State v. Ellis , 354 Mo. 998 ( 1946 )

I am unable to agree with the majority opinions. They dispose of these cases as [39] though they involve a mere technical violation of the statute by the Missouri State Highway Patrol, and in so doing fail to consider and give full import to certain undisputed and significant facts. Furthermore, the opinions fail to give meaning and force to the unambiguous language of the statute.

[7] The statute, Section 8360, Mo. R.S.A., in unmistakably plain language, says: "Any person arrested by a member of the patrol shall forthwith be taken by such member before the court or magistrate having jurisdiction of the crime whereof such person so arrested is charged there to be dealt with according to law." So, in the plainest of language, we have a specific limitation on the arresting power of the officers of the Missouri State Highway Patrol.

"This directive is not something which the officer is free to comply with or ignore according as he may think the exigencies of the situation demand; it is a fundamental imperative designed to safeguard the individual in a free land against the arbitrary exercise of power." Runnels v. United States, 138 F.2d 346, l.c. 347. As is well known, the underlying policy of the statute is directed against "the misuse of the law enforcement process." "It aims to avoid all the evil implications of secret interrogation of persons accused of crime" and, it may be frankly added, to prevent "the third degree" and coerced confessions. McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819; Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192. "They subjected the accused to the pressures of a procedure which is wholly incompatible with the vital but very restricted duties of the investigating and arresting officers of the Government and which tends to undermine the integrity of the criminal proceeding. . . . Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. . . . Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. . . . It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application." McNabb v. United States, supra, l.c. 342, 343, 344. See also United States v. Haupt, 136 F.2d 661.

In these cases had there been a mere technical violation of this statute by the Highway Patrol in its failure to "forthwith" take Sanford and Ellis before a court or magistrate with jurisdiction of the crime with which they were charged, it would be reasonable to argue that no more was involved than the technicality of a mere illegal arrest, and, therefore, their confessions given during the period of illegal detention would not be involuntary. That is all that was involved in State v. Raftery, 252 Mo. 72, 158 S.W. 585. State v. Hoskins, 327 Mo. 313,36 S.W.2d 909, and State v. Mitchell, 339 Mo. 228,96 S.W.2d 341. In principle, no more is involved in State v. Menz,341 Mo. 74, 106 S.W.2d 440, in which it was held that the mere fact that one had been detained more than the statutory twenty hours did not, as a matter of law, constitute duress as to a confession given during that time. However, it should be noted that Menz was detained in custody at the county seat. His peopleknew where Menz was detained for his sister visited him the second day of his detention and subsequently he was visited by his father.

But in these cases there was not a mere failure to take Sanford and Ellis before a committing magistrate in the county of the crime; Sanford and Ellis were taken to another county. They were taken to the Highway Patrol's headquarters in Kirkwood and when they were not being subjected to examination or "work" (Ashcraft v. Tennessee, supra) they were kept in the St. Charles jail.

Sanford and Ellis murdered Mrs. Santo on the 12th day of December, 1943. Sanford was taken into custody while at work at the quarry at Pacific on the 14th day of December, and was detained at Kirkwood and in the St. Charles jail until the 21st day of December. Ellis was arrested on the 14th day of December[40] and detained until the 21st day of December. On that day they were taken before a proper committing magistrate at Union, the county seat of Franklin County. They waived preliminary hearings and were committed to the Franklin County jail where they remained until tried in March, 1944. The affidavit for an information was dated December 15th, three days after the murder.

Sanford was taken into custody about eleven-thirty on the morning of the 14th and immediately taken to Troop C headquarters in Kirkwood where he was questioned by two troopers and a lieutenant. From seven o'clock that night until nine-thirty or ten o'clock he was questioned. The members of the patrol who engaged in questioning him were not all present all of the time when he was being questioned, consequently, no member of the patrol was able to say what had occurred while the others were examining him; further, all those who engaged in the questioning did not testify. About ten o'clock Sanford was returned to Pacific in a patrol car to search for Mrs. Santo's pocketbook and was again brought back to patrol headquarters where he was kept until three-thirty or four o'clock when he completed his statement that he had been making. The next day, or night, he was returned to patrol headquarters and again questioned. He was questioned each night he was there and when he was not in Troop C headquarters he was in the St. Charles jail.

Ellis was subjected to similar treatment. There is the difference that Ellis did not confess during the first two or three days of his detention. His confession is dated December 17th. During the first two or three days he claimed an alibi. The second or third day he was taken to St. Louis and subjected to a lie detector test at the St. Louis metropolitan police headquarters. Members of Ellis' family were brought to the patrol's headquarters in Kirkwood but it should be carefully noted that they were not brought there for the purpose of visiting him or talking with him but for the purpose of checking his alibi.

[8] Aside from these admitted facts there are additional undisputable facts which the majority opinion does not consider, facts which condemn the detention in these cases and definitely stamp the confessions given the patrol as involuntary. In the first place, Sanford is an illiterate negro. He went to school in the first grade only and it is doubtful that he can read or write other than to sign his name. In the second place, the lieutenant testified that the secretary read the confession to him; the secretary said that the statement was read to him but that she did not do it. There is no other evidence on the subject. We therefore have a confession admitted in evidence against Sanford which he did not read nor which was not read to him. For this reason alone the written confession should not be admitted. In the third place, during the time Sanford was detained at Troop C headquarters and in the St. Charles jail from December 14th to December 21st he was not visited by members of his family or counsel. In the fourth place, it does not appear that either Ellis or Sanford was ever advised of his rights in any manner by the patrol. In the fifth place, and most important of all, is the long, unsatisfactorily explained detention of seven days in direct violation of the statute.

In view of the policy of the statute and these additional facts which clearly violate it, this Court should do just as the Supreme Court of the United States did and exercise its constitutional supervisory power over trial tribunals, (Const. Mo. 1945, Art. V, Sec. 4) and ensure, as far as possible, complete fairness in the administration of criminal justice and the integrity of the law enforcement process. McNabb v. United States, supra; Anderson v. United States, 318 U.S. 350, 63 S. Ct. 599, 87 L. Ed. 829; United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140; Skiba v. Kaiser, 352 Mo. 424,178 S.W.2d 373.

[9] The majority opinion is based upon Professor Wigmore's theory that a confession is not involuntary and should not be excluded because of the illegality of the method by which it was obtained or because of the accused's situation at the time of making it. 3 Wigmore, Evidence, Secs. 815-867. The principle of Professor Wigmore's theory has been advisedly rejected by this Court en Banc and we believe that a consideration of the subject further demonstrates that these confessions procured by the Highway Patrol during the period of this unexplained, unlawful detention should be condemned and excluded as involuntary. Professor Wigmore not only contends that confessions [41] should not be excluded because they were illegally obtained but vehemently contends that evidence obtained by an illegal search and seizure should not be excluded or suppressed because of the illegal manner in which it was obtained. His position is that an offending officer may be punished in some appropriate manner, either by the court or at the instance of the accused, and that it is a perversion of the rules of evidence to use them as a means or method of indirect punishment by excluding the illegally obtained evidence. 8 Wigmore, Evidence, Secs. 2183-2184b. pp. 4-50. In State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383, Professor Wigmore's views were urged upon the Court en Banc and the whole subject was very carefully considered and his theory was rejected.

Neither the State nor the Federal Constitution forbids the use of evidence obtained by an illegal search and seizure, yet we have adopted the view that evidence so obtained is not admissible against a defendant in a criminal case for the reason that the admission of such evidence violates his constitutional security against unreasonable search and seizure. State v. Owens, supra; State v. Lock, 302 Mo. 400, 259 S.W. 116. The reason for excluding the evidence so obtained is that the sole object of a search and seizure is to obtain evidence, and if the courts permit the use of illegally obtained evidence, the individual's constitutional security or guaranty against unlawful search and seizure is of no value. When the officers make an unlawful search and illegally seize property they directly violate the Constitution and a right specifically reserved to the accused, and the exclusion of evidence thus obtained is the only adequate means of giving effect to and protecting that right. State v. Wilkerson, 349 Mo. 205, 159 S.W.2d 794. The contrary view "reduces the Fourth Amendment to a form of words." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182. So it is with a confession obtained under the circumstances of these cases and in direct violation of this positive statute. It is not enough merely to censure with words the State's illegal conduct and its unlawfully obtained evidence. "The State argues further that the constitutional provision is not self-enforcing, and no statute has been passed to punish an offending officer or provide a remedy to the person injured for the infraction of his constitutional right. It is true there is no adequate remedy available to the person injured whereby he may obtain redress after the act. He would have an action for an unlawful trespass or for assault, at common law. The Constitution adds nothing to his rights in that respect. Theonly remedy which can possibly benefit him is a preventive one. . . . There is in fact no remedy, no method, by which the citizen can receive the protection of the Constitution except the method here contended for by the appellant. No case is mentioned, and I believe none can be found, where the constitutional right was protected to the citizen except in the suppression of evidence discovered by unlawful search." State v. Owens, supra, Mo. l.c. 375. (Italics mine.)

It is true that up to the present the Supreme Court of the United States has not held that a confession obtained in the circumstances of these cases and the McNabb case and used in evidence against an accused is violative of his right to due process under either the Fifth or Fourteenth Amendment of the Constitution of the United States, but the question has never been before that Court in such a manner that it was necessary to decide it. Furthermore, it is not a mere question of procedure. If it were we would not be bound by the views of the Supreme Court of the United States. It is well established that if a confession is given or obtained under circumstances that its use as evidence in a state criminal proceeding violates due process, it is not consistent with the fundamental principles of liberty and justice, and the Supreme Court of the United States will set the conviction aside as violative of the Fourteenth Amendment. Lyons v. Oklahoma, 322 U.S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481; Ashcraft v. Tennessee, supra; Lisenba v. California,314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166; Chambers v. Florida,309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716.

"The question of how specific an instruction in a state court must be upon the involuntary character of a confession is, as a matter of procedure or practice, solely for the courts of the state." Lyons v. Oklahoma, supra, U.S. l. [42] c. 601. But that is not enough for these cases. Ellis claimed, among other things, that his confession was coerced by physical violence. In addition to the Highway Patrol's confessions, there were also confessions to private individuals, a newspaper photographer, a reporter, a city marshal after commitment to the Franklin County jail, and to the chief deputy sheriff at St. Charles. The confessions made to private individuals are deemed voluntary because they were not made to persons in authority. 3 Wigmore, Evidence, Secs. 827-830; State v. Williamson,339 Mo. 1038, 99 S.W.2d 76. The court instructed the jury as to any confessions claimed to have been secured by force. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88; State v. Di Stefano, 152 S.W.2d 20; State v. Aitkens, 352 Mo. 746,179 S.W.2d 84. The usual instruction on voluntary or involuntary confession by reason of force or duress does not include the fact of Ellis' illegal detention in violation of the statute.

[10] Sanford's case is on an entirely different footing. Sanford did not claim that his confession was forced by physical violence. He relied solely upon the fact of his illegal detention in violation of the statute. The trial court refused his instructions hypothesizing a confession obtained by reason of that fact. Had the trial court instructed the jury on this subject as the New York courts elaborately do (People v. Malinski, 292 N.Y. 360, 55 N.E.2d 353) and thus protected the accused in his rights, it might have been that due process would not have been denied him.

That was not done in these cases. Not only were the State and the Highway Patrol not penalized for their unlawful conduct but these circumstances were not even considered in determining whether the confessions secured by the Patrol were voluntary.

I think the confessions given the Patrol, under the circumstances, were involuntary as a matter of law and violative of due process under both the State and Federal Constitutions. Skiba v. Kaiser, supra. If not, then certainly "the Supreme Court in the McNabb case added to the various tests to be taken into consideration by the trial judge a new one, that of whether or not a man was promptly taken before the United States Commissioner", (United States v. Klee, 50 F. Supp. 679, l.c. 685) or, in this case by the same token, whether the confessions were obtained by reason of the long, unsatisfactorily explained detention of seven days in direct violation of the statute, a force as coercive as physical violence in the circumstances of these cases. Ashcraft v. Tennessee, supra.