State v. Mahsman

• Decision Date: 21 December 2004
• Docket Number: No. ED 83724.,ED 83724.
• Citation: 157 S.W.3d 245
• Parties: STATE of Missouri, Respondent, v. John D. MAHSMAN, Appellant.
• Court: Missouri Court of Appeals

157 S.W.3d 245

STATE of Missouri, Respondent, v. John D. MAHSMAN, Appellant.

No. ED 83724.

Missouri Court of Appeals, Eastern District, Division Five.

December 21, 2004.

Branson Wood III, Hannibal, MO, for appellant.

Deborah Daniels, Richard Starnes (co-counsel), Jefferson City, MO, for respondent.

OPINION

GLENN A. NORTON, Presiding Judge.

John Mahsman appeals the judgment entered on his convictions for possessing and manufacturing methamphetamine. We reverse and remand.

I. BACKGROUND

Before trial, Mahsman sought to suppress methamphetamine, items commonly used to produce methamphetamine and other paraphernalia seized from his home under a search warrant, alleging that the warrant was not based on probable cause. The affidavit supporting the application for the warrant provided that one evening, Mahsman "burst into" his neighbors' home "waving a handgun and yelling to turn off the lights that the world was coming to an end." The affidavit also provided that when the Ralls County sheriff's deputies arrived at Mahsman's home looking for Mahsman, they found the front door open. According to the affidavit, "[d]eputies conducted a sweep of the residence for Mahsman and observed several items of drug paraphernalia and weapons in plain view. Deputies also discovered a jar containing ether on the walkway outside of the Mahsman residence." The affidavit further provided that, soon thereafter, an officer in Marion County stopped Mahsman in his vehicle, arrested him and found he was in possession of methamphetamine, marijuana and drug paraphernalia.¹

The trial court denied the motion to suppress, and Mahsman was convicted after a jury trial.

II. DISCUSSION

Our review of the trial court's decision to deny a motion to suppress is limited to a determination of whether there is substantial evidence to support the decision. State v. Kirby, 128 S.W.3d 619, 621 (Mo.App. E.D.2004). We view the facts and any reasonable inferences therefrom in the light most favorable to the trial court's decision and disregard any contrary evidence and inferences. State v Lewis, 17 S.W.3d 168, 170 (Mo.App. E.D.2000). We will only reverse if the ruling is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Nevertheless, we must consider whether the court's decision is a proper application of Fourth Amendment precepts. State v. Stevens, 845 S.W.2d 124, 128 (Mo.App. E.D.1993).

The Fourth Amendment to the United States Constitution requires that search warrants be based on probable cause and supported by oath or affirmation. Mahsman argues that the information in the affidavit regarding drugs and paraphernalia found during the warrantless search of his home and the search incident to his arrest must be disregarded because those searches were illegal. Information in an affidavit that is based on observations made during an illegal search is tainted and must be disregarded; if the affidavit does not otherwise provide probable cause to support the search warrant, then the evidence seized thereunder must be excluded. See State v. Macke, 594 S.W.2d 300, 305 (Mo.App. E.D.1980); State v. Berry, 92 S.W.3d 823, 830 (Mo.App. S.D.2003); State v. Mitchell, 20 S.W.3d 546, 561 (Mo.App. W.D.2000).

1. Warrantless Search of the Home

Warrantless searches inside a home are presumptively unreasonable under the Fourth Amendment unless the action falls within certain carefully defined exceptions, many of which are based on the presence of exigent circumstances. State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002). Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk destruction of evidence. State v. Adams, 51 S.W.3d 94, 99 (Mo.App. E.D.2001). The following factors are relevant to the determination of whether a particular situation is exigent: (1) the gravity of the offense; (2) a reasonable belief that the suspect is armed; (3) a clear showing of probable cause that the suspect committed the offense; (4) the suspect's presence inside the premises to be searched; (5) the likelihood the suspect will escape; and (6) peaceable entry. Id.

At the suppression hearing, the sheriff testified that he went to Mahsman's house to locate him after receiving a call that Mahsman had entered the neighbors' home unannounced, waving a gun around, saying the world was coming to an end and wanting the power shut off. When the sheriff arrived at Mahsman's home, he did not know whether or not Mahsman was armed. The front door was wide open, so the sheriff went up to it and called Mahsman's name several times. When there was no answer, the sheriff went inside. Mahsman was not there, but he saw guns in plain view. He went back outside and, with other officers, searched the perimeter of the house and discovered Mahsman was not there either. At that point, the sheriff — who knew Mahsman and the truck he drove — noticed that the truck was not there. He and the other officers then went back inside Mahsman's home to seize the guns. When they went back in, they found marijuana and paraphernalia in plain view.

Assuming that the incident at the neighbors' home was a crime, there were exigent circumstances justifying the sheriff's initial entry into Mahsman's home. It was reasonable to believe, at that point, that Mahsman may have been inside, could have been armed and dangerous to himself or others and would have been able to escape if the sheriff had to wait to obtain a warrant. But by the time the sheriff and other officers went back inside the home, there was no longer an emergency because they knew Mahsman was not there.

The State argues that the first entry into Mahsman's home was a "protective sweep" and that the sheriff had probable cause to believe that the weapons he observed during that sweep were involved in the incident at the neighbors' home, justifying the officers' re-entry into Mahsman's home to seize evidence involved in a crime. We disagree. First, this was not a "protective sweep." A protective sweep is a "quick and limited search of the premises, incident to the arrest and conducted to protect the safety of police officers and others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (emphasis added); see also U.S. v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir.2002) (not a "protective sweep" when police enter a home where no one is under arrest and there is not even probable cause to arrest anyone); U.S. v. Johnson, 170 F.3d 708, 716 (7th Cir.1999) (limiting "protective sweep" under Buie to sweeps conducted pursuant to an arrest for which there was a warrant.) Here, there had not been an arrest at the time the officers searched Mahsman's home. Moreover, even though the first entry into the home was justified under the exigent circumstances exception, there was no evidence that the officers had any reason to suspect that the weapons observed during that search were involved in a crime. In fact, the evidence demonstrates otherwise. The sheriff testified that the officers went back in to seize the guns out of a concern for the safety of Mahsman, the officers and the community. The sheriff knew that the gun involved in the incident at the neighbors' home had been left at the neighbors' home and he had no knowledge or information that any of the weapons in Mahsman's home were involved in any kind of crime.

The information regarding drug paraphernalia observed during the warrantless search of Mahsman's home was illegally obtained, should not have been included in the affidavit and must be disregarded.

2. Search Incident to Warrantless Arrest

Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that the suspect has committed an offense. State v. Clayton, 995 S.W.2d 468, 477 (Mo. banc 1999). Probable cause is determined by the collective knowledge of and facts available to all of the officers participating in the arrest; the arresting officer need not possess independent knowledge of all of the available information. Id. While an officer may rely on information from another officer in developing probable cause, the State must show that the officer who disseminated the information had probable cause to have made the arrest himself. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998).

The arresting officer in Marion County did not witness any independent facts giving rise to probable cause. He testified at the suppression hearing that he was advised by a Marion County reserve deputy that Mahsman was wanted in Ralls County in connection with an armed criminal action and first degree burglary. The arresting officer did not know whether the deputy was on duty, but testified that the deputy tends to listen to police scanners and pass along information. The arresting officer did not, however, receive any official dispatch from Ralls County.

The State made no attempt to show that the deputy, on whose information the arresting officer relied, had probable cause to arrest Mahsman. The State asserts that the initial source of the dispatch was the Ralls County sheriff who conducted the search of Mahsman's home and that it can be inferred that it was this dispatch on which the deputy relied in passing along information to the arresting officer. The State claims that the sheriff testified that he had alerted area law enforcement that Mahsman was wanted in connection with a burglary and described his vehicle. This is simply not true. The sheriff testified that, after searching Mahsman's home, he notified area law enforcement agencies that Mahsman may have left in a white truck and requested that the mental health coordinator be contacted to evaluate the need for a temporary commitment. There is no evidence that the sheriff notified anyone that Mahsman was wanted in connection with any crime. Nor is there any evidence that the information the sheriff...