State v. Turner

• Decision Date: 06 October 2015
• Docket Number: No. ED 101647,ED 101647
• Citation: 471 S.W.3d 405
• Parties: State of Missouri, Respondent, v. Shon Turner, Appellant.
• Court: Missouri Court of Appeals

471 S.W.3d 405

State of Missouri, Respondent,

v.Shon Turner, Appellant.

No. ED 101647

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

FILED: October 6, 2015

Kevin B. Gau, 1010 Market St., Suite 1100, St. Louis, MO 63101, for Appellant.

Chris Koster, Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO 65102, for Respondent.

KURT S. ODENWALD, Judge

Introduction

Appellant Shon Turner (“Turner”) appeals from the judgment of the trial court entered following a jury verdict. The jury found Turner guilty on two counts: unlawful possession of a firearm and possession of drug paraphernalia. Before trial, Turner filed a motion to suppress all evidence obtained during the execution of a search warrant on his residence. Turner argues that the trial court erred in denying his motion to suppress for two reasons. First, Turner contends the trial court erred in denying his request for a Frankshearing because Turner made a substantial preliminary showing that police intended to make, or recklessly disregarded the possibility of making, material omissions in the affidavit supporting the search warrant application. Second, even without a Frankshearing, Turner contends the trial court erred in denying his motion to suppress because the information contained within the affidavit does not support a finding of probable cause. Because the trial court did not abuse its discretion in denying a Frankshearing, and because the judge who issued the search warrant had a substantial basis to find probable cause, the judgment of the trial court is affirmed.

Factual and Procedural History

Turner was convicted after a jury trial on two counts: unlawful possession of a firearm (Count I) and possession of drug paraphernalia (Count II). The charges stemmed from a search warrant that police executed on 2855 Utah in the City of St. Louis. Turner filed a pretrial motion to suppress the evidence obtained during the search alleging that the evidence was the fruit of an illegal search under both the United States Constitution and the Missouri Constitution.

I. The Affidavit in Support of the Search Warrant Application

In August 2013, Detective Jason Collins (“Detective Collins”) was investigating Turner and his home at 2855 Utah. Detective Collins believed Turner was selling drugs out of the house. On August 15, 2013, Detective Collins applied for a search warrant for 2855 Utah from Judge Thomas Clark. The affidavit accompanying the warrant application detailed the facts of Detective Collins's investigation.

The affidavit explained Detective Collins's interaction with another detective on the force, Detective Andrei Nikolov (“Detective Nikolov”). Detective Nikolov advised Detective Collins that he had a confidential informant (“CI”). Detective Nikolov had “conducted” a buy/walk operation¹“utilizing [that CI], wherein a quantity of heroin was purchased from ‘ST,’ who was later identified as Shon Turner.” This buy/walk operation took place at 2855 Utah.

The affidavit also explained computer searches Detective Collins conducted regarding Turner and 2855 Utah. The utility bill for 2855 Utah revealed active service for an “M. Turner.”²A computer inquiry of the name “ST” and “Shon Turner” revealed a photo of Turner, “AKA ‘ST.’ ” Detective Collins included a photograph of 2855 Utah. A computer search returned Turner's Social Security Number and a date of birth. Detective Collins also found Turner's history of criminal arrests, which included weapons-and drug-related arrests, and “numerous felony convictions.”

On August 7, 2013, Detective Collins met a different CI and showed that CI a photograph of Turner. The CI positively identified the individual as “Shon Turner, AKA ‘ST,’ the person selling heroin at 2855 Utah.” The CI had been purchasing heroin from Turner at 2855 Utah for approximately two months. The CI stated that the heroin was in Turner's “bedroom and various other locations throughout the residence.” The CI also observed a weapon inside the residence, which the CI described as a semi-automatic handgun. The CI explained that Turner used the weapon to protect illegal narcotics and the proceeds from the sale of those narcotics. The CI outlined the procedure for Turner's narcotics sales: transactions at 2855 Utah took place at the front door or in the living room of the residence. The CI also explained that Turner sometimes delivered the heroin to customers in the neighborhood.

In the affidavit, Detective Collins described the surveillance he conducted to corroborate the CI's information. On August 13 and 14, 2013, Detective Collins and his partner surveilled 2855 Utah. The first night, the officers did not observe any foot or vehicle traffic coming to or from the home. The second night, the detectives observed Turner exit 2855 Utah and stand on the front steps of the residence. The affidavit explained:

After approximately two minutes, a tan four door vehicle occupied by a black male drove west on Utah and stopped in the middle of the street in front of 2855 Utah. [My partner] and I observed Shon Turner walk down the steps, approach the passenger side of the tan vehicle and conduct what we believed to be a hand to hand transaction for illegal narcotics. After the hand to hand transaction, Shon Turner cautiously looked around as if he were attempting to detect law enforcement, and then ran back inside of 2855 Utah.

Finally, the affidavit detailed an interaction with a CI that occurred within twenty-four hours before the warrant application:

[T]he confidential informant contacted me by phone and advised me that he/she was inside of 2855 Utah with Shon Turner and observed him to be in possession of a quantity of heroin, which was packaged for sale. The confidential informant also observed Shon Turner in possession of the handgun.

Based on this information, Judge Clark signed a search warrant for 2855 Utah on August 15, 2013.

II. Execution of the Search Warrant

Detective Collins executed the search warrant with the help of other officers and a SWAT team. Detective Collins and his partner were positioned behind 2855 Utah as the SWAT team entered the building from the front. Detective Collins observed “a black male with a short afro with no shirt toss a dark object out of the window.” Detective Collins recognized the man as Turner, and the dark object turned out to be a gun. Officers also found a syringe near the gun.

Inside, officers found Turner alone. In Turner's bedroom, officers found digital scales, a razor, a box of sandwich bags, and a plate holding prescription pills and hypodermic needles. Testing of a digital scale revealed trace amounts of heroin and cocaine. In the basement, officers found .40 caliber ammunition that matched the .40 caliber gun found in the yard.

III. Procedural History

The State charged Turner with felony unlawful possession of a firearm, under Section 571.070,³and misdemeanor possession of drug paraphernalia with intent to use, under Section 195.233. Before trial, Turner filed a motion to suppress all evidence obtained from the execution of the search warrant. Turner also requested a Franks⁴hearing on the basis that Detective Collins's affidavit misrepresented three major factual statements to Judge Clark. Turner, as required when requesting a Frankshearing, submitted an offer of proof in the form of Detective Collins's pretrial deposition.

The trial court held oral argument on whether to grant the Frankshearing. During argument, Turner maintained that Detective Collins misrepresented three statements in his affidavit. First, Turner contended that the affidavit said Detective Nikolov “conducted” a buy/walk operation in which Turner sold drugs to the CI, when in fact Detective Nikolov did not actually observe Turner selling drugs. Turner argues that the affidavit was misleading because there appeared to be more direct evidence of a drug sale than actually existed when Officer Nikolov conducted his buy/walk operation. Second, Turner argued that Detective Collins's affidavit omitted the fact that the CI involved was “working off a case,”⁵which might have impacted the issuing judge's probable cause determination. Third, Turner argued that, during Detective Collins's surveillance of 2855 Utah, the detectives did not have a view of the license plate of the tan vehicle nor could they see Turner's hands during the purported drug transaction because it was dark outside. Turner posits that the failure to address the lighting conditions in the affidavit likely influenced the issuing judge's probable-cause determination. Turner contends that he made a substantial preliminary showing of intentional or reckless material omissions to warrant a Frankshearing. The court denied Turner's request for a Frankshearing.

The court then conducted oral argument on the motion to suppress evidence. Turner argued that the affidavit lacked sufficient information to establish probable cause for the search warrant. Specifically, Turner emphasized that the affidavit did not indicate the past reliability of Detective Collins's CI, that Detective Nikolov's hearsay statement about the buy/walk operation was not based on personal knowledge, and that Detective Collins's surveillance did not confirm that drugs or money exchanged hands during the purported hand-to-hand transaction. The trial court also denied the motion to suppress.

Following oral argument, the trial court allowed Turner to submit the offer of proof he would have offered had the trial court granted his motion for a Frankshearing. Detective Collins testified in the offer of proof. Detective Collins testified that he did not believe that the statement in his affidavit about Detective Nikolov's buy/walk operation to purchase heroin from “ST” was misleading. Detective Collins admitted that he did not see anything in Turner's hands or in the hands of the person in the car, on the night of his surveillance of 2855 Utah, but explained that it is very common for people to stop in the middle of the street in front...