State v. Moore , 659 S.W.2d 252 ( 1983 )

NUGENT, Judge.

Defendant was convicted by a jury of possession of marijuana, § 195.020,¹ sentenced to thirty days in jail, and fined $500. He argues both that his warrantless arrest was unlawful and that the subsequent war-rantless 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 ear 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 war-rantless arrest was unlawful, he relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (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 [which] may not reasonably be crossed without a warrant,” Id. at 590, 100 S.Ct. at 1382, 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 probable 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 “[a] broad gulf exists between what is necessary to prove one guilty and the requirement of probable cause of a war-rantless arrest[,] ... [b]are suspicion ... is not enough to support a finding of probable cause for a warrantless arrest.” State v. Grady, 548 S.W.2d 601, 608 (Mo.App.1977).

A police officer with some training and experience in the recognition of controlled substances who sees through a window material he believes to be marijuana has probable cause to believe that someone inside is or recently was unlawfully in possession of a controlled substance. The question here, however, is whether probable cause exists in that circumstance to believe that the first person to answer the door is, in fact, the possessor. We think not.

Probable cause must, of course, be analyzed according to the facts known at the time of arrest, not according to facts learned later. At the time the officers here arrested Mr. Moore, they knew that he had been sleeping in the house (although not in the bedroom), that he had answered the door earlier and that a Mr. Bailey was not present. They did not know whether defendant resided in the house (either as tenant or owner) or was a mere guest. All they knew for certain was that he was present in a dwelling where contraband was located. Our analysis of probable cause, then, must proceed on the basis that at the time of arrest the officers had no reasonable basis for a determination of defendant’s status other than his mere presence. Whether he was the owner, a tenant, a guest or a trespasser was a matter of surmise.

The United States Supreme Court addressed the relationship of presence and possession in United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), in which, during a raid of an industrial complex, the defendant was found standing a few feet away from a still. He was charged with possession of an illegal still and convicted on the basis of 26 U.S.C. § 5601(b) which provided that the presence of the defendant at the site “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury.” The Court found such a statutory inference unconstitutional, stating at 144, 86 S.Ct. at 284 that

It may be ... that Congress has the power to make presence at an illegal still a punishable crime, but we find no clear indication that it intended to so exercise this power. The crime remains possession, not presence, and with all due deference to the judgment of Congress, the former may not constitutionally be inferred from the latter. (Emphasis added.)

The holding in Romano provided the basis for the reversal of a conviction for possession of marijuana in United States v. Wynn, 544 F.2d 786 (5th Cir.1977). Officers there found forty to fifty marijuana plants growing one hundred yards from an occupied house. While gathering the plants, the officers observed defendant Wynn driving up to the house. Asked if he owned the residence, Wynn said he did not but that a friend of his was the owner. When asked if the friend was home, defendant suggested they all go to the house to find out. They did so. Inside were three persons sleeping in various rooms, with marijuana in plain view. All the occupants were arrested for possession of marijuana, including the defendant who admitted having a “coming and going” relationship with the owner of the house. On review, the court held at 791 that defendant’s conviction could not stand:

His offense was no more than selecting an unfortunate time to visit a friend.... A contrary holding would exalt mere presence to a sufficient basis for an arrest for a crime of possession. The Supreme Court had held that presence alone, unilluminated by other facts, is insufficient proof of possession [citing United States v. Romano]. Appellant’s “coming and going” relationship with the owner of the residence ... may not be extrapolated into establishing any greater probability of possession than would be furnished by mere proximity to the thing allegedly possessed.... The probability of possession by Wynn in the present case was an insufficient basis for a legal arrest. (Emphasis added.)

Even more specifically, the Supreme Court has considered the sufficiency of probable cause for a warrantless arrest for possession of controlled substances made before the arresting officers knew whether the defendant was the sole occupant of the living quarters and has found such probable cause lacking. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), police were “tipped” that opium was being smoked in a certain hotel. The officer and trained narcotic agents recognized the smell of burning opium in the hallway and knocked on defendant’s door. She opened the door and was immediately placed under arrest. The subsequent search of the room revealed both opium and the fact that she was alone.

In its brief, the Government conceded that only when the arresting officer and agents had entered the room and discovered that the defendant was alone did they have a reasonable basis for believing that she (as opposed to someone else in the room) had been smoking opium. The Court at 16, 68 S.Ct. at 370 agreed that, “[t]hus the Government quite properly stakes the right to arrest, not on the informer’s tip ... but on the knowledge that she was alone in the room .... ” That knowledge, gained only after the entry and arrest, could not be used retroactively to justify the arrest. As the Court simply stated at 17, 68 S.Ct. at 370 in reversing the conviction, “This will not do.”

Just as in Johnson, the officers here did not know until after the arrest that defendant lived in the house. This knowledge cannot, then, be considered to fortify probable cause.

Just as in Romano, defendant here was seen a few feet away from contraband, neither touching it nor visibly aware of its presence. As stated in Romano, possession may not constitutionally be inferred from mere presence. This is consistent with Missouri law in which “the mere fact that an accused is present on the premises where controlled substances are found does not, without a showing of exclusive use or possession of the premises make a submissible case.” State v. Barber, 635 S.W.2d 342, 344 — 45 (Mo.1982).

Just as in Wynn, for all the officers knew at the time of the arrest, defendant was a mere house guest “selecting an unfortunate time to visit his friend.” Nothing about his conversation with Officer Lucas during the earlier visit suggested he lived in the residence or exerted control over its contents. His relationship to the owner of the house may have been no more than the “coming and going” relationship of Mr. Wynn to his friend, a relationship which no more makes possession probable than does mere proximity to contraband.

The question of probable cause to arrest persons not known to be any more than house guests for possession of contraband found within the house has not been squarely addressed in Missouri. But several principles from cases dealing with sufficiency of evidence to convict provide guidance.

Where an accused has exclusive control of premises, he is deemed to have possession and control of contraband found therein. Where control is not exclusive (as in joint occupancy), a similar inference does not arise absent further evidence connecting the accused with the drugs. State v. Wiley, 522 S.W.2d 281, 292 (Mo.1975) (en banc). See also State v. Lowe, 574 S.W.2d 515, 517 (Mo.App.1978). As the court said in Wiley at 292, “Merely being a guest m the household of another would not be sufficient to sustain a conviction of possession of controlled substances.”

This latter rule was most recently applied in State v. Barber, supra, in which officers entered an apartment to arrest a certain person and found eight people, including the defendant, asleep in various bedrooms. In the room in which defendant slept, a large quantity of illegal drugs was found in plain view. The Supreme Court held that because the evidence did not show that drugs had been found on defendant’s person or that the defendant resided in the apartment or even how long he had been on the premises, the evidence was insufficient to convict.

These cases concern the sufficiency of the evidence to convict, nevertheless, at the same time they instruct us as to what facts constitute probable cause. They examine the elements of the offense of possession essential to a finding of either probable cause or proof beyond a reasonable doubt. In considering whether probable cause existed, Judge Wasserstrom, writing for this court in State v. Funk, 490 S.W.2d 354 (Mo.App.1973), at 360-63, relied upon other earlier cases dealing with the sufficiency of the evidence. All of these cases discuss the essential minimal relationship of the defendant to the drug, that is, the facts necessary to reasonable grounds for belief that defendant possesses the drug which must precede and justify a warrantless arrest. The only difference between facts needed to establish probable cause and those needed to prove guilt beyond a reasonable doubt is in the degree or quantum of proof, not in the facts or elements of the offense. The latter is a much higher standard.

These rules enunciated by the Supreme Court of Missouri and the language in Johnson v. United States, supra, make clear, however, that, had the police here known that defendant exclusively controlled the premises (lived there alone), that fact coupled with the viewing of marijuana by the officers would have established probable cause.² Had the officers known that defendant had joint control of the premises (resided there with others), probable cause to believe that he was the possessor would have existed only if some other indicia of possession existed, that is, an informant’s tip, defendant’s pre-arrest behavior, perhaps even close proximity and access to the area where drugs were found as in State v. Jackson, 576 S.W.2d 756 (Mo.App.1979). (But see State v. McGee, 473 S.W.2d 686 (Mo.1971).) But where the officers knew nothing about defendant’s occupancy and control of the premises other than the fact that he was sleeping in the living room (suggesting, if anything, guest status comparable to the defendant in State v. Barber, supra), probable cause required some additional indicia of possession greater than mere unconscious proximity. To hold otherwise would burden an untimely guest with the same presumption of control as an exclusive possessor, a burden neither in keeping with common experience, nor, as Romano would suggest, constitutionally sound.

We hold, therefore, that because defendant was arrested solely on the knowledge that he was present in a house in which contraband had been seen, probable cause for his warrantless arrest did not exist. Having so decided, we need not reach defendant’s argument that the war-rantless search of the premises was unlawful.

Accordingly, we reverse the conviction and order the defendant discharged.

SHANGLER, DIXON, WASSERSTROM, TURNAGE, CLARK, KENNEDY and LOWENSTEIN, JJ., concur. PRITCHARD, J., dissented in separate dissenting opinion filed. SOMERVILLE, C.J., and MANFORD, J., dissents and concurs in separate opinion of PRITCHARD, J.

1 . All sectional references are to Revised Statutes of Missouri, 1978.

2 . Ironically, this is very close to the advice said by Detective Harris to have been given him by the Prosecuting Attorney who counseled that probable cause existed to arrest the owner of the residence.