State v. Robinson

• Decision Date: 17 February 2015
• Docket Number: WD 77664
• Citation: 454 S.W.3d 428
• Parties: State of Missouri, Appellant, v. Gregory Robinson, Sr., Respondent.
• Court: Missouri Court of Appeals

454 S.W.3d 428

State of Missouri, Appellant

v.Gregory Robinson, Sr., Respondent.

WD 77664

Missouri Court of Appeals, Western District.

OPINION FILED: February 17, 2015

Adam Stephen Rowley, Jefferson City, MO, for appellant.

Clark L. Jones, Columbia, MO, for respondent.

Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and Zel M. Fischer, Special Judge

Opinion

Gary D. Witt, Judge

The State brings this interlocutory appeal, challenging the trial court's grant of Gregory Robinson, Sr.'s (“Robinson”) motion to suppress physical evidence relating to manufacturing drugs and maintaining a public nuisance. The State argues that the trial court erred in determining that the affidavit offered in support of the search warrant for Robinson's home failed to demonstrate probable cause, and that regardless, the good-faith exception to the exclusionary rule applies because the officers acted in good faith in executing the search warrant. We agree with the trial court¹ that the affidavit offered in support of the search warrant did not demonstrate probable cause. However, because we agree with the State that the good-faith exception to the exclusionary rule applies, we reverse.

FACTUAL AND PROCEDURAL HISTORY

The facts are not in dispute. Following a search pursuant to a warrant of his home in Randolph County, Robinson was charged by information with two counts: the Class A felony of manufacturing/producing or attempting to manufacture/produce more than five grams of marijuana in a residence with a child or within two thousand feet of a school, college, or school bus, in violation of Section 195.211,² and the Class C felony of keeping or maintaining a public nuisance in violation of Section 195.130. Robinson filed a motion to suppress, alleging that the affidavit offered in support of the search warrant was insufficient to establish probable cause.

On August 1, 2013, the issuing judge signed the warrant to search Robinson's home at 518 Porter Street in Moberly. The affidavit, sworn to by Sgt. Mark Arnsperger (“Sgt. Arnsperger”)³ was part of a warrant application dated July 31, 2013. The affidavit included a detailed description of Robinson's residence and stated in pertinent part:

On July 27, 2013 I was contacted by a Reliable confidential source, who stated sales of illegal drugs, were occurring at 518 Porter St. The source had specific detailed information Gregory Robinson aka: Skud was still selling crack cocaine and is now doing it from his residence at 518 Porter St. The source said Robinson is no longer dealing crack cocaine from the “Sugar shack” on West End or the yellow house across the street from the “Sugar shack”. The yellow house the source referring to is, 1014 W End which was owned by Gregory Robinson, but now has been transferred to Greg Robinson Jr's name.

On November 8, 2012 Det Tim Rowe served a narcotics search warrant at Gregory Robinson's house at 1014 W End after receiving information Gregory Robinson and Donamitris Robinson were selling crack cocaine from the residence.

Officers arrived at approximately 0630hrs that morning and found crack cocaine in the residence but Gregory Robinson was gone. Gregory Robinson was not located and was never questioned about this incident, and thus he was never charged. Det Rowe said the house was clearly set up as a “drug house”. There was little furniture in the residence and there was large pit bull tied up out front.

A check of Gregory Robinson criminal history shows in May 1999, Gregory Robinson pled guilty to 2 counts of Distribution of a Controlled Substance near a School and he received a 10 year sentence. Then in August 2007, Gregory Robinson pled guilty again to Distribution of a Controlled Substance, for a total of 3 counts and received a 15 year sentence.

I contacted the Moberly Water Office and confirmed the water service at 518 Porter St. is in the name of Gregory Robinson.

I also noted prior to me getting this information, I would note while on routine patrol the last two months, the lack of activity at the 1014 W End and at the “Sugar Shack”. The “Sugar Shack” is a nick name for small garage located at 1015 W End Pl and is currently owned by Greg Robinson Jr; the son of Gregory Robinson.

The “Sugar Shack” has a long history of place where people (mostly with criminal histories) would get together and gamble and also sell illegal drugs from the garage. In July 2006, Det David Johnson and I went to the “Sugar Shack” and served a search warrant and arrested Alex Cason and Richard Payne for Possession of Controlled Substance (Crack Cocaine) was found, along with illegal gambling machines.

On July 30, 2013 Det Rowe observed a Red in Color Mercury Mountaineer parked at 518 Porter Street. The Missouri License number was SD5B2U, which checks to Dorthy Seiler of 611 Cleveland. A check of Department records revealed, we received a call on June 24, 2013 from Dorthy Seiler and her boyfriend, Maurice Antonio Jackson. Jackson thought his vehicle might have been shot and he also mentioned he has problems with Princess Midgyett.⁴

A check of Maurice Jackson's criminal history revealed he has prior convictions for drug sales. September 2005, Jackson pled guilty to Felony Possession of Controlled Substance and received a 15 year sentence. In September 2006, Jackson pled guilty to Distribution of a Controlled Substance and received another 15 year sentence. In December 2008, Jackson pled guilty to Distribution of a Controlled Substance and Distribution of a Controlled Substance near Government Housing. A check of Probation and Parole records shows Maurice Jackson is currently on Field Supervision by Officer Andrew Morris and is residing at 611 Cleveland, Moberly MO.

On July 30, 2013 I was contacted by Det David Johnson with the North Missouri Drug Task Force. Det Johnson stated he had reliable confidential source that saw an “8 ball” of Crack Cocaine and large amount of cash at 518 Porter St. in the last 30 days.

As an experienced and trained investigator I have reason to believe, based upon my investigation the crimes(s) Distribution of a Controlled Substance, RSMo statutes 195.211 and Possession of a Controlled Substance, RSMo statute 195.202 Maintaining a Public Nuisance RSMO 195.130 have been committed and that evidence of such criminal activity is Currently contained within the above-described property currently in the possession of Gregory Robinson Sr. In light of concerns described above, this Affiant requests permission to use whatever data analysis techniques appear necessary to locate and retrieve data that may be contained within cellular phones described herein, including password-defeating tools and techniques.

Additionally, in light of concerns described, this Affiant requests permission to have any storage devices and/or computer-related evidence transported out-of-county as necessary in the process of conducting analysis on said evidence, to involve the use of non-sworn personnel in activities related to the acquisition and analysis of said evidence, and to conduct analysis of said evidence beyond the deadline date for the filing of a return of any search warrant issued based upon this application.

The search of Robinson's residence was executed on August 2, 2013, the day after the warrant was filed. A “Return and Inventory” signed by Sgt. Arnsperger stated that he found, inter alia, what was believed to be cocaine and crack cocaine and more than $2,000 in cash.⁵

Prior to trial, Robinson filed a motion to suppress all evidence seized from his home. In that motion, he took issue with the statements of the two confidential sources. He argued that the statements should have fallen outside of the issuing judge's determination of probable cause because the affidavit failed to meet the fundamental requirements to credit the statements of the confidential sources under Missouri law. Specifically, Robinson argued that the information provided by the confidential sources was unreliable because the affidavit did not include a specific time and place in which the sources observed the drug trafficking, because the sources did not specifically state that they personally observed Robinson possessing the drugs, because there was no statement regarding the qualifications of the sources, and because the information was stale by the time the officer applied for a search warrant. Robinson further argued that once the statements were removed from the determination, the remaining information in the affidavit failed to provide the required probable cause for the issuing of the warrant. Robinson also contended that the good-faith exception to the exclusionary rule should not be applied because the affidavit was so lacking in probable cause that the good-faith exception should not salvage the search and would frustrate the purpose of the exclusionary rule.

Without conducting an evidentiary hearing, the trial court sustained the motion. In its judgment, the trial court noted that the affidavit stated that Sgt. Arnsperger had reason to believe that the two crimes had been committed and that evidence of such criminal activity is “[c]urrently contained within the above-described property currently in the possession of Gregory Robinson Sr.” The trial court found, however, that the affidavit failed to provide probable cause because “it does not set forth facts to believe that the evidence sought would be found in [Robinson's] home at the time the search warrant was issued” in violation of Robinson's constitutional rights.

The trial court stated that the information from the two sources contains “no specific time, or time frame, when the alleged illegal activity or contraband was observed”; “no facts that the informant personally observed [Robinson] in possession of contraband or personally observed seeing contraband” at the Porter Street residence; and “no qualification” of the confidants' reliability. The trial court additionally found that the information was “stale” as to...