State v. Trenter, WD 60591.

CourtCourt of Appeal of Missouri (US)
Citation85 S.W.3d 662
Docket NumberNo. WD 60591.,WD 60591.
PartiesSTATE of Missouri, Appellant, v. Robert TRENTER, Respondent, Penny Bennett, Respondent.
Decision Date20 August 2002

Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang, Assistant Attorney General, Jefferson City, for appellant.

Milton Eugene Harper, Columbia, Kenneth Stanley Clay, Columbia, for respondent.


Respondents are charged with possession of a controlled substance with intent to distribute, § 195.211, RSMo 2000. The State has filed an interlocutory appeal of the circuit court's order granting respondents' motion to suppress evidence. Section 547.200. The issue is the validity of a search warrant. The motion to suppress alleged that the affidavit supporting the warrant contained false information. Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if the defendant establishes beyond a preponderance of the evidence the allegation of perjury or reckless disregard for the truth, and the affidavit's content after setting the false material aside is insufficient to establish probable cause, the search warrant is declared void and the fruits of the search must be excluded. Id. at 156. State v. Bue, 985 S.W.2d 386, 393 (Mo.App.1999). We affirm because respondents established by a preponderance of the evidence that the affidavit contained knowingly false statements, the State has waived its argument that the motion to suppress was inadequate to trigger a Franks hearing, the affidavit absent the false material did not support probable cause, and the good faith exception to the exclusionary rule does not apply.


The search warrant in question was issued on April 22, 1999. The previous day, Corporal Troy Blunt of the Missouri Highway Patrol began tracking a Fed Ex package after a dog alerted on it. The package was en route to Sedalia. Highway Patrol officers intercepted the package and twice attempted a controlled delivery to the address listed on the package. After these attempts failed, the officers obtained a search warrant for the package and confirmed that it contained a blue cooler full of marijuana. Officers went to the house and spoke with Debbie Doster, who told them that the package was intended for her daughter, Sherry Bevier. Doster contacted Sherry Bevier, also known as Sherry Pauly, who came and picked up the package. Officers followed her and stopped her, placing her under arrest. Bevier agreed to complete the delivery to Robert Trenter.

On April 22, the case was turned over to Officer Sidney Conklin of the Missouri State Highway Patrol. Blunt, however, assumed responsibility for obtaining a warrant for Trenter's property in Sullivan County.1

Officers Norman and Fox accompanied Bevier to her house in Kirksville. Bevier had agreed to contact Trenter from her house and arrange to deliver the marijuana. Bevier apparently made several telephone calls, which the officers recorded. At least one of the telephone conversations purported to be with Trenter. The officers were unable to listen to the entire conversation contemporaneously, although they heard Bevier's side of it. The officers did not confirm the phone number that Bevier dialed. They relied on Bevier's representation in concluding that she was speaking with Trenter. None of the officers had worked with Bevier before, and none of them had any indication as to her reliability or veracity. Bevier told the officers that Trenter had agreed to accept delivery of the marijuana at his Route 3 property, rather than his Route 1 property.

The prosecutor applied for the search warrant based on Blunt's affidavit. In the affidavit, Blunt swore that he had probable cause to believe that various items of contraband were currently on the Route 3 property. These items included methamphetamine, controlled substances, drug paraphernalia, items associated with methamphetamine manufacturing, records associated with controlled substance distribution, weapons and firearms used to protect controlled substances, equipment used to deter law enforcement, and cash associated with sale of controlled substances. The affidavit also described the history of the Fed Ex package, the attempted controlled delivery, and Bevier's agreement to cooperate in the delivery. The affidavit then stated:

K. On April 22, 1999 Mrs. Pauly (Bevier) contacted Robert Trenter of Milan, Missouri and requested to meet him at his residence located on Rt. # (sic) Green City, Missouri. Mr. Trenter is a known trafficker of narcotics in the Sullivan County area, he has a prior federal conviction for possession of a controlled substance with the intent to distribute along with a State conviction of possession of a controlled substance. Mr. Trenter is to take delivery of the marijuana and pay Mrs. Pauly one hundred dollars for every pound of marijuana delivered to him.

L. Your affiant is applying for a(sic) anticipatory search warrant based on the information discribed (sic) above. This affiant will not serve this search warrant if Mr. Trenter does not agree to accept the package.

The warrant itself simply instructed law enforcement to search the premises and made no reference to a requirement that Trenter agree to accept the package.

Officers drove with Bevier to Trenter's Route 3 residence and waited about 600 yards away while she approached the house. Officers saw Bevier get out of her car and meet a white male who came out of a nearby shed. They saw the man carry the Fed Ex package into a garage attached to the house. Bevier went into the garage briefly, then returned to her car and drove away. Conklin testified that he passed Bevier on his way up the driveway and that she said it went "all right." Officers then approached the house and searched it. The officers entered the house through the garage. They did not knock, although they announced their presence. The search of the Route 3 residence turned up various documents, a package of marijuana from inside a grandfather clock, and approximately $10,000. During the search, respondent Bennett was seated at a table in the garage during at least part of the search. At one point she requested medication for an asthma attack. Based on Bennett's consent, officers searched the Route 1 residence and seized marijuana and paraphernalia, a case of watches, a box of knives, ammunition, and approximately 47 other weapons.

Officers Blunt, Norman, Logston, Balmer, Brown, and Conklin testified at the Franks' hearing. Judge Sayre, who issued the search warrant, was also called as a witness. Blunt testified that he did not have probable cause to believe that any contraband beyond the contents of the Fed-Ex package were located at Trenter's house. Blunt indicated that the probable cause for the rest of the contraband listed in his affidavit would come as a result of the delivery (or Trenter's agreement to accept delivery) of the Fed-Ex package. Blunt also testified that he based the Statement about Bevier's conversation with Trenter on information Conklin gave him.

Conklin testified that Fox and Norman told him that Bevier told them that she had spoken with Trenter and that he had agreed to accept delivery. He also testified that at some point, he and Blunt learned from someone that Trenter had agreed to pay $100 per pound for the marijuana.

Judge Sayre's actual testimony did not go any farther than that he had signed the search warrants. The prosecutor attempted to ask him about his reasons for signing the warrant, but the court sustained the objection to this testimony. The prosecutor made an offer of proof, and Judge Sayre explained that Blunt orally told him that Trenter had actually already agreed to accept delivery of the Fed-Ex package. He also explained that he considered the present tense language in the affidavit to be merely boilerplate. He stated that he was not confused by this language, and he did not think it actually meant that Blunt already had probable cause to believe that contraband was present.

The circuit court sustained the motion to suppress. The court made extensive findings of fact and conclusions of law.

Standard of Review

We are asked to review the trial court's granting of the motion to suppress. We review the trial court's ruling on a motion to suppress only to determine whether the evidence is sufficient to support the ruling. State v. Dowell, 25 S.W.3d 594, 604 (Mo.App.2000). The trial court's ruling on a motion to suppress will be reversed only if it is clearly erroneous. State v. Tackett, 12 S.W.3d 332, 336 (Mo. App.2000). The ruling is clearly erroneous if we are left with a definite and firm impression that a mistake has been made. State v. Leavitt, 993 S.W.2d 557, 560 (Mo. App.1999). We must view the facts and any reasonable inferences arising therefrom in a light most favorable to the ruling. State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997).

One of the State's claims is that the trial court erred in granting the motion because the warrant was supported by probable cause. The State asserts that our review of the probable cause determination is de novo pursuant to Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). This is incorrect. Ornelas involved a police officer's determination of probable cause. Id. at 691, 116 S.Ct. 1657. The stated holding of Ornelas is that "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Id. at 699, 116 S.Ct. 1657. The court's explanation of why this is so makes it clear that the de novo standard does not apply to a magistrate's determination of probable cause:

The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the `great...

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    ...allegedly false statements in a search warrant were not made intentionally or with reckless disregard for the truth. State v. Trenter, 85 S.W.3d 662, 666 (Mo.App.2002). The state bears the burden of showing by a preponderance of the evidence that a motion to suppress should be denied. State......
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