State v. Bowen

927 S.W.2d 463, 1996 Mo. App. LEXIS 1148, 1996 WL 348066
CourtMissouri Court of Appeals
DecidedJune 25, 1996
DocketNo. WD 51621
StatusPublished
Cited by5 cases

This text of 927 S.W.2d 463 (State v. Bowen) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowen, 927 S.W.2d 463, 1996 Mo. App. LEXIS 1148, 1996 WL 348066 (Mo. Ct. App. 1996).

Opinion

LOWENSTEIN, Presiding Judge.

This is an appeal by the state from an order quashing a search warrant and suppressing evidence in a prosecution for possession of marijuana with intent to distribute. After a search of William Bowen’s place of business produced marijuana and statements made by Bowen, that evidence was suppressed by the granting of a motion to quash the warrant and suppress evidence.

The evidence and statements produced by the search warrant and subsequently suppressed are as follows:

When the search warrant was executed at Bowen’s automotive business, a vehicle described in the affidavit supporting the warrant was found inside the garage. According to information used to obtain the search warrant, the vehicle contained 200 lbs. of marijuana.

Police asked Bowen if he knew who the owner of the vehicle was, and Bowen replied that he did not own it and had sold it to another individual. While police attempted to locate the keys to the automobile, a drug-sniffing dog alerted to the presence of drugs in the trunk of the vehicle.

When the trunk was opened, 21 lbs. of marijuana was found. As he and co-workers were arrested, Bowen stated, “Why are you arresting him? He didn’t know anything about it.” While in custody at the Moberly Police Department, Bowen stated, “Charlie, when these guys start telling you what they are going to do, you don’t have to listen to them. Remember the game plan.”

The state now contends that the trial court erred in granting the motion to suppress because the affidavit in support of the complaint for a search warrant was sufficient to allow the issuing court to find probable cause that drugs would be found. Bowen argues that all evidence found through the search warrant should properly have been suppressed because A) there was no probable cause; B) the warrant did not specify the place to be searched with sufficient certainty, and C) the evidence gained was therefore “fruit of the poisonous tree.”

The affidavit in support of the complaint for search warrant by Sergeant Randle E. [465]*465King stated that he believed marijuana was being kept in a garage operated as a tire and oil business by Bowen. The basis of Sgt. King’s belief was that a confidential informant who had provided him with reliable information in the past provided him with the following information:

On February 1,1995, a two hundred pound shipment of marijuana was delivered to William Scott Bowen, at his place of business, located at 411 Sparks Avenue, Mob-erly, MO. The confidential informant was given this information by a personal friend who personally viewed the marijuana on February 1, 1995, inside the place of business, within the trunk of a disabled blue and black passenger car inside the west bay of the place of business. The confidential informant was told that the marijuana was in packages wrapped in plastic and some type of fabric [sic] softener [sic] sheets to mask the odor of marijuana.

Also attached to the complaint was the sworn statement of Sgt. King that he had verified that Bowen, a convicted drug offender, operated a business out of the garage and was present at the business on February 3. The details of the description of the business matched what the informant had told him. Further, the confidential informant had seen a blue and black car inside the west bay of the business and so informed Sgt. King.

Sgt. King testified that he verified the information within 12 hours because he was concerned that the drug cache would disappear. "When the search warrant was executed on February 4, police found twenty-one pounds of processed marijuana in the trunk of a car.

A suppression hearing was held July 17, 1995 on Bowen’s motion. The motion to quash the search warrant was granted, and the marijuana and statements by Bowen to police were suppressed. The state appealed under § 542.296, RSMo. (1994).

STANDARD OF REVIEW

In reviewing a motion to suppress based upon an insufficient warrant, this court gives great deference to the initial judicial determination of probable cause made at the time of the issuance of the warrant, and reverses only if that determination is clearly erroneous. State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990).

In reviewing whether the issuing judge was clearly erroneous, this court looks to the four corners of the affidavit in support of the search warrant, set out in part above. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990).

A. PROBABLE CAUSE

When a judge is asked to determine whether there is probable cause to issue a warrant, he or she looks to the “totality of the circumstances”; the duty of the issuing magistrate is to,

make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, 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. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

When dealing with a confidential informant,

an informant’s “veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case.... 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. at 230, 103 S.Ct. at 2328.

The emphasis on common sense and practicality in determining whether there is probable cause is because

In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and pru[466]*466dent men, not legal technicians, act. State v. Hill, 854 S.W.2d 814 (Mo.App.1993)(quoting Gates, 462 U.S. at 281, 103 S.Ct. at 2328).

Here, Bowen argues that there was no probable cause because the “information provided by an unknown third party to a confidential informant was unreliable, unverified, uncorroborated and insufficient to create probable cause” and because the information provided to the informant was double hearsay.

Under the “totality of the circumstances” method of analysis, a deficiency in one [of the concepts of “veracity,” “reliability,” and “basis of knowledge”] 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.” Hill, 854 S.W.2d at 817 (Mo.App.1993), (quoting Gates, 462 U.S. at 233, 103 S.Ct. at 2329).

The information given by the confidential informant was hearsay.

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Bluebook (online)
927 S.W.2d 463, 1996 Mo. App. LEXIS 1148, 1996 WL 348066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowen-moctapp-1996.