse and called the officers. case in it required.” should description, taking While the assailant’s Chapman States, v. United 365 U.S. they word man received had been seen 615-16, 776, 779, S.Ct. L.Ed.2d They on a nearby farm. arrested and (1961), quoting v. United Johnson victim, brought him back hand- 10, 15, L. cuffed, for an immediate one-to-one identi- Ed. 436 fication Under confrontation. Stovall

Denno, 18 L. II procedure was held (1967), Ed.2d this process constituting as not violate due In addition to the emergency theory, the As pointed an unfair out identification. principal opinion states that the police opinion, the Grant while the knew a this case can be sustained another they crime had occurred and had the de- ground, to “. wit: .it important custody, they fendant in did not know for early in these moments after the arrest But in sure whether was the assailant. that the defendant and others either be de- present uncertainty case there no tained or investigation released and the participants if a crime about who the were continue, if concerning the information They peo- had been committed. location of proved the substances ple apartment. police not It false. was reasonable therefore for refrigera- looking the narcotics in the immediately officers to examine the one look for someone tor decide whether to location to their attention had been people apartment. than If other to verify accuracy directed in- refrigerator, there were no narcotics certainly jus- formation.” This novel alarm, a case where it was a false not then tification a warrantless search. Under occurred, police but did crime theory right sus- constitutional yet culprits. have pect need be in- observed if to do so would similar but be- quick terfere are not determination two cases police procedure approved as in the Grant they to whether man cause quick- As determine to fourth amendment case enabled after. man, it is right rights practically wipe judicial ly whether had the would out sought was done approve what involvement the decision as to when ground that it likewise right privacy yield right must quickly wheth- police to decide enabled search.

299 earlier, right. ultimately they goods er were As said 436. The were not seized in the approach right process no constitutional would of destruction. Schmerber California, 757, 770-771, police if it applicable interferes with v. 384 U.S. 86 S. 908; 1826, 1835-1836, an- making quick decision. The short 16 L.Ed.2d Unit- Ct. ap- exception supra; v. Jeffers, to this is that no such ed McDonald swer States v. States, 455, pears 69 supra, in the fourth amendment. United at U.S. were to be S.Ct. at 193. Nor about proposed opinion, the overrid- Under jurisdiction. Chapman removed from ing in fourth amendment cas- consideration States, supra; United v. United v. Johnson bringing helping es becomes States, supra.” investigations in a crimе conclusion This is a dan- length minimum of interest here were not time. Two factors and I am unable to offi- gerous precedent present to set in the “The Vale case: long step emergen- is a toward responding to it. It subscribe cers not to a reducing “. the Amendment cy.”; and, drugs] (2) “Nor were [the people’s jurisdiction.” homes nullity [leaving] from the about be removed police offi- only in the discretion of instant secure in the Both factors States, supra, case, readily v. United distin- cers.” make it which should Johnson 14, at at 68 S.Ct. 369. U.S. from the case. guishable Vale principal opinion. I concur MORGAN, Judge (concurring). Dissenting Opinion, Judge In his Seiler Supreme “The

states that : United States sei- has ruled invalid a search and

Court facts closely resembles the

zure which

here, by the but is not discussed * * * opinion. The factual principal similarity between v. Louisi- Vale [Vale al., Plaintiffs-Respondents, et Karol FINLEY 30, 1969, ana, 26 L.Ed.2d 399 U.S. S.Ct. v. lit- (1970)] and the case at bar leaves al., et LINDBERGH SCHOOL DISTRICT controlling tle room for doubt that it is Defendants-Appellants. here.” 36312. No. respectfully such suggested It Appeals, Court of Missouri statements are ill-founded view District, St. Louis excerpt c. following (l. from the Vale 1. Division 35, suggestion “There is 1972): S.Ct. April 8, 1975. anyone consented to search. Cf. 628, States, 624, Zap v. United 328 U.S. 1279, 1277, The offi 90 L.Ed. 1477.

S.Ct. emergency. responding to an

cers were at Jeffers, v. 342 U.S.

United States 95;

52, at McDonald v. United 72 S.Ct. 454,

States, at supra, 335 pursuit of ‍​​‌‌​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​‌​‌​​‌‍They not in hot Hayden, 387 U.

fleeing Warden felon. 1645-1646, 1642, 294, 298-299, 87 S.Ct.

S. Chapman 782; v. United

18 L.Ed.2d States, 81 S.Ct. 365 U.S. 828; v. United 5 L.Ed.2d Johnson L.Ed.

Case Details

Case Name: State v. Wiley

Court Name: Supreme Court of Missouri

Date Published: Apr 14, 1975

Citation: 522 S.W.2d 281

Docket Number: 58613

Court Abbreviation: Mo.