VICTOR C. HOWARD, JUDGE.
The State of Missouri appeals the order of the Cole County Circuit Court granting Leslie Bryan's motion to suppress evidence. It claims on appeal that the trial court erred because the affidavit supporting the search warrant was sufficient to establish probable cause. The suppression order is reversed, and the case is remanded for further proceedings.
On April 4, 2016, a prosecutor in Cole County sought and obtained a search warrant. The search warrant application sought to search an upstairs bedroom at a specified address. It stated: "The bedroom is on the right side of the hallway. The
Attached to the application was the affidavit of Officer Ross Hartley. The affidavit asserted that Officer Hartley had been a police officer with the Jefferson City Police Department for 11 years. He was investigating a controlled substance violation at the address specified in the warrant application. The affidavit further stated:
Officer Hartley searched the specified bedroom on April 4, 2016, and found the following: "Black briefcase containing 12 syringes, spoon, rolling papers, elastic strap, sterile pad, 6 oxycontin pills, medical chart, 43 plastic pouches."
Bryan was charged with possession of a controlled substance, section 195.202,
"The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation." State v. Rouch, 457 S.W.3d 815, 819 (Mo. App. W.D. 2014) (internal quotation omitted). There is probable cause to search when, at the time the judge issues the search warrant, "there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of crime and will be present at the time and place of the search." Id. (internal quotation omitted). "In determining whether probable cause exists, the issuing... judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit
"[I]n reviewing a trial court's ruling on a motion to suppress evidence seized pursuant to a search warrant, the court gives great deference to the initial judicial determination of probable cause that was made at the time the warrant issued." State v. Neher, 213 S.W.3d 44, 49 (Mo. banc 2007). "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. "The court will only reverse if the issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed." Id.
"Deference to the issuing court is not, however, without limit." State v. Wilbers, 347 S.W.3d 552, 557 (Mo. App. W.D. 2011). "Reviewing courts will not defer to a warrant based on an affidavit that does not provide the [issuing court] with a substantial basis for determining the existence of probable cause." Id. at 558 (internal quotation omitted). "Despite the deference we afford to an issuing judge's decision to issue a search warrant, `[t]he ultimate issue of whether the Fourth Amendment was violated is a question of law ... which this court reviews de novo.'" State v. Fowler, 467 S.W.3d 352, 356 (Mo. App. W.D. 2015) (quoting State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. W.D. 2004)).
"An informant's veracity, reliability and basis of knowledge, while relevant to determining probable cause, are not separate and independent requirements to be rigidly exacted in every case...." State v. Ford, 21 S.W.3d 31, 34 (Mo. App. E.D. 2000) (internal quotation omitted). "They should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is `probable cause.'" Id. at 34-35 (internal quotation omitted). "Under the totality of the circumstances test, a deficiency in one area can be compensated for by a strong showing of another or by some other indicia of reliability." Id. at 34 (internal quotation omitted). "Common sense is a key ingredient in considering the absence or presence of probable cause." Id.
Officer Hartley's affidavit was based on hearsay: what Charlton told him. "An affidavit that relies on hearsay is sufficient to support a finding of probable cause if there is a substantial basis for crediting the hearsay." State v. Baker, 103 S.W.3d 711, 720 (Mo. banc 2003). "When evaluating the creditability of hearsay reports contained in a supporting affidavit, the issuing judge must consider the `veracity' and `basis of knowledge' of persons supplying hearsay information, whether the hearsay reports were based on personal knowledge and whether the reports have been corroborated." Id. (internal quotation omitted).
"Some hearsay reports, by virtue of the identity of the declarant and the very nature of the circumstances under which the incriminating information became known, are viewed as inherently trustworthy." Id. (internal quotations omitted). "For example, [w]hen the information upon which the warrant is based comes from one who claims to have witnessed a crime ... the information carries with it indicia of reliability and is generally presumed to be reliable." Id. (internal quotation omitted). "Furthermore, hearsay information
Charlton was a private citizen reporting what she observed. She reported the contraband with specificity. "Where an informant's information is detailed, it bears the unmistakable marks of firsthand observation." Fowler, 467 S.W.3d at 358 (internal quotation omitted). "The freshness of the information is also significant." State v. Henry, 292 S.W.3d 358, 367 (Mo. App. W.D. 2009). Charlton's observations occurred the day before and the day of the application for the search warrant.
In State v. Hill, 929 S.W.2d 258 (Mo. App. E.D. 1996), a police officer's affidavit in support of a search warrant application stated in part:
Id. at 263. In finding that the affidavit stated sufficient probable cause, the court stated:
Id. (citing Berry, 801 S.W.2d at 64; Jackson, 898 F.2d at 81). The affidavit in Bryan's case is similar to Hill, Berry, and Jackson.
"In dealing with probable cause we deal with probabilities, not certainties." Henry, 292 S.W.3d at 364. "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. (internal quotation omitted). "Search warrants, therefore, should not be deemed invalid by interpreting affidavits in a hyper technical rather than common sense manner." Id. (internal quotation omitted). "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." Id. "Even when the sufficiency
In its Findings of Fact and Conclusions of Law, the motion court took issue with Officer Hartley's testimony. It stated:
The motion court concluded that "the search warrant was issued without probable cause."
Officer Hartley was the only witness at the motion hearing. In his testimony, Officer Hartley stated the following: Officer Hartley believed Charlton was 18 years old but he did not verify her identity or age. Charlton told Officer Hartley that she was looking for body wash when she looked inside the black pouch underneath her father and Bryan's bed. Officer Hartley admitted that he did not believe a reasonable person would search for body wash in a closed pouch under a bed or in a closet. Charlton said she thought Bryan was a heroin addict but could not offer specifics as to her belief other than she saw Bryan fall asleep at the kitchen table the week before. Officer Hartley knew that Charlton was not the owner or renter of the premises. Officer Hartley also knew where Bryan and Charlton's father were and did not attempt to contact either person.
"Generally, the appellate court may not look beyond the four corners of the warrant application and the supporting affidavits." State v. Mitchell, 480 S.W.3d 410, 415 (Mo. App. W.D. 2015) (internal quotation omitted). However, the motion court found that Officer Hartley "misdirected" the court about trying to obtain consent to search. The court noted that there was no evidence that Charlton was old enough to consent or had joint access or control with respect to the bedroom or closet. The court also noted that Officer Hartley did not seek consent from either Bryan or Charlton's Father. Beyond consent, the motion court found that Officer Hartley should not have found Charlton's story about looking for body wash to be believable.
"[W]hen, as in this case, it is alleged that the supporting affidavit includes deliberately false information or is made with reckless disregard for the truth, matters outside of the four corners of the affidavit must be considered." Id. "As always, deference is given to the trial court's credibility determinations." Id.
State v. Dawson, 985 S.W.2d 941, 950 (Mo. App. W.D. 1999) (internal quotation omitted). "This Franks test for a misrepresentation in an affidavit also applies to the omission of statements from an affidavit." Id.
Id.
The motion court found that Officer Hartley misdirected the issuing judge with respect to the consent obtained from Charlton and the efforts to obtain consent from Bryan and Charlton's father. An application for a search warrant presupposes that consent has not been given. Even if all mention of consent were omitted from Officer Hartley's affidavit, there would still be probable cause under the Franks test.
The motion court also found that Officer Hartley should not have believed Charlton's story about looking for body wash when she found the contraband. Officer Hartley testified that Charlton was looking for body wash and other missing items when she saw the black pouch and looked inside. There was no evidence to suggest that Charlton looked in the bedroom or the pouch at the direction of law enforcement. To the contrary, she only contacted law enforcement after finding the contraband on her own.
Bryan implies on appeal that Charlton was looking in the bedroom with the motive of getting Bryan into trouble. The trial court seems to have agreed with its finding that Charlton's story about looking for body wash was not believable. There is no requirement that a person who reports the presence of contraband do so with pure motives. To the contrary, most informants likely report the presence of contraband with the intention of the police arresting the possessor of the contraband.
Under the Franks test, this court must determine whether Officer Hartley's affidavit, without any mention of consent and with the additional detail that Charlton said she was looking for body wash when she found the contraband, would have been sufficient to establish probable cause. Id. Charlton was a private citizen reporting contraband she saw that day and the day
The point is granted.
The order granting Bryan's motion to suppress is reversed. The case is remanded to the trial court for further proceedings.
All concur.
