State v. Jones

• Decision Date: 19 October 2012
• Docket Number: No. SD 31291.,SD 31291.
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Michael R. JONES, Defendant–Appellant.
• Court: Missouri Court of Appeals

384 S.W.3d 357

STATE of Missouri, Plaintiff–Respondent,

v.Michael R. JONES, Defendant–Appellant.

No. SD 31291.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 19, 2012.

Daniel D. Brogdon, for appellant.

Chris Koster, Shaun J. Mackelprang, for respondent.

NANCY STEFFEN RAHMEYER, J.

Michael R. Jones (“Appellant”) was charged with ten counts of possession of child pornography, each a class C felony, and with one count of possession of more than twenty still images of child pornography, a class B felony, all in violation of section 573.037.¹ The case was tried to a jury on January 18 and 19, 2011, and the jury returned a verdict of guilty on each count on January 19, 2011. On April 12, 2011, the trial court sentenced Appellant to imprisonment in the county jail for one month on each of counts 1 through 10, and imprisonment in the Department of Corrections for seven years on count 11 with the sentences to run concurrently. Appellant appeals the trial court's judgment, and raises two points in which he challenges the trial court's denial of his motion to suppress: (1) the physical evidence obtained in a search of his home and premises pursuant to a search warrant, and (2) statements he made in the course of the execution of the search warrant. Finding no merit in Appellant's points, we affirm the trial court's judgment.

Facts and Procedural History

Viewed in accordance with our standard of review, the evidence established the following facts:

Pamela Jones, Appellant's daughter-in-law, lived at Appellant's home in Webster County from August 2005 until about July 2006, and then again from about November 2007 until about January 2008. She has a son who was two at the time of the hearing and lived with Pamela for at least a portion of the time Pamela lived at Appellant's home. While Pamela lived in Appellant's home, there was a computer in the game room of the home. Pamela used the computer.

Once, when Pamela was in the game room, she saw “future pre-teens” on the “tab” for a screen on the computer that was “minimized.” When Appellant left, Pamela went through the “history of the computer” and saw there were “a lot of sites like that.” Pamela subsequently went to the Sheriff's Department, completed a witness statement, and talked to one of the deputies.

Pamela returned home, waited until “they were gone,” and then went through Appellant's “porn.” Pamela and her husband then took some of the pictures back to the Sheriff's Department because she “wanted them to have proof.” The Sheriff's Department did not request that she bring pictures to the Sheriff's Department. The pictures were already printed when Pamela found them—she did not print any of the pictures. She testified that Appellant “always keeps porn in the house, there is always porn.” By “porn,” Pamela meant “naked pictures of girls[, v]ideos, pornography. Like, people engaging in sex.” Appellant “usually keeps” images of girls eighteen and older, but Pamela “find[s] a lot younger girls” as well.

John Everett, a Detective with the Webster County Sheriff's Office, felt the pictures she brought to the Sheriff's Office “were criminal.” There “was no question in [Detective Everett's] mind” that “several [of the pictures] ... were sexually explicit photos of children under the age of 17.” These pictures “were obscene.” At some point, Detective Everett discussed the pictures and “review[ed] the elements of the crime” with the Webster County prosecuting attorney and prepared an application for a search warrant for Appellant's home and premises in Webster County, a supporting affidavit for the application, and a proposed search warrant. He submitted those documents to an associate circuit judge on July 1, 2008.

The supporting affidavit included the following facts:

Detective Everett had “reason to believe” evidence of “a crime, to wit: Child Pornography, RSMO 573.037, is presently concealed at” Appellant's residence.

Detective Everett spoke with Pamela Jones on July 1, 2008. Pamela Jones told Detective Everett (1) Appellant is her father-in-law, (2) “[she] had observed photographs of various children on the computer at [Appellant's] residence,” (3) “children in the photographs were nude and/or in various stages of undress,” (4) “she believed some of the photographs were of children between the ages of three to four years of age,” and (5) “the photos she had delivered to the Webster County Sheriff's Office were photos she had taken from [Appellant's] residence,” and “had been printed prior to her discovery of them.”

Detective Everett “observed the photos Pamela brought to the Sheriff's Office. Some of the children in the photos appeared to be well under seventeen years of age.” “[T]he children in the photographs were naked and/or in various stages of undress.”

When Detective Everett first arrived at Appellant's home to execute the search warrant, he observed Appellant outside his home and the two met about halfway between where Detective Everett parked and Appellant's home. Detective Everett “greeted” Appellant and informed him Detective Everett had a search warrant and showed Appellant the warrant. Detective Everett then asked Appellant “where his kiddie porn was located.” Appellant asked “what do you mean by kiddie porn,” and Detective Everett replied “pornographic pictures of underage children.” Appellant then said “it was in the house.” At this time, Detective Everett and Appellant were standing about four to five feet apart. Two other law enforcement officers were arriving at Appellant's home, but “were some distance behind [Detective Everett] at that time.” No weapons were drawn though Detective Everett was armed and his weapon would have been visible to Appellant. Detective Everett's demeanor was not threatening or angry at that time or at any other time during the search. Detective Everett was not dressed in “tactical gear.”

Detective Everett added that (1) the execution of the search warrant occurred during daylight, (2) there were four (rather than two) law enforcement officers with Detective Everett during the search, (3) the officers did not have their vehicle lights or sirens on when they arrived at Appellant's home, (4) the officers and Appellant were “cordial,” (5) all the officers had weapons and badges but no officer drew his weapon, (6) “[n]ormally” Detective Everett does not “read someone their rights unless they are in my custody, and I am asking guilt seeking questions,” and (7) Appellant was not placed under arrest at any time during the search or on the day of the search.

Appellant and the officers then went into Appellant's home where the officers again asked Appellant where the “sexually explicit photos” of the “underage children” were located. Appellant retrieved photographs from a drawer.

After Rick Hamilton, a detective with the Webster County Sheriff's Department, observed what he thought to be child pornography, he “chose at that time to go ahead and Mirandize ” ² Appellant after they returned to the living room from the back room. “[U]sually,” Detective Hamilton does not “ Mirandize ” an individual until he has “located” evidence of a crime. Detective Hamilton's memory was that “the only thing we talked about prior to Miranda was what we were there for. And he made the statement, you know everything I got is back here and took officers back to that room.” Detective Hamilton added that (1) he was “cordial” to Appellant and Appellant “was very nice to us as well,” and (2) Appellant “led us” into the house. Appellant did not invoke his right to remain silent or his right to counsel after being advised of his Miranda rights. So far as Detective Hamilton was aware, Appellant's statements after he was advised of his rights were recorded.

Evidence seized during the execution of the search warrant at Appellant's home was introduced into evidence at trial, including (1) a computer, and images and internet searches and websites found on the computer, (2) photographs located in a drawer in a bedroom at Appellant's home, and (3) photographs located in a box or boxes in an outbuilding at Appellant's home. A recording of Appellant's post-Miranda statements during the search also was introduced into evidence and played for the jury.³

In his first point, Appellant claims the trial court “clearly erred in overruling” his motion to suppress physical evidence and objections to admission of that evidence at trial because the evidence was obtained “pursuant to a search warrant that was not supported by probable cause.” Appellant's argument is that “the Affidavit failed to establish probable cause that evidence of a crime would be located at Appellant's residence” because the affidavit that supported the search warrant contained “no allegation” that the conduct depicted in the photographs referenced in the affidavit met the definition of child pornography.

In State v. Neher, 213 S.W.3d 44 (Mo. banc 2007), our Supreme Court described the standard of review as:

The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation. State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). A neutral magistrate or judge must determine probable cause from the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In determining whether probable cause exists, the issuing magistrate or judge must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. The presence of such contraband or evidence need not be established at a prima facie level, by a preponderance of the evidence or beyond a reasonable doubt. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990).

Accordingly, in reviewing a trial court's ruling on a motion to suppress...