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08/02/83 STATE MISSOURI v. DENNIS B. MOORE

August 2, 1983

STATE OF MISSOURI, RESPONDENT,
v.
DENNIS B. MOORE, APPELLANT.



From the Circuit Court of Johnson County; Criminal Appeal; Judge William M. Kimberlin.

Motion for Rehearing Overruled, Transfer Denied September 27, 1983. Modified on Court's Own Motion October 4, 1983.

Before Somerville, C.j., Shangler, Pritchard, Dixon, Turnage, Manford, Nugent, JJ.

The opinion of the court was delivered by: Nugent

Defendant was convicted by a jury of possession of marijuana, § 195.020, *fn1 sentenced to thirty days in jail, and fined $500. He argues both that his warrantless arrest was unlawful and that the subsequent warrantless search and seizure of evidence in his home was unlawful. We reverse.

At 1:30 a.m. on October 13, 1980, Deputy Sheriff John Lucas of the Cass County Sheriff's Department was sent to a residence in Belton, Missouri, to inform Mr. Richard Bailey, thought to reside therein, that his car was on fire in a school parking lot. As he approached the house, Officer Lucas passed a front window through which he could see one person asleep on a couch and another asleep in a chair. Between them was a coffee table on which rested an open fruitcake can containing a green, leafy substance believed by the officer to be marijuana. He knocked at the door which was answered by the defendant, the person seen sleeping on the couch. The defendant, Mr. Moore, informed the officer that Mr. Bailey was not there but took the message.

Officer Lucas then left, returned to the Belton Police Department, and consulted with Detective Jack Harris. Mr. Harris called the Cass County prosecuting attorney who advised him that probable cause existed to arrest the owner of the house for possession of marijuana.

Officer Lucas, Detective Harris and a third officer, Sgt. Wright, then returned to the house at about 2:30 a.m. Officer Lucas and Sgt. Wright each carried a service revolver and Detective Harris carried a .12 gauge shotgun. As they walked by the front window, they again saw the defendant asleep on the couch, but neither the second sleeper nor the fruitcake can was visible. In response to their knock, defendant answered the door. Although on direct examination at trial Officer Lucas testified that the defendant "came out on the porch," he also described defendant's position as "half in the house and half out of the house," with "the biggest part of him" outside. The officer told Mr. Moore that he had seen the marijuana on his previous visit, advised him that he was under arrest for possession of a controlled substance, and read him a Miranda warning.

Defendant "made a motion with his hand," said something to the effect of "Oh, shit," turned around, and went back into the house. Officer Lucas interpreted defendant's gesture to mean he should follow so the three men entered the house. They followed Mr. Moore into the living room area where he reached under the couch, retrieved the can and handed it to Officer Lucas. The contents were later analyzed and found to be less than thirty-five grams of marijuana.

The other sleeper was found behind the couch, apparently still asleep, and was placed under arrest.

The defendant presented no evidence at trial. The jury returned a verdict of guilty and defendant was sentenced to thirty days in jail and fined $500.

In defendant's first point, that his warrantless arrest was unlawful, he relies on Payton v. New York, 445 U.S. 573 (1980), for the rule that absent consent or exigent circumstances, warrantless arrests within the confines of one's home are unconstitutional. Although we have serious doubts as to the applicability of Payton to this case where the defendant was at least partially outside of his home at the time of the arrest, in light of the fact that Payton carefully drew a "firm line at the entrance to the house," referring to it as "that threshold may not reasonably be crossed without a warrant," Id. at 590, the point is one we need not decide. We find defendant's warrantless arrest to be unlawful for a more fundamental reason - lack of probable cause.

In Missouri, a warrantless arrest is authorized only if it is based on probable cause, State v. Garrett, 627 S.W.2d 635, 641 (Mo. 1982) (en banc); State v. Olds, 603 S.W.2d 501, 505 (Mo. 1980) (en banc), a proposition said in Garrett to be "so well recognized that it needs no authority."

Probable cause for an arrest without a warrant carries two requirements. First, the facts within the arresting officers' knowledge must be sufficient to warrant "a man of reasonable caution in a belief that an offense has been or is being committed." Second, the facts must warrant a belief "that the person arrested is guilty of that offense." State v. Olds, supra, at 505. See also State v. Garrett, supra, stating that probably cause requires facts sufficient to warrant a belief that "The person being arrested had committed the offense for which he has been placed in custody" (emphasis added), and State v. Berry, 609 S.W.2d 948, 952 (Mo. 1980) (en banc), stating that probable cause requires facts sufficient to believe that the defendant has committed an offense.

In other words, reason to believe, or even certainty that an offense has been or is being committed does not constitute probable cause to arrest a particular individual unless reason also exists to believe that that individual committed the offense. Although " broad gulf exists between what is necessary to prove one guilty and the requirement of probable cause of a warrantless arrest . . . are suspicion . . . is not enough to ...


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