State v. Laws, 72610

• Decision Date: 18 December 1990
• Docket Number: No. 72610,72610
• Citation: 801 S.W.2d 68
• Parties: STATE of Missouri, Respondent, v. Clarence LAWS, Appellant.
• Court: Missouri Supreme Court

Page 68

801 S.W.2d 68

STATE of Missouri, Respondent, v. Clarence LAWS, Appellant.

No. 72610.

Supreme Court of Missouri En Banc.

Dec. 18, 1990.

Lew Polivick, Sikeston, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Breck K. Burgess, Asst. Attys. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant, convicted on two counts of possessing controlled substances, §§ 195.020, 195.240, RSMo 1986, was sentenced as a persistent offender to concurrent terms of eight years' imprisonment on each count. We granted transfer from the Missouri Court of Appeals, Southern District, and now determine the cause as on original appeal. Mo. Const. art. V, § 10. Affirmed.

At issue is the constitutional validity of the search warrant leading to defendant's conviction. Trooper Nelson Wallis of the Missouri State Highway Patrol testified he had received many calls from the particular informant involved, stating that defendant was transporting a white powdered substance, but Wallis took no action on the calls until he received information which he could perhaps verify. Surveillance of defendant's property was commenced and on approximately three occasions was unfruitful, but on October 28, 1987, the informant again called Wallis advising that Laws was bringing a shipment of what was believed to be cocaine. Wallis again established surveillance at Laws' home and saw three persons enter the trailer, one of whom he recognized as a suspected drug user and dealer. Shortly thereafter, Laws emerged from the back of the trailer with a small rug, shook it out, and swept the vicinity of the back steps, activity which Wallis found consistent with suspected drug dealing. On October 31, the informant again called Wallis and told him Laws had gone to Arkansas to obtain cocaine and would return sometime late that night or early the next morning. The informant promised to call when Laws returned to town.

The promised call came on the morning of November 1, and Wallis immediately executed an affidavit preparatory to obtaining the questioned warrant. The text of the affidavit follows:

Nelson Wallis, first being duly sworn, states as follows:

1. That he is a low (sic) enforcement officer in the County of New Madrid and State of Missouri, and

2. That he has reliable information from a previous reliable source that Clarence Law (sic) is presently in possession for sale and distribution certain controlled substances, to-wit: cocaine, cocaine derivatives and marihuana, together with weighing scales, at his home in Portageville, Missouri, and

3. That the affiant has personally observed activities on the porperty (sic) of Clarence Law (sic) that are consistent with the sale and distribution of a controlled substance that include many late night and secretive visits to the premises by persons suspected to be involved in illegal drug trafficing (sic) activities.

Further affiant saith not.

The warrant was issued by the circuit judge, and the next day Wallis, with other officers executing the search of the Laws property, found and seized the following items:

$3550 in cash

Drug paraphernalia

1 bag of marijuana seed

2 bags of marijuana

1 bag of a white substance

88 valium pills, 10 mg. each

1 bag of hashish

3 sets of weighing scales

1 record book

The trial court denied defendant's motion to quash the warrant and suppress the evidence. Implicit in the court's reasoning was a finding that no probable cause existed for the search, but the court found applicable the "good faith" exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

On appeal, defendant first contends there was no showing of probable cause sufficient to support issuance of the warrant. In this regard, it first should be noted that the United States Supreme Court no longer requires the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), for determining the sufficiency of a search warrant based on information supplied by an informant. In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the Court held that the veracity and basis of knowledge of informants need no longer be established, but that the judge issuing the warrant:

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 [judge] had a "substantial basis for ... conclud[ing]" that probable cause existed.

Even under the Aguilar standard, it was "unnecessary to establish the past reliability of the informant," State v. Ambrosio, 632 S.W.2d 262, 265 (Mo.App.1982), and many courts upheld warrants issued on assertions that the informant had been reliable in the past. See 1 LaFave, Search and Seizure § 3.3(b) (1987), and cases cited. As stated in Jones v. Crouse, "[f]actual statements of past reliability are sufficient basis 'for the magistrate to gauge independently the reliability of the informer.' " 447 F.2d 1395, 1399 (10th Cir.1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1298, 31 L.Ed.2d 480 (1972) (quoting United States v. Mendoza, 433 F.2d 891, 894 (5th Cir.1970)). The stringent requirements of Aguilar have given way to the common sense test of Gates, and in State v. Bauers, 702 S.W.2d 896, 900 (Mo.App.1985), it was aptly stated that under Gates:

The requisite substantial basis for use of hearsay is met if the affidavit shows that the informant learned the information through personal observation and if the informant's statements are corroborated through other sources. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). It is unnecessary to establish the past reliability of the informant.

Examining the four corners of the affidavit ¹ we find the informant's statements corroborated by the fact that he had been found reliable in the past, and implicit in the affidavit is an understanding that the informant learned his information through personal observation. As stated by the Supreme Court in Gates, "so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The magistrate need only find a "fair probability" that contraband will be found, id.; it is not necessary to establish the presence of contraband either prima facie, or by a preponderance of the evidence, or beyond a reasonable doubt. State v. Hall, 687 S.W.2d 924, 929 (Mo.App.1985). Further, the "magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).

We find that on the basis of the affidavit before him, the magistrate had a substantial basis for concluding there was a "fair probability" that the search would uncover evidence of criminal activity. This conclusion is supported by a number of cases in this jurisdiction upholding the constitutional validity of searches premised upon tips by informants found to be reliable in the past. In State v. Hall, 687 S.W.2d 924, 928-29 (Mo.App.1985), an officer stated that the informant, who...