State v. Bryan, WD 80591

• Decision Date: 19 September 2017
• Docket Number: WD 80591
• Citation: 529 S.W.3d 334
• Parties: STATE of Missouri, Appellant, v. Leslie Michelle BRYAN, Respondent.
• Court: Missouri Court of Appeals

529 S.W.3d 334

STATE of Missouri, Appellant,
v.
Leslie Michelle BRYAN, Respondent.

WD 80591

Missouri Court of Appeals, Western District.

Opinion filed: September 19, 2017

Aaron Maness, for Appellant.

Randall O. Barnes, for Respondent.

Before Division Four: Mark D. Pfeiffer, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

VICTOR C. HOWARD, JUDGE

The State of Missouri appeals the order of the Cole County Circuit Court granting Leslie Bryan's motion to suppress evidence. It claims on appeal that the trial court erred because the affidavit supporting the search warrant was sufficient to establish probable cause. The suppression order is reversed, and the case is remanded for further proceedings.

Facts

On April 4, 2016, a prosecutor in Cole County sought and obtained a search warrant. The search warrant application sought to search an upstairs bedroom at a specified address. It stated: "The bedroom is on the right side of the hallway. The

529 S.W.3d 338

bedroom belongs to Leslie Bryan (dob 09/03/1974) and Kelly Charlton (dob 05/16/1968)." The application asserted that the following evidence was believed to be present: "Heroin, oxycontin and other controlled substances, and all items associated with the possession and use of controlled substances, including but not limited to drug paraphernalia."

Attached to the application was the affidavit of Officer Ross Hartley. The affidavit asserted that Officer Hartley had been a police officer with the Jefferson City Police Department for 11 years. He was investigating a controlled substance violation at the address specified in the warrant application. The affidavit further stated:

3. The witness, Camryn Charlton, a resident of the condominium found narcotics inside the residence. She lives in the residence with her father and his live-in girlfriend, Leslie Bryan (dob 09/03/1974). The witness stated on April 3, 2016, while looking for a lost item, she found a black pouch underneath the bed in her father's and Bryan's bedroom. The witness stated that the pouch contained needles, baggies containing a white-powder substance, a spoon, and a rubber tourniquette [sic]. The witness left the pouch under the bed.

4. Today, the witness went back into her father's bedroom and noted that the pouch was gone, but a black briefcase was in the room. Her search of the briefcase found needles, a spoon, plastic pouches, rolling papers, bloody paper-towel and an 80-count sheet of oxycontin with a sticker from St. Elizabeth Care Center, at that time, there were 5 pills left. The sticker stated the pills belonged to Michael W. Wray. Leslie Bryan is an employee of St. Elizabeth Care Center.

5. Charlton contacted law-enforcement. She gave permission to search the residence. Charlton's father is currently in rehab and could not be contacted for permission to search his and Bryan's bedroom.

Officer Hartley searched the specified bedroom on April 4, 2016, and found the following: "Black briefcase containing 12 syringes, spoon, rolling papers, elastic strap, sterile pad, 6 oxycontin pills, medical chart, 43 plastic pouches."

Bryan was charged with possession of a controlled substance, section 195.202,¹ and possession of drug paraphernalia, section 195.233. Bryan filed a motion to suppress. At the hearing on the motion, the State proffered evidence in the form of the testimony of Jefferson City Missouri Police Officer Ross Hartley and the affidavit in support of the warrant at issue. The court granted Bryan's motion to suppress. This interlocutory appeal by the State followed.

Analysis

"The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation." State v. Rouch , 457 S.W.3d 815, 819 (Mo. App. W.D. 2014) (internal quotation omitted). There is probable cause to search when, at the time the judge issues the search warrant, "there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of crime and will be present at the time and place of the search." Id. (internal quotation omitted). "In determining whether probable cause exists, the issuing ... judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit

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before him or her[,] there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 819-20 (internal quotation omitted). "[P]robable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." Id. at 820 (internal quotation omitted).

"[I]n reviewing a trial court's ruling on a motion to suppress evidence seized pursuant to a search warrant, the court gives great deference to the initial judicial determination of probable cause that was made at the time the warrant issued." State v. Neher , 213 S.W.3d 44, 49 (Mo. banc 2007). "The duty of a reviewing court is simply to ensure that the issuing judge had a substantial basis for determining that probable cause for the search did exist." Id. "The court will only reverse if the issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed." Id.

"Deference to the issuing court is not, however, without limit." State v. Wilbers , 347 S.W.3d 552, 557 (Mo. App. W.D. 2011). "Reviewing courts will not defer to a warrant based on an affidavit that does not provide the [issuing court] with a substantial basis for determining the existence of probable cause." Id. at 558 (internal quotation omitted). "Despite the deference we afford to an issuing judge's decision to issue a search warrant, ‘[t]he ultimate issue of whether the Fourth Amendment was violated is a question of law ... which this court reviews de novo. ’ " State v. Fowler , 467 S.W.3d 352, 356 (Mo. App. W.D. 2015) (quoting State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. W.D. 2004) ).

"An informant's veracity, reliability and basis of knowledge, while relevant to determining probable cause, are not separate and independent requirements to be rigidly exacted in every case...." State v. Ford , 21 S.W.3d 31, 34 (Mo. App. E.D. 2000) (internal quotation omitted). "They should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause.’ " Id. at 34-35 (internal quotation omitted). "Under the totality of the circumstances test, a deficiency in one area can be compensated for by a strong showing of another or by some other indicia of reliability." Id. at 34 (internal quotation omitted). "Common sense is a key ingredient in considering the absence or presence of probable cause." Id.

Officer Hartley's affidavit was based on hearsay: what Charlton told him. "An affidavit that relies on hearsay is sufficient to support a finding of probable cause if there is a substantial basis for crediting the hearsay." State v. Baker , 103 S.W.3d 711, 720 (Mo. banc 2003). "When evaluating the creditability of hearsay reports contained in a...