State v. Turner

471 S.W.3d 405, 2015 Mo. App. LEXIS 1033, 2015 WL 5829664
CourtMissouri Court of Appeals
DecidedOctober 6, 2015
DocketNo. ED 101647
StatusPublished
Cited by3 cases

This text of 471 S.W.3d 405 (State v. Turner) 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. Turner, 471 S.W.3d 405, 2015 Mo. App. LEXIS 1033, 2015 WL 5829664 (Mo. Ct. App. 2015).

Opinion

KURT S. ODENWALD, Judge

Introduction

Appellant Shon Turner (“Turner”) appeals from the judgment of the trial court entered following a jury verdict. The jury found Turner guilty on two counts: unlawful possession of a firearm and possession of drug paraphernalia. Before trial, Turner filed a motion to suppress all evidence obtained during the execution of a search warrant on his residence. Turner argues that the trial court erred in denying his motion to suppress for two reasons. First, Turner contends the trial court erred in denying his request for a Franks hearing because Turner made a substantial preliminary showing that police intended to make, or recklessly disregarded the possi[409]*409bility of making, material omissions in the affidavit supporting the search warrant application. Second, even without a Franks hearing, Turner contends the trial court erred in denying his motion, to suppress because the information contained within the affidavit does not support a finding of probable cause. Because the trial court did not abuse its discretion in denying a Franks hearing, and because the judge who issued the search warrant had a substantial basis to find probable cause, the judgment of the trial court is affirmed.

Factual and Procedural:History

Turner was convicted after a jury trial on two counts: unlawful possession of a firearm (Count I) and possession of drug paraphernalia (Count II). The charges stemmed from a search warrant that police executed on 2855 Utah in the City of St. Louis. Turner filed a pretrial motion to suppress the evidence obtained during the search alleging that the evidence was the fruit of an illegal search under both the United States Constitution and the Missouri Constitution.

I. The Affidavit in Support of the Search Warrant Application

In August 2013, Detective Jason Collins (“Detective Collins”) was investigating Turner and his home at 2855 Utah. Detective Collins believed Turner was selling drugs out of the house. On August 15, 2013, Detective Collins applied for a search warrant for 2855 Utah from Judge Thomas Clark. The affidavit accompanying the warrant application detailed the facts of Detective Collins’s investigation.

The affidavit explained Detective Collins’s interaction with another detective on the force, Detective Andrei Nikolov (“Detective Nikolov”). Detective Nikolov advised Detective Collins that he had a confidential informant (“Cl”). Detective Nikolov had “conducted” a buy/walk operation 1 “utilizing [that Cl], wherein a quantity of heroin was purchased from ‘ST,’ who was later identified as Shon Turner.” This buy/walk operation took place at 2855 Utah.

The affidavit also explained computer searches Detective Collins conducted regarding Turner and 2855 Utah. The utility bill for 2855 Utah revealed active service for an “M. Turner.”2 A computer inquiry of the name “ST” and “Shon Turner” revealed a photo of Turner, “AKA ‘ST.’” Detective Collins included a photograph of 2855 Utah. A computer search returned Turner’s Social Security Number and a date of birth. Detective Collins also found Turner’s history of criminal arrests, which included weapons-and drug-related arrests, and “numerous felony convictions.”

On August 7, 2013, Detective Collins met a differént Cl and showed that Cl a photograph of Turner. The Cl positively identified the individual as “Shon Turner, AKA ‘ST,’ the person selling heroin at 2855 Utah.” The Cl had been purchasing heroin from Turner at 2855 Utah for -approximately two months. The Cl stated that the heroin was in Turner’s “bedroom and various other locations throughout the residence.” The Cl also observed a weapon inside the residence, which the Cl described as a semi-automatic handgun. The Cl explained that Turner used the weapon to protect illegal narcotics and the proceeds from the sale of those narcotics. The Cl outlined the procedure for Turner’s narcotics sales: transactions at 2855 Utah took place at the front door or in the [410]*410living room of the residence. The Cl also explained that Turner sometimes delivered the heroin to customers in the neighborhood.

In the affidavit, Detective Collins described the surveillance he conducted to corroborate the Cl’s information. On August 13 and 14,2013, Detective Collins and his partner surveilled 2855 Utah. The first night,- the officers did not observe any foot or vehicle traffic coming to or from-the home. The second night, the detectives observed Turner exit 2855 Utah and stand on the front steps of the residence. The affidavit explained:

After approximately two minutes, a tan four door vehicle occupied by a black male drove west on Utah and stopped in the middle of the street in front of 2855 Utah. [My partner] and I observed Shon Turner walk down the steps, approach the passenger side of the tan vehicle and conduct what we believed to be a hand ■ to hand transaction for illegal narcotics. After the hand to hand transaction, Shon Turner cautiously looked around as if he were attempting to detect law enforcement, and then ran back inside of 2855 Utah.

■Finally, the affidavit detailed an interaction with a Cl that occurred within twenty-four hours before the warrant application:

[T]he confidential informant contacted me by phone and advised me that he/she was inside of 2855 Utah with'Shon Turner and observed him 'to be in possession of a quantity of heroin, which was packaged for sale. The confidential informant also observed Shon Turner in possession of the handgun.

Based on this information, Judge Clark signed a search warrant for 2855 Utah on August 15,2013.

II. Execution of the Search Warrant

Detective Collins executed the search warrant with the help of other officers and a SWAT team. Detective Collins and his partner were positioned behind 2855 Utah as the SWAT team entered the building from the front. Detective Collins observed “a black male with a short afro with no shirt toss a dark object out of the window.” Detective Collins recognized the man as Turner, and the dark object turned out to be a gun. Officers also found a syringe near the gun.

Inside, officers found Turner alone. In Turner’s bedroom, officers found digital scales, a razor, a bo.x of sandwich bags, and a plate holding prescription pills and hypodermic needles. Testing of a digital scale revealed trace amounts of heroin and cocaine. In the basement, officers found .40 caliber ammunition that matched the .40 caliber gun found in the yard.

III. Procedural History

The State charged Turner with felony unlawful possession of a firearm, under Section 571.070,3 and misdemeanor possession of drug paraphernalia with intent to use, under Section 195.233. Before trial, Turner filed a motion to suppress all evidence obtained from the execution of the search warrant. Turner also requested a Franks 4 hearing on the basis that Detective Collins’s affidavit misrepresented three major factual statements to Judge Clark. Turner, as required when requesting a Franks hearing, submitted an offer [411]*411of proof in the form' of Detective Collins’s pretrial deposition.

The trial court held oral argument on whether to grant the Franks hearing.

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Bluebook (online)
471 S.W.3d 405, 2015 Mo. App. LEXIS 1033, 2015 WL 5829664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-turner-moctapp-2015.