State v. Dudley, s. 17097

• Decision Date: 21 October 1991
• Docket Number: Nos. 17097,17373,s. 17097
• Citation: 819 S.W.2d 51
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Renell DUDLEY, Defendant-Appellant. Renell DUDLEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 51

819 S.W.2d 51

STATE of Missouri, Plaintiff-Respondent, v. Renell DUDLEY, Defendant-Appellant.

Renell DUDLEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 17097, 17373.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 21, 1991.

Motion for Rehearing or Transfer

Denied Nov. 12, 1991.

Brad B. Baker, Columbia, for defendant-appellant and movant-appellant.

William L. Webster, Atty. Gen., John M. Morris, Denise L. Garnier, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

SHRUM, Presiding Judge.

In case No. 17097, the defendant Renell Dudley appeals from his conviction for possession of heroin in violation of § 195.020, RSMo 1986. He was sentenced to four years in accordance with the jury's verdict. In case No. 17373, the defendant appeals from the judgment of the motion court denying him the post-conviction relief he sought pursuant to Rule 29.15. This court consolidated the two appeals.

The defendant's single point in case No. 17097 is that the trial court erred in its refusal to suppress evidence obtained during a search and statements the defendant made because there was no probable cause for the issuance of the search warrant and executing officers lacked a good faith belief that they had a valid search warrant.

In his sole point on appeal in case No. 17373, the defendant claims the motion court erred in denying relief without an evidentiary hearing because his counsel was ineffective for not securing and examining at trial "favorable witnesses" thereby prejudicing his defense. In a claim of error not properly preserved for our review, the movant alleges he is entitled to a new post-conviction relief hearing because his appointed counsel did not timely file his amended Rule 29.15 motion and did not file a second amended Rule 29.15 motion.

We affirm the judgments in case No. 17097 and case No. 17373.

CASE NO. 17097

FACTS

Armed with a search warrant that was issued based upon his sworn application, Officer Rick Headlee and other officers of the Springfield Police Department went to the American Inn motel to search room The defendant filed a motion to suppress the seized evidence and to suppress statements he made. Following an evidentiary hearing, the trial court refused to suppress the physical evidence and statements. Prior to making its ruling on the motion to suppress, the trial court excised two sentences from the warrant application. ¹ The court struck the two sentences after Officer Headlee voluntarily revealed at the hearing that approximately one week before the suppression hearing he had learned from Corporal Thomas that Tonya Osborn had not personally seen Allen Bobo shoot another subject over a drug deal and Osborn did not personally know that Allen Bobo had drug business ties with a person named Mitch. Rather than having a personal knowledge of those alleged facts, Osborn had received the information from an unknown source and then related it to Thomas.

432. Upon arrival at the motel, the officers asked the motel clerk to call room 432 and request that the occupants report to the front desk in the lobby to take care of their long distance telephone bill. When Allen Bobo, the person to whom room 432 had been rented, entered the lobby he was detained by officers. Headlee and other officers then entered room 432 where they discovered the defendant standing in front of the sink in the dressing area of the room. Headlee saw a syringe in the defendant's hand. Packages of heroin were found in the room. The heroin, syringes, and other materials were seized, and the defendant and Bobo were charged with possession of heroin.

DISCUSSION: SUFFICIENCY OF WARRANT APPLICATION

In the first prong of his sole point on appeal of his conviction, the defendant claims that, under the totality of the circumstances test, the application for the search warrant was insufficient to support a finding of probable cause by the issuing judge.

In State v. Pennington, 642 S.W.2d 646 (Mo.1982), our supreme court reiterated several well-established principles governing the determination of probable cause to issue a search warrant. Probable cause must be determined from the application and, if any are filed, the supporting affidavits. Only the probability of criminal activity, and not a prima facie showing, is the standard by which the existence of probable cause is decided. Affidavits to show probable cause are governed by less rigorous standards than those governing the admissibility of evidence at trial. The determination of probable cause by the court issuing a search warrant should be accorded deference by reviewing courts. Id. at 648. We will reverse a trial court's finding of probable cause only if that determination is clearly erroneous. State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990).

The test for determining whether probable cause has been established for issuance of a search warrant is found in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Id. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (emphasis added). See also State v. Laws, 801 S.W.2d 68, 69 (Mo. banc 1990); Berry, 801 S.W.2d at 66; State v. Gardner, 741 S.W.2d 1, 7 (Mo. banc 1987), cert. denied, 486 U.S. 1025, 108 S.Ct. 2001, 100 L.Ed.2d 232 (1988).

The trial court did not consider the portions of the warrant application which contained hearsay statements of informant Tonya Osborn that were relayed to affiant Bobo has been suspected for some time of selling crack cocaine in the Springfield area, and undercover officers did recently purchase crack cocaine from Bobo in Springfield. The exact date of this purchase is not being disclosed at this time because of the probability of creating a danger to undercover officers involved in the on-going investigation.

Headlee by Corporal Thomas. On appeal, the defendant argues that the trial court should have excised the following additional material from the application:

At the suppression hearing, Headlee testified that Thomas gave him the information about Bobo's sale to undercover officers. He also testified that the sale by Bobo had been made to an officer of a law enforcement agency other than the Springfield Police Department.

Because Headlee's testimony revealed that he had no personal knowledge of the purchase from Bobo, the defendant argues that State v. Hammett, 784 S.W.2d 293 (Mo.App.1989), requires that the information about the sale must be stricken from the application because there was not sufficient information presented to the issuing judge "so that all levels of hearsay could be properly relied upon." See id. at 296. If the information about Bobo's cocaine sale is removed, the defendant's argument continues, the remaining information in the warrant application was insufficient, under the totality of the circumstances test, to support a finding of probable cause.

The defendant's reliance on Hammett is misplaced because that case is factually distinct. Hammett involved an informant who wished to remain anonymous, had no personal knowledge of his reported up-coming "drug meeting," and had obtained the information from his wife, who had obtained it from "another lady," who had heard it from the defendant's mother. Hammett has been characterized "as standing for the proposition that uncorroborated fourth-hand hearsay is not enough." Berry, 801 S.W.2d at 67.

Hearsay can be a proper basis to establish probable cause if there is a substantial basis for crediting the hearsay. Gates, 462 U.S. at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550; State v. Ambrosio, 632 S.W.2d 262, 265 (Mo.App.1982). Courts have recognized, however, that certain informants are more deserving of a presumption of reliability than are informants from "the criminal milieu." 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3, at 611 (2d ed. 1987). See, e.g., United States v. Flynn, 664 F.2d 1296, 1302-03 (5th Cir.1982), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982). As Justice Harlan pointed out in United States v. Harris, 403 U.S. 573, 599, 91 S.Ct. 2075, 2090, 29 L.Ed.2d 723, 743 (1971):

[T]he ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. "The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals."

Consistent with these principles, the Supreme Court has stated, "Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684, 690 (1965). Professor LaFave has observed, "Following the lead of Ventresca, lower courts have consistently held that another law enforcement officer is a reliable source and that consequently no special showing of reliability need be made as a part of the probable cause determination." 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(a), at 4 (2d ed. 1987). See, e.g., United States v. Griffin, 827 F.2d 1108, 1112 (7th Cir.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 243 (1988); United States v. May, 819 F.2d 531, 536 (5th Cir.1987); Flynn, 664 F.2d at 1302-03; United States v. Beusch, 596 F.2d 871, 874 (9th Cir.1979); State v. Morrill, 205 Conn. 560, 534 A.2d...