            IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
STATE OF MISSOURI,                        )
                                          )
              Appellant,                  )
                                          )
       v.                                 )      WD77725 (Consolidated with WD77723)
                                          )
MATTHEW S. ROUCH,                         )      Opinion filed: December 16, 2014
                                          )
              Respondent.                 )


    APPEAL FROM THE CIRCUIT COURT OF NODAWAY COUNTY, MISSOURI
                 The Honorable Roger M. Prokes, Judge

             Before Special Division: Zel Fischer, Special Judge Presiding,
                  Joseph M. Ellis, Judge and Victor C. Howard, Judge

       The State of Missouri brings this interlocutory appeal challenging an order issued

in the Circuit Court of Nodaway County granting Matthew Rouch's motion to suppress

evidence discovered and seized as a result of the execution of a warrant to search his

home. For the following reasons, the trial court's ruling is affirmed.

       On September 3, 2013, Northwest Missouri State University Police Chief

Clarence Green, Jr. was interviewed over the telephone by a student reporter for a story

for the Northwest Missourian newspaper.         During the course of that interview, the

reporter claimed that a faculty member had indicated in a Facebook post that he would

climb up in the bell tower on campus and shoot students. Chief Green asked the
reporter for the name of the faculty member and a copy of the reporter's screenshot

printout of the Facebook post but the reporter refused to provide them. The following

day, Chief Green applied for and received a warrant to search the office and file storage

area of the Northwest Missourian for evidence related to the Facebook post.

          Upon executing that warrant, Chief Green seized a printout of a Facebook post

by Rouch, who was a professor in the communications department, which stated:

           But, yes. That's the beginning of the semester. I'm always optimistic. By
           October, I'll be wanting to get up to the top of the bell tower with a high
           powered rifle – with a good scope, and probably a gatling gun as well.

Chief Green then contacted and questioned Rouch about the Facebook post. Rouch

admitted making the post and stated that it was a sarcastic, flippant comment meant as

a humorous response to statements made by a colleague.1 When asked if he owned

any weapons, Rouch said that he had a pellet gun at home. When interviewed, the

colleague to whom Rouch had made the statement indicated that she thought Rouch's

statement was in bad taste but that it was meant as a joke.


1
    Rouch signed a written statement providing:

           Last Wednesday, I responded to a comment by Jody Stauch on facebook [sic]. The
           essence of Jody’s comment was that she kind of felt it was pointless when people ask
           her how the semester was going when it was only the third day.

           My response, which I thought was humorous, was along the lines of I was always okay
           the first week; that is was [sic] toward the end of October that I felt like going up in the
           belltower [sic] with a high powered rifle and scope and a Gatling gun. I was trying to be
           humorous – just saying it was always the middle of the semester when I was the most
           stressed, like every other faculty.

           Jody joked back something like “attention NSA, I do not know this man.” I gave it a
           thumbs up.

           An hour later, I looked, and Jody had about 7 thumbs up on her comment. There were
           none on mine. So I wrote another comment. “Uh, I hope everyone knows I was just
           kidding.” Nobody responded to that. So I wrote one final one, “Uh, I guess not.”

           About five minutes after that a [sic] deleted all three of my comments.


                                                       2
      The following day, an administrator called Chief Green and told him that a

professor, Dr. Walker, had heard Rouch say something about bringing a bomb on

campus. When questioned by Chief Green, Dr. Walker said he had overheard Rouch

make a comment like: "Yesterday they thought it was a gun. Today I've brought a

bomb." Chief Green had Rouch taken into custody. When questioned, Rouch admitted

making the comments, which he again maintained were flippant and meant as a

sarcastic joke. After questioning Rouch, Chief Green placed Rouch under a 24-hour

investigative hold for making terroristic threats. The campus building Rouch had been

in was searched for a bomb but none was found.           All of Rouch's co-workers and

colleagues that were interviewed by Chief Green about Rouch's comments indicated

their belief that the comments were made flippantly and meant to be jokes.

      After interviewing Rouch and his colleagues, Chief Green contacted the

prosecuting attorney to seek a warrant to search Rouch's home for firearms.          The

Complaint for Search Warrant, filed by the county prosecuting attorney, asked for a

warrant to search Rouch's home for "a rifle with a scope, a gatling gun, or other firearms

capable of lethal use," which were generically said to be "evidence of a criminal

offense." Similarly, in the affidavit in support of the warrant complaint, Chief Green

asked the court to issue a warrant to search Rouch's home for "a rifle with a scope, a

gatling gun, or other firearms capable of lethal use." In support of that request, Chief

Green stated:

       On Wednesday, September 4, 2013, in the morning, [a student reporter
       for the Northwest Missourian newspaper] called and spoke with Chief
       Clarence Green at the University Police Station claiming he was doing a
       story about posts on social media. During the course of the conversation,
       [the reporter] admitted to Chief Green that [the reporter] saw and printed
       a post from social media coming from a University professor that claimed


                                            3
       the professor would climb up the Bell Tower on the campus of Northwest
       Missouri State University, and begin shooting the students. According to
       [the reporter], the post indicated the professor would commit this act
       sometime by the end of the present semester. Chief Green asked [the
       reporter] for the identity of the person that made the social media post,
       and also requested a copy of the print out of the post, but both were
       refused by [the reporter]. Chief Green obtained a search warrant and
       executed the search warrant on September 4, 2013.

       Upon the examination of the search warrant I obtained a screen shot of a
       threatening post from Facebook from the account of Matt Rouch. Matt
       Rouch is a professor at Northwest Missouri State University. The
       Facebook post was as follows:

       "But, yes, that's the beginning of the semester. I'm always optimistic. By
       October, I'll be wanting to get up to the top of the bell tower with a high
       powered rifle – with a good scope, and probably a gatling gun as well."

       Chief Green then interviewed Matt Rouch who admitted he authored the
       post and claimed it was meant in jest. Rouch claimed he only has a
       pellet gun at his residence. Rouch admitted he deleted the post
       referenced above.

       On September 5, 2013, witnessed [sic] notified Chief Green that Matt
       Rouch claimed he had a bomb in a brief case, or other bag, he walked
       into a building with on the campus of Northwest Missouri State University.
       Chief Green then detained Matt Rouch pending an investigatory 24-hour
       hold in the afternoon of September 5, 2013.

       Chief Green requests permission to search the residence for firearms
       capable of lethal use as noted above in this affidavit to investigate
       whether sufficient evidence exists to proceed with criminal charges.

After reviewing the complaint and affidavit, an associate circuit judge issued a warrant

for the search of Rouch's house for "a rifle with a scope, a gatling gun, or other firearms

capable of lethal use."

       Upon executing the search warrant, in an upstairs room of Rouch's home,

officer's found in plain view marijuana, cultivated marijuana plants, planting materials,

and drug paraphernalia. These items were seized by the police. No firearms capable




                                            4
of lethal use were found in the home.2 Rouch was subsequently charged by information

with one class B felony count of Producing a Controlled Substance (Marijuana), §

195.211, and one class C felony count of                  Possession of a Controlled Substance

(Marijuana), § 195.202.

        Rouch eventually filed a motion to quash the warrant to search his home and to

suppress the evidence seized as a result of that search.3 Rouch asserted that the

warrant complaint and affidavit did not show that the firearms the State sought to search

for and seize were either contraband or evidence of a crime. He further asserted that

the State had failed to establish probable cause to believe that any such firearms would

be found in his home.

        Following an evidentiary hearing, the circuit court entered its order concluding

that the warrant to search Rouch's home "should be quashed and all evidence

discovered from that search should be suppressed because there was no probable

cause to believe that criminal contraband or evidence of a criminal offense would be

discovered." The court further found that Chief Green had misled the court by omitting

significant information from his affidavit regarding the context of the comments and

evidence indicative of Rouch's comments being intended to be humorous. The State

brings two points on interlocutory appeal from the circuit court's ruling.4

        In its first point, the State contends that the trial court erred in finding that no

probable cause existed to support the issuance of the search warrant.                           The State

asserts that:


2
  The pellet gun that Rouch had admitted to owning was found during the search.
3
  Rouch also sought to quash the warrant to search the newspaper offices but the trial court did not quash
that warrant and that ruling is not before this court on appeal.
4
  Interlocutory appeal of the trial court's ruling on the motion to suppress is authorized by § 547.200.1(3).

                                                     5
         probable cause existed to search Respondent's residence after he made
         repeated threatening statements involving both shooting weapons from a
         campus monument and possessing a bomb while in a campus building
         after admonishment that such statements were taken seriously and a
         search of the campus premises did not reveal weapons or bombs and
         Respondent admitted to possessing a "pellet gun" at his residence, in that
         based on the totality of the circumstances there was a fair probability that
         evidence of a crime was held or located at Respondent's residence.

This point is wholly without merit.

        "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. Wilbers, 347 S.W.3d 552, 556 (Mo. App. W.D. 2011) (internal quotation

omitted). "Probable cause to search exists when, at the time the magistrate [or judge]

issues the warrant, there are reasonably trustworthy facts which, given the totality of the

circumstances, are sufficient to lead a prudent person to believe that the items sought

constitute fruits, instrumentalities, or evidence of crime5 and will be present at the time

and place of the search." Id. at 558 (internal quotation and emphasis omitted). "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 or her[,] there is a fair probability that contraband or evidence of a

crime will be found in a particular place."               Id. at 557 (internal quotation omitted).

"[P]robable cause must be examined in terms of cause to believe that the evidence

sought will aid in a particular apprehension or conviction.'" State v. Mitchell, 20 S.W.3d

546, 556 (Mo. App. W.D. 2000) (quoting State v. Lee, 617 S.W.2d 398, 400-01 (Mo.

banc 1981)).


5
 In relevant part, § 542.271 provides that a search warrant may be issued for any “[p]roperty, article,
material, or substance that constitutes evidence of the commission of a criminal offense” or “[p]roperty for
which possession is an offense under the law of this state.”

                                                     6
        "[I]n reviewing a trial court's ruling on a motion to suppress evidence seized

pursuant to a search warrant, the court gives great deference to the initial judicial

determination of probable cause that was made at the time the warrant issued." State

v. Neher, 213 S.W.3d 44, 49 (Mo. banc 2007). "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." Id. "In conducting the review of whether probable

cause exists, the appellate court may not look beyond the four corners of the warrant

application and the supporting affidavits." Id. "The court 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." Id.

        "Deference to the issuing court is not, however, without limit." Wilbers, 347

S.W.3d at 557. "Reviewing courts will not defer to a warrant based on an affidavit that

does not provide the [issuing court] with a substantial basis for determining the

existence of probable cause." Id. at 558 (internal quotation omitted).

        The warrant complaint and supporting affidavit sought to search Rouch's house

for "a rifle with a scope, a gatling gun, or other firearms capable of lethal use" and the

warrant was issued to search for those items.6 Neither the warrant complaint nor Chief

Green's affidavit indicate that it would be illegal for Rouch to have such items in his

possession or that such items were otherwise contraband.                           Further, neither the

complaint nor affidavit state, nor does common sense indicate, what criminal offense or

offenses Rouch's possession of a firearm would serve as evidence of him committing.

6
  The State inexplicably maintained at the suppression hearing, and continues to maintain on appeal, that
the warrant complaint and affidavit sought to search Rouch's home for bombs and explosives. Chief
Green expressly testified at the motion hearing that he had not applied to search for bombs or explosive
devices and the clear language of the warrant complaint and Chief Green's affidavit reflects that a warrant
was only sought to search for “a rifle with a scope, a gatling gun, or other firearms capable of lethal use.”

                                                     7
        The State argues that any firearms recovered from the home would have been

evidence that Rouch committed the crime of making a terroristic threat under § 574.115,

making a false bomb report in violation of § 575.090, harassment by using an electronic

communication to frighten another in violation of § 565.090, or assault in violation of §

565.050, 565.060, and 565.090. The State baldly maintains that Rouch's possession of

a firearm in his house would have been evidence that he intended for people to feel

threatened by his Facebook post and verbal statement about a bomb and thereby aided

in proving the intent element of those offenses.

        Contrary to the State's assertions, however, based upon the totality of the

circumstances, Rouch's possession of a firearm inside his home simply would not have

served as evidence that he intended for either of his comments to be taken seriously

rather than in jest. As the warrant complaint and affidavit do not reflect that the items to

be searched for and seized were contraband or evidence of a crime, the trial court did

not err in quashing the warrant.7 Point denied.

        In its second point, the State contends that, even if the search warrant was

improperly issued and properly quashed by the trial court, the evidence still should not

have been suppressed based upon the good faith exception to the exclusionary rule

established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677

(1984). The State argues that Chief Green and the other law enforcement officers

involved in the search acted in good faith reliance upon a warrant issued by a judge and

that the evidence should, therefore, not have been excluded.



7
  Having reached this conclusion, we need not determine whether the affidavit sufficiently demonstrated
that there was fair probability that “a rifle with a scope, a gatling gun, or other firearms capable of lethal
use” would be found in Rouch's home, though that proposition would seem rather dubious.

                                                      8
        "It is well settled that under the 'exclusionary rule,' the fruits of an unlawful search

or seizure are inadmissible and cannot be used against a defendant at trial." State v.

Clampitt, 364 S.W.3d 605, 613 (Mo. App. W.D. 2012) (internal quotation omitted).

However, in Leon, the Supreme Court "held that in some instances, when law

enforcement officers act in the good-faith belief that a search is legal, even if that search

is ultimately determined to be unlawful, the evidence is admissible because to exclude it

would have no deterrent effect on future law enforcement conduct." State v. Ellis, 355

S.W.3d 522, 524 (Mo. App. E.D. 2011). Accordingly, Leon held that "[w]hen police act

in reasonable reliance on a facially valid search warrant issued by a detached and

neutral magistrate, the exclusionary rule will not operate to bar evidence obtained under

the search warrant, even though the warrant may be invalid." State v. Buchli, 152

S.W.3d 289, 305-06 (Mo. App. W.D. 2004) (citing United States v. Leon, 468 U.S. 897,

923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Leon further provided, however, that this

good-faith exception does not apply and suppression remains appropriate:

         1) if the affiant provides information he knows or should know is false;8
         2) the magistrate [or judge] wholly abandons his judicial role;
         3) if the affidavit is so lacking in probable cause as to render official belief
         in its existence entirely unreasonable; or
         4) if the warrant is so facially deficient the executing officers cannot
         reasonably presume it to be valid.

Wilbers, 347 S.W.3d at 562 (internal quotation omitted).

        The trial court found that the Leon good faith exception to the exclusionary rule

did not apply because the warrant and affidavit are so lacking in indicia of probable

cause to believe that contraband or evidence of a crime would be found in the home

8
  The good-faith exception does not apply and suppression “remains an appropriate remedy if the
magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was
false or would have known was false except for his reckless disregard of the truth.” United States v.
Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984).

                                                     9
that official belief in its existence was entirely unreasonable. The court also found that

Chief Green had misled the issuing judge by omitting from his affidavit the context of

Rouch's statements, that the witnesses had all stated that they believed the comments

to have been made in jest, and that Chief Green personally believed the comments to

have been meant as jokes.

       As noted supra, it is readily apparent on the face of the warrant and affidavit that

the items subject to the warrant were not contraband or evidence of a crime. The clear

reason for which the warrant was sought was to assess Rouch's capability to commit a

violent crime in the future. Indeed, Chief Green acknowledged as much at the hearing.9

The trial court did not err in finding that the warrant was so lacking in indicia of probable

cause as to render the officers' belief in its existence entirely unreasonable and that the

good faith exception to the exclusionary rule, therefore, did not apply.10 Point denied.

       The trial court's ruling is affirmed.




                                                           ________________________________
                                                           Joseph M. Ellis, Judge
All concur.




9
   Chief Green testified about his department's threat assessment procedures and stated that, even
though he personally thought the statements were likely meant as jokes, he could not take the chance of
being wrong and that it was better to be safe than sorry and to assess whether Rouch posed a threat.
10
   Having reached this conclusion, we need not address whether Chief Green's omission of context and
witness statements from the affidavit constituted a Franks violation that would negate the good faith
exception to the exclusionary rule.
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