State v. Henry
| Decision Date | 16 June 2009 |
| Docket Number | No. WD 69978.,WD 69978. |
| Citation | 292 S.W.3d 358 |
| Parties | STATE of Missouri, Appellant, v. Cole M. HENRY, Respondent. |
| Court | Missouri Court of Appeals |
Mark A. Richardson and Cheryl C. Nield, Jefferson City, MO, for appellant.
Clifford W. Cornell, Jefferson City, MO, for respondent.
Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and JAMES E. WELSH, JJ.
The State appeals the judgment of the Cole County Circuit Court granting a motion to suppress evidence obtained through execution of a search warrant. On appeal, the State argues that the affidavit supporting the search warrant was sufficient to establish probable cause. The trial court's judgment is reversed, and the case is remanded.
On January 29, 2008, Jefferson City police searched the apartment of Cole Henry pursuant to a warrant obtained after information was supplied to police by James Jacobs.1 Henry was charged with the class A felony of possession of a controlled substance (marijuana) with intent to distribute, charging him as a prior offender and a prior drug offender.
Henry filed a motion to suppress evidence claiming that the search warrant issued in his case was improper. He claimed, inter alia, that the warrant was in improper form and unsupported by probable cause and that the affidavit was lacking in probable cause and could not be relied upon in good faith. Following a hearing and after the parties filed suggestions in support of and in opposition to the motion to suppress, the trial court granted the motion to suppress.
The State appeals.
We first determine whether the appellate court reviews the initial determination of probable cause made by the issuing judge, or whether the appellate court reviews the trial court's granting of the motion to suppress. Though the question of probable cause is an issue of law, review is not de novo but is the deferential standard of "clearly erroneous." State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). Because there may be variations in factual inferences drawn by different judges upon consideration of the application for a warrant and the accompanying affidavits, it makes sense that deference is appropriate. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990); State v. Neher, 213 S.W.3d 44, 48-49 (Mo. banc 2007). But when an issuing court originally determines that probable cause exists, and a trial court later finds to the contrary, we must first decide which of the two determinations is being reviewed so that we may accord deference appropriately.
In State v. Berry, 801 S.W.2d 64 (Mo. banc 1990), there had been, at the time of the issuance of a warrant, an initial determination of probable cause by the issuing judge. The trial court later determined that probable cause was lacking and suppressed the evidence. The Supreme Court, in undertaking review, stated that "great deference" should be given to the determination made by the issuing judge to grant the warrant. Id. at 66. The Court said the determination of probable cause by the issuing judge should be reversed only if it was "clearly erroneous." Id. Berry did not announce a new rule. The Supreme Court has held for years that "[p]robable cause for the issuance of a search warrant must be judged on the basis of what was before the issuing judge." State v. Hunt, 454 S.W.2d 555, 558 (Mo.1970); see also Laws, 801 S.W.2d at 69-70; Neher, 213 S.W.3d at 48-49.
After Berry () again made clear that review was to be of the determination of the issuing judge, some of our Missouri cases once again introduced unfortunate confusion by discussing review of the trial court's ruling, asserting that the standard of review is whether the trial court's ruling on the motion to suppress was "clearly erroneous." See, e.g., State v. Cornelius, 1 S.W.3d 603 (Mo.App.1999); State v. Berry, 92 S.W.3d 823, 828 (Mo.App.2003); State v. Willis, 97 S.W.3d 548, 553 (Mo.App.2003) ().
The Southern District in Norman noted that some of the cases have acknowledged tension over the ruling to be reviewed. 133 S.W.3d at 158. The confusion has included an incorrect belief that the standard of review of the probable cause issue "was a balance—that [the court] would review the trial court's granting of the motion to suppress for clear error but, at the same time, give great deference to the issuing judge's initial determination of probable cause." Id. See, e.g., State v. Trenter, 85 S.W.3d 662, 669 (Mo.App.2002).
The Southern District in Norman noted that the crucial distinction is between a case where the search was warrantless, and a case where a warrant had been issued. 133 S.W.3d at 159. In a case without a warrant, a "clearly erroneous" deferential standard applies to the review of the ruling of the first judge to pass on the matter—which happens to be the trial court (because there was no warrant). Id. The Norman court recognized, though, that when "an initial judicial determination has been made" by a neutral issuing judge (or "magistrate"),2 that judge was the first one to pass on the matter of probable cause. Id. The court in Norman reminded us that an appellate court "will reverse only if the initial determination by the issuing judge that probable cause exists, based on the totality of the circumstances, is clearly erroneous." Id. (emphasis added). Norman noted that generally the cases stating a contrary standard were cases where the trial court had denied a motion to suppress, in effect agreeing with the issuing court. Id. Thus, an appellate court purporting to give deference to the trial court was also thereby indirectly also giving deference to the issuing court. Id.
In 2007, the Missouri Supreme Court, in State v. Neher, reiterated the principle that the reviewing court "gives great deference to the initial judicial determination of probable cause that was made at the time the warrant issued." 213 S.W.3d 44, 49 (Mo. banc 2007). The court also added that "[b]ecause there is a strong preference in the Fourth Amendment for searches to be conducted pursuant to a warrant, a reviewing court should not quash a warrant by construing it in a hyper-technical, rather than a common-sense, manner." Id. "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. "In conducting the review of whether probable cause exists, the appellate court may not look beyond the four corners of the warrant application and the supporting affidavits." Id. The court will reverse only if the "issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed." Id.
In Laws, 801 S.W.2d at 69, the Court stated that the judge making the initial determination on whether to issue the warrant was to make a "practical, common-sense decision," given the totality of the circumstances as presented in the supporting affidavit, whether a "fair probability" existed that evidence of a crime would be found at the location. Accordingly, we conclude that we are to review the issuance of the warrant to see if the issuing judge had a substantial, common-sense basis, in view of the totality of the circumstances, for determining that probable cause existed at the time the warrant was issued. See also Berry, 801 S.W.2d at 66. We are to reverse only if that determination was "clearly erroneous." Id.
The full text of the affidavit presented to Judge Sodergren in this case is:
AFFIDAVIT SUPPORTING SEARCH WARRANT
Comes now, Curtis Finke duly sworn and under oath and states as follows:
1. I am a detective with the Jefferson City Police Department and have been so employed for the past five years and am now assigned to the Mid-Missouri Unified Strike Team and Narcotics Group (MUSTANG).
2. On 01-29-2008 at 0202 hours I made contact with James Jacobs as a result of executing a narcotic search warrant at his residence. As a result of that investigation James Jacobs provided the following information.
3. On 01-28-2008 at approximately 2200 hours James Jacobs observed approximately four pounds of marijuana inside an apartment rented by Cole Henry, DOB 01-15-1982, SS# 491-88-0463. This apartment is located at 117 Ventura Apt 8 Jefferson City, MO 65109.
4. James Jacobs has observed large amounts of marijuana at this residence in the past due to both subjects having involvement in narcotic activity.
/s/ Curtis Finke
Curtis Finke, Affiant
/s/ James Jacobs
James Jacobs, Affiant
/s/ D. Williams 1/29/08
D. WILLIAMS
Notary Public—Notary Seal
STATE OF MISSOURI
Cole County
My Commission Expires: June 4, 2008
Subscribed and sworn to before me this
date: 01-29-2008
/s/ T. Sodergren
Judge
The affidavit is signed by Detective Curtis Finke and James Jacobs. Each signed above the designation of "affiant." It is notarized by D. Williams and dated January 29, 2008. Judge Sodergren found this presentation to be satisfactory of probable cause and issued the warrant on the same day.
The trial court, Judge Joyce, on consideration of the later filed motion to suppress, regarded the application and supporting papers with skepticism, noting:
Despite his signature on the affidavit, Jacobs was not a direct affiant because the affidavit was prefaced in its initial paragraph by "Comes now, Curtis Finke" and not "Comes now, James Jacobs."
The trial court also added that Jacobs "was not a direct informant" and that Jacobs "was never placed under oath regarding the veracity of his underlying statements to police." The court also believed that Jacobs' "signature was not properly verified by...
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