State v. Blair ( 1985 )

HIGGINS, Judge.

Zola Blair, charged with murder, moved to suppress certain evidence, including her palm prints and statements made to the police, and to quash an arrest warrant. The trial court, after evidentiary hearing, sustained her motion. The State of Missouri filed an interlocutory appeal from the order of suppression pursuant to section 547.200, RSMo; the Court of Appeals, Western District, affirmed. This Court granted transfer to examine the effect, if any, of United States Supreme Court cases decided subsequent to the Western District decision. The question is whether, in the circumstances of this case, defendant’s initial arrest was pretextual and rendered her subsequent detention unlawful and evidence obtained incident thereto inadmissible. This Court draws freely from the opinion written by the Honorable Jack P. Pritchard for the court of appeals and reaches the same result.

This case involves three well-known principles of law:

First and foremost is the constitutional protection of citizens from unreasonable searches and seizures by requiring the authorities to secure a search warrant based on probable cause, “describing the place to be searched, or the person or thing to be seized_” Mo. Const, art. 1, § 15; U.S. Const., amend. IV. “[A]ll warrantless searches, subject only to a few well delineated exceptions, are per se constitutionally offensive.” State v. Peterson, 525 S.W.2d 599, 603 (Mo.App.1975).

Second is the case law-supported rule that upon review of a trial court’s order, the facts, and reasonable inferences arising therefrom, are to be stated favorably to the order challenged on appeal. See State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982).

Third is the ease law-supported rule that the reviewing court is free to disregard contrary evidence and inferences, and is to affirm the trial court’s ruling on a motion to suppress if the evidence is sufficient to sustain its finding. Giffin, supra; State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981); State v. Rainbolt, 676 S.W.2d 527, 528 (Mo.App.1984).

Police discovered a murder on November 24, 1981; the only evidence found was a palm print. On January 22, 1982, an informer implicated Zola Blair and her family in the murder. Comparison of the palm prints of other family members with the print found at the scene of the crime failed to produce a match; defendant’s print was not in the police file. On January 23, Detective Lauffer requested that defendant be picked up for homicide but did not ask for a homicide arrest or search warrant because he believed there was not enough evidence to support a warrant. The police then learned that she was the subject of an outstanding city warrant for a traffic violation. On February 5, 1982, police arrested defendant at her home, took her to the homicide unit, booked her on a charge of homicide, and took her palm and finger prints. Later that day, she was questioned about the homicide. After the interrogation, the officer requested that her palm print be compared with that taken from the crime scene. She was detained for homicide overnight and released at 10:45 a.m. the next day. Fourteen minutes later she was booked on the municipal court parking warrant. At 12:55 p.m., she posted bond on the traffic violation and was released.

On February 8, 1982, upon learning that defendant’s print matched the print found at the scene of the crime, police sought and received an arrest warrant on the homicide. She was arrested at 5:30 p.m. on that day and booked shortly thereafter. During an interrogation that began at 6:15 p.m., officers confronted her with evidence of the matching prints and obtained inculpatory statements.

For reversal the State contends that once a legal basis for an arrest exists — in this case the outstanding traffic warrant — the subjective motives of the police become irrelevant; therefore, defendant was in lawful custody pursuant to the parking violation warrant when fingerprinted, and the prints obtained then, as well as the statements that followed, are admissible. Respondent argues that the trial court correctly found that she was not in lawful custody because the arrest was but a pretext for a search; and that the palm print and statements obtained on February 5, 1982, are inadmissible as products of an illegal detention, and the February 8th statements are also inadmissible as the “fruit” of the illegally seized palm print. Appellant counters that even if “seizure” of the palm print was illegal, this does not render the later statement inadmissible.

The United States Supreme Court recently reaffirmed its holding in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), that the exclusionary rule, barring admission of all evidence obtained by searches and seizures in violation of the warrant requirement, applies to investigatory detentions in general and to fingerprint evidence in particular. Hayes v. Florida, — U.S.-, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). In Hayes, police found latent finger-prints on the doorknob of the bedroom of one of the victims of a series of burglary-rapes. Police interviewed Hayes along with other men whose general descriptions matched that of the assailant. Acting on suspicion and without a warrant, investigators went to Hayes’ home with the intent to obtain his fingerprints or arrest him if necessary. Id. at-, 105 S.Ct. at 1644. Under threat of arrest, Hayes accompanied the officers to the station house, where he was fingerprinted. Police formally arrested Hayes after they learned that his prints matched those left at the scene of the crime. The trial court denied Hayes’ motion to suppress the fingerprint evidence and he was convicted of burglary and sexual battery. The United States Supreme Court reversed the judgment, noting that “[h]ere, as in Davis, there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes.” Id. at -, 105 S.Ct. at 1464. The Court held that police investigative activity triggers the “full protection” of the fourth amendment “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Id.

In this case it is undisputed that the police lacked probable cause to arrest defendant on the homicide charge; to establish the legality of the warrantless search and seizure here, then, the State must show that one of the exceptions to the warrant requirement applies.

Appellant seeks to bring the challenged fingerprinting within the search incident to a lawful arrest exception to the warrant requirement. A valid custodial arrest of a suspect authorizes, without more, a search incident to the arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Moody, 443 S.W.2d 802 (Mo.1969). It is also true that a suspect in lawful custody is subject to fingerprinting as part of routine identification procedure. Smith v. United States, 324 F.2d 879 (D.C.Cir.1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964); State v. Hunter, 625 S.W.2d 682 (Mo.App.1981). Prerequisites to application of the foregoing are a lawful arrest, Taglavore v. United States, 291 F.2d 262 (9th Cir.1961), and lawful custody, Hunter, 625 S.W.2d at 684 (“Although a person may not be taken into custody for the purpose of fingerprinting if the police do not have a warrant or probable cause, ... once he is lawfully arrested, he is subject to a full search incident to the arrest.”).

The evidence conflicts on whether the officers arrested defendant on the outstanding parking violation warrant. Officer Stewart testified that he “arrested her for an outstanding city warrant and also asked her to accompany [them] with regards to a pickup order issued by the crimes against persons unit.” He also testified that he went to her residence to take her into custody on the homicide pickup order and he did not have an arrest warrant. He advised defendant of her constitutional rights in compliance with Miranda although such warnings are not given on arrests for parking violations that do not involve criminal activity. Officer Stewart’s partner, Officer Thomas, filed the report of the arrest under the homicide charge number as “investigation arrest-criminal homicide”; and the officers followed the procedure used for arresting and booking an individual on a homicide charge rather than that used for a traffic violation. Defendant was taken to the homicide unit at the police department’s downtown station and booked there on a state charge for homicide, not for the parking violation at the district station on 63rd street. Under the normal procedure for booking a person on a municipal court parking violation, the police obtain one fingerprint of the person and allow the person to remain at the district station for four hours in order to post bond. In this ease, the suspect was taken to the homicide unit where a complete set of defendant’s palm and finger prints was taken, she underwent interrogation regarding the homicide, and was detained overnight. It was after all this that the police booked her on the parking violation.

The conflicts thus raised by the evidence were for the trial court to resolve. The trial court resolved them in favor of defendant, and this Court defers to the trial court’s determination because it is supported in the evidence. Baskerville, 616 S.W.2d at 843; Rainbolt, 676 S.W.2d at 528. State v. Cotterman, 544 S.W.2d 322 (Mo.App.1976), while not involving an outstanding warrant, is pertinent. There the court rejected an attempt to rely on the search incident to the arrest exception, stating that “since there was no lawful arrest of defendant for violation of a traffic regulation it necessarily follows that there could be no search incident to a nonexistent arrest.” Id. at 327. And in United States v. Prim, 698 F.2d 972 (9th Cir. 1983), where officers did have an outstanding nonsupport warrant for defendant’s arrest, the court refused to accept the warrant as justification for a search and seizure based on suspicion that defendant was a drug trafficker. The court explained that the warrant, “[i]f anything, ... provides a pretext after the fact to justify the officers’ actions. Such pretextual use to justify an arrest or search has been clearly recognized as violative of the fourth amendment.” Id. at 975. See also United States v. Millio, 588 F.Supp. 45, 48-49 (W.D.N.Y.1984) (requiring suppression of pistol seized during detention of defendant, where scofflaw — three or more unpaid parking tickets — was used as a pretext for continuing the detention).

Assuming an arrest for the parking violation, the arrest, in the circumstances of this case, was at best a pretext employed to gather evidence on an unrelated homicide, and this Court cannot say, on this record, that the trial court erred in suppressing the evidence so seized. A well established limitation on the search incident to a valid arrest exception is the rule that an arrest may not be used as a pretext to search for evidence. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Taglavore, 291 F.2d at 265; State v. Goodman, 449 S.W.2d 656 (Mo.1970); State v. Howell, 543 S.W.2d 836, 838 (Mo.App.1976). Compare Taglavore, 291 F.2d at 265 (“[T]he search must be incident to the arrest, and not vice versa.”) with State v. Lamaster, 652 S.W.2d 885 (Mo.App.1983) (upholding search incident to lawful arrest even though initial arrest unlawful because no search occurred until after subsequent valid arrest on outstanding warrant). In Moody, the court, finding no evidence of pretext, upheld an arrest and search as lawful, stating, “If the arrest for a traffic violation is used as a pretext for conducting the search, the proceeds of the search incident thereto will be inadmissible. The question of good faith on the part of arresting officers is capable of adjudication.” 443 S.W.2d at 804.

The rule rendering evidence procured by means of a pretextual arrest inadmissible is oft stated. None of the cases cited by the parties or found by the Court’s research, however, involves precisely the circumstances of the instant case. The State relies on United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), but the holdings in each of these cases rest on the assumption that the police executed a valid probable cause, full-custody arrest.

The State also cites cases from other jurisdictions for the proposition that where the police have a valid reason to arrest for a traffic violation and conduct a search reasonably related to the arrest, evidence seized is admissible regardless of the motives of the arresting officer. Speake v. Grantham, 317 F.Supp. 1253 (S.D.Miss. 1970), aff'd, 440 F.2d 1351 (5th Cir.1971); Urquhart v. State, 261 So.2d 535 (Fla.App.1972); State v. Holmes, 256 So.2d 32 (Fla.App.1971); Musgrove v. State, 1 Md.App. 540, 232 A.2d 272 (1967); Braxton v. State, 234 Md. 1, 197 A.2d 841 (1964); Shackelford v. State, 473 P.2d 330 (Okla.Crim.1970). Each of the cases cited is readily distinguishable as presenting a situation where the defendant commits an offense in the presence of the officers, who then immediately arrest and search incident thereto. For example, in Holmes, the court held that a traffic violator is not immune from the seizure of evidence of a more serious crime “provided that the gravity of the traffic offense is such that any citizen would routinely be stopped for it if seen committing the offense by a traffic officer on routine patrol.” 256 So.2d at 34. See also Urquhart, 261 So.2d at 536 (Mann, J., concurring) (“The motive of the arresting officer does not immunize a suspected motorist from an arrest to which any of us would be subject were we seen driving as Urquhart drove.”). Underlying these cases is appreciation for the far reaching consequences of allowing the common offense of a traffic violation to serve as justification for an otherwise unconstitutional search. See Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.1968).

Appellant’s reliance on State v. Hunter, 625 S.W.2d 682 (Mo.App.1981) is similarly misplaced. In Hunter, a federal officer, suspecting the defendant of committing forgery, consulted the local police, who arrested the defendant pursuant to outstanding municipal arrest warrants. At the police station, the federal officer questioned and fingerprinted the defendant. The trial court excluded those fingerprints because the federal officer lacked probable cause to take them at that time. The trial court, and subsequently the court of appeals, held admissible a second set of fingerprints obtained while the defendant was lawfully in custody at a later date. The language to which appellant refers, recognizing the authority of the police to fingerprint a suspect in lawful custody, relates to this second set of prints. Thus Hunter is dissimilar to the present case and does not aid the State’s position.

The record in this case supports the ruling of the trial court. The execution of the parking violation warrant was but a subterfuge or pretext, not pursued, to gather evidence of the unrelated crime of homicide. The palm and finger prints and statements obtained on February 5, 1982, were properly suppressed because they resulted from an unlawful arrest and search. Because the illegally seized evidence provided the sole basis for the arrest warrant for homicide of February 8, 1982, and led directly to respondent’s statements on that day, the warrant and statement are also inadmissible as “fruits of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See State v. Hoven, 269 N.W.2d 849, 854 (Minn.1978); State v. Mayes, 654 S.W.2d 926, 935 (Mo.App.1983). The contention that the challenged evidence falls within the ultimate or inevitable discovery exception to the exclusionary rule is without merit. Although Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), requires less than the standard set forth in State v. Byrne, 595 S.W.2d 301 (Mo.App.1979), cert. denied, 449 U.S. 951, 101 S.Ct. 355, 66 L.Ed.2d 215 (1980), the former still mandates that the prosecution establish “by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means_” 104 S.Ct. at 2509. The State has not done so. Nor does the good faith exception to the fourth amendment exclusionary rule articulated in the recent cases of United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (U.S.1984), and Massachusetts v. Sheppard, — U.S.-, 104 S.Ct. 3424, 82 L.Ed.2d 737 (U.S.1984), serve to salvage the pretextual “seizure” of evidence in this case. In Leon and Sheppard, the United States Supreme Court permitted the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate that later was invalidated, in Leon because a reviewing court found the warrant unsupported by probable cause, and in Sheppard because of a technical error on the part of the issuing judge. Emphasizing the deterrence rationale for the exclusionary rule, the Court reasoned that the rule cannot have any deterrent effect when the officers act upon the belief that their conduct conforms to the fourth amendment. “This is particularly true ... when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” Leon, 104 S.Ct. at 3420. By contrast, in the case at hand all of the evidence supports a conclusion that the officers acted in bad faith without a search warrant. Compare Sheppard, 104 S.Ct. at 3429 (“The officers in this case took every step that could reasonably be expected of them.”). Indeed, suppression of the evidence on this record is consistent with the Supreme Court’s focus on deterrence in applying the exclusionary rule. The State asks the Court to ignore the motives of the arresting officers because of the existence of the parking warrant, yet if the recent pronouncements of the United States Supreme Court have any applicability to the instant appeal, it is in their acknowledgment that courts can and will consider the question of good faith, or lack thereof, on the part of the police.

The order of the trial court sustaining the motion to suppress is affirmed, and the case is remanded for further proceedings.

BILLINGS, DONNELLY and WELLIVER, JJ., concur. BLACKMAR, J., dissents in separate opinion filed. RENDLEN, C.J., and GUNN, J., dissent and concur in separate dissenting opinion of BLACKMAR, J.