State v. Horsey

• Citation: 676 S.W.2d 847
• Decision Date: 20 August 1984
• Docket Number: No. 13230,13230
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles Arthur HORSEY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 847

676 S.W.2d 847

STATE of Missouri, Plaintiff-Respondent, v. Charles Arthur HORSEY, Defendant-Appellant.

No. 13230.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 20, 1984.

Motion for Rehearing or Transfer

Denied Sept. 11, 1984.

Applications to Transfer Denied

Oct. 9, 1984.

John Ashcroft, Atty. Gen., Douglas Lind, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Loren R. Honecker, Sherwood, Honecker & Bender, Springfield, for defendant-appellant.

MAUS, Presiding Judge.

A jury found the defendant guilty of six counts of receiving stolen property. § 570.080. In accordance with the verdicts, the court sentenced the defendant to imprisonment for seven years on each count and ordered the terms to run consecutively. The defendant presents four points on appeal.

He does not question the sufficiency of the evidence. Suffice it to say there was an abundance of evidence to establish his guilt upon each count. The defendant concedes the exhibits which are the basis of those counts were found by police officers at the premises at 815 N. Fort Street in Springfield. The officers first searched those premises by virtue of a search warrant authorizing the search of 815 N. Fort Street and 809 N. Fort Street for the drug methamphetamine. That warrant was issued at 11:39 a.m. on October 29, 1981, upon an application made a few minutes earlier.

The execution of that warrant did not discover any methamphetamine. However, in that process the officers observed such a plethora of assorted items of personal property in such condition as to inexorably hold to the conclusion they were stolen. At 6:25 p.m. on October 29, 1981, a warrant was issued authorizing the search of those premises for numerous items of named categories of personal property believed to be stolen. Subsequent search warrants were issued and executed.

The defendant's first point is that the trial court erred in not suppressing and in admitting the exhibits which were the subject matter of the six counts. The point is based upon a contention the first warrant was not valid to authorize a search of the premises at 815 N. Fort and 809 N. Fort. The state concedes the admissibility of those exhibits is dependent upon the validity of the search under that initial warrant. The defendant's contention of invalidity has two bases.

The defendant's first basis is that the affidavits of two Springfield police officers upon which the first search warrant was issued did not establish probable cause. In view of this contention, it is necessary that the substantive parts of those affidavits be set forth. ¹

The affidavits are based upon information provided by an unnamed informant. A two-pronged test for determining whether or not such affidavits supplied probable cause was enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). It was further developed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The defendant relies upon an analysis based upon the test so enunciated and developed.

In attacking the sufficiency of the affidavits, he considers each affidavit separately. Moreover, he focuses upon and considers separately isolated segments of the affidavits. He insists the Clark affidavit is totally without value for two reasons. He says the fact the officer stated the informant had proven reliable is without significance. He also asserts that information supplied concerning a transaction in July of 1981 was "stale."

In regard to the Asher affidavit, he again argues the statement of proven reliability is without significance. He likewise would disregard the fact information supplied by the confidential informant had resulted in the filing of felony charges. He concludes that the information in the Asher affidavit is also stale because it does not expressly state the date upon which the sale occurred.

The defendant's first point is without merit for several reasons. Even under the "two-pronged test" the associate circuit judge issuing the warrant was entitled to a "common sense" reading of the entire application and supporting affidavits. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Assuming the Clark affidavit, considered alone, would be based upon stale information, that does not mean that it is totally without significance when construed with the Asher affidavit. A detailed report that Horsey had been selling or trading drugs in July of 1981 would have some bearing upon the value of an affidavit that he was selling drugs at the same location on October 28, 1981. The statements that the confidential informants were reliable did not stand alone. The Clark affidavit established the informant assisted the officer in purchasing drugs from suspects. The Asher affidavit stated that information provided by the informant resulted in the filing of felony charges. This is significant as it establishes that information so supplied was sufficiently accurate to provide the basis for an officer of the court to believe there was sufficient evidence to convict the defendant. The assertion of the informants' reliability was not unsupported.

Further, the defendant's complaint of staleness of the Asher affidavit is without foundation. In essence that affidavit states that Horsey "was selling from a new shipment of 'crank.' " A common sense interpretation of that statement in the context of the two affidavits was that Horsey was selling crank at the time the information was supplied, the day the warrant was issued.

Each affidavit was based upon personal knowledge of the informant. State v. Rohrer, 589 S.W.2d 121 (Mo.App.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1277, 63 L.Ed.2d 600. A detailed statement of the illegal activity was contained in the Asher affidavit. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The affidavits are sufficient under the two-pronged test. Compare Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), 78 A.L.R.2d 233.

Further, this point is controlled by two recent cases decided by the United States Supreme Court. They are United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Generally, decisions concerning "search and seizure" have not been applied retrospectively. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1968); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). However, the term "retrospectively" as used in that context most often has reference to cases in which the judgment was rendered, the availability of appeal exhausted and the time for certiorari elapsed before the date of the decision. Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). "Under our cases it appears that a change in law will be given effect while a case is on direct review." Linkletter v. Walker, supra, 381 U.S. at 627, 85 S.Ct. at 1736, 14 L.Ed.2d at 607; United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). However, it has since been determined there is no constitutional obstacle to the adoption of a different date of application. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The factors which have been considered decisive in determining the date of application are reviewed in Desist v. United States, supra. Also see Annot., Supreme Court Decision--Retroactivity, 22 L.Ed.2d 821 (1968); Annot., Overruling Decision--Application, 10 A.L.R.3d 1371 (1966). The problem is succinctly analyzed in Martin v. Wyrick, 568 F.2d 583 (8th Cir.1978), cert. denied, 435 U.S. 975, 98 S.Ct. 1623, 56 L.Ed.2d 69. Neither of the two cases referred to expressly declares its date of application. Factors which have often been held decisive in determining the date of application are "practicality" and reliance of law enforcement officers on a previous contrary rule. Consideration of those factors and other factors which have been held decisive leads to the conclusion that Gates and Leon should be applied to cases pending on direct appeal. It has been held error not to apply the standard of Illinois v. Gates, supra, to a case so pending. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). The force of that decision is applicable to establish the date of application of United States v. Leon, supra.

Illinois v. Gates, supra, found the " 'two-pronged test' has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate." Illinois v. Gates, supra, 462 U.S. at ----, 103 S.Ct. at 2330, 76 L.Ed.2d at 545-546. The court continued:

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. 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.

Illinois v. Gates, supra, 462 U.S. at ----, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (emphasis added).

In Massachusetts v. Upton, supra, the court tersely held that the two-pronged test was not merely refined but was rejected. Probable cause is to be determined by the totality of circumstances analysis. When the Clark and Asher affidavits are so viewed, the associate circuit judge had a substantial basis for concluding that probable cause did exist.

This court would be remiss if it did not also take cognizance of United States v. Leon, supra. That case presented the question of "whether the Fourth...