State v. Rohrer

• Decision Date: 22 October 1979
• Docket Number: No. 11066,11066
• Citation: 589 S.W.2d 121
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gary ROHRER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 121

589 S.W.2d 121

STATE of Missouri, Plaintiff-Respondent, v. Gary ROHRER, Defendant-Appellant.

No. 11066.

Missouri Court of Appeals, Southern District, Division Two.

Oct. 22, 1979.

Motion for Rehearing and for Transfer Denied Nov. 9, 1979.

Application to Transfer Denied Dec. 6, 1979.

James Ashcroft, Atty. Gen., Michael P. Donegan, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Paul M. Storment, Jr., Storment, Stegmeyer & Paridon, Belleville, Ill., for defendant-appellant.

MAUS, Judge.

The defendant was charged in two counts with (I) possession of marijuana and (II) growing and cultivating marijuana. A jury found him guilty upon Count I and not guilty upon Count II. On appeal, defendant's sole allegation of error is that the trial court erred in not quashing a search warrant and in not suppressing evidence seized as a result of that warrant. In turn, this allegation is founded upon the assertion that the affidavits upon which the warrant was issued do not within the constitutional meaning establish "probable cause". U.S.Const. Amend. IV; Mo.Const. Art. I § 15.

In the consideration of the problems of search and seizure, by necessity, the controlling opinions express much judicial philosophy (an analysis of the grounds and concepts expressing fundamental beliefs) ¹ in balancing the rights of the individual against the interests of society. In determining the validity of the issuance of a search warrant this analysis centers upon the constitutional prerequisite of "probable cause". Such expressions have seemingly created a thicket of judicial variances difficult to penetrate to visualize the boundary lines established. Such expressions have been described as "complex analyses and obfuscatory language". Spinelli v. United States, 393 U.S. 410, 435, 89 S.Ct. 584, 598, 21 L.Ed.2d 637, 654 (1969). Nevertheless, it is the duty of law enforcement officers and courts issuing search warrants to proceed within these boundaries. It is the duty of the trial court and this court to determine that they have done so. While it is undertaken with fear and trepidation of adding to the obfuscation, a review of the cases seems necessary to the disposition of this appeal.

In substance the affidavit upon which the warrant was issued on April 8, 1977, to search the residence of Gary Rohrer was based stated: That the affiant was a deputy sheriff and major crime investigator; that on April 7, 1977, an informant stated she had recently seen a large quantity of marijuana in the attic of the defendant's residence; that the marijuana was currently in the attic; that the informant gave detailed directions on the route to the rural residence; that this informant also gave information and directions to a field of marijuana the defendant was growing; and that using these directions officers easily located the residence and the field of marijuana. The affiant further stated that it was common knowledge the defendant had for the past few years been involved in the cultivation and sale of controlled substances; that the defendant had been seen on numerous occasions associating with known drug dealers and users; and that the defendant had a reputation of being a drug dealer.

In testing and interpreting the affidavit to show probable cause we are admonished to consider the following guideline:

"(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Other principles to be observed include the following: "(O)nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590, 21 L.Ed.2d at 645. Probable cause may be established by information provided by an informant and it is not necessary that the informant be named in the affidavit. ² Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, it is when a warrant is based upon such information that the analysis to be employed in determining probable cause is most complex.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a paid informer who had previously supplied accurate information gave an officer very detailed information concerning the defendant and his anticipated transportation of heroin. In finding the officer had probable cause to arrest the defendant the court said: "And surely, with every other bit of Hereford's information being thus personally verified, Marsh had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information that Draper would have the heroin with him was likewise true". Draper v. United States, supra, 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.

In Aguilar v. Texas, supra, a search warrant was issued on the basis of an affidavit that the affiant received information from a credible person and believed the defendant possessed narcotics. The court noted the affidavit did not state that the informant spoke with personal knowledge, and the magistrate accepted "the informant's 'suspicion,' 'belief' or 'mere conclusion' ". The court then announced a standard which is referred to as the "two prong" test: "(T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.' " Aguilar v. Texas, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. ³

In Spinelli v. United States, supra, a search warrant was issued on the basis of an affidavit reciting the results of a surveillance of the defendant's activities on five days. This included trips on four days to an apartment house, on one of which when he was followed further he entered an apartment in which there were two phones. It further stated the defendant was known as a bookmaker and gambler and as an associate of bookmakers and gamblers. It concluded that a reliable informant said the defendant was conducting a bookmaking operation by those two telephones. In enunciating the standards by which the sufficiency of the affidavit was to be measured the court said:

"The informer's report must first be measured against Aguilar's standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration?" Spinelli v. United States, supra, 393 U.S. at 415, 21 L.Ed.2d at 643, 89 S.Ct. at 588.

The court then found the affidavit did not pass either prong of the Aguilar test: the affiant offered no reason in support of his conclusion the informant was reliable; and the tip did not contain a sufficient statement of the underlying circumstances from which the informant concluded the defendant was conducting a bookmaking operation. In this connection the court emphasized the fact the informant did not profess any personal knowledge.

"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.

The detail in the report in Draper was cited as a basis from which a magistrate "could reasonably infer that the informant had gained his information in a reliable way". Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589, 21 L.Ed.2d at 644. The observed activities of the defendant were found not to be of themselves indicative of criminal activity and not sufficient to support probable cause. The court declared the assertion the defendant was a known gambler could not be used to give additional weight to an otherwise insufficient affidavit. The affidavit was condemned because it "falls short of the standards set forth in Aguilar, Draper and our other decisions that give content to the notion of probable cause." Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590, 21 L.Ed.2d at 645. ⁴

United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), involved, as does this case, the report of an informant expressly relating personal observation. In part I of the opinion (in which four justices concurred) the court cited with approval Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) also involving recent personal observations. Such recent personal observation established that the informant's information had been gained in a...