State v. Cornelius

• Citation: 1 S.W.3d 603
• Parties: (Mo.App. S.D. 1999) State of Missouri, Respondent, v. John Cornelius, Appellant. 22619 0
• Decision Date: 17 September 1999
• Court: Court of Appeal of Missouri (US)

1 S.W.3d 603 (Mo.App. S.D. 1999)

State of Missouri, Respondent, v. John Cornelius, Appellant.

22619

Missouri Court of Appeals Southern District

09/17/99

Appeal From: Circuit Court of Lawrence County, Hon. Samuel C. Jones

Counsel for Appellant: Thomas Pyle

Counsel for Respondent: Kristin Frazier

Opinion Summary: None

Montgomery, P.J., and Prewitt, J., concur.

Robert S. Barney, Judge

John Cornelius ("Defendant") appeals the judgment entered by the Circuit Court of Lawrence County, Missouri, after a bench trial, wherein he was convicted of the Class B felony of possession of a controlled substance (methamphetamine) with intent to distribute, section 195.211, RSMo 1994. The trial court sentenced Defendant to a term of imprisonment of five years in the Missouri Department of Corrections. Defendant appeals contending that the trial court erred in denying his motion to suppress the physical evidence obtained during the execution of the search warrant which led to his conviction. In his sole point, he does not contest the sufficiency of the evidence supporting his conviction. Rather, Defendant maintains that the affidavit supporting the search warrant did not establish probable cause to conduct a search of Defendant's property for drugs. We affirm the judgment.

The record shows that Trooper Daniel F. Nash, Missouri State Highway Patrol, executed an affidavit in support of a request for a warrant to search Defendant's residence (described as "a two story brick saltbox house with a shingle roof"), a blue and grey metal outbuilding west of the residence and any persons and vehicles that may be present at the time of the execution of the warrant. The affidavit recited that Trooper Nash had received information from a confidential informant who had knowledge of methamphetamine, drug paraphernalia and marijuana being stored in Defendant's residence and the metal outbuilding west of the residence. The search warrant was duly issued.

As trooper Nash and other officers arrived at Defendant's residence to serve the warrant, Defendant was in the process of leaving the premises. He was stopped and searched and a small vial was found in his left front pocket.¹ It contained about a quarter of a gram of methamphetamine. Defendant was informed of the search warrant and was advised of his Miranda rights and was arrested for possession of methamphetamine. Officer Nash asked Defendant if there were any other narcotics on his property and Defendant answered in the affirmative and directed the officers to a file cabinet inside the metal outbuilding where Defendant lived and ran a heating and cooling business located some fifty to sixty yards west of Defendant's residence.² During the ensuing search officers found a metal can in the file cabinet in which were plastic bags containing, methamphetamine, white rice and marijuana. Additionally, officers found two razor blades, marijuana seeds, several screens for a marijuana pipe, two mirror plates, coffee filters with methamphetamine residue, and the outer shell of a writing pen. Three thousand two-hundred dollars ($3,200.00) was also discovered in the bottom drawer of the file cabinet.A search of the bedroom of the metal outbuilding revealed a bottle of "Super Inositol" (used as a cutting agent to dilute methamphetamine before distribution to users) and a "triple beam scale" used for the packaging and distribution of methamphetamine.

"In reviewing a motion to suppress based upon an insufficient warrant, this court gives great deference to the initial judicial determination of probable cause made at the time of the issuance of the warrant, and reverses only if that determination is clearly erroneous." State v. Bowen, 927 S.W.2d 463, 465 (Mo.App. 1996). "Probable cause sufficient to justify the issuance of a search warrant is determined by looking to the totality of the circumstances, and only the probability, not a prima facie showing, of criminal activity, is the standard by which the existence of probable cause is measured." State v. Thomas, 737 S.W.2d 247, 249 (Mo.App. 1987).

"The neutral magistrate must make a 'practical, commonsense decision whether . . . there is a fair probability that contraband or evidence of a crime will be found.'" State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990)(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527 (1983)). "That decision is made from all the circumstances set out in the affidavit, including the 'basis of knowledge' and 'veracity' of persons providing hearsay information." Id.

"In reviewing whether the issuing judge was clearly erroneous, this court looks to the four corners of the affidavit in support of the search warrant . . . ." Bowen, 927 S.W.2d at 465; see also State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990). "The affidavit in support of a search warrant should be weighed as understood by those versed in law enforcement and not in terms of library analysis by scholars." State v. Hill, 854 S.W.2d 814, 818 (Mo.App. 1993). "[A] grudging or negative attitude toward warrants by reviewing courts is inconsistent with the Fourth Amendment's preference for searches by warrant; and courts should not invalidate warrants by interpreting affidavits in a hypertechnical rather than common sense manner." Id.

In his sole point, defendant challenges the affidavit supporting the request for the search warrant because it failed to show that the confidential informant had personal knowledge of drugs located at defendant's premises and the affidavit failed to show the circumstances of how the confidential informant acquired this information. The affidavit supporting the instant search warrant is set out as follows:

STATE OF MISSOURI)

COUNTY OF DADE )

Daniel F. Nash, Missouri State Highway Patrol, being duly sworn, states that I have received reliable information from a confidential informant, concerning methamphetamine, a controlled substance, and or devices used for the packaging, use, and distribution of methamphetamine and marijuana are being stored at a residence located on MO. Rt. 0, the first residence South and East of US 160 in Greenfield, Missouri, a two story brick saltbox bouse with a shingle roof and a blue and grey metal outbuilding directly West of the residence. The residence is commonly known as the John Cornelius residence. Search to include the persons of all individuals present at the execution of this warrant as well as late arriving guest(s) and any vehicles associated with any such person and which is either on the search situs or located immediately adjacent to.

I believe that this property is now located upon the described person, place or thing based upon the following facts:

I, Daniel F. Nash, have been with the Missouri State Highway Patrol for the past 2 years, and am currently assigned to Troop D, Zone 9. During this period of time, I have assisted in the execution of approximately 10 drug related search warrants. In addition, I have arrested over 200 persons as a result of my drug related investigations. Based upon my experience in these matters and the facts set forth hereafter, it is my belief that the aforementioned contraband will be found on the premises as stated above.

Within the last twenty-four (24) hours, I was contacted by a reliable, cooperating individual who has given reliable information in the past which has resulted in several arrests, convictions and drug related seizures. He/She stated that at this residence located on Rt. 0, the first residence South and East of US 160 in Greenfield, Missouri, he/she had knowledge of methamphetamine, drug paraphernalia and marijuana being stored inside the residence and metal outbuilding. The informant stated that inside the metal building in a file cabinet there is a round metal container containing a white powder believed to be methamphetamine and a...