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June 30, 1983


From the Circuit Court of Audrain County; Criminal Appeal; Special Judge Milt Harper.

Motion for Rehearing Overruled August 16, 1983.

The opinion of the court was delivered by: Blackmar

The appellant was found guilty in a court-tried case of one count of possession of over 35 grams of marijuana in violation of § 195.017, RSMo 1978, and one count of possession of methaqualone, in contravention of § 195.020, RSMo 1978. He was sentenced to five years on each count, with the sentences to run concurrently, but execution of all but 60 days of the sentence was suspended in favor of probation. The Court of Appeals mitigated the marijuana count to possession of less than 35 grams, affirmed the methaqualone count, and remanded for resentencing.

We granted transfer, and now take the case as on initial appeal. The defendant argues that all of the controlled substances in evidence were obtained as a result of illegal search and that no part of the conviction can stand. The Attorney General claims that the conviction on both counts should be affirmed. We, of course, take the evidence in the manner most favorable to the judgment and, where there are no specific findings, assume that the trial Judge made such findings, when supported by evidence, as are consistent with the result he reached. The defendant produced no evidence other than the testimony of a police officer called adversely, but takes issue with the inferences to be drawn from the state's evidence. We, of course, defer to the trial court's resolution of contested issues. After considering the case in this manner we affirm the judgment in its entirety.

George John Wanner was a police officer of the City of Mexico, patrolling in a police car during the early morning hours of March 18, 1981. A tan and yellow automobile passed him at a speed which he estimated to be well over the speed limit and he undertook pursuit but could not catch up with the speeding car before it passed beyond the city limits. He then abandoned the chase, slowed down, and traveled some distance looking for a place to turn around, but, while still looking, he noticed the tan over yellow vehicle stuck in an embankment with its rear wheels off the side of the road and the front out on the roadway.

Wanner got out of the police car and approached the defendant's vehicle. At this point the defendant got out of the car and ran up the embankment into a barbed wire fence, on which he was caught. Wanner ran up the embankment to free him and to see if he was injured, and noticed a strong odor of alcohol. Wanner asked the defendant if he was hurt and received an incoherent answer. Wanner noticed a brown leather sheath on the defendant's belt. He removed the knife and then patted the defendant down, finding a bulge in the left sock which contained illegal drugs. A motion to exclude this evidence was sustained. At this point, Wanner called other officers and the defendant was taken into custody, although there is no firm evidence that he was told that he was under arrest. He was taken from the scene in another police vehicle driven by Officer Schneider.

Wanner, at the direction of his superior on the scene, then called a tow truck operator to free the impaled automobile. He found that the doors were locked and called Schneider over the radio to ask him to bring the defendant back with the keys. The car could be towed most easily if put in neutral and the steering column freed. Wanner believed this required the use of the ignition key. The defendant said that he did not have the keys, and Wanner and Schneider then began to look for them on the ground with the aid of flashlights. Schneider found two bags of marijuana and a bottle containing methaqualone tablets, 3 to 5 feet from the rear of the car on the driver's side. He testified without objection that Wanner had told him that he had seen the defendant throw something out of the window, but Wanner did not remember any such conversation. The trial court was justified in finding that the controlled substances found near the car had been in the defendant's possession.

After the tow truck arrived, Wasson, the operator, opened the locked door by means of a lock-out key which he carried, and he and Wanner began a search for the keys inside the car but did not find them. The operator then told Wanner that he was going to open the hood so as to manipulate the gears into neutral, but Wanner continued to look for the keys. He found a sack containing 12 bags of what turned out to be marijuana, in the back seat. He had looked into the sack, thinking that the keys might have fallen in, and noticed the bags. He then called Wasson to witness his discovery.

The defendant's primary complaint is that neither Wanner nor his fellow officers, as police officers of the City of Mexico, had authority to make arrests outside the city. We need not explore this interesting issue, nor do we need to consider related questions such as whether a police officer has the same arrest authority outside the area he serves as a private citizen would have. A person may not set up the unlawfulness of an arrest as a defense to criminal charges. See United States ex rel. Wright v. Cuyler, 563 F.2d 627 (3rd Cir. 1977); Virgin Islands v. Gereau, 502 F.2d 914 (3rd Cir. 1974); Tasby v. United States, 451 F.2d 394 (8th Cir. 1971); Bowlen v. Scafati, 395 F.2d 692 (1st Cir. 1968), 5 Am.Jur.2d, Arrest, Sec. 116. The question of lawfulness of arrest usually comes up in the context of a search of the person. Here no evidence found on the defendant's person was admitted.

We have regularly held that an accused person may not set up as a defense the claim that he was improperly extradited or brought into the state. State v. Johnson, 457 S.W.2d 762 (Mo. 1970); State v. Williams, 652 S.W.2d 102 (Mo. banc 1983)(No. 63587, decided May 31, 1983). These holdings are in line with the proposition just advanced.

There was no unlawful search of the area surrounding the impaled automobile. The bottle containing capsules and the bags of marijuana were not concealed, but rather in plain view. It is of no significance that they were discovered by the use of artificial light. State v. Cobb, 484 S.W.2d 196 (Mo. banc 1972); State v. Hawkins, 482 S.W.2d 477 (Mo. 1972). The officers were where they had a right to be when they found these items, and did not pry into hidden areas or places in which the defendant had a proper expectation of privacy.

Nor was there any unlawful search of the defendant's automobile. Wanner testified that he broke off pursuit as soon as he left the city limits of Mexico. The court could accept this testimony. If he did not make use of the first driveway or intersection at which he could have made a turnaround, that is of no concern to the defendant. When he saw the car in the ditch he was perfectly justified in stopping and checking on the possibility of serious injury. His pursuit of the fleeing defendant and his undertaking to detain the defendant are matters not germane to the claim of unlawful search of the defendant's automobile. His frisking, after observing the knife, was only prudent, and, because of the sustaining of the motion to suppress, did not contribute to the charges.

Wanner also had the right to take steps to remove the automobile from the roadway, where it could be an obstruction to traffic presenting a clear danger to life and limb. See Cady v. Dombrowski, 413 U.S. 433 (1973); State v. Valentine, 584 S.W.2d 92 (Mo. banc 1979). He would be justified in believing, from his observations and from the defendant's responses, that the defendant would have been of little help in freeing the automobile. The entry into the car in order to search for the keys was entirely proper. The court could find from the record that the entry was made in entire good faith and in the belief that the car could be moved most efficiently if the ignition key could have been located. Although Wanner, on account of the suppressed bag strapped to the defendant's leg, together with Schneider's discovery, had good reason to suspect the defendant of controlled substance violations, the court could have found that the entry into the car and the search for the keys had independent and proper purposes. The look into the sack was proper because the key might have fallen there. Inasmuch as Officer Wanner could have been found to have entered and searched inside the car properly, his discovery of the marijuana cannot be said to have been the product of an unlawful search. State v. Collett, 542 S.W.2d 783 (Mo. banc 1976).

The moving of the car was not related to Wanner's law enforcement duties for the City of Mexico. Any person present at the scene and equipped to give assistance should have done the same thing. There was no reason why he should not have acted as quickly as possible in order to minimize the danger to traffic. A call to the Highway Patrol or the sheriff would only invite additional delay, and, inasmuch as he was not engaged in a criminal investigation, there was no reason to undergo the delay which would have resulted if a warrant had been applied for. Even though Wasson might have told Wanner that he was going to open the hood and manipulate the gears, Wanner was still justified in continuing the search for the keys because the job might still be made easier if the keys could be located. Any claim that the continued search for the keys was a pretext for searching for illegal substances was a matter for the trial court to rule. The ultimate findings demonstrate that this claim was rejected. If no illegal search appears the defendant gains nothing by showing that the officers might have operated in a different manner.

The Concurring opinion cites authorities holding that the Fourth Amendment does not require suppression of evidence obtained by a private person in a search which would require application of the exclusionary rule if an officer had conducted it. Justice Brandeis' argument for a rule of "fair play" was rejected in Burdeau v. McDowell, 256 U.S. 465, 476 (1921). Here we do not have to deal with the question whether a police officer may enhance his powers of search and seizure simply by crossing a boundary in the continuation of a law enforcement mission, and then asserting "private citizen" status. The record would support a finding that Wanner had ceased his police activities and was engaged in a humanitarian mission when he stopped at the accident scene, and that he tried to help move the car in the interest of safety. Even if the entry into the car be viewed as a technical trespass, this would not require suppression. State v. Brasel, 538 S.W.2d 325, 330 (Mo. banc 1976).

The sole justification for an exclusionary rule under the Fourth Amendment, and under Art. I, Sec. 15 of the Missouri Constitution, is to deter unlawful police conduct. The trial court could have found, on this record, that there was no unlawful exercise of police authority which contributed to the discovery of the controlled substances. The finding of the incriminating evidence may have been fortuitous, but this circumstance does not mandate suppression. One who transports controlled substances takes the risk that a place in which he might otherwise expect privacy will be entered accidentally or inadvertently, and his cargo exposed.

The judgment on both counts is affirmed.


Rendlen, C.J., Gunn and Billings, JJ., concur; Donnelly, J., concurs in result in separate opinion filed; Lowenstein, Sp.J., Dissents in separate opinion filed; Higgins, J., Dissents and concurs in separate Dissenting ...

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