State v. Webb

824 S.W.2d 464, 1992 Mo. App. LEXIS 194, 1992 WL 14663
CourtMissouri Court of Appeals
DecidedJanuary 31, 1992
DocketNo. 17600
StatusPublished
Cited by3 cases

This text of 824 S.W.2d 464 (State v. Webb) 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. Webb, 824 S.W.2d 464, 1992 Mo. App. LEXIS 194, 1992 WL 14663 (Mo. Ct. App. 1992).

Opinion

MONTGOMERY, Judge.

Defendant’s motion to suppress evidence seized by virtue of a search warrant was sustained by the trial court. The State appeals.1 Two points are presented for our review. Because we find the search warrant was properly issued we do not discuss the State’s second point.

The State contends the application for the search warrant was sufficient to sustain the finding of probable cause made by the issuing judge. Defendant argues that (1) the issuing judge relied on oral information to issue the search warrant, (2) the “informant” was not shown to be reliable, and (3) the search warrant was anticipatory in nature.

The facts developed at a motion to suppress hearing are as follows: Federal Express employees in Springfield, Missouri, discovered a shipment of cocaine in transit. Springfield Police Detective Lewis began working on the case and arrested Stephen Kerr for possession of approximately two ounces of cocaine. We assume the Federal Express package was addressed to Kerr, and he was arrested when the package was received by him. Kerr agreed to cooperate with the police by selling the cocaine to the intended buyers. He then telephoned Defendant and stated, “... I got my package, and I thought if you wanted I would drop on by.” Defendant gave Kerr directions to his home. The police recorded this call and a transcript of the conversation was received in evidence. Officers Hamilton and Fite strip searched Kerr and searched his vehicle just before following him to Defendant’s home. While Kerr and Officers [466]*466Hamilton and Fite proceeded to Defendant’s home, Detective Lewis prepared a search warrant application and proceeded to the home of Associate Circuit Judge Dan Conklin to obtain a search warrant to search Defendant’s premises.

Because the drug sale had not yet occurred, Detective Lewis waited at the home of Judge Conklin to receive further information from Officers Hamilton and Fite. While waiting, Detective Lewis was soon notified by Officer Hamilton, via radio, that Kerr made the drug sale to Defendant. Upon receiving that information Detective Lewis proceeded to sign the search warrant application and present it to Judge Conklin.

Detective Lewis testified Judge Conklin asked him some questions and he responded. Judge Conklin testified he asked Detective Lewis why he was there, and he stated he came for a search warrant but some matters in the application had not yet occurred. Detective Lewis responded he would submit the application when everything was complete. Judge Conklin further testified he asked Detective Lewis about no facts contained in the application, and no information was given to determine probable cause except the facts within the four comers of the application. He finally testified, “I’m acutely aware of the necessity that the information be totally within the four corners of the application and not any parole [sic] testimony from the officer.”

Judge Conklin issued the search warrant which was served on Defendant. The officers failed to recover any cocaine but they did seize from Defendant the “baggie” which contained the cocaine. One thousand two hundred fifty dollars in cash paid to Kerr by Defendant for the cocaine was seized immediately after Kerr left Defendant’s home. Other types of drugs and drug paraphernalia were seized at Defendant’s premises.

Prior to entering Defendant’s home the police fitted Kerr with a recording device. While Kerr consummated the drug sale with Defendant, Officers Hamilton and Fite overheard and recorded the entire transaction from a nearby location. From this “eavesdropping” the officers learned that the sale was completed. At that point Detective Lewis was notified to present the search warrant application. A transcript of the drug sale transaction between Kerr and Defendant was received into evidence.

The Application for Search Warrant was subscribed and sworn to by Detective Lewis. The items sought to be searched for and seized were “[c]ocaine, narcotic paraphernalia, cash from narcotic sales, narcotic business records and all other illegally kept controlled substances.” The person, place or thing to be searched was described as “3214 W. Edwards, Greene County, Missouri. Residence is a single family. Search to include all out buildings on the above property, all persons found in the residence and vehicles on the property.”

The application stated that Lewis had probable cause to believe that the objects sought were now located in the described place, based on the following facts:

On April 9, 1988, Stephen Kerr was arrested for Felony Possession of Cocaine. He was arrested picking up a Federal Express package at Federal Express that contained 2 ounces of cocaine. When interviewed, Kerr told me that prior to the arrest, he had talked with Marty Webb and that the cocaine was going to be delivered to Webb. Kerr stated he expected to receive $2,000.00 in cash from Webb.
On April 9, 1988, 16:15 hours, Kerr talked to Webb by telephone. Webb told Kerr he lived at 3214 W. Edwards and for him to come on out to the house. On April 9, 1988, Kerr went to Webb’s house at 3214 W. Edwards, where he sold Kerr the cocaine that he had picked up at Federal Express earlier that day. Based on the above information, I believe cocaine is being kept at 3214 W. Edwards. (emphasis added)

The portion of the application stating, “... where he sold Kerr the cocaine ...” is obviously incorrect. A typographical error likely exists when Detective Lewis states the cocaine was sold to Kerr. Clearly, the cocaine was sold to Defendant and the application reasonably supports that construction. “In judging probable cause issuing [467]*467magistrates are not to be confined by limitations or by restrictions on the use of their common sense.” State v. Pennington, 642 S.W.2d 646, 648 (Mo.1982).

The trial court suppressed the evidence seized based upon the following finding:

The Court does not believe that the issuing Judge could consider that information that’s contained in that paragraph [the last paragraph of the application] because he knew that it was false. And I say that he knew it was false in that, number one, even if you put the interpretation on it that the State would like to put on it, [Kerr sold cocaine to Webb, not to himself] it purports to be information on the personal knowledge of the party who signed the application. It does not purport to be information that he has. The Judge knew that those events had not occurred at the time that the officer appeared at the Judge’s house and therefore the officer necessarily could not have been present when there was a sale of cocaine ... [s]o that the personal knowledge of the affiant necessarily did not exist and the Judge knew that it was not true so he could not have relied on it.

We review this issue pursuant to the rules described in State v. Berry, 801 S.W.2d 64 (Mo. banc 1990):

The Fourth Amendment guarantees that “no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A firm definition of the phrase “probable cause” has eluded the courts.... The most recent of the United States Supreme Court’s major efforts to define “probable cause,” Illinois v. Gates,

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Related

State v. Deaton
395 S.W.3d 50 (Missouri Court of Appeals, 2013)
State v. Trenter
85 S.W.3d 662 (Missouri Court of Appeals, 2002)
State v. Futo
990 S.W.2d 7 (Missouri Court of Appeals, 1999)

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Bluebook (online)
824 S.W.2d 464, 1992 Mo. App. LEXIS 194, 1992 WL 14663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-webb-moctapp-1992.