State v. Henry, No. WD 69978.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJames M. Smart, Jr.
Citation292 S.W.3d 358
Docket NumberNo. WD 69978.
Decision Date16 June 2009
PartiesSTATE of Missouri, Appellant, v. Cole M. HENRY, Respondent.
292 S.W.3d 358
STATE of Missouri, Appellant,
Cole M. HENRY, Respondent.
No. WD 69978.
Missouri Court of Appeals, Western District.
June 16, 2009.
Application for Transfer to Supreme Court Denied July 28, 2009.
Application for Transfer Denied October 6, 2009.

[292 S.W.3d 360]

Mark A. Richardson and Cheryl C. Nield, Jefferson City, MO, for appellant.

Clifford W. Cornell, Jefferson City, MO, for respondent.



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.

Basic Background

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.

The Ruling under Review

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

292 S.W.3d 361

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 (and the case decided almost contemporaneously with Berry, State v. Laws) 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) (mentioned in the discussion of this subject in State v. Norman, 133 S.W.3d 151, 158 (Mo.App.2004)).

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

292 S.W.3d 362

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.

Our Standard of Review

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.

Detailed Background

The full text of the affidavit presented to Judge Sodergren in this case is:


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.

292 S.W.3d 363

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

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."...

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