State v. Wilbers, WD 71947.

CourtCourt of Appeal of Missouri (US)
Citation347 S.W.3d 552
Docket NumberNo. WD 71947.,WD 71947.
PartiesSTATE of Missouri, Respondent,v.Curtis August WILBERS, Appellant.
Decision Date28 June 2011

347 S.W.3d 552

STATE of Missouri, Respondent,
Curtis August WILBERS, Appellant.

No. WD 71947.

Missouri Court of Appeals, Western District.

June 28, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 2, 2011.
Application for Transfer Denied
Oct. 4, 2011.

[347 S.W.3d 555]

Daniel J. Dodson, Jefferson City, MO, for appellant.Shaun J. Mackelprang and Mary H. Moore, Jefferson City, MO, for respondent.Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding JAMES M. SMART, Judge, and DAREN L. ADKINS, Special Judge.DAREN L. ADKINS, Special Judge.

The Defendant, Curtis Wilbers (“Wilbers”) appeals his convictions in the Circuit Court of Cole County for the Class B Felony of possession of marijuana with the intent to distribute and the Class C Felony of possession of methamphetamine. Wilbers alleges in his sole point on appeal that there existed no probable cause for the issuance of the search warrant which resulted in the drug seizures and the filing of criminal charges for which he was convicted. We affirm.

Standard of Review

This Court thoroughly addressed the appropriate standard when reviewing the denial of a Motion to Quash a search warrant and Motion to Suppress evidence in State v. Henry, 292 S.W.3d 358 (Mo.App. W.D.2009). There, this Court held that only the issuing judge's initial determination of probable cause based on the information contained within the four corners of the affidavit is reviewed for error. Id. at 362. Here, the trial court's ruling on the Motion to Suppress is not under review. Our decision in Henry relied heavily on State v. Neher, 213 S.W.3d 44, 49 (Mo. banc 2007), in which the Missouri Supreme Court mandated that a reviewing court give “great deference to the initial judicial determination of probable cause that was made at the time the warrant issued.” Id. “The duty of a reviewing court is simply to ensure that the issuing judge had a substantial basis for determining that probable cause for the search did exist.” Id. “In conducting the review of whether probable cause exists, the appellate court may not look beyond the four corners of the warrant application and the supporting affidavits.” Id. The rulings in Neher and Henry hold that this Court may reverse only if the “issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed.” Id.


As we are constrained in our review to information presented to the issuing judge 1, the full text of the affidavit is set forth below:


Comes now B.L. Kyle, duly sworn and under oath states as follows:

1. I am an investigator with the Lake Area Narcotics Enforcement Group. I have been a police officer for approximately 10 years and for the past 8 1/2 years, I have been assigned to the Lake Area Narcotics Enforcement Group as a Narcotics Investigator. During that time I have been involved in approximately 900 narcotics investigations.

2. Within the past 48 hours (as of 3:00 PM July 1, 2008), I have had contact with a confidential informant that has been inside the residence of Curtis A. Wilbers, located at 11127 Deer Run Road, Jefferson City, Missouri.

[347 S.W.3d 556]

The CI reported to me that while inside the residence, he/she observed Wilbers in possession of four bags containing methamphetamine. The CI has known Wilbers for at least five years and reports seeing Wilbers in possession of methamphetamine hundreds of times.

3. I have utilized information provided by this informant in the past and have found it to be reliable and true.

4. Through my experience as a Narcotics Investigator, I know that suspects keep controlled substances, paraphernalia, drug proceeds, records, documents and other items used to facilitate illegal narcotics activity. These individuals hide these items on their person, in their residence, vehicles and out buildings and I am requesting that the warrant include these areas.

5. The informant has informed me of the existence of weapons including firearms in this residence, and based on the nature of the illegal activity alleged and the presence of firearms, I am requesting a no-knock warrant.

6. In preparation of this affidavit, I contacted the Cole County Narcotics Investigator Steve Thompson and he advised me that the subject at 11127 Deer Run Road has also been under investigation by the his ( sic ) office.

/s/ B.L. Kyle

B.L. Kyle

Subscribed and sworn to me this date: July 1, 2008

/s/ T. Sodergren


The issuing judge witnessed both the affidavit signed by Investigator B.L. Kyle and the Application signed by Assistant Prosecuting Attorney, Steven M. Kretzer, and signed the warrant on July 1, 2008, at 3:45 pm. As a result of the subsequent search, the officers found methamphetamine, marijuana, guns, and various drug paraphernalia in Wilbers's home. Thereafter, the State charged Wilbers under Count I with the Class B Felony of possession of marijuana with the intent to distribute and under Count II with the Class C Felony of possession of methamphetamine. Wilbers filed his Motion to Quash the Search Warrant and to Suppress alleging, inter alia, that the warrant failed for lack of probable cause. The trial court, after a hearing, overruled said motion. 2 Following a bench trial, the Court convicted Wilbers on both counts and sentenced him to seven years imprisonment on Count I, and a concurrent three-year term on Count II.

Wilbers appealed his convictions. Wilbers argues the affidavit at issue here was insufficient to establish probable cause in that it failed to contain a specific date and time when the informant actually saw methamphetamine in Wilbers's home.

Probable Cause Analysis

“The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation.” 3 Neher, 213 S.W.3d at 48–49. “A neutral magistrate or judge must determine probable cause from the totality

[347 S.W.3d 557]

of the circumstances.” Id. at 49. “In determining whether probable cause exists, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. “The presence of such contraband or evidence need not be established, at a prima facie level, by a preponderance of the evidence or beyond a reasonable doubt.” Id.

“Common sense is a key ingredient in considering the absence or presence of probable cause.” State v. Rush, 160 S.W.3d 844, 849 (Mo.App. S.D.2005). “ ‘[R]eliance upon factual allegations necessarily entails some degree of reliability upon the credibility of the source.’ ” Illinois v. Gates, 462 U.S. 213, 230 n. 6, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ( quoting Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)). It is not required that “each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint.” Id. ( quoting Jaben, 381 U.S. at 224, 85 S.Ct. 1365). The concepts of “veracity,” “reliability,” and “basis of knowledge” are relevant considerations, but they are not entirely separate and independent requirements to be rigidly applied in every case. Id. at 230, 85 S.Ct. 1365. “Rather ... they should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id.

Under the “totality-of-the-circumstances” method of analysis, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing of the other or by some other indicia of reliability.” Id. at 233, 85 S.Ct. 1365. In dealing with probable cause we deal with probabilities, not certainties. Id. at 231, 85 S.Ct. 1365. “These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. See also State v. Buchli, 152 S.W.3d 289, 305 (Mo.App. W.D.2004). “Search warrants, therefore, should not be deemed invalid ‘by interpreting affidavits in a hyper technical rather than common sense manner.’ ” Buchli, 152 S.W.3d at 305 ( quoting State v. Hill, 854 S.W.2d 814, 818 (Mo.App.1993)). “The preference for warrants that requires us to give deference to the issuing judge's determination of probable cause also requires some latitude in interpretation of the supporting affidavit.” State v. Trenter, 85 S.W.3d 662, 677 (Mo.App. W.D.2002). “Even when the sufficiency of an affidavit is marginal, our determination should be informed by the preference accorded to warrants.” Id. See Hill, 854 S.W.2d at 818.

“Rigid legal rules are ill-suited to an area of such diversity.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. “ ‘One simple rule will not cover every situation.’ ” Id. ( quoting Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). “The affidavit in support of a search warrant should be weighed as understood by those versed in law enforcement and not in terms of library analysis by scholars.” State v. Henry, 292 S.W.3d 358, 364 (Mo.App. W.D.2009) ( citing Gates, 462 U.S. at 232, 103 S.Ct. 2317). “[A]ffidavits are normally drafted by non-lawyers in the midst and haste of a criminal investigation.' ” Gates, 462 U.S. at 235, 103 S.Ct. 2317 ( quoting U.S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).

Deference to the issuing court is not, however, without limit. See, e.g.,

[347 S.W.3d 558]

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “Reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the...

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