State v. Cummings

• Decision Date: 17 July 1986
• Docket Number: No. 14017,14017
• Citation: 714 S.W.2d 877
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Freddie CUMMINGS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 877

714 S.W.2d 877

STATE of Missouri, Plaintiff-Respondent, v. Freddie CUMMINGS, Defendant-Appellant.

No. 14017.

Missouri Court of Appeals,

Southern District,

Division One.

July 17, 1986.

Motion for Rehearing or to Transfer

Denied Aug. 8, 1986.

Application to Transfer Denied Sept. 16, 1986.

M. Elise Branyan, Asst. Public Defender, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt and John M. Morris, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

A jury found defendant Freddie Cummings guilty of receiving stolen property, § 570.080, ¹ and he was sentenced, as a prior offender, to five years' imprisonment. Defendant appeals.

The information was in two counts but the state dismissed Count II at the close of the evidence. Count I, on which the verdict was based, charged that the defendant, on January 4, 1984, in Greene County, "with the purpose to deprive the owner of one Peterbilt tractor, VIN # 1XP9D29X9EN162094, kept such property, of a value of at least $150, knowing or believing that it had been stolen." Count I also pleaded a prior felony conviction.

Defendant's first point is that the trial court erred in failing to sustain defendant's motion to suppress evidence, primarily the stolen tractor, which was seized pursuant to a search warrant executed at defendant's residence on Farm Road 116 in Greene County on January 4, 1984, the date of the offense. Defendant challenges the warrant's description of the place to be searched.

The warrant was issued on January 4, 1984, by Judge Thomas K. McGuire, Jr., an associate circuit judge of the Circuit Court of Greene County. The warrant, which was on Supreme Court Form No. 39(A) (Missouri Rules of Court, Seventeenth Edition, 1986, p. 207), contained this recital:

"WHEREAS a complaint in writing, duly verified by oath, has been filed with the undersigned Judge of this court, stating that heretofore the following described personal property, to-wit: 1-1984 PETERBILT VIN/1XP9D29X9EN162094 BLUE AND WHITE TRACTOR OR PARTS THEREOF of the goods and chattels of LISA MOTOR LINES, FT. WORTH, TEXAS has been unlawfully stolen, and it further appears from the allegations of said complaint that said property is being kept or held in this county and state at and in A METAL BUILDING, BOX TRAILERS, STORAGE BINS OR VEHICLES. LOCATED ON FR. 116 SECOND HOUSE EAST OF LACOMPTE ROAD, NORTH SIDE."

Defendant's criticism of the description of the place to be searched is:

"The instant search warrant is for the metal building, box trailers, storage bins, or vehicles located on Farm Road 116, second house east of LaCompte Road, north side. The evidence presented to the trial court in the Motion to Suppress, was clear that the Cummings residence was the third house, east of LaCompte Road on the north side." (Emphasis added.)

Circumstances leading up to the execution of the warrant must be set forth. The officer who applied for the warrant was Greene County Deputy Sheriff Ivan Johnson. On October 26, 1983, Johnson was working with F.B.I. Agent Ben Cagle. The officers "were checking information on a chop shop located in Greene County at the northeast corner of the property occupied by [defendant] Freddie Cummings." Deputy Johnson saw a blue and white trailer sitting in a metal building and took a photograph of the vehicle. On that date, according to Johnson, "at this time I could not find where the vehicle had been stolen from. Ben Cagle had information a vehicle was going to be stolen and retagged. Cagle [later] obtained information as to where the vehicle was stolen."

On October 30, 1983, a reliable informant informed Agent Cagle that defendant Cummings and one Bogle "are currently involved in cutting up stolen truck tractors and passenger vehicles at a large metal building located on Cummings' property." The informant also told Cagle that Bogle "recently stole a 1984 Peterbilt tractor and Bogle and Cummings plan to 'retag' this tractor making it a 1982 Peterbilt using a salvage Vehicle Identification Number and sell it at the Taylor & Martin Auction in Nebraska."

On November 2, 1983, another reliable informant informed Agent Cagle that Bogle and defendant "are chopping and retagging stolen truck trailers using the large metal building on Cummings' property and Bogle plans to have a stolen tractor retagged and ready to sell at the next Taylor & Martin Auction in Nebraska."

On November 16, 1983, Agent Cagle "had a check run through the National Crime Information Center for stolen 1984 Peterbilt tractors. Up to November 16, 1983, only three 1984 Peterbilt tractors had been stolen nationwide, and one was stolen on October 7, 1983 in Ft. Worth, Texas. The vehicle identification of this tractor is 1XP9D2X9EN162094 and it is blue and white. The 1984 Peterbilt tractor was stolen from Lisa Motor Lines, Ft. Worth, Texas."

On November 16 (sic), 1983, Lewis Munday, Vice President, Taylor & Martin Auction, Fremont, Nebraska, informed Agent Cagle that Bogle "was to bring a 1982 Peterbilt tractor to his auction on November 17, 1983 at Omaha, Nebraska but did not." Munday also told Cagle that "[Munday's] office was in telephonic contact with Bogle, and Bogle told them prior to the auction date that he was working on the 1982 Peterbilt tractor and may not finish in time for the auction."

On November 28, 1983, the first informant told Agent Cagle "that Bogle had retagged the previously mentioned 1984 Peterbilt tractor, making it a 1982 Peterbilt tractor, but did not sell it at the Taylor & Martin Auction as planned." This informant also told Cagle that "the 1984 Peterbilt tractor was stolen by Bogle several weeks before in Texas."

On January 3, 1984, the second informant told Agent Cagle "that the Peterbilt tractor that Bogle was to sell at the Taylor & Martin Auction in Nebraska has never been sold and is still located in the large metal building located on the property of Freddie Cummings."

On January 4, 1984, Deputy Johnson applied for the search warrant. Johnson's verified application set forth the events of October 26, 1983. Attached to the application, and incorporated in it by reference, were the separate affidavits of Johnson (again describing the events of October 26, 1983), and Agent Cagle (setting forth the information Cagle had received on October 30, November 2, November 16 and November 28, 1983, and January 3, 1984). The warrant was issued containing the challenged description of the place to be searched.

The circumstances surrounding the execution of the warrant are set forth in the testimony of Deputy Johnson at the hearing on the motion to suppress. Johnson, who was called by the prosecutor and who was the only witness who testified at the hearing, testified as follows:

"I served the search warrant on January 4, 1984. State's Exhibit 2 is my affidavit to search for a stolen tractor. The affidavit pertains to where I saw a blue and white tractor sitting in a metal building at the rear of Cummings' house. On October 26, 1983, I saw this tractor inside this metal building. The description of the place to be searched, contained in the search warrant, is not correct. The problem with it is that it is the third house instead of the second house. I served that warrant. The inaccurate description was not so defective that I could not serve the warrant on the right location or find the right property because the second house did not have the metal storage building behind it. In the past I had been at this particular property, at the third house, but I had not paid attention that it was the third house. After you went by some bales of hay it was easy to see the second house. When I pulled into Mr. Cummings' driveway I immediately knew it was the third house instead of the second."

"I could tell the difference because the second house did not have the metal building behind it. I had been watching the metal building behind Mr. Cummings' house taking photographs. There were vehicles at the second house but there were no box trailers at the rear of the second house."

"I had been keeping Mr. Cummings' property under surveillance. I had been keeping the metal building under surveillance. I had no trouble at all in finding the property intended to be searched."

"I did not have a search warrant that said search this particular property, I had the wrong house. I made an error on the second house but I did know which house I wanted to search."

When Deputy Johnson executed the search warrant he was accompanied by Agent Cagle and other officers. The group, who did not search Cummings' house, searched the metal building and seized the stolen tractor which they found inside. The tractor appeared to be in the process of being painted and the cab was apparently being altered.

In challenging the warrant's description of the place to be searched, defendant relies on these constitutional and statutory provisions:

" ... and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched...." Fourth Amendment, U.S. Const.; " ... and no warrant to search any place, ... shall issue without describing the place to be searched ... as nearly as may be." Art. 1, § 15, Mo. Const.; "The search warrant shall: ... 5. identify the person, place or thing which is to be searched, in sufficient detail and particularity that the officer executing the warrant can readily ascertain whom or what he is to search." § 542.276.6; "A search warrant shall be deemed invalid ... (5) if it does not describe the person, place or thing to be searched ... with sufficient certainty." § 542.276.10.

The Missouri Supreme Court has said that Art. 1, § 15 of the Missouri Constitution provides "essentially the same protections found" in the Fourth Amendment, and that an analysis of a defendant's "Fourth Amendment claim" applies "with equal force" to his claim under the Missouri...