Opinion

State v. Hohensee

  • 650 S.W.2d 268
Court
Missouri Court of Appeals
Filed
Jan 24, 1983
Status
Published
Author
Greene
On the bench
Flanigan, Greene, Titus
Cited by
37 cases

reversing conviction based on burglary sponsored and operated by police as violating due process

How later courts described this case

  • reversing conviction based on burglary sponsored and operated by police as violating due process
  • reversing on grounds of due-process entrapment defendant's conviction for burglary based on his conduct as lookout, when police officials paid two convicted felons to stage burglary by removing safe from building with police officer's assistance
  • The defense of outrageous conduct is held to apply because the actual “break-in was accomplished by the government agents.” Id. at 274. The significant distinction is that here, the defendant’s only activity was to sit in his car, in a parking lot one-half block from the burglary site, serving as “look-out” for the three government agents who actually committed the burglary. Ho-hensee also opened the stolen safe after it had been moved into the undercover house.
  • reversing a predisposed defendant's conviction for burglary because the police violated state due process rights in sponsoring and operating a burglary in which the defendant acted as a lookout

Written by the judges who cited it.

The opinion

GREENE, Chief Judge,

concurring.

I concur in all respects with the principal opinion, but wish to add the following comment.

In my opinion, police conduct in connection with the Brandhorst break-in was illegal, outrageous, and in violation of the doctrine of fundamental fairness mandated by the due process clause of the Fifth Amendment to the Constitution of the United States.

What we have here is a police officer committing a crime (burglary, or at least criminal trespass), as was admitted by the assistant attorney general who argued the case before us, on behalf of the state, aided and abetted by two habitual criminals whom the police were paying to help commit the crime, in hopes of getting evidence to show that the defendant, by acting as a supposed lookout, was also guilty of the crime. If such conduct was approved by the courts, it is difficult to imagine under what circumstances they would ever say to the police, “You have gone too far.”

Police action, as was taken here, breeds disrespect for law enforcement officers, erodes public confidence in our system of justice, and, if condoned, could lead to police excesses that cannot be tolerated in a democracy. Most excesses in police conduct are, no doubt, motivated by frustration over the inability of the police to completely satisfy the demands of the public to “get the criminals off the streets”, but that inability, when it occurs, does not justify breaking the law by those who are sworn to uphold it.

Hopefully, our decision in this case will result in guidelines being formulated by the police department in question, limiting police conduct to such activities as are approved by law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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