State v. Vega

• Decision Date: 12 April 1994
• Docket Number: 63634,Nos. 61841,s. 61841
• Citation: 875 S.W.2d 216
• Parties: STATE of Missouri, Respondent, v. Louis VEGA, Appellant. Louis VEGA, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 216

875 S.W.2d 216

STATE of Missouri, Respondent, v. Louis VEGA, Appellant.

Louis VEGA, Appellant, v. STATE of Missouri, Respondent.

Nos. 61841, 63634.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 12, 1994.

Robert E. Steele, Jr., St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.

Before CRANE, P.J., and CRAHAN and KAROHL, JJ.

CRAHAN, Judge.

Defendant, Louis Vega, appeals from the judgment and sentence upon his conviction of possession of a controlled substance in violation of § 195.202 RSMo Cum.Supp.1993. Defendant was sentenced to ten years imprisonment. He also appeals from the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.

Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict the evidence establishes that on August 27, 1988, Detective Lachenicht of the St. Louis Police Department Narcotics Division received information from a confidential informant that five subjects were selling cocaine from 4206 Hereford, Apartments 2 North and South, and 8 North Euclid, Apartment 2 North. This confidential informant had in the past given reliable information about illegal narcotics activity. The informant named five subjects and also gave Detective Lachenicht vehicle descriptions of the cars used to transport narcotics between the apartments.

Detective Lachenicht conducted a surveillance of the two apartments to corroborate the information given by the informant. He verified the location of the apartments and the ownership of the vehicles parked outside. He also observed approximately 15 individuals walk into one of the apartments, stay for a short time period and then leave. Based on this information, Detective Lachenicht obtained a warrant to search the apartments identified by the informant.

The search warrants were executed simultaneously. Detectives knocked on the 8 North Euclid apartment and after receiving no answer, forced the door open. When Defendant saw the detectives entering the apartment, he ran to the rear bedroom. A detective chased Defendant and ordered him to stop. Defendant turned around and picked up a black pouch and put it in his pants. The detective then approached Defendant and retrieved the black pouch. The pouch contained two plastic bags, one containing a white powder and the other containing a rock, which the detective believed to be cocaine. Laboratory analysis later established that the substances were, in fact, cocaine.

Defendant was then placed under arrest and advised of his rights. During the booking process, Defendant was asked if he would like to make a statement. Defendant responded that he obtained the drugs in his possession from Raciel Cordova who was the "main supplier" of the drugs. He further informed the detectives where they could find drugs at the 4206 Hereford apartment.

The jury found Defendant guilty of possession of a controlled substance. He was sentenced to ten years imprisonment. Defendant then filed a pro se Rule 29.15 motion alleging ineffective assistance of counsel. After an evidentiary hearing, the trial court denied Defendant's motion. Defendant now appeals from the judgment and sentence and from the denial of his Rule 29.15 motion. We consolidated the appeals for our review.

Defendant contends the trial court erred in: (1) denying his motion to suppress evidence of cocaine seized from Defendant because the affidavit supporting the search warrant did not establish probable cause to conduct a search; (2) admitting evidence of cocaine inside a black pouch seized from Defendant because the search was beyond the scope authorized by the search warrant; (3) admitting Defendant's statements to police officers because they were irrelevant evidence of uncharged crimes; and (4) denying his Rule 29.15 motion alleging ineffective assistance of counsel for failure to adequately investigate and locate defense witnesses.

Defendant first contends that the trial court erred in denying his motion to suppress evidence of cocaine seized during the execution of a search warrant. Defendant argues that the search was unconstitutional because the affidavit supporting the search warrant did not provide a substantial basis to find probable cause to search Defendant's residence.

Defendant stipulated to the validity of the search warrant at trial. Because Defendant stipulated that the search warrant was validly issued, he cannot now question its validity on appeal. See State v. Gist, 800 S.W.2d 94, 95 (Mo.App.1990).

In any event, the requirements for an affidavit to support a search warrant were met in this case. The issuing judge must determine whether probable cause exists from the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also State v. Hammett, 784 S.W.2d 293, 295 (Mo.App.1989). The judge must make a practical, common sense decision whether, given all the circumstances, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Appellate courts give great deference to the initial determination of probable cause made by the issuing judge and will not reverse the determination unless clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183-84 (Mo. banc 1990). A reviewing court's duty is to ensure that the issuing judge had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332.

Defendant argues that the informant's information was not sufficiently corroborated by the detective applying for the warrant. We disagree. The detective conducted a surveillance of the suspect apartments to corroborate the information obtained by the confidential informant. He verified the location of the apartments, the ownership of the vehicles parked outside, and that numerous individuals entered and left one of the apartments after staying only a brief time. Although no drugs were actually observed during this surveillance, it is only necessary to show a "fair probability" that contraband will be found. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990) (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331). All the information obtained through the surveillance in this case was consistent with that supplied by the informant, thereby reducing the chance that he was not telling the truth.

Furthermore, tips by informants found to be reliable in the past are sufficient information alone to support an issuing judge's finding of probable cause. Id. at 69-70. Defendant relies heavily on the situation in Gates, 426 U.S. at 246, 103 S.Ct. at 2336, where officers had corroborated most of the predictions of an anonymous letter in order to support a finding of probable cause. That case is distinguishable in that the confidential informant in this case was not an anonymous letter writer but rather a reliable informant who had provided information in the past that led to narcotic arrests on at least three occasions. Point denied.

For his second point, Defendant contends the trial court erred in admitting into evidence the cocaine inside a black pouch seized from him during a search because the search went beyond a protective search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellate review of a ruling on a motion to suppress is limited to a determination of whether the evidence is sufficient to support the trial court's ruling. State v. Thompson, 826 S.W.2d 17, 19 (Mo.App.1992).

Defendant argues that the warrant to search the apartment was not sufficient to authorize a search of his person. Defendant relies heavily on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), where police searched patrons of a public tavern who happened to be on the premises during the execution of a search. The Court held that the officers did not have the authority to search the individual patrons absent probable cause. 444 U.S. at 92-96; 100 S.Ct. at 343-45.

The rationale in Ybarra is not applicable to the facts of this case. Ybarra is not authority for the proposition that police executing a warrant for contraband must stand idly by as persons on the premises are observed stuffing possible contraband into...