State v. Norman

• Decision Date: 25 March 2004
• Docket Number: No. 25891.,25891.
• Citation: 133 S.W.3d 151
• Parties: STATE of Missouri, Plaintiff-Appellant, v. Gregory A. NORMAN, Defendant-Respondent.
• Court: Missouri Court of Appeals

133 S.W.3d 151

STATE of Missouri, Plaintiff-Appellant, v. Gregory A. NORMAN, Defendant-Respondent.

No. 25891.

Missouri Court of Appeals, Southern District, Division One.

March 25, 2004.

Petition for Rehearing and Transfer Denied April 16, 2004.

Application for Transfer Denied May 25, 2004.

John M. Morris, Special Assistant Prosecuting Attorney, Greene County, for Appellant.

Donald R. Cooley, Springfield, for Respondent.

JAMES K. PREWITT, Judge.

The State of Missouri files this interlocutory appeal, pursuant to § 547.200.1, RSMo 2000, following the trial court's grant of Gregory Norman's (Defendant's) motion to suppress evidence seized in connection with the execution of a search warrant on his home in Christian County, Missouri. The trial court found that the affidavit used in support of the search warrant failed to establish probable cause for the search. The State argues that the trial court erred in granting Defendant's motion to suppress because the search warrant was supported by probable cause. Further, according to the State, even if the allegations stated in the affidavit failed to establish probable cause, suppression of the evidence was precluded by the good faith exception outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Facts

On December 18, 2001, officers and emergency personnel were called to a residence in Springfield, Missouri. Richard Norman, brother of Defendant, died at the scene. Mr. Norman had an apparent bullet wound to the chest.

On December 19, 2001, Corporal Richard Counts of the Springfield Police Department presented an affidavit in support of a search warrant for Defendant's residence to a judge in Christian County. That judge signed and issued the search warrant on that same date at 12:10 a.m. Various items were seized from the property, pursuant to the search warrant.

Defendant was charged by information on January 23, 2003, with murder in the first degree, in violation of § 565.020, RSMo 2000. On September 8, 2003, Defendant filed a motion to suppress the evidence that was seized when the search warrant was executed. As it relates to the issues in this appeal, Defendant argued in his motion to suppress that the supporting affidavit "reveals a lack of factual information to establish probable cause to believe the described evidence of a crime to be at the location to be searched."

A hearing was held on Defendant's motion to suppress on September 18, 2003. Following that hearing, but on the same day, the State filed a motion to reopen evidence and argument on Defendant's motion to suppress. Within its motion, the State contended that, at the hearing, it "was precluded from offering testimony or argument on the issue of `good faith' of the officer in applying for and relying upon the warrant." Therefore, the State requested that the court reopen the hearing to allow further testimony and legal argument on the issue. The State filed suggestions in opposition to Defendant's motion to suppress on September 22, 2003.

The court held a hearing on the State's motion to reopen the evidence and argument on September 30, 2003. The State specified that it was prepared to argue its motion to reopen, but not to put on any evidence, unless the court ruled "that we're going to reopen [the hearing]."

The State and defense counsel made their arguments in favor of, or opposition to, the motion to reopen, after which the court indicated:

Well, you know, first, I think I have to decide whether or not to sustain [defense counsel's] motion to suppress or,... the search warrant. And to me that is inside the four corners of the document.

Now, as to whether you [the State] can get it in, if in theory I do sustain that motion and find that the warrant was not properly issued, and you then try to find some other way to get that evidence in, good faith, or however you want to do it.

I'm—I'm trying to follow exactly—you know, the only reason we're having this discussion is we all know this is a very, very, very close issue on whether this warrant should have been issued.

Near the end of the hearing, the court noted:

Now, if I do rule that the warrant should not have been issued, then I will give you [the State] a chance to then have another hearing to try to say that there is a way to get that evidence in. Obviously, ... I'm not going to cut you off on that issue at all, okay.

The State replied, "That's fine, Judge."

On October 14, 2003, the judge signed an order entitled "Overview of the Fourth Amendment," in which the court sustained Defendant's motion to suppress the evidence seized pursuant to the search warrant because the affidavit did not establish probable cause for the search. According to the court, "[t]he problem with the affidavit in this case is there is not a single fact that shows [Defendant] may have been involved with this crime." Although signed on October 14, 2003, and denoted in the docket as entered on that date, the document itself is marked as filed on October 16, 2003.

On October 15, 2003, a hearing was held on an unrelated motion, Defendant's motion to reduce bond. After hearing arguments on that motion, the court asked the State if it wanted to present evidence on the issue of the good faith exception associated with the search warrant, as the State had indicated in the earlier hearing on its motion to reopen that it "wanted to be able to present evidence if we got to that issue." The State noted that it would "not seek a further hearing on that issue[,].... [b]ut [would] ... pursue the appeal on the [c]ourt's ruling on the motion." After additional discussion, the State reiterated that it would "forgo that hearing, and pursue both issues [probable cause and good faith exception] in the Court of Appeals."

Defense counsel questioned whether the State intended to argue on appeal that it was precluded from raising the good faith issue or whether it was "waiving the presentation of that issue[.]" The judge responded, "I would be very surprised if I hear that the brief contained facts that the judge denied them the—the right to file— or to produce additional evidence, especially after we talked about it with [the assistant prosecutor] and today when I said I'm willing to give the State that hearing." The State indicated that it would not argue on appeal that the court precluded it.

Discussion

The State raises one point, in which it argues that the trial court erred in granting Defendant's motion to suppress. The State bases its argument on two contentions. First, is that the supporting affidavit established probable cause. Second, even if the affidavit failed to establish probable cause, the State contends that suppression of the evidence was proscribed by the good faith exception recognized in United States v. Leon, supra, because "the affidavit was not `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Within the argument portion of its brief, the State asserts that it raised the good faith issue in response to Defendant's motion to suppress and that the trial "court promised that it would grant the state a hearing on this question if it found that the warrant application did not state probable cause ..., but it failed to do so[.]"

Standard of Review

The State points to a possible discrepancy in the standards of review applied to similar cases by the Missouri Supreme Court and the three districts of the Missouri Court of Appeals. To clarify the appropriate standard of review, as recognized by the Southern District of this Court, a discussion of the standards of review utilized in cases involving both searches executed pursuant to a warrant and warrantless searches is necessary.

In State v. Berry, 801 S.W.2d 64 (Mo. banc 1990), the Missouri Supreme Court outlined the appropriate standard of review in a case in which there was an initial determination that probable cause existed to issue a search warrant, and a trial court ruled on a defendant's motion to suppress the evidence seized pursuant to the execution of that search warrant. Id. at 65-66. In Berry, the trial court initially overruled the defendants' separate motions to suppress, finding that, although probable cause was not established, the law enforcement officers who executed the warrant "acted in good faith reliance on the warrant." Id. at 65. The case proceeded to trial and the defendants were convicted; however, in response to the defendants' motions for new trial, the trial court reconsidered its earlier ruling on the motions to suppress and determined that probable cause had not been established, and also that the good faith exception did not apply. Id.

On appeal, the Missouri Supreme Court indicated that although the meaning of probable cause was a legal issue, the existence of it in a particular case was a question of fact; thus, appellate review of whether probable cause existed was not de novo. Id. at 66. The Supreme Court stated that great deference should be given to the initial judicial determination of probable cause made at the time of the issuance of the warrant, and only if that determination was clearly erroneous, would the Court reverse. Id. Further, the neutral magistrate was to determine probable cause based on the totality of the circumstances, and make a "practical, commonsense decision whether ... there is a fair probability that contraband or evidence of a crime will be found." Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).¹

The Missouri Supreme Court determined that, given the totality of the circumstances, a neutral and detached magistrate could have made a practical commonsense decision that a fair probability existed that evidence of a crime would be found at the location. Berry, 801 S.W.2d at 67. Therefore, according to the Court, the trial court erred in sustaining the defendants' motions to suppress. Id. Nowhere in the...