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.
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
Comes now B.L. Kyle, duly sworn and under oath states as follows:
Subscribed and sworn to me this date: July 1, 2008
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.
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.
"The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation."
"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.,
Wilbers argues the affidavit at issue here was insufficient because it failed to contain a specific date and time when the informant actually saw methamphetamine in Wilbers's home.
State v. Erwin, 789 S.W.2d 509, 510 (Mo. App. S.D.1990) (emphasis added). See also United States v. Greany, 929 F.2d 523, 524-25 (9th Cir.1991) ("the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued").
The affidavit of Investigator Kyle stated only that he spoke with the confidential informant "[w]ithin the past 48 hours (as of 3:00 PM July 1, 2008)." As Wilbers correctly points out, and the State concedes in its brief, the affidavit did not state when the confidential informant saw the contraband in Wilbers's possession. It may be argued that the phrase "[w]ithin the last 48 hours" referred to the time of observation by the informant. That the affiant may or may not have intended such a reading cannot now be before the court. And, while it is true that this Court should not engage in a hyper-technical review of the affidavit, it cannot and should not ignore the plain meaning of the words and phrases within it. That the confidential informant provided information to the affiant "within the past 48 hours", as he simply and clearly stated, is relevant only insofar as it can be determined when Kyle obtained that information. Here there simply is no such time-connected information referring the reader as to the date the informant actually observed the methamphetamine in Wilbers's possession.
In Staker v. United States, the court stated: "[A]lthough in fact the affidavit was made immediately after the facts were discovered, the affidavit itself is silent as to the time element. So far as the affidavit shows, the officer might have smelled the fumes months before the affidavit was made." 5 F.2d 312, 314 (6th Cir.1925).
Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.1966).
Here too, the fact that illegal substances were observed at a particular location at some unidentified time in the past, without more, does not establish probable cause required to search those premises. The actual observation date could have occurred from 48 hours up to five years prior to the informant's conversation with Investigator Kyle within 48 hours of July 1, 2008, and there is nothing to indicate otherwise. We must, at this point, take the affidavit as presented without more, and presume its contents are truthful subject to the penalties for perjury.
In State v. Woods, 790 S.W.2d 253 (Mo. App. S.D.1990) the Southern District of this Court found no probable cause existed for the issuance of a search warrant because the affidavit supplied no date and/or time when the informant saw the contraband. The Court wrote:
Id. at 261.
The State argues that even if Kyle's affidavit lacked a time reference, the remainder of the statements within it supplied sufficient probable cause. "It is well-settled that information about criminal activity at an earlier, unspecified time may combine with factually connected, recent, time-specific information to provide a substantial basis for the conclusion that the criminal activity described in an affidavit is sufficiently close in time to the search warrant application." United States v. Day, 949 F.2d 973, 978 (8th Cir. 1991). See also State v. Ambrosio, 632 S.W.2d 262, 265 (Mo.App. E.D.1982). The remainder of the affidavit supplies little to support the State's position.
Even Investigator Steve Thompson's statement within the affidavit that asserted "[Wilbers] has also been under investigation by the (sic) his office" (emphasis added) adds no present-time, relevant information to tie past observations to current, ongoing events. From an ordinary reading of the affidavit, nothing connects in any way the "hundreds" of earlier, unspecified observations of contraband to anything "recent" or "time-specific." See Day, 949 F.2d at 978.
In State v. Cornelius, 1 S.W.3d 603 (Mo. App. S.D.1999), the Southern District upheld the issuing court's finding of probable cause in a case factually similar to that presented here. There, the affidavit stated, in pertinent part:
Id. at 606. The affidavit in Cornelius, as here, merely recited that the affiant received information from a confidential informant within a specific time-frame—not that the informant observed or received this information within that time. However, in Cornelius the affiant then provided very specific, detailed locations of where each of the items of contraband (methamphetamine, marijuana, and scales) were hidden within the metal building and residence. As stated in Gates, under the "totality-of-the-circumstances" method of analysis, "a deficiency in one [area] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 462 U.S. at 233, 103 S.Ct. 2317. Investigator Kyle's affidavit contained no such details beyond the informant's observation of Wilbers with "four bags containing methamphetamine" at some unknown time. "Probable cause must exist when a warrant is issued, not merely at some earlier time." United States v. La Morie, 100 F.3d 547, 554 (8th Cir.1996).
Cases that have reviewed the sufficiency of affidavits on the basis of when critical information was obtained are numerous.
State v. Pattie, 42 S.W.3d 825, 828 (Mo. App. E.D.2001) (internal citations omitted). Generally, a shorter time-frame is required between the observation of contraband and the issuance of a search warrant if the contraband is consumable, such as methamphetamine, recognizing that "the hare and tortoise do not disappear at the same rate." Id. (quoting Andresen v. State, 24 Md.App. 128, 331 A.2d 78, 106 (Md.Ct.Spec.App.1975)). Courts have rejected the application of a bright-line test to determine at what point information is stale, noting "[t]ime factors must be examined in the context of a specific case and the nature of the crime under investigation." United States v. Summage, 481 F.3d 1075, 1078 (8th Cir.2007) (quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir.1993)). The breadth of analysis in this area emphasizes the importance our courts place on knowing when the criminal behavior occurred to determine probable cause. This court cannot ignore an affiant's complete failure to denote when the informant observed the illegal
This Court, in reviewing the totality of circumstances in a common-sense manner, cannot find, even giving great deference to the issuing judge, "a substantial basis for determining that probable cause for the search did exist." See Neher, 213 S.W.3d at 49. Surely a simple recitation of when the observation of illegal activity or contraband occurred is necessary. That this issue appears so infrequently in our case law indicates that the vast majority of law enforcement is aware of its necessity. "Police officers have long been accustomed to the importance of time; to their credit, the overwhelming majority of affidavits have honored the requirement." Rosencranz, 356 F.2d at 317. To require the inclusion within the affidavit of a specific time, or time frame, when the illegal activity or contraband was observed is not hyper-technical, but rather fundamental in the probability determination. Id. Should this affidavit be allowed to pass as sufficient in this matter, officers would be able to simply avoid statements relating to specific dates in favor of generalized anecdotes of informants to obtain search warrants. Ratification of an issuing court's finding of probable cause based upon an affidavit absent any mention as to when the informant made the observations would relegate trial and appellate court review in this area to a rubber stamp. "To conclude otherwise would be to condone an error so fraught with the potential for abuse as to seriously undermine the constitutional protections afforded by the Fourth Amendment." United States v. Elliott, 576 F.Supp. 1579, 1581 (W.D.Ohio 1984). Therefore, this Court finds the issuing judge's probable cause determination to issue the search warrant clearly erroneous.
The State urges this Court to forego application of the exclusionary rule and employ the "good-faith exception" as outlined in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), and adopted in Missouri in State v. Sweeney, 701 S.W.2d 420 (Mo. banc 1985).
State v. Varvil, 686 S.W.2d 507, 511 (Mo.App.1985).
The U.S. Supreme Court explained their reasoning for the exception as "the marginal or nonexistent benefits produced by suppressing evidence obtained in reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion." Leon, 468 U.S. at 922, 104 S.Ct. 3405. Further, the marginal future-deterrent value of excluding the evidence does not justify the exceedingly-high cost to society in "... letting guilty and possibly dangerous defendants go free...." Id., at 908, 104 S.Ct. 3405. (Emphasis added.) "[T]he [exclusionary] rule's costly toll upon truth-seeking
Suppression remains an appropriate remedy in four situations:
State v. Brown, 741 S.W.2d 53, 59 (Mo.App.1987), (quoting Leon, 104 S.Ct. at 3421).
Wilbers argues for application of the third exception, so our analysis will be limited thereto. The question of good-faith to be decided here, based on an objective standard, is whether the affidavit so lacks indicia of probable cause that it would be entirely unreasonable for a reasonably well-trained officer to rely upon it.
Officer Kyle's affidavit provides a statement of his law enforcement experience, the past reliability of the confidential informant, a prior investigation of Wilbers by law enforcement, and possession by Wilbers of a controlled substance at some unknown or unstated time. That the affidavit falls short of the probable cause threshold, given the absence of a time-specific observation of criminal behavior, qualifies this as a close case. However, a reasonably well-trained officer's reliance on this poorly-drafted affidavit cannot be considered entirely unreasonable.
That there could be some future-deterrent value in suppressing the evidence here is not debatable. "[W]e do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to "be weighed against the `substantial social costs exacted by the exclusionary rule,'" and here exclusion is not worth the cost." Herring, 555 U.S. at 144 n. 4, 129 S.Ct. at 702 n. 4 (internal citations omitted and emphasis added). As the error found in this case rests not on the officer, but rather on the issuing court, the good-faith exception applies.
Therefore, for all the reasons stated above, the evidence obtained as a result of the invalid search warrant is admissible by application of the good-faith exception to the exclusionary rule.
For the reasons stated herein, we affirm.
All concur.
