Opinion
No. 27153
June 27, 2006
Appeal from the Circuit Court of Barton County, Honorable James R. Bickel, Circuit Judge.
Kent Denzel, Asst. Public Defender of Columbia, MO, for Appellants.
Jeremiah W. (Jay) Nixon, Atty. Gen.; Shaun J. Mackelprang, Asst. Atty. Gen. of Jefferson City, MO, for Respondents.
On August 30, 2004, Barton County Sheriff William Griffitt (Sheriff Griffitt), received a telephone call concerning Brian Neher (Defendant) from a confidential informant. After receiving this telephone call, Sheriff Griffitt applied for a warrant to search Defendant's home. In an affidavit attached to the warrant application, Sheriff Griffitt stated:
Your affiant, being a duly sworn peace officer in the State of Missouri, received a phone call from a reliable confidential informant on today's date of 08-30-2004, about [Defendant] who resides at 4 SE 95th Rd in Barton County. [Defendant] lives in a white trailer house, which is approximately a 16x60 and lives on a dead end road in Barton County. It is better described as the first trailer house west of the railroad tracks, and it is the trailer house right next to his parents house on 95th rd. The confidential informant has previously given information to your affiant which has been corroborated and found to be reliable.
The confidential informant contacted your affiant, Sheriff William A Griffitt on today's date of 08-30-2004 and stated that [Defendant] was cooking meth late last night (8/29-30/04). The confidential informant also stated that [Defendant] has all the chemicals used in the manufacturing methamphetamine. The confidential informant also stated that he also is in possession of paraphernalia for the manufacturing and use of methamphetamine.
[Defendant] is a known drug user, and manufacturer in Barton and Jasper Counties, and also has a criminal history for possession of controlled substance. One of his associates who was at the residence on 08-29-2004, was a Carl Dale Carter who also has an extensive criminal history involving dangerous drugs including Methamphetamine. Carl Dale Carter was arrested for possession of a control substance on 02-07-2000 in Barton County.
The application and affidavit were reviewed by a Barton County associate circuit judge on August 30, 2004. The judge issued a warrant to search Defendant's premises after finding probable cause to believe methamphetamine (meth) and drug paraphernalia were being kept there.
At around 10:00 p.m. that same day, the warrant was executed by five police officers. During the search of Defendant's trailer, the officers seized meth, marijuana and numerous items of drug paraphernalia from Defendant's home.
The items seized included: a plastic bag containing .33 grams of meth; two metal spoons, a piece of glass tubing, a plastic pen barrel, and three glass pipes containing meth residue; a bottle of liquid containing meth; coffee filters containing ephedrine or pseudoephedrine; a bottle of liquid containing ephedrine or pseudoephedrine; a packet of twenty-four capsules of Sudafed; seven full blister packs of nasal decongestant antihistamine tablets; containers of iodine, starting fluid, camp fuel, muriatic acid, hydrogen peroxide, acetone, and red devil lye; plastic tubing and various plastic bottles and glassware; a handwritten recipe; two tablets of acetaminophen; a set of electronic scales; and various amounts of marijuana, marijuana residue and marijuana-related paraphernalia.
Thereafter, Defendant was arrested and charged by felony information with committing the following crimes:
Count I — manufacturing meth, a controlled substance, in violation of § 195.211.
Count II — possession of meth with intent to deliver in violation of § 195.211.
Count III — possession of pseudoephedrine with intent to manufacture meth in violation of § 195.246.
Count IV — possession of acetone, ethyl ether, red phosphorus and/or sulfuric acid with the intent to manufacture meth in violation of § 195.420.
Count V — knowingly possessing drug paraphernalia in the form of coffee filters, glass containers and tubing with the intent to use them in combination to manufacture meth in violation of § 195.233.
All references to §§ 195.211 and 195.246 are to RSMo Cum. Supp. (2004). All other references to statutes are to RSMo (2000).
Prior to trial, Defendant moved to suppress all evidence obtained during the search of his trailer on the ground that the affidavit attached to the warrant application was insufficient to establish probable cause for the search. Even though the affidavit did not say so expressly, the trial court concluded Sheriff Griffitt could have believed the confidential informant's information was based on personal observation. Therefore, under the totality of the circumstances, there was a substantial basis for concluding the affidavit contained sufficient information to establish a fair probability that the search would uncover evidence of criminal activity. The motion to suppress was denied.
Defendant waived his right to a jury trial, and the case was tried by the court. When the State offered the items seized during the search of Defendant's residence, Defendant objected on the same grounds presented in his motion to suppress. The court overruled the objection and admitted the items in evidence. The State rested its case, and Defendant presented no evidence. After both parties waived closing arguments, the court engaged in the following colloquy with counsel:
THE COURT: At this time, the Court is going to find [Defendant] guilty of Counts I, III, IV and V. I will find him not guilty as to Count II.
[PROSECUTOR]: Are you doing lesser included offense on two?
THE COURT: Do you wish to submit a lesser included offense under Count II? The Court finds that there has not been sufficient evidence to find attempt [sic] to deliver.
[PROSECUTOR]: I guess I am so requesting.
THE COURT:. . . . As to what lesser included offense?
[PROSECUTOR]: Class C felony possession of controlled substance, without the intent part of it.
THE COURT: [Defense Counsel], any comments?
[DEFENSE COUNSEL]: Judge, actually it is my understanding that the Court is free to find the defendant guilty at a bench trial of lesser included offenses. So, as long as they are actually lesser included offenses, and obviously simple possession is one.
THE COURT: The Court does believe that there is sufficient evidence to find, under Count II, to enter a finding of guilty to a lesser included offense the Class C felony of possession of controlled substance, Methamphetamine.
The court sentenced Defendant to concurrent sentences of ten years on Count I, five years on Count II, and four years on each of Counts III, IV and V.
On appeal, Defendant claims the trial court erred in two respects. First, Defendant contends the court plainly erred in finding him guilty of the lesser-included offense of possession of a controlled substance on Count II because Defendant was thereby subjected to double jeopardy. Second, Defendant contends the court clearly erred in overruling the motion to suppress and admitting evidence seized during the search of Defendant's residence because the search warrant was not supported by probable cause.
In Defendant's first point, he contends the trial court committed plain error in finding him guilty on Count II of the lesser-included offense of possession of a controlled substance. According to Defendant, the court violated Defendant's constitutional rights to be protected from double jeopardy by finding Defendant guilty of the lesser-included possession offense. Defendant did not raise this double jeopardy issue at trial and seeks plain error review. We decline to do so. As we explained in State v. Gaver , 944 S.W.2d 273 (Mo.App. 1997), "it is well-settled that double jeopardy is a personal right which, if not properly raised, is waived." Id. at 279. To avoid a waiver, an alleged double jeopardy violation must be raised at trial. Id. Since Defendant waived the issue of double jeopardy by failing to raise it in the trial court, we decline to engage in plain error review. Id. ; State v. Tilley , 104 S.W.3d 814, 824-25 (Mo.App. 2003); State v. Harp , 101 S.W.3d 367, 376 (Mo.App. 2003); State v. Todd , 70 S.W.3d 509, 529 (Mo.App. 2002); State v. Markham , 63 S.W.3d 701, 708 (Mo.App. 2002).
The constitutional guarantee against double jeopardy is found in the Fifth Amendment to the United States Constitution. It states, in pertinent part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb. . . ." The Fifth Amendment applies to Missouri governmental action by virtue of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. McTush , 827 S.W.2d 184, 186 (Mo. banc 1992). Defendant also asserts an alleged double jeopardy violation based on article I, § 19 of the Missouri Constitution. This section provides, in pertinent part, that no person shall "be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury. . . ." Since the instant case was bench-tried, this section of the Missouri Constitution has no application. See McTush , 827 S.W.2d at 186; State v. Harris , 153 S.W.3d 4, 6 n. 2 (Mo.App. 2005).
Defendant argues, however, that we are required by the holding in Hagan v. State , 836 S.W.2d 459 (Mo. banc 1992), to review the merits of the double jeopardy issue. We disagree. Hagan involved a Rule 24.035 proceeding in which the movant contended that, as a result of his guilty plea, he had been punished twice for the same larceny offense in violation of his right to be free from double jeopardy. Id. at 461. The issue before the court was "whether a guilty plea acts as a waiver of a double jeopardy claim asserted by movant for the first time on a collateral attack of his conviction under Rule 24.035." Id. at 460. The Supreme Court acknowledged the general waiver rule and carved out a narrow exception applicable to collateral attacks on judgments arising from guilty pleas:
Weighing these competing interests, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), acknowledges the general rule that when an offender seeks to reopen a conviction based upon a guilty plea that has become final, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." Id. at 569, 109 S.Ct. at 762. Collateral attack is generally foreclosed if both of these requirements have been met. Id. An exception to this general rule of waiver, however, exists where it can be determined on the face of the record that the court had no power to enter the conviction or impose the sentence. Id. Broce stands for the proposition that a guilty plea does not waive a subsequent claim of a double jeopardy violation if it can be determined from the face of the record that the sentencing court had no power to enter the conviction or impose the sentence. We believe that the record that a reviewing court may consider in determining whether a double jeopardy claim can be considered on collateral attack consists solely of the State's information or indictment and the transcript of a movant's guilty plea.
Id. at 461 (emphasis in original). Given the markedly different procedural posture and issue presented in Hagan , we find it inapposite.
Assuming arguendo that Hagan has any application to a conviction arising from a finding of guilt by the court rather than a guilty plea, we are still unable to discern how this precedent aids Defendant. Possession of meth in violation of § 195.202 is a lesser-included offense of possession of meth with intent to deliver in violation of § 195.211. See Cason v. State , 987 S.W.2d 357, 358 (Mo.App. 1999). The court had the inherent power to convict Defendant of the lesser-included possession offense, even if neither party asked the court to do so. See State v. Kohser , 46 S.W.3d 108, 111-13 (Mo.App. 2001); Haddock v. State , 75 S.W.3d 872, 876-77 (Mo.App. 2002). In determining whether a double jeopardy violation occurred, we examine the substance of the trial court's ruling, rather than its form, to determine its precise nature. State v. Smith , 988 S.W.2d 71, 78 (Mo.App. 1999); State v. Reed , 770 S.W.2d 517, 520 (Mo.App. 1989). It is evident from the above-quoted colloquy that the court only found Defendant "not guilty" of possessing meth with the intent to deliver. The judge explained that he acquitted Defendant of that charge because there was insufficient evidence of intent. The court's acquittal of Defendant as to the greater intent to deliver offense did not create any double jeopardy bar that prevented the court from thereafter finding Defendant guilty of the lesser-included possession offense in the same trial. See State v. O'Dell , 684 S.W.2d 453, 465 (Mo.App. 1984). Accordingly, Hagan does not support Defendant's argument because it is not apparent from the face of the record that the sentencing court lacked the power to convict and sentence Defendant on the lesser-included offense. Defendant's first point is denied.
In Defendant's second point, he contends the trial court clearly erred in overruling the motion to suppress and admitting evidence seized during the search of Defendant's residence because the search warrant was not supported by probable cause. Before addressing Defendant's specific arguments, we must advert to the applicable standard of review.
As previously noted, Defendant objected at trial to the admission of the items seized from his residence on the ground that the search warrant had been issued without probable cause. Therefore, Defendant's challenge to the court's ruling on the motion to suppress has been properly preserved for appellate review. See State v. Lopez , 128 S.W.3d 195, 200-01 (Mo.App. 2004).
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. Berry , 801 S.W.2d 64, 66 (Mo. banc 1990). A neutral magistrate or judge must determine probable cause from the totality of the circumstances. Illinois v. Gates , 462 U.S. 213, 238 (1983). In determining whether probable cause exists, the issuing magistrate or judge must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Laws , 801 S.W.2d 68, 69 (Mo. banc 1990). In order for probable cause for a search to exist, a magistrate or judge need only determine there is a fair probability that contraband or evidence will be found; the presence of such contraband or evidence need not be established at a prima facie level, by a preponderance of the evidence or beyond a reasonable doubt. Id. at 70; State v. Norman , 133 S.W.3d 151, 156 (Mo.App. 2004).
Accordingly, in reviewing a trial court's ruling on a motion to suppress evidence seized pursuant to a search warrant, we give great deference to the initial judicial determination of probable cause that was made at the time the warrant issued. State v. Baker , 103 S.W.3d 711, 720 (Mo. banc 2003); Berry , 801 S.W.2d at 66; Laws , 801 S.W.2d at 70; State v. Rush , 160 S.W.3d 844, 848 (Mo.App. 2005). Because there is a strong preference in the Fourth Amendment for searches to be conducted pursuant to a warrant, a reviewing court should not quash a warrant by construing it in a hypertechnical, rather than a commonsense, manner. Rush , 160 S.W.3d at 848. 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. Laws , 801 S.W.2d at 69. In conducting our review of whether probable cause exists, we may not look beyond the four corners of the warrant application and the supporting affidavits. Id. at 70 n. 1; Rush , 160 S.W.3d at 848. We 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. Norman , 133 S.W.3d at 159. Even in a case where the sufficiency of the affidavit is marginal, probable cause should be liberally determined in accordance with the preference that a search be conducted via a warrant. Id. at 157; State v. Cornelius , 1 S.W.3d 603, 607 (Mo.App. 1999).
Defendant argues that the warrant to search his residence was not based on probable cause because: (1) Sheriff Griffitt's affidavit was based on hearsay; (2) there was no substantial basis for judging the confidential informant's basis of knowledge or veracity; and (3) the informant's information was not independently corroborated by law enforcement officers. We disagree.
Defendant also contends in his point relied on that the affidavit did not predict his future movements or activity. Since Defendant did not address this contention in his argument, however, the issue was abandoned and will not be addressed. See, e.g., Russell v. Invensys Cooking Refrigeration , 174 S.W.3d 15, 22 n. 5 (Mo.App. 2005); Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor-Morley, Inc. , 146 S.W.3d 411, 418 (Mo.App. 2004).
We begin by noting that an affidavit which relies on hearsay is sufficient to support a finding of probable cause if there is a substantial basis for crediting the hearsay. Baker , 103 S.W.3d at 720; Rush , 160 S.W.3d at 849. Thus, the fact that Sheriff Griffitt's affidavit was based on hearsay, insofar as that document recounted statements made by the confidential informant, does not render the affidavit deficient. Baker , 103 S.W.3d at 720.
Defendant's argument that there was no substantial basis for judging the confidential informant's basis of knowledge or veracity is similarly unpersuasive. During Sheriff Griffitt's telephone call with the confidential informant, the caller: (1) gave a detailed description of Defendant's residence; (2) reported that Defendant had been "cooking meth" the prior evening and possessed both the chemicals and paraphernalia used to manufacture meth; and (3) identified Carl Dale Carter as a person who had been at Defendant's residence on August 29th. Defendant argues that, because the affidavit did not expressly state the informant's information was based on personal observation, the affidavit was deficient. After examining Laws , we conclude Defendant's argument is meritless. In Laws , the officer's affidavit stated:
1. That he is a low (sic) enforcement officer in the County of New Madrid and State of Missouri, and
2. That he has reliable information from a previous reliable source that Clarence Law (sic) is presently in possession for sale and distribution certain controlled substances, to-wit: cocaine, cocaine derivatives and marihuana, together with weighing scales, at his home in Portageville, Missouri, and
3. That the affiant has personally observed activities on the porperty (sic) of Clarence Law (sic) that are consistent with the sale and distribution of a controlled substance that include many late night and secretive visits to the premises by persons suspected to be involved in illegal drug trafficing (sic) activities.
Id. at 69. The Supreme Court held that "implicit in the affidavit is an understanding that the informant learned his information through personal observation." Id. at 70. We reach the same conclusion here. Furthermore, we note that the level of detail in the information provided by the confidential informant to Sheriff Griffitt is virtually identical to that recounted in the officer's affidavit in Laws , which was found sufficient to establish probable cause. Id. at 71.
Since the issuing judge could infer that the confidential informant in the case at bar had personally observed the information reported to Sheriff Griffitt, the only remaining issue is the confidential informant's veracity, which is determined by looking to whether his/her information was corroborated. See Laws , 801 S.W.2d at 70 (the requisite substantial basis for using hearsay is met if the informant learned the information through personal observation and if the statements are corroborated through other sources); Berry , 801 S.W.2d at 66 (personal knowledge of an informant corroborated through other sources is enough to establish probable cause). There was ample corroboration to establish the confidential informant's veracity and, thus, support the issuance of a search warrant.
First, Sheriff Griffitt stated that he had previously received information from this same informant that had been corroborated and found to be reliable. A tip from an informant found to be reliable in the past is sufficient information alone to support the issuing judge's finding of probable cause. Rush , 160 S.W.3d at 849; Cornelius , 1 S.W.3d at 606; State v. Hill , 854 S.W.2d 814, 818 (Mo.App. 1993). This result attends because a factual statement of past reliability is a sufficient basis for a judge to independently gauge the reliability of the informant. Laws , 801 S.W.2d at 69.
Second, Sheriff Griffitt specifically noted that the confidential informant was reporting drug manufacturing activity by Defendant the prior evening. Therefore, the informant's information was fresh. This is a relevant consideration in determining corroboration. See Cornelius , 1 S.W.3d at 607 (officer's recital that he had received information about the defendant's possession of meth and drug paraphernalia in his home from a confidential informant within the past 24 hours provided further corroboration for the informant's statements).
Third, Sheriff Griffitt's affidavit also stated: (1) Defendant was a known drug user and manufacturer; and (2) Carl Dale Carter had an extensive criminal history involving drugs, including meth. In deciding whether probable cause to search existed, the issuing judge had a right to rely upon Sheriff Griffitt's personal knowledge that Defendant and Carter were associated with the manufacture and possession of illegal drugs, including meth. Laws , 801 S.W.2d at 70. Thus, the aforementioned information, which was based on the sheriff's personal knowledge, corroborated the confidential informant's tip that Defendant had been cooking meth on August 29th.
We hold that, under the totality of the circumstances, the issuing judge had a substantial basis for concluding there was a fair probability that contraband and evidence of criminal activity would be found at Defendant's residence. Therefore, the initial determination of probable cause was not clearly erroneous. That being the case, the trial court correctly decided to deny Defendant's motion to suppress the items seized from Defendant's residence and to permit their admission in evidence. Defendant's second point is denied.
Finding no merit in either of Defendant's points on appeal, we affirm the trial court's judgment.
SHRUM, P.J. — Concurs
BARNEY, J. — Concurs