State v. Wallace

593 S.W.2d 545, 1979 Mo. App. LEXIS 3074
CourtMissouri Court of Appeals
DecidedDecember 3, 1979
DocketKCD 30448
StatusPublished
Cited by4 cases

This text of 593 S.W.2d 545 (State v. Wallace) 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. Wallace, 593 S.W.2d 545, 1979 Mo. App. LEXIS 3074 (Mo. Ct. App. 1979).

Opinion

CLARK, Judge.

Defendant appeals the judgment and sentence entered after his conviction on three counts charging possession of controlled substances.

Incriminating material on which defendant’s conviction ultimately rested was acquired in a search of his residence under a magistrate’s warrant. The initial point raised on this appeal and the dispositive issue in the case is the sufficiency of the affidavit upon which the warrant issued. Defendant contends that the constitutional requirement of probable cause to justify the warrant and subsequent search was not shown. U.S.Const.Amend. IV; Mo.Const. Art. I, § 15. Reversed.

The affidavit in question was authored by a police officer1 and recited that a confidential informant had reported defendant’s recent transfer of his residence to 4627 Cypress in Kansas City where he was dealing in Ritalin.2 Defendant was known by the police to bear a reputation as a dealer in narcotics. The affidavit further reported the results of police surveillance of the residence on March 11,1978 when associates of known drug dealers were seen to enter the house and unusual automobile traffic was observed. During the day, six different automobiles came to the house, some more than once, but with different occupants on succeeding visits. Visitors to the residence would enter, stay for a brief period and then leave.

Finally, the affidavit related that another informant on the following day, March 12, 1978, contacted a drug dealer by telephone under prearrangement which permitted police to monitor the conversation. The drug dealer, who was not identified and who was an inadvertent informant, stated that defendant was currently selling Ritalin “at $6.00 apiece.”

A warrant was issued based on the above facts related in the affidavit and the further representation that the informants, other than the unidentified drug dealer, were reliable because prior information given had proven accurate. In the ensuing search of defendant’s residence pursuant to the warrant, various controlled substances including Ritalin were found. Defendant’s ultimate conviction for possession was substantially based on the evidence acquired under the authority of the warrant.

At trial, defendant moved to suppress the. evidence seized, contending that the warrant was not supported by reliable and [547]*547credible information demonstrating probable cause to believe that a search of defendant’s premises would yield evidence of criminal activity. The same argument is advanced on this appeal.

At the outset it is appropriate to acknowledge that execution of the warrant in this case did result in the discovery and seizure of various controlled substances quite apparently in defendant’s possession despite later controversy concerning ownership and tenancy in the dwelling. To this extent, of course, the earlier information described in the affidavit proved to bear some degree of reliability. The validity of the search warrant, however, is measured by the circumstances existing at the time it was issued. The character of the warrant is not changed by what its execution discloses. In re Search Warrant of Property, 369 S.W.2d 155, 158 (Mo.1963).

The facts related in the subject affidavit were derived from three sources — direct observation by police surveillance, reports by reliable informants and the statement from the anonymous drug dealer. In sum, the information so conveyed and assembled taken at face value, including defendant’s current associates and past reputation, the unusual traffic at defendant’s residence and the availability for purchase from defendant of illicit merchandise, amply supported an expectation that a search of defendant’s premises would yield fruits of criminal activity. The issue, however, is whether the sources of these facts bear those indicia of reliability and credibility which impart substance to the conditions and events related.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the court announced certain fundamental requirements to be observed where probable cause for issuance of a search warrant depended on information from an informant. To assure a neutral and detached evaluation by the magistrate on the issue of probable cause, Aguilar requires that the supporting affidavit include sufficient detail to support a conclusion that the informant is speaking truthfully and that evidence of criminal activity will probably be disclosed by the search. Under these standards, the identity of the informant need not be disclosed and the affidavit may be based on hearsay information.

A further explication of the Aguilar concepts was given in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which cautioned that hearsay informant sources may pass muster to establish probable cause only where the examining magistrate is informed of the underlying circumstances from which the informant concluded that a crime had been or was to be committed by the person named and the circumstances from which the police concluded that the informant was credible or his information was reliable.

Subsequent decisions, particularly United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), have cast doubt on the necessity for the magistrate to assess the probable credibility of an unidentified informant where the affidavit contains a substantial basis for crediting the hearsay. Thus, in State v. Wiley, 522 S.W.2d 281, 288 (Mo.banc 1975), our Supreme Court held that the prior reliability of an informant is not crucial so long as the information is corroborated through other sources thereby reducing the chances of a “reckless or prevaricating tale.” Inquiry focuses on whether the informant’s present information is truthful or reliable. United States v. Harris, supra.

First to be addressed in this case are the direct assertions of the affidavit identifying defendant as one currently engaged in the unlawful sales of drugs. Going as they do to the criminal conduct sought to be exposed and prosecuted, these allegations constitute the vital substance of the affidavit giving color to other facts susceptible of innocent explanation. As will be subsequently delineated, the reliability of statements identifying defendant as a dealer in drugs is essential to documentation of probable cause by this affidavit.

Despite the essential character of these factual ingredients, the affidavit in no manner sets forth the basis of knowledge by the informants as to defendant’s alleged activi[548]*548ty selling Ritalin. For all that appears, the knowledge may have been acquired by personal observation or participation by the informants or from a casual rumor overheard from drug users. The affidavit is quite simply devoid of any recitation of underlying circumstances required by Agui-la r and Spinelli to test the reliability of the conclusion that defendant was dealing in controlled substances.

This case significantly parallels the facts of Spinelli in which the informant stated that Spinelli

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Related

State v. Taylor
889 S.W.2d 124 (Missouri Court of Appeals, 1994)
State v. Brown
741 S.W.2d 53 (Missouri Court of Appeals, 1987)
State v. Gardner
741 S.W.2d 1 (Supreme Court of Missouri, 1987)

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Bluebook (online)
593 S.W.2d 545, 1979 Mo. App. LEXIS 3074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallace-moctapp-1979.