STATE v. BROWN No. WD 38926.
741 S.W.2d 53 (1987)
STATE of Missouri, Respondent, v. Angel Patience BROWN aka Streit, Appellant.
Missouri Court of Appeals, Western District.
November 24, 1987.
Preston L. Cain, Kansas City, for appellant.
William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, C.J., and LOWENSTEIN and GAITAN, JJ.
The appellant Angel Patience Streit appeals her conviction for carrying a concealed weapon, two counts of possessing a short-barrel shotgun, and possessing cocaine. The question presented is whether under the totality of the circumstances as set forth in affidavits, there was a fair probability that evidence of a crime involving robbery of a camera would turn up in a car being driven by Streit and thus formed a sufficient basis for the issuance of the search warrant.
On April 9, 1986, an officer acting in the dual capacity of police officer of Brunswick and deputy sheriff of Chariton County followed a red over white Chrysler Cordoba into a convenience store parking lot. The officer had previous information concerning a red over white Cordoba which had been involved in two armed robberies in a nearby county. In the parking lot, the woman driver and only occupant of the Cordoba engaged in conversation with the occupants of a black Chevrolet Monte Carlo, the driver Streit, and a male passenger. The two vehicles departed the lot, apparently traveling together, and were followed by the officer for seven or eight miles. The vehicles then pulled onto the side of the road and stopped with the officer pulling in behind them, the officer only then activating his red lights. The officer had not yet received radio requested information on a license check of the vehicles. The occupants of the Monte Carlo, including the appellant Streit, produced identification upon request, as did the driver of the Cordoba. Upon further radio license check, all three individuals were taken in for questioning. The individuals and the vehicles were taken to the same location.
A complaint for search warrant was executed by the county prosecuting attorney at 12:05 a.m. on April 10, 1986. It requested a search warrant to search the Monte Carlo for the specific camera taken in one of the robberies with which the Cordoba had been associated. The camera had not been found in an earlier search of the Cordoba consented to by the driver. Based on the complaint and the supporting affidavits the search warrant was issued and immediately executed. The camera was not found. Among the items that were discovered in the Monte Carlo's
Prior to trial, Streit filed motion to quash the search warrant and to suppress evidence. The motions were overruled, with the court finding "a fair probability that the camera would be found in the black Monte Carlo."
Streit's primary point on appeal is that the trial court erred in overruling the pretrial motion to quash the warrant and her continuing objection to introduction of the evidence seized. It is her position that the affidavits given to support issuance of the search warrant failed to establish probable cause for the search and were not related to the area of the search. Upon review, this court agrees.
It is fundamental that no warrant shall issue but upon probable cause. U.S. Const. amend. IV; Mo. Const. art. I, § 15; § 542.276.10(3); State v. Brown, 708 S.W.2d 140, 143 (Mo. banc 1986). The United States Supreme Court has held and reiterated that probable cause is to be determined by looking at the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Missouri courts have concurred. State v. Luleff, 729 S.W.2d 530 (Mo.App.1987); State v. Hall, 687 S.W.2d 924 (Mo.App.1985); State v. Horsey, 676 S.W.2d 847 (Mo.App.1984). Gates indicates that "probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts —not readily, or even usefully, reduced to a neat set of legal rules." 103 S.Ct. at 2329. Expounding on the role of the magistrate issuing the warrant and an appellate court reviewing the issuance, the court stated:
Gates, 103 S.Ct. at 2332.
While the review for a "substantial basis" of probable cause under the totality of the circumstances test contemplates great deference to the magistrate's decision, State v. Pennington, 642 S.W.2d 646, 648 (Mo.1982), the magistrate is not allowed unfettered discretion. "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others" while the reviewing court "must continue to conscientiously review the sufficiency of affidavits on which warrants are issued." Gates, 103 S.Ct. at 2333. Upon review of the affidavits in this case they fall short of a finding of substantial basis for concluding probable cause existed for issuance of the search warrant. An examination of the affidavits to see if a fair probability that contraband would be found in the Monte Carlo existed is now in order. State v. Hall, supra, 687 S.W.2d at 929.
Four affidavits accompanied the complaint for the warrant. Three of them provide information that arguably establish probable cause to search the Cordoba. The first affidavit, by the robbery victim, relates to the loss of her camera; the second affidavit, by a motel employee, relates to the presence and the coming and goings of the Cordoba and one Donald Whatley at a motel in the city where the camera was stolen; and the third, by a deputy sheriff, relates to the ongoing investigation of three robberies (including the one when the camera was taken) and states that Whatley has been identified by a robbery victim as the suspect and restates the Cordoba/Whatley links. For clarity and because the outcome of the case hinges on the fourth affidavit it is now set out in full:
Conspicuously lacking is any substantial basis for concluding that probable cause existed to search the Monte Carlo, that is, that given all the circumstances, there is a fair probability evidence of a crime will be discovered in a particular place. State v. Hall, 687 S.W.2d at 929.
It seems fairly clear, though unnecessary for this appeal that probable cause did exist to search the Cordoba had not there been a consent. See U.S. v. Granger, infra. It is also clear that any probable cause as to the Monte Carlo was based entirely on its association with the suspect Cordoba and the incarcerated suspect Whatley. Not even the totality of the circumstances test can be stretched this far. While it is evident that the two cars were traveling together, and that the parties knew a jailed robbery suspect, such behavior and knowledge is as consistent with innocent behavior as with criminal activity on the part of the occupants of the Monte Carlo. Mere proximity, without more, to others independently suspected of criminal activity does not establish probable cause to search that person. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). See also, State v. Young, 701 S.W.2d 490, 494 (Mo.App.1986) (mere association is insufficient basis for arrest). The fact that someone meets and travels with another person suspected in criminal activity, and/or knows a jailed suspect with nothing more falls short of probable cause.
What "more," along with the proximity existing under these facts, could have served to establish probable cause, to establish not the certainty of criminal activity, but the probability? See, United States v. Rose, 731 F.2d 1337, 1344 (8th Cir.1984). The cases that address the issue generally describe a more developed, concrete link to the criminal activity under investigation. In State v. Pennington, supra, the court discussed the sufficiency of an affidavit. It noted, without deciding on sufficiency, that the affidavit linked a certain automobile
The affidavits in question are completely lacking in factual information that could result in a judgment that the car was a part of or contained the fruits of a criminal enterprise. See, State v. Wallace, 593 S.W.2d 545, 548 (Mo.App.1979) (a pre-Gates case). There is no indication of prior suspicion of the Monte Carlo or its occupants relevant to the robbery when the camera was taken. There is no indication anything other than verbal communication was exchanged between the vehicles. Neither the innocent behavior and conduct of the occupants nor the visibly accessible parts of the car would create a suspicion relevant to the robbery or of any criminal activity related to the Monte Carlo or its occupants. The cars had in fact been observed together for only a short period of time. While it is true the jailed suspect was alleged to have been in the Monte Carlo some two weeks before the seizure and search, this is before the subject robbery and still tenuously based on mere association with one suspected of criminal activity. In short, the search was premised merely on an association with the suspect car, the Cordoba, and the suspect individual; the search was in lieu of police investigation. When the facts in a search warrant affidavit are so attenuated in an attempt to create probable cause of any link to a crime, then there is not a substantial basis for concluding that probable cause existed, and the issuance of a search warrant is improper.
The state urges even if the search warrant is found insufficient because of no probable cause, the search and its fruits are saved by the so-called "good faith exception" to the exclusionary rule first stated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In other words the absence of probable cause does not end the inquiry since the state may seek a determination as to whether the searching officer acted reasonably and in good faith. People v. Rivera, 190 Cal.App.3d 1591, 236 Cal.Rptr. 116, 121 (1987). As construed by the Missouri Supreme Court, Leon teaches that evidence acquired "pursuant to a warrant issued by a detached and neutral magistrate should not be excluded, irrespective of the actual validity of the warrant, so long as the officer conducting the search acted in objectively reasonable reliance on that warrant." State v. Brown, 708 S.W.2d 140, 145 (Mo. banc 1986). The rationale for the exception to exclusion is that "the marginal or nonexistant benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Leon, 104 S.Ct. at 3420.
The existence of the good faith exception does not represent a radical alteration in the law relating to probable cause. "In so limiting the suppression remedy, we
In giving definition to the good faith exception, an officer's reliance on a probable cause determination must be objectively reasonable. Leon, 104 S.Ct. at 3420. That is, "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at n. 23; State v. Varvil, 686 S.W.2d 507, 511 (Mo.App.1985). Here, one of the officers executing the search supplied the key affidavit in the application for the warrant. Another of the officers executing the search was called in as backup at the scene of the initial interaction with the suspects. These officers must be held to know, under the objective standard, of the attenuated link between the Monte Carlo and any criminal activity or the fruits thereof. Because the court holds the warrant was issued without probable cause, and because of the finding that the officers should have known that the search was illegal despite the magistrate's authorization, the good faith exception of Leon cannot be used to salvage this search.
Cases from other jurisdictions that have involved the particular exception to the good faith exception at issue here have arrived at conflicting results. Persuasive are the results such as that in State v. Thompson, 369 N.W.2d 363, 372 (N.D. 1985), which noted that "[u]nder Leon, the focus is not upon the magistrate's decision as is the case under Gates, but rather, the focus is upon the police decision to seek and then execute a certain warrant." The opinion also states:
Id. The same result was obtained in U.S. v. Granger, 596 F.Supp. 665 (W.D.Wis. 1984) (later proceeding on other grounds, 777 F.2d 351 (7th Cir.1985)). The defendant Fountain, Granger and a third inmate were charged with stabbing a guard. The affidavit in support of a search warrant to examine Fountain's blood contained the following facts. The guard was found in a pool of blood in a particular cottage, and there was blood on the cell assigned to Granger and the defendant. An informant told the FBI agent the three defendants were seen hurrying from the area, and the defendant was wearing a blue zippered sweatshirt with blood on it was found in the cottage. Id. at 667. The court found the affidavit did not provide a substantial
Even with giving due deference to the judge who issued the warrant, and no reason to punish the police for having obtained a warrant, and only requiring a "fair probability" of the finding of contraband, the court concludes the affidavits fall just short of the mark.
The state's point as to this being a valid inventory search subject to an arrest is not well taken. The additional points of Streit need not be considered.
The judgment is reversed for failure to suppress, and the cause is remanded for new trial.
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