STATE OF MISSOURI



STATE OF MISSOURI) ) SSCITY OF ST. LOUIS)MISSOURI CIRCUIT COURTTWENTY-SECOND JUDICIAL CIRCUIT(City of St. Louis)STATE OF MISSOURI,Plaintiff,vs.JOHN DOE,Defendant.)))))))))Cause No. Division No. 21 ORDER This matter is before the Court on the Defendant’s Motion to Suppress Statements, taken under submission following an evidentiary hearing conducted on August 14, 2018. The Court takes judicial notice of the electronic file and considers the evidence adduced, the arguments of counsel, both written and oral as well as the written motions of counsel. Defendant seeks suppression of the statements he made to DETECTIVE on April 21, 2017. He claims that all statements he made were the result of an unlawful arrest on April 20, 2017, in that, he was arrested on a ‘wanted’ for which there was no probable cause. In addition, he claims that any statements made after he was given the Miranda warnings, requested counsel and was given a phone to contact counsel, violated his right to counsel. The State responds that defendant’s arrest was lawful because DETECTIVE had probable cause to arrest defendant at the time she entered the ‘wanted’ in the REJIS system. Defendant is now charged with statutory rape in the second degree, statutory sodomy in the second degree and sexual contact with a student by an employee or a volunteer. When a defendant presents a motion to suppress statements, the State bears the burden to prove the defendant waived his rights. State v. Powell, 798 S.W.2d 709, 713 (Mo. Banc 1990). The State must prove by a preponderance of the evidence that the statements were lawfully obtained. State v. Birmingham, 132 S.W.3d 318, 320-321 (Mo.App.E.D. 2004). The state called DETECTIVE to testify. She testified that she began investigating the allegations in this case sometime in October 2016. After conducting witness interviews and viewing a surveillance video, she identified defendant as the suspect. DETECTIVE testified that she made several phone calls to defendant. She testified that her goal in attempting to contact defendant was to get him to voluntarily go the police headquarters to be interviewed. Since her attempts were unsuccessful, she placed a ‘wanted’ in the REJIS system so that defendant would be detained if he came into contact with law enforcement. DETECTIVE further testified that at the time she placed the ‘wanted’ for defendant, she believed she had probable cause to apply for an arrest warrant based on her investigation. DETECTIVE’s ‘wanted’ was the basis for defendant’s arrest on April 20, 2017 by a different unit of the police department. Defendant was also charged with additional offenses which were filed in federal court. DETECTIVE was notified that defendant was in custody on her ‘wanted’ and additional charges. She took custody of him on April 21, 2017, canceled the ‘wanted’ and placed him under arrest for the charges in this case. She gave defendant the Miranda warnings and proceeded to interview him. That interview was both audio and video recorded. Towards the end of the recording, defendant was advised by DETECTIVE of the charges for which he was arrested. A ‘wanted’ is different from an arrest warrant because it is not a statement of probable cause signed by a judge. State v. Pate, 469 S.W.3d 904, 909 (Mo.App E.D. 2015). Since defendant was arrested on a ‘wanted,’ defendant was arrested without an arrest warrant on April 20, 2017. A warrantless arrest is valid where it is supported by probable cause. Pate at 909 (citing U.S. v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976)). “The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest.” Id. at 909. Computer records, such as a ‘wanted’ from the REJIS system, has been upheld as “a permissible means of authorizing officers to arrest, so long as the individual officer disseminating the information has probable cause to arrest at that time. Id. at 910.(quoting U.S. v. Hensley, 469 U.S. 221, 231, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)(noting police may arrest on the basis of a wanted flyer, but admissibility of resulting evidence uncovered “turns on whether the officers who issued the flyer possessed probable cause to make the arrest”)). DETECTIVE testified that she interviewed the complaining witness and viewed surveillance video of defendant on the 18th floor of a hotel. From her investigative experience, DETECTIVE believed the surveillance video corroborated the complaining witness’ statement and supported probable cause. The testimony of a victim in a sexual assault case does not require corroboration unless it is of a contradictory nature or, when applied to the admitted facts in the case, the victim’s testimony is not convincing and leaves the court clouded with doubt. State v. Erickson, 793 S.W.2d 377, 384 (Mo.App. 1990). The amount proof required to convict is higher than the amount required to establish probable cause. The complaining witness’ statement alone would support probable cause if DETECTIVE believed her. Here, DETECTIVE testified that her decision as to probable cause was not just based on the complaining witness’ testimony but also on the surveillance video she viewed. Therefore, defendant’s arrest based on DETECTIVE’s ‘wanted’ was supported by probable cause and was lawful under the circumstances. Any statements made by defendant as a result of said arrest are not subject to exclusion for an unlawful arrest. The second issue raised by defendant is whether the statements he made after requesting counsel were improperly obtained. Under the Miranda decision, once an accused has invoked his right to counsel during a custodial interrogation, no further interrogation can be conducted until counsel has been made available or he has initiated further communication with police. Edwards v. Arizona, 451 U.S. 477, 484-485 (1981). The State has the burden to show that the defendant initiated further discussions with the police and voluntarily, knowingly, and intelligently waived the right to counsel he had invoked. State v. Byrd, 389 S.W.3d 702, 708 (Mo.App.E.D. 2012). Defendant had a discussion with the interrogating officers about the reason for his arrest after he was given the Miranda warnings. At some point, there is a discussion about whether he would speak to them without the benefit of counsel. After a lot of back and forth, he decided he would not speak to them without counsel. DETECTIVE gave defendant a department cellular phone and left him alone in the interrogation room. He made several phone calls, including calls to counsel that were unsuccessful, while he was alone in the interrogation room. All these calls were audio and video recorded. When DETECTIVE returned to the room, defendant was advised of the charges that were going to be filed against. There was additional conversation between DETECTIVE and defendant about the charges during the time they were back in the room together. However, defendant ultimately decided he would not make any other statements without counsel being present. The interrogation was concluded. At no time while defendant was in the interrogation room alone did he initiate further discussions with the police which could be interpreted as waiving the right to counsel that he had invoked. Therefore, any incriminating statements made by defendant while he was alone in the interrogation room were not the result of a voluntary, knowing and intelligent waiver of the right to counsel that he previously invoked. As a result, those statements are excluded as in violation of his Fifth Amendment right against compulsory self-incrimination. THEREFORE, it is ordered that Defendant’s Motion to Suppress Statements is denied in part and granted in part. SO ORDERED:______________________________Annette Llewellyn, JudgeDated: ____________________ ................
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