State v. Ricketts

• Decision Date: 15 December 1998
• Docket Number: No. WD,WD
• Citation: 981 S.W.2d 657
• Parties: STATE of Missouri, Respondent, v. George RICKETTS, Appellant. 55268.
• Court: Missouri Court of Appeals

Page 657

981 S.W.2d 657

STATE of Missouri, Respondent, v. George RICKETTS, Appellant.

No. WD 55268.

Missouri Court of Appeals Western District.

Dec. 15, 1998.

Bruce W. Simon, Kansas City, MO for appellant.

John M. Morris, Asst. Attorney General, Jefferson City, MO for respondent.

Before RIEDERER, P.J., LOWENSTEIN and LAURA DENVIR STITH, JJ.

RIEDERER, Judge.

George Ricketts appeals from his conviction, in a bench-tried case, for possession of a controlled substance. Appellant claims that the trial court erred in allowing several exhibits to be admitted into evidence, which were allegedly the product of an unlawfully executed search and seizure. Because we find that under the circumstances of this case, the forced entry was unreasonable under the Fourth Amendment, we reverse.

Facts

Appellant was charged by information with count one, sale of a controlled substance, in violation of § 195.211 ¹, and count two, possession of a controlled substance with intent to sell, also in violation of § 195.211. The State dismissed count one, with prejudice, to protect the identity of its confidential informant.

On approximately April 6, 1996, the police obtained information from a confidential informant, that a man by the name of George, with the last name of Rickins or Riggins, was involved in the sale of large amounts of marijuana. Upon receiving this information, the police set up a narcotics purchase with the confidential informant. After the purchase, the police field tested the substance in the white plastic bag and determined it to be marijuana. Based upon this purchase and the field test, the police applied for and received a search warrant for 11711 Belmont.

On April 19, 1996, at approximately 7:00 a.m., the police executed the search warrant for 11711 Belmont. Six or seven police officers congregated on the front porch of the residence. The police did not knock on the door, but an unidentified police officer or officers, stated, "Police, search warrant." After a matter of seconds, the police forced open the front door and entered the premises. The police found Appellant, his wife, and an unidentified individual inside the house. The police recovered a loaded Taurus .38 caliber revolver, a loaded 9 millimeter pistol, a Norinco 7.62 assault rifle and 30 rounds of ammunition in a magazine, a Cobray 9 millimeter M111 assault rifle and 11 rounds of ammunition in a magazine, a Marlin .22 caliber rifle, approximately 500 grams of marijuana, approximately $23,000 in U.S. currency, an electronic scale, Appellant's 1040 U.S. tax returns forms, three boxes of Ziploc storage bags, and a triple beam scale.

On February 26, 1997, Appellant filed a motion pursuant to § 542.296 to suppress the evidence seized from 11711 Belmont, claiming inter alia that "the search warrant was illegally executed by the officers", and that the search and seizure was conducted in derogation of "the Defendant's rights pursuant to Section 15, Article I of the Constitution of the State of Missouri and the Fourth and Fourteenth Amendments to the Constitution of the United States." At the hearing on May 9, 1997, concerning Appellant's motion to suppress, Appellant claimed that Respondent had not introduced any evidence of compliance with the requirements of execution, pursuant to Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995). A conference between counsel and the trial judge clarified that the issue was whether the search violated the Fourth Amendment "knock and announce" requirements under Wilson and Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The trial court allowed the State to reopen evidence, over the objection of Appellant, to adduce evidence related to the execution of the search warrant. The court subsequently issued an order overruling Appellant's motion to suppress. The trial was held on September 3, 1997. During the trial, Appellant objected to the admission of the evidence seized under the warrant based on the Missouri Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. Appellant was found guilty of possession of a controlled substance with intent to sell. The court sentenced Appellant to fifteen years imprisonment, suspended the execution of sentence, and placed Appellant on probation for three years. This appeal ensued.

Standard of Review

Section 542.296.5(4) provides that a motion to suppress may be based on the grounds that the warrant was illegally executed. "In a hearing to suppress evidence as having been obtained through an unlawful search and seizure, the State has the burden of showing that the motion should be denied. § 542.296.6, RSMo 1994." State v. Hernandez, 954 S.W.2d 639, 642 (Mo.App.1997). Thus, in this case, the State had the burden to show that the motion should be denied. In our review of the trial court's ruling on a motion to suppress, this court is limited to determining whether there is sufficient evidence to sustain the trial court's finding. State v. Roberts, 957 S.W.2d 449, 452 (Mo.App.1997). We review under an abuse of discretion standard. Id. We will reverse only if the trial court's judgment is found to be clearly erroneous. Id. Although we review the facts under a clearly erroneous standard, the issue of whether the Fourth Amendment has been violated is a question of law, State v. Slavin, 944 S.W.2d 314, 317 (Mo.App.1997), and we review questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).

Knock and Announce

Appellant claims in his sole point on appeal that the trial court erred in admitting evidence seized at 11711 Belmont because it was the product of an unlawfully executed search and seizure. Specifically, Appellant contends that the police failed to properly follow the "knock and announce" procedure required by Article I, § 15 of the Missouri Constitution and the Fourth Amendment to the United States Constitution when executing a search warrant at a dwelling.

"The Fourth Amendment provides the same guarantees against unreasonable search and seizures as article I, section 15 of the Missouri Constitution." State v. Damask 936 S.W.2d 565, 570 (Mo. banc 1996). Therefore, any analysis of search and seizure questions under the Fourth Amendment is identical to search and seizure questions arising under Missouri law. Id.

The Fourth Amendment to the Constitution declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "Knock and announce" analysis has become a part of Fourth Amendment jurisprudence. In Wilson v. Arkansas, 115 S.Ct. at 1915, Justice Thomas, writing for a unanimous Court, held that the common law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment. Even with a search warrant, the method of entry into a residence may render the subsequent search and seizure violative of the Fourth Amendment. Id. In some circumstances, an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment. Id. There is no rigid rule requiring announcement in every case, for that would ignore legitimate countervailing law enforcement interests. Id. at 1918. Rather, unannounced entry may be justified when, for example, there is a threat of violence or where the police have reason to believe that evidence would likely be destroyed. Id. at 1919. The Supreme Court, thus "leave[s] to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. Id."

In Richards, 117 S.Ct. at 1418, Justice Stevens, writing for a unanimous Court, clarified Wilson, noting that "the Fourth Amendment incorporates the common law requirement that police officers must knock on the door and announce their identity and purpose before attempting forcible entry." Id. In each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement. Id. at 1421. "In order to justify a 'no knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would [allow] the destruction of evidence." Id. This standard, as opposed to a probable cause requirement, strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Id. at 1421-22. "This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Id.

In U.S. v. Ramirez, 523 U.S. 65, ----, 118 S.Ct. 992, 996, 140 L.Ed.2d 191 (1998), Chief Justice Rehnquist, writing for a unanimous Court, confirmed that a no-knock entry "is justified if the police have a 'reasonable suspicion' that knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation," and that lower court must shoulder the task of determining the circumstances under which the police may dispense with knocking and announcing.

A No-Knock Entry

Therefore, in the case before us, the trial court had the task of determining whether, under the circumstances of this particular entry, if the police were justified in dispensing with the requirement that they, "knock on the door and announce their identity and purpose before attempting forcible entry." Richards, 117 S.Ct. at 1418.

The issue was put before the trial court when Appellant filed his motion to suppress the evidence seized...