State v. Miller

• Decision Date: 09 July 1991
• Docket Number: 58572,Nos. 58571,s. 58571
• Citation: 815 S.W.2d 28
• Parties: STATE of Missouri, Respondent, v. Birdine M. MILLER, Stephen W. Miller, Appellants.
• Court: Missouri Court of Appeals

Page 28

815 S.W.2d 28

STATE of Missouri, Respondent, v. Birdine M. MILLER, Stephen W. Miller, Appellants.

Nos. 58571, 58572.

Missouri Court of Appeals,

Eastern District,

Northern Division.

July 9, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 21, 1991.

Application to Transfer Denied Oct. 16, 1991.

Dan Viets, Columbia, for appellants.

Craig V. Evans, Pros. Atty., Monroe County, Paris, for respondent.

AHRENS, Judge.

Appellants Stephen and Birdine Miller were charged by information with misdemeanor possession of marihuana in violation of § 195.202 RSMo (Supp.1989). The evidence supporting the charges was obtained pursuant to a search of appellants' home. At trial, appellants moved to quash the search warrant and suppress the evidence obtained through its execution. The trial court denied the motion after a hearing and convicted appellants after presentation of evidence, ordering each to pay a fine of $150.00 plus court costs. We affirm.

The search warrant in question was issued on November 8, 1989, based upon affidavits executed by Corporals Greg Kindle and Joe Swearengen of the Missouri State Highway Patrol. The affidavits upon which the warrant was issued were almost identical. We attach and incorporate Corporal Kindle's affidavit as Appendix A of this opinion.

On November 2, 1989, the affiants learned from the United States Drug Enforcement Administration (DEA) that Mr. Miller had in February, March, and June of that year received shipments from two companies that sell indoor hydroponic growing equipment, namely, Worms Way and Hamilton Technology Corporation. The DEA had obtained this information Corporals Kindle and Swearengen on November 7, 1989, drove to appellants' residence and confirmed the address, observing two vehicles later confirmed as registered to either or both appellants. The officers further observed "two or more outbuildings" in addition to the house, with electrical lines connected to one of them. The officers' inquiry to the local utility company revealed that Mr. Miller had been a customer at that location for at least three years, and that "an unusually large wattage" of electricity had been metered to Mr. Miller since February, 1989. At the hearing on appellants' motion, Corporal Kindle testified that appellants' electrical usage was more than twice the average usage of the area in which appellants resided. Further, the officers' surveillance of appellants' residence on November 7, 1989, did not indicate the presence of any grain-drying equipment or other large machinery that might use an increased amount of electricity. During the surveillance, the officers observed two large dogs and a "beware of dog" sign; the officers knew indoor marihuana growers to often use dogs as warning devices and deterrents to trespassers and law enforcement officers.

pursuant to a subpoena served on all companies advertising in High Times, a periodical that the affidavits allege specializes in marihuana growing products and technology.

The officers in their affidavits asserted that Mr. Miller had two felony convictions from 1975. At the hearing on appellants' motion, Corporal Kindle testified that he had checked the computerized conviction records, which listed "first degree tampering" and "leaving the scene of an accident"; the results of this check were the basis for Corporal Kindle's affidavit assertions as to Mr. Miller's convictions. The disposition of both convictions showed "jail in lieu of bond." Corporals Kindle and Swearengen further asserted in their affidavits that the use of information from the DEA identifying persons who placed orders with companies such as Worms Way and Hamilton Technology Corporation had resulted in the discovery of indoor marihuana cultivation in thirty-one of thirty-three similar cases in Missouri.

The trial court issued the search warrant on November 8, 1989, and the warrant was executed the same day. Officers confiscated numerous items of growing equipment, plant material, and smoking pipes. The plant material and pipes were later tested, and some were found to be or contain marihuana, or chemical derivatives of marihuana. The confiscated items were used as evidence against appellants at trial, resulting in appellants' convictions.

As a preliminary matter, we are constrained to note that the statement of facts in appellants' brief is argumentative and, as such, not in compliance with Rule 84.04(c). The issues presented are important, however, so we decline to dismiss the appeal. See Reorg. School Dist. No. 7 Lafayette County v. Douthit, 799 S.W.2d 591, 593 (Mo. banc 1990).

In their first subpoint, appellants attack the search warrant on the grounds that the allegations of the affidavits do not establish probable cause to believe any crime had been committed or any contraband would be found in their home. As noted earlier, the affidavits allege: (1) appellants purchased indoor gardening equipment from companies that advertised in High Times magazine; (2) appellants' electrical usage was unusually high; (3) appellants owned large dogs; (4) appellant Stephen Miller had two felony convictions; and (5) the use of the same DEA information in other searches had resulted in the discovery of indoor marihuana growing operations in a very large percentage of similar cases in Missouri.

It is fundamental that no warrant shall issue but upon probable cause. U.S. Const. amend. IV; Mo. Const. art. I, § 15; § 542.276.10(3) RSMo (Supp.1990). In arguing that no probable cause supported the search warrant at issue here, appellants single out each allegation of the affidavits and assert that none indicates criminal behavior. In so doing, however, appellants ignore the basic test of probable cause. Probable cause is to be determined in each [t]he task of the issuing magistrate is simply to make a practical, commonsense 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.

case by looking at the totality of the circumstances surrounding the warrant. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). In determining whether sufficient probable cause exists,

Id. We give great deference to the issuing judge's determination of probable cause, State v. Holland, 781 S.W.2d 808, 812 (Mo.App.1989), and we will reverse only upon a showing of abuse of discretion and clear error. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990).

In addressing appellants' claims, we look to the Western District's opinion in State v. Shuck, 800 S.W.2d 49 (Mo.App.1990), which is almost directly on point. In Shuck, the affidavit contained allegations virtually identical to those at issue in this case, except that in Shuck the affidavit made reference to blankets hung horizontally over the windows of the appellant's residence rather than to her prior convictions and ownership of dogs. Id. at 49-50. Viewing the affidavit as directed by Gates, the court in Shuck found the affidavit sufficient to support the issuing judge's determination of probable cause. Id. at 51. We are not persuaded by appellants' assertions that Shuck was incorrectly decided or is distinguishable on its facts.

We find no abuse of discretion on the facts before us. As noted earlier, the main thrust of appellants' argument asserts that none of the five allegations of the affidavits indicates criminal activity. The affidavits are not to be taken point by point to establish the sufficiency of probable cause. State v. Bible, 750 S.W.2d 676, 680 (Mo.App.1988). We find no clear error in the trial court's determination that, viewing the affidavits as a whole under the totality of the circumstances, sufficient probable cause existed to support the warrant. If the trial court's ruling is plausible in light of the record viewed in its entirety, this court "may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc. 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985)). Viewing the affidavits in a commonsense rather than hypertechnical manner, we find them sufficient to have given the judge issuing the warrant a substantial basis to conclude a search would uncover evidence of wrongdoing. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547.

Appellants' argument that there are equally plausible, noncriminal explanations for appellants' purchase of gardening equipment, high utility usage, and ownership of dogs mischaracterizes the State's burden of proof in obtaining a search warrant. The State need not prove that marihuana was in fact being grown in appellants' home. Only the probability of criminal activity, not a prima facie showing, is the standard of probable cause. Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546 (citing Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645 (1969)).

Appellants further assert that the affidavits' reference to the successful use in other cases of the same DEA information used in this case is an attempt to justify the search of appellants' home through the results of previous searches. We disagree. Appellants are correct in arguing that probable cause must exist within the four corners of the affidavits supporting the warrant. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990). However, we view the reference to the previous searches as serving the legitimate purpose of...