State v. Wing

• Decision Date: 11 May 1970
• Docket Number: No. 54822,No. 1,54822,1
• Citation: 455 S.W.2d 457
• Parties: STATE of Missouri, Respondent, v. Herman Eugene WING, Appellant
• Court: Missouri Supreme Court

Page 457

455 S.W.2d 457

STATE of Missouri, Respondent, v. Herman Eugene WING, Appellant.

No. 54822.

Supreme Court of Missouri, Division No. 1.

May 11, 1970.

Motion for Rehearing and for Transfer Denied July 13, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Ralph Baird, Joplin, Thomas G. Hanlon, Tulsa, Okl., for appellant.

HIGGINS, Commissioner.

Herman Eugene Wing was charged by information in Barry County with possession of burglar's tools. Upon change of venue to Newton County, a jury convicted him of that offense and assessed his punishment at 10 years' imprisonment. Sentence and judgment were rendered accordingly. Section 560.115, V.A.M.S.

Appellant's first attack goes to the sufficiency of the complaint upon which the Magistrate Court of Barry County issued a search warrant and pursuant to which many of the exhibits in evidence were found and seized. The complaint for search warrant was made July 18, 1968, upon the oath of Joe R. Ellis, Prosecuting Attorney of Barry County: '* * * that he has reason to believe that on the premises known as one 1968 model, two door, Pontiac, Automobile, Grand Prix model, Serial Number 266578R107539, in the county of Barry, State of Missouri, at 101 East Eighth Street, Cassville, Missouri, there is now being concealed certain property, towit: burglary tools which are believed to have been used in the burglary of the Bank of Seligman, Missouri, a corporation, which was feloniously and forcibly broken and entered, the same being a building where money and valuable things were kept with intent said money and valuable things then and there being found to steal on this 18th day of July, 1968, and affiant further believes that the automobile aforesaid is the property of Herman Eugene Wing, Bartlesville, Oklahoma, a known bank burglar and that said vehicle was used in the burglary aforesaid.

'Affiant states that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That the automobile is legally registered to Herman Eugene Wing, a known bank burglar; that the automobile was found parked in the area where the burglary aforesaid was committed on July 18, 1968, immediately after the burglary was committed; that the said automobile appears to be abandoned and that diligent efforts to locate the owner or driver thereof have failed; that said automobile bears an Oklahoma license; that during the course of the burglary aforesaid shots were exchanged by persons committing said burglary and Clyde Mitchell, President of said Bank, and that the said persons committing the burglary fled on foot.'

Appellant contends, Points I and II, that the court erred in overruling his motion to suppress evidence taken from the automobile pursuant to the warrant and in admitting the same at trial, alleging that the search warrant was illegally issued in that the complaint upon which it was issued failed to show probable cause. The dispositive question of both points is the sufficiency of the complaint. Appellant's argument is that the prosecutor's complaint 'was based on information and belief and hearsay, and did not show sufficient facts for the issuance of a search warrant by the magistrate,' and that he did not reveal the source of his information and belief. Appellant's citations are representative of several familiar principles bearing on a determination of sufficiency of a complaint for search warrant, e.g., Siden v. United States, 8 Cir., 9 F.2d 241; Kirvin v. United States, 2 Cir., 5 F.2d 282, and Poldo v. United States, 9 Cir., 55 F.2d 866, that probable cause is to be determined from the complaint and, if filed, supporting affidavits; Baysden v. United States, 4 Cir., 271 F.2d 325, that the warrant shall issue only on affidavit establishing grounds for issuance; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, that a violative search cannot be made lawful by the success of the search; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, that a warrant may issue upon hearsay if the affiant sets forth the source, validity, and reliability of his information; Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, that a warrant should not issue upon affidavit of an official which merely shows he is in possession of information which causes him to believe the suspect is in possession of property without revealing the source of his information.

The complaint in this case was consistent with these authorities. Criminal Rule 33.01, V.A.M.R., provides: '(a) If a complaint in writing be filed with the judge or magistrate of any court having original jurisdiction to try criminal offenses stating that personal property * * *, the seizure of which under search warrant is * * * authorized * * *, is being held or kept at any place or in any * * * car, * * * motor vehicle, * * * within the territorial jurisdiction of such judge or magistrate, and if such complaint be verified by the oath or affirmation of the complainant and states such facts positively and not upon information or belief; or if the same be supported by written affidavits verified by oath or affirmation stating evidential facts from which such judge or magistrate determines the existence of probable cause, then such judge or magistrate shall issue a search warrant * * * to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.' It is noted that this rule provides two situations in which a search warrant shall issue: The first exists upon the filing of a complaint, verified by oath, which states facts positively and not upon information or belief; the second exists when the complaint is supported by written affidavits stating evidential facts from which the judge determined probable cause. 'In the first situation, the verified statement of positive facts empowers the court to issue the search warrant; in the second, the court determines probable cause for issuance of the warrant from the facts contained in the complaint and from the affidavits or other evidence submitted to support the complaint.' State v. Taylor, Mo., 391 S.W.2d 929, 932. These situations were demonstrated in State v. Lock, 302 Mo. 400, 259 S.W. 116, where the complaint for search warrant read: "I, J. P. Smith, prosecuting attorney * * * state that I verily believe that in the building known as the residence, etc., * * * and further as affiant verily believes that in said building, etc., * * * and a place in which intoxicating liquors are manufactured as affiant verily believes contrary, etc. * * *." 259 S.W. l.c. 121(4). It is apparent that this complaint would fall into the second situation and its insufficiency is equally apparent in that 'probable cause may not be judicially found. The affiant gives no reason for his belief, nor does he support, verify, or substantiate it, establishing the existence or truth of any fact or circumstance, by proof or competent evidence. The statement is that he verily believes certain things * * * and if he verily believed it, however unfounded his belief may have been, no fact appears in the statement that would subject him to legal responsibility.' 259 S.W. l.c. 121(4). The court also stated, however, that upon looking to the prosecutor's sworn statement as the only document in support of probable cause, 'if it contains any statement of fact from which probable cause may be inferred, it complies with the Constitution. If no statement of fact is stated therein, from which probable cause may legally be inferred, * * * defendant's rights * * * have been violated.' 259 S.W. l.c. 121(4).

Application of this test to, and comparison of, Mr. Ellis's complaint shows, by contrast, its sufficiency and demonstrates that appellant's argument fails to accord credence to all of the complaint. The magistrate judge was entitled to 'a common-sense reading of the entire affidavit,' Spinelli v. United States, supra, 393 U.S. l.c. 415, 89 S.Ct. l.c. 588; and such a reading, together with the suggested test and contrast, shows failure by appellant to distinguish between separate portions of the complaint and between allegations of belief and fact within separate portions of the complaint. The first paragraph of the complaint alleges affiant's reason to believe that burglary tools believed to have been used in a burglary are in an automobile believed to have been used in a burglary and owned by Herman Wing. That paragraph also contains statements of positive fact, i.e., description of a specific automobile; that it was at a specific place in Cassville, Barry County, Missouri; that the Bank of Seligman in Barry County was burglarized July 18, 1968; that Wing was a known bank burglar. The second paragraph consists entirely of statements of positive fact, i.e., that the specific automobile was registered to Wing; that he was a known bank burglar; that the specific automobile was found parked in the area where, and immediately after, the specified burglary was committed July 18, 1968; that it appeared abandoned; that efforts to locate the owner had failed; that it bore Oklahoma license plates; that shots were fired by the burglars in the course of the specified burglary; that the persons committing the burglary fled on foot.

With such statements of positive facts, as opposed to belief and hearsay, the court had sufficient evidential facts from which to find probable cause, as opposed to a prima facie case, without the necessity of supporting affidavits. State v. Taylor, supra, 391 S.W.2d l.c. 932(1, 2); Spinelli v. United States, supra, 393 U.S. l.c. 419, 89 S.Ct. l.c. 590; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142.

Clyde G. Mitchell, Vice President of the Bank of...