State v. Gilmore

• Decision Date: 03 January 1984
• Docket Number: No. 46767,46767
• Citation: 665 S.W.2d 25
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Newton GILMORE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 25

665 S.W.2d 25

STATE of Missouri, Plaintiff-Respondent, v. James Newton GILMORE, Defendant-Appellant.

No. 46767.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Jan. 3, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied Feb. 17, 1984.

Application to Transfer Denied

March 20, 1984.

Ronald E. Pedigo, Farmington, for defendant-appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Appellant was convicted in a court-tried case of five counts of receiving stolen property, § 570.080 RSMo.1978, and sentenced to five concurrent terms of 15 years imprisonment as a persistent offender, § 558.06 RS.Mo. 1978. He was also convicted of possession of burglar tools, § 569.180 RSMo.1978, and sentenced to five years imprisonment. He now appeals. The judgment is affirmed.

Appellant raises five points on appeal. He asserts the trial court erred: (1) in denying his motion to suppress the evidence seized under the authority of a search warrant because the affidavits and application upon which it was based were insufficient; (2) in refusing to order the state to divulge the identity of the informant upon whose information the search warrant affidavit was based; (3) in denying his motion for a verdict of acquittal because there was insufficient evidence to show that he was in possession of stolen property; (4) in finding appellant guilty of possession of burglar tools and (5) in rendering an oral verdict that appellant claims was insufficient as a matter of law.

On October 7, 1981, a search warrant was issued for the residence of Donna and James Gilmore. The warrant was based on an application of a deputy sheriff and an affidavit of another deputy sheriff, both of which stated that there was reason to believe that certain items of stolen property, burglary tools and controlled substances were on the Gilmore premises.

Police officers entered the residence of appellant and his wife pursuant to the search warrant and seized the following items of stolen property: a battery charger, an arc welder, paint brushes, a drill, an oven, a shotgun, pocket watch, three back braces, a telephone, a cuckoo clock and coins. Several of those items had been specifically detailed on the application for the search warrant. Police also found an attache case containing a bolt cutter, a keyhole saw, needle-nosed pliers, a couple of chisels, three large screwdrivers, a punch and prybar, another prybar with a nail puller, hacksaw blades and pliers. Appellant told the police that the tools were his.

Additional facts will be related in the discussion of appellant's allegations of error.

Appellant first alleges that the evidence seized under the search warrant should have been suppressed because the affidavit and application upon which the warrant was based were insufficient to support a finding of probable cause. The point is denied.

Under § 542.276 RSMo.1978, a peace officer or prosecuting attorney may apply for a search warrant, provided the application meets certain requirements ¹ and is supplemented by written affidavits. ² "If it appears from the application and any supporting affidavits that there is probable cause to believe that property subject to seizure is on the person or at the place or in the thing described, a search warrant shall immediately be issued." Section 542.276.4 RSMo.1978.

Probable cause is to be determined by looking at the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). "[T]he traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover the evidence of wrongdoing, the Fourth Amendment requires no more.... The task of the issuing magistrate is simply to make a practical, common-sense 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." Id. at 2331-32. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. Id. at 2330.

The application in the case under review gave a detailed listing, by item and location, of the stolen property believed to be at the Gilmore residence. All items had been observed there. The application states that informant had, on several occasions, provided the police with information about crimes of which they were unaware or information about crimes not generally available to the public. The application states further that all information received in the past from this informant was reliable and accurate. The affidavit also states that the affiant had used the informant previously and found his information to be accurate.

Both the application and the affidavit also attested to the reputation of James Gilmore as a burglar. When considering the "totality of the circumstances," it is clear that the issuing magistrate had a substantial basis for concluding that probable cause existed. See Illinois v. Gates, supra at 2332.

Appellant also argues, under his first point, that § 542.276.3 RSMo.1978 requires that more than one affidavit be filed to support an application for a search warrant. However, Missouri courts have recognized that in some situations, even a single affidavit may provide a sufficient basis for the issuance of a search warrant. See State v. Clark, 552 S.W.2d 256, 260 (Mo.App.1977) in which the court of appeals held:

"These requirements [of § 542.276] do not preclude the situation in which a single document, properly verified, whether it be denominated an 'Application' or 'Affidavit,' fulfills the requirements of an application and states adequate grounds for a finding of probable cause for issuance of the warrant."

In Clark, a document titled "Affidavit for Search Warrant" was held to be sufficient to establish probable cause even though no application as such was filed.

In the case under review, a detailed application supported by an affidavit was filed. The three-page "Application for Search Warrant" set forth in detail the stolen property believed to be present at the place to be searched, a complete description of the place to be searched in addition to a recitation of the reliability of the informant and the reputation of appellant James Gilmore as a burglar and theft suspect. It was subscribed and sworn to by a deputy sheriff of Jefferson County.

The affidavit, subscribed and sworn to by a deputy sheriff of Ste. Genevieve County, recited that a reliable informant had told of the presence of stolen property at appellant's residence and further recited that appellant had been convicted of retention of stolen property and had a reputation as a burglar.

The two documents sufficiently established probable cause to issue the search warrant. Appellant's first point is denied.

The appellant, in his second point, contends that the state should have been required to divulge the name of the confidential informant upon whose information the search warrant was issued. He argues that the refusal of the state to do so deprived him of his right to challenge the truthfulness of the affidavit supporting the search warrant. The point is without merit.

As a general rule, communications made by informers to government officials are privileged. State v. Yates, 442 S.W.2d 21, 25 (Mo.1969). "Admittedly, disclosure of the name of a confidential informant is required in instances where such disclosure is relevant to the defense of the accused, essential to a fair disposition of the case, necessary to avoid the risk of false testimony or vital to secure useful testimony.... Whether a defendant can have a fair trial 'without compelling disclosure of an informant's identity is a matter addressed to the sound discretion of the trial court.' ... Our courts have distinguished between participant informants, that is, those who are 'active in introducing police officers to the suspect or in setting up the criminal act and simple informants who merely provided information. The likelihood that fundamental fairness will require disclosure of the identity of the latter group is substantially less.' " State v. Simpson, 611 S.W.2d 556, 559[7, 8] (Mo.App.1981); see also State v. Hanson, 587 S.W.2d 895, 903[14, 15] (Mo.App.1979).

Appellant argues that without the identity of the informant, he cannot challenge the truthfulness of the underlying affidavit supporting the search warrant. Although challenges to the truthfulness of such affidavits are permitted under special circumstances, the deliberate falsity whose impeachment is permitted is only that of the affiant, not of any nongovernmental...