State v. Brown, 67355

• Decision Date: 15 April 1986
• Docket Number: No. 67355,67355
• Citation: 708 S.W.2d 140
• Parties: STATE of Missouri, Respondent, v. Richard Duane BROWN, Appellant.
• Court: Missouri Supreme Court

Page 140

708 S.W.2d 140

STATE of Missouri, Respondent, v. Richard Duane BROWN, Appellant.

No. 67355.

Supreme Court of Missouri En Banc.

April 15, 1986.

Patrick Deaton, Elise Branyan, Asst. Public Defenders, Springfield, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant, convicted by jury of burglary in the second degree, § 569.170, ¹ and stealing property valued at $150 or more, § 570.030, was sentenced as a persistent offender to consecutive ten year terms of imprisonment for each offense, with those terms to run consecutively to a sentence imposed in another case. The Court of Appeals, Southern District, reversed the judgment but ordered the cause transferred to this Court that we might reexamine the existing law regarding the Missouri exclusionary rule as applied in State v. Hunt, 280 S.W.2d 37 (Mo.1955). Mo.Const. art. V, § 10. We draw freely from the opinion of the court of appeals, Crow, J., without quotation marks.

I.

Sometime between 5:00 p.m., August 20, 1981, and 8:10 the following morning a hardware store in Weaubleau was burglarized and merchandise approximating $3,100 was stolen. Robert Lightle, store manager, inventoried the store and prepared a list (admitted in evidence as state's exhibit 1) of items believed to have been stolen, and gave the list to William Kennedy, the Hickory County sheriff. The ten-page list described more than 200 different items and in many instances several units of a single type were missing. Among those reported were saws, wrenches, and "1 Bench grinder (Dark gray)."

On the evening of November 5, 1981, Sheriff Kennedy with Sheriff Hill of Dallas County and Sheriff Simmons of Polk County went to defendant's home in Polk County. Defendant came to the door and invited them in. Almost immediately after entering the house Sheriff Simmons placed defendant under arrest "for investigation" regarding theft of some motor oil (unrelated to the Weaubleau burglary), and read him the Miranda ² warning.

Kennedy, who at the time had no notion that defendant might have been involved in the Weableau burglary, asked defendant about the motor oil. Denying any connection with the oil theft, defendant stated he only had five quarts of oil in the house and opened a padlocked door of "a little side room," showing Kennedy the five quarts of oil. It was then that Kennedy observed a "large quantity of tools and accessories," including a "gray half-horse grinder," chain saws, and all kinds of wrenches. The tools appeared to be new tools and "lots and lots of tools" were "still in the bubble packages." Kennedy asked where he got the tools and defendant told Kennedy it was none of his business and told him to leave. The sheriffs departed. ³

Suspecting that defendant was connected with the Weaubleau burglary because of the large number of new tools and especially the gray bench grinder, Kennedy prepared a complaint for a search warrant which he presented to the circuit judge of Polk County who issued the warrant about 3:10 a.m., November 6, authorizing the search of defendant's dwelling house and outbuildings and the seizure of any of the items listed on the eight "exhibits" attached to the warrant. According to the copy of the warrant furnished us, the "exhibits" included several "offense reports" prepared by the Sheriff's Department of Hickory County and nine of the ten-page Lightle list.

Kennedy notified Otis Ray Gipson, manager of the MFA Exchange in Weaubleau, the owner of the burglarized store, to meet him at defendant's home, where Kennedy had Gipson "identify as many items as we could belonging to the MFA Hardware there in Weaubleau." Included among the items seized were a Homelite XL 12 chain saw, the gray bench grinder and a chain saw rewind spring and a sprocket, admitted at trial as state's exhibits 2, 3, 4 and 5, respectively.

Later that day Lightle examined the seized items at Kennedy's request, and prepared a list, admitted at trial as state's exhibit 6, of those he identified as having been taken from the store. Exhibits 2 through 5 were among the items identified and in a number of instances, there were several units of the same type. Lightle admitted at trial that he had claimed many items on exhibit 6 because they were the same brand and type as those stolen but could "positively identify" "probably half" of the items he received from Kennedy. ⁴ Defendant contends the trial court erred in denying his motion to suppress and in admitting state's exhibits 2 through 5 because the search warrant failed to identify the property to be seized with sufficient particularity and was issued without probable cause.

II.

We first consider defendant's assertion of facial invalidity based on the assertion that the warrant failed to identify the property to be seized with sufficient particularity. U.S.Const. amend. IV; Mo.Const art. I, § 15; § 542.276. ⁵ The descriptions must be sufficient to prevent a general search and to ensure that the property taken will not be left to the caprice of the officer conducting the search. State v. Pennington, 642 S.W.2d 646, 648 (Mo.1982). See also Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); In re 1969 Plymouth Roadrunner, Black 2-Door, 455 S.W.2d 466, 470 (Mo.1970); State v. Johnson, 677 S.W.2d 330, 331 (Mo.App.1984).

In Pennington, 642 S.W.2d at 648, we found descriptions of the "tan knee-high trench coat," "briefcase," and "money in the amount of $6,000.00" to be sufficiently particular. In the instant case, state's exhibits 2, 3 and 5 were described adequately in the attached list incorporated in the search warrant to pass constitutional muster. Exhibit 2 was described as "1 XL-12 Homelite," exhibit 3 as "1 Bench grinder (Dark gray)," and exhibit 5 as "3 saw sprocket." These descriptions were sufficient to ensure the property taken was not left to the caprice of the officer conducting the search and we do not find the warrant fatally defective simply because the descriptions could have been more precise, by for example indicating brand name or serial number. Such precision is not required, particularly in this circumstance where so many articles were stolen. Nor do we find the warrant defective simply because Sheriff Kennedy conscientiously sought the assistance of Gipson and Lightle in correctly identifying the articles stolen. This is not a case such as Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965), in which the objects seized were books and similar items, and the basis for their seizure was the ideas they contained requiring a more detailed description. While exhibit 4 was not mentioned in the warrant or its incorporated list, its admission if error was harmless, not requiring reversal. State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983).

Turning to defendant's "want of probable cause" contention, it is fundamental that no warrant shall issue but upon probable cause. U.S. Const. amend. IV; Mo.Const. art. I, § 15; § 542.276.10(3). ⁶ It is important to note at the outset that defendant by his motion to suppress challenged the facial validity and showing of probable cause in the Circuit Court of Hickory County (prior to change of venue) and the court afforded a hearing on those issues. Following that hearing defendant's motion was overruled and in effect the hearing court found the search warrant facially valid and issued on sufficient showing of probable cause. The warrant itself recites that a written application (denoted complaint) duly verified under oath was filed with the issuing judge, who acting thereon forthwith issued the warrant. Defendant in his motion to suppress concedes these matters which can only mean that the court and counsel were not only apprised that the verified application had been filed, but it is clear from the record that it had been considered by all concerned at the suppression hearing in which the motion was overruled February 3, 1982. Immediately before trial, defendant on June 15, 1982, renewed his motion, again arguing that the application and the warrant were too broad and included too many items without sufficient particularity. In response counsel for the state pointed out that there had been an earlier hearing on the motion to suppress, and on the evidence adduced and the documents involved the suppression hearing judge denied defendant's motion. Following this factual recital by the state's attorney, defendant's counsel suggested nothing indicating the recital was incorrect, instead he merely renewed the claim that the warrant was over broad and not sufficiently particular. It was the state's burden at the suppression hearing to show by a preponderance of evidence that the motion to suppress was not well taken, § 542.296.6; the trial court found that burden had been met and the court's determination of probable cause is to be accorded deference by reviewing courts. Pennington, 642 S.W.2d at 648. The original ruling of the Circuit Court of Hickory County which determined the efficacy of the application and warrant and overruled defendant's motion to suppress was reinforced by the subsequent ruling to the same effect on defendant's renewal of his motion before the trial court in Polk County.

The only unusual feature of this case arises from the fact that the office of clerk of the Circuit Court of Polk County apparently failed to retain (or at least the same cannot now be found) the application (and any supporting affidavits) for the issuance of the search warrant which Sheriff Kennedy had prepared and executed. An admittedly valid copy of the warrant, executed and issued by the court, is before us as part of the record on appeal. However, defendant has been unable to obtain the originals or any copies of the application or supporting affidavits. ⁷ Defendant nevertheless points to the statute which requires that "[t]he application and...