State v. Anderson

629 S.W.3d 39

STATE of Missouri, Respondent,

v.Gary ANDERSON, Appellant.

WD 83626

Missouri Court of Appeals, Western District.

Filed: April 27, 2021

Chat G. Gardner, Kansas City, for appellant.

Hugh C. Jenkins, Butler, for respondent.

Before Division Two: W. Douglas Thomson, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

Lisa White Hardwick, Judge

Gary Anderson appeals from his conviction for animal abuse and the imposition of a $100 fine. Anderson contends the circuit court erred by denying his motion to suppress evidence from a search warrant that was based on information unlawfully obtained during several warrantless searches. For reasons explained herein, we reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

Anderson raises cattle on his property. On December 24, 2013, and January 10 and February 5, 2014, deputies of the Bates County Sheriff's Department entered Anderson's property to investigate reports of animal abuse and neglect. During these investigations, the deputies observed and took photographs of the condition of Anderson's livestock. Based on information obtained during the three searches, deputy Matthew Wiess applied for a search warrant and signed the accompanying affidavit. The warrant was granted and executed. Pursuant to the warrant, Dr. David Rybolt, a veterinarian, entered Anderson's property to inspect his livestock. Anderson was subsequently tried on six charges of animal abuse and one charge of resisting arrest. Anderson filed a motion to suppress evidence obtained during the three warrantless searches. The circuit court denied the motion based on the open fields doctrine and Deputy Wiess's testimony that he never entered the barn on Anderson's property. The court dismissed three counts of animal abuse at the close of the State's case. The jury found Anderson guilty on the remaining three counts of animal abuse and acquitted him of resisting arrest.

Anderson filed a civil lawsuit for the conversion of his cattle while in State custody. During discovery, the State provided new documentation contradicting the grounds upon which the search warrant and three warrantless searches were based. Specifically, the State produced Deputy Wiess's previously undisclosed incident report from his December 24, 2013 visit to Anderson's property. Therein, Wiess stated that he had entered Anderson's barn and that he had personally observed the cattle's food and water stores within. Both statements directly contradicted Wiess's testimony and sworn statement in the warrant affidavit. Based on that disclosure, Anderson filed a Rule 29.12 motion to vacate his convictions for animal abuse. The circuit court granted the motion and vacated the convictions.

The State refiled the case, charging Anderson with three counts of animal abuse. Anderson filed a motion to suppress the evidence obtained during the three warrantless searches and the subsequent search based on the warrant. The circuit court granted the motion as to the three warrantless searches and suppressed all evidence therefrom. However, the court denied the motion with regard to evidence obtained from the search warrant. Before trial, the court further ruled, over Anderson's objection, that the photographs that had been suppressed could still be admissible if the State laid a proper evidentiary foundation. The State presented the testimony of Dr. Rybolt, who testified that the suppressed photographs were a fair and accurate depiction of what he had personally observed during the execution of the warrant. On those grounds and over Anderson's objection, the court admitted the photographs into evidence. The jury found Anderson guilty of one count of animal abuse (Count III), and the trial court ordered him to pay a $100 fine. Anderson appeals.

STANDARD OF REVIEW

"Our review of a trial court's ruling on a motion to suppress is limited to a determination of whether there is substantial evidence to support the decision." State v. Humble , 474 S.W.3d 210, 214 (Mo. App. 2015). "We review the trial court's decision to grant a motion to suppress under an abuse-of-discretion standard." Id. "We will reverse the ruling only if it is clearly erroneous." Id. "The trial court's ruling is clearly erroneous if we are left with a definite and firm impression that a mistake has been made." Id. "We view all facts and reasonable inferences in the light most favorable to the trial court's ruling." Id. "Despite the deference we afford the trial court's order, ‘[t]he ultimate issue of whether the Fourth Amendment was violated is a question of law ... which this court reviews de novo .’ " Id. (quoting State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. 2004) ).

ANALYSIS

In his sole point on appeal, Anderson contends the court erred by denying his motion to suppress evidence from the warrant-supported search because the warrant was based on information unlawfully obtained during the three warrantless searches. "At a hearing on a motion to suppress, ‘[t]he State has the burden of showing by a preponderance of the evidence that the motion to suppress should be denied.’ " Humble , 474 S.W.3d at 215 (citation omitted). "This includes both the burden of producing evidence and the risk of non-persuasion." Id. (citation omitted).

The State argues that Anderson failed to preserve his contention that the court erred by denying his motion to suppress the warrant-supported search. "[W]hen a pretrial motion to suppress evidence is denied and the evidence is later offered at trial, the defendant must renew the motion or make a specific objection when the evidence is offered at trial to preserve the issue for appellate review." State v. Morgan , 366 S.W.3d 565, 586 (Mo. App. 2012). Therefore, to preserve the issue of admitting the testimony of Dr. Rybolt, who made his observations pursuant to the search warrant, Anderson must have also objected at the time the court admitted the testimony. See id. Anderson does not point to, nor do we find, any portion of the record demonstrating that he objected to the admission of Dr. Rybolt's testimony at the time it was offered. Consequently, we agree with the State that Anderson failed to preserve this issue for review.

Pursuant to Rule 30.20, "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." State v. Weyant , 598 S.W.3d 675, 678 (Mo. App. 2020).

Plain error review is discretionary and involves two steps: first, we must determine whether the trial court committed evident, obvious, and clear error affecting the defendant's substantial rights; second, if plain error is found, we then consider whether the error actually resulted in manifest injustice or a miscarriage of justice.

Id. In denying Anderson's motion to suppress the warrant-supported search, the court correctly restricted its review of the warrant's validity to a determination of whether the issuing judge had a substantial common-sense basis to find probable cause. State v. Henry , 292 S.W.3d 358, 362 (Mo. App. 2009). The court also gave a great degree of deference to the issuing judge's determination. Id. While ordinarily correct when considering a search warrant in isolation, the court failed to consider how its ruling to suppress evidence of the three warrantless searches affected the warrant application. Anderson contends that the circuit court should have redacted from its analysis any information in the warrant affidavit that was the product of the three warrantless and illegal searches. We agree. However, "[t]he fact that illegally obtained evidence is included in the affidavit does not invalidate the warrant." State v. Oliver , 293 S.W.3d 437, 443 (Mo. banc 2009). "The ultimate inquiry is not whether the affidavit contained allegations based upon illegally obtained evidence but whether, if setting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause." Id.

We considered a similar situation to the case before us in State v. Brown , 382 S.W.3d 147 (Mo. App. 2012). In Brown , the State appealed the circuit court's grant of Brown's motion to suppress. Id. at 155. The circuit court granted the motion in two parts: first, it found that an unwarranted search of a home was an illegal search; second, it found that a search warrant which was issued based on evidence obtained during the first illegal search was invalid. Id. We reversed the circuit court's decision as to the validity of the search warrant on the ground that removing the taint of the illegal search still left sufficient evidence for the issuing court to find probable cause. Id. at 169-70. In reaching our decision, we outlined, at length, the process that a circuit court must follow when a motion to suppress covers both an unwarranted search and a subsequently issued warrant based on the fruit of that search:

If the court were evaluating only warrant-supported searches, the court would exclude from consideration all evidence external to the warrant documents. But when the court must simultaneously consider external evidence as it relates to any warrantless searches that the court finds to be improper, the court may disregard observations in the warrant application that are tainted by the unlawful conduct. If the affidavit and application do not provide sufficient untainted information supporting probable cause to support the search warrant, then the evidence seized under the warrant must also be excluded.

Id. at 162 (internal citations omitted). We further emphasized that the circuit court must still analyze the validity of the warrant through the eyes of the issuing judge, but only after removing the tainted portions of the warrant from consideration. Id. at 166-69. We concluded:

To do otherwise would encourage improper police procedure that violates someone's rights, even if not the rights of the defendant in

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