STATE OF MISSOURI,                                    )
                                                      )
         Plaintiff-Appellant,                         )
                                                      )
v.                                                    )        No. SD36197
                                                      )
JAMES CHRISTOPHER BALES,                              )        Filed: January 14, 2020
                                                      )
         Defendant-Respondent.                        )

              APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

                                        Honorable John D. Beger

REVERSED WITH DIRECTIONS

         The State (“Prosecutor”) appeals from an order quashing a search warrant and

suppressing evidence1 in a prosecution for first-degree domestic assault, second-degree

endangering the welfare of a child, and abuse or neglect of a child. See sections 565.072,

568.050 and 568.060. In two points, Prosecutor claims the search warrant adequately

described the item to be seized, and, even if it did not, the good-faith exception to exclusion

should apply. Because the search warrant was valid on its face, we reverse the trial court’s

order and need not reach Prosecutor’s second point.




1
 Section 547.200.1(3) authorizes the State to appeal an order that suppresses evidence in a criminal case.
Unless otherwise indicated, all statutory citations are to RSMo 2016.

                                                          1
                             Standard of Review and Applicable Law

        We will reverse a trial court’s ruling on a motion to suppress only if it is clearly

erroneous. State v. McNeely, 358 S.W.3d 65, 68 (Mo. banc 2012).

                Any ruling “on a motion to suppress must be supported by substantial
        evidence.” State v. Johnson, 354 S.W.3d 627, 631 (Mo. banc 2011). This
        Court reviews the facts and reasonable inferences therefrom favorably to the
        circuit court’s ruling and disregards contrary evidence and inferences. Id. at
        631-32. Whether a search is “permissible and whether the exclusionary rule
        applies to the evidence seized” are questions of law reviewed de novo. Id. at
        632.

State v. Douglass, 544 S.W.3d 182, 189 (Mo. banc 2018).

        “The Fourth Amendment of the United States Constitution ensures against

‘unreasonable searches and seizures’ and provides 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.’” Id. at 189 (quoting U.S. Const. amend.

IV).2 A search warrant is invalid if it is not supported by probable cause, or “[i]f it does not

describe the person, place, or thing to be searched or the property, article, material,

substance, or person to be seized with sufficient certainty.” Id. (quoting section

542.276.10(5)). “[A] search warrant is required to search the contents of a cell phone unless

an exception to the warrant requirement exists[.]” State v. Clampitt, 364 S.W.3d 605, 610

(Mo. App. W.D. 2012) (internal citation omitted).

        When analyzing a challenge to a warrant’s description of the property to be
        searched, this court must determine if the property has been described with
        sufficient particularity to allow the officer executing the warrant to locate and
        identify the property with reasonable effort and if a reasonable probability
        exists that another property might mistakenly be searched. State v.
        Cummings, 714 S.W.2d 877, 880 (Mo.App.S.D.1986); see also U.S. v. Kelly,
        772 F.3d 1072, 1081 (7th Cir.2014). A search warrant must “[i]dentify the
        place ... which is to be searched, in sufficient detail and particularity that the

2
 “[T]he Missouri Constitution provides coextensive protection against unreasonable searches and seizures.”
Douglass, 544 S.W.3d at 189.

                                                     2
        officer executing the warrant can readily ascertain ... what he or she is to
        search[.]” Section 542.276.6(5). If the place to be searched is not described
        with sufficient certainty, the resulting warrant will be deemed invalid.
        Section 542.276.10(5).

State v. Hardy, 497 S.W.3d 836, 838 (Mo. App. S.D. 2016). “We review whether the

issuing judge’s determination was clearly erroneous by looking at the four corners of the

search warrant application and supporting affidavits.” State v. Norman, 133 S.W.3d 151,

159 (Mo. App. S.D. 2004).

                                        Background

        On April 26, 2019, James Christopher Bales (“Defendant”) was charged with one

count of first-degree domestic assault, two counts of abuse or neglect of a child, and two

counts of first-degree endangering the welfare of a child based upon allegations that he

caused serious physical injuries to a twenty-two-month-old child. Detective Thomas Fenton

(“Detective Fenton”) interviewed Defendant at his home about those allegations. During the

interview, Defendant handed Detective Fenton his Samsung cell phone to show the detective

a video Defendant had taken on the phone of the child sitting on the floor and banging his

head.

        A couple of days later, Defendant came to the interview room with his attorney to

speak with Detective Fenton again. Defendant showed Detective Fenton the video of the

child again on the same phone. After that meeting, Detective Fenton applied for and

received a search warrant for Defendant’s cell phone (“search warrant 1”). The application

sought a warrant to search:

        Phone messages, text messages, social media networks, Instagram photos,
        Facebook messages, passwords to the device, global positioning system
        coordinates, emails, phone logs, SIM cards, photo galleries, voicemails, or
        any other evidence pertaining to the crime kept in the following described
        places, in the County aforesaid, to wit:

                                              3
         A cell phone located at 13251 Highway O Dixon, in Pulaski County
         Missouri. This cell phone is described as a black in colored [sic] Samsung
         with a black case cell phone number 573-855-6174 belonging to [Defendant].

Based upon this application, a judge issued search warrant 1, which authorized law

enforcement to search “[a] cell phone at, 13251 Highway O Dixon, in Pulaski County

Missouri. This cell phone is described as Black Samsung with black case.”

         Defendant later came to the interview room for yet a third time. Approximately 15

minutes into that meeting, Defendant again looked for the video of the child on his cell

phone. At that point, Detective Fenton served search warrant 1 on Defendant’s attorney and

seized that black, Samsung cell phone from Defendant.

         During their subsequent search of the cell phone, officers discovered what they

believed to be evidence of additional criminal activity. Based upon that discovery, they

applied for -- and received -- a second search warrant (“search warrant 2”) that authorized an

additional search of Defendant’s cell phone.

         Defendant filed a MOTION TO QUASH WARRANT, ORDER RETURN OF CELL

PHONE AND ALL ITEMS OBTAINED/RECEIVED/COPIED FROM CELL PHONE (the

“Motion to Quash”).3 The Motion to Quash argued that the phrase “Black Samsung with

black case” did not adequately describe the thing to be seized. The request for relief was

that the trial court quash search warrant 1 and order the return of the cell phone and all data

obtained from it to Defendant. The trial court granted the Motion to Quash and ordered that

all evidence seized pursuant to search warrants 1 and 2 be suppressed.




3
 The trial court treated the Motion to Quash as a motion to suppress. For simplicity, we will refer to the
motion as a Motion to Quash.

                                                       4
                                           Analysis

                              Point 1 ‒ Inadequate Description

       Point 1 claims the trial court erred in quashing search warrant 1 and suppressing the

evidence obtained from the cell phone because search warrant 1 was facially valid in that it

was issued by a judge after a finding of probable cause and adequately described the item to

be seized with sufficient particularity. We agree.

       The trial court stated its rationale for quashing the search in its Memorandum

granting the Motion to Quash.

       Defendant relies on Groh v. Ramirez, 540 U.S. 551 (S.Ct 2004) for the
       proposition the warrant of April 4, 2019 does not “particularly describe the
       things to be seized.” The Court notes Black Samsung Cell phones in Black
       Cases are Numerous if not ubiquitous. (The undersigned has one.) The
       Court does find [search warrant 1] of April 4, 2019 fails to adequately
       describe the thing to be seized and “was so facially deficient the executing
       officers could not reasonably presume it to be valid.” United States v. Leon,
       468 U.S. 897 at 923 (S.Ct. 1984). [Search warrant 1] of April 4, 2019 is
       quashed. To the extent [search warrant 2] issued May 28, 2019 was
       dependent on the quashed warrant, it is the “fruit of the poisonous tree[”] and
       must be quashed as well.

       Prosecutor argues that the scope of search warrant 1 was only one item: a black

Samsung cell phone, and “[i]t is difficult to imagine how [Detective Fenton] could have

been more descriptive without first seizing the phone from [Defendant] to check for serial

numbers or a specific model number.” Defendant argues that the language “Black Samsung

with black case” does not “particularly describe the place to be searched, and the persons or

things to be seized[,]” in that the warrant failed to include the phone number of the cell

phone that law enforcement sought to search.

       The description in search warrant 1 provided sufficient detail to allow officers to

locate and identify the item of property to be searched – here, a black cell phone located in a



                                               5
particular residence – with reasonable effort and without a reasonable probability that other

items of property would be mistakenly searched. See Hardy, 497 S.W.3d at 840.

        Although the primary issue in State v. Johnson, 576 S.W.3d 205 (Mo. App. W.D.

2019), was the permissible breadth of a cell phone search conducted by law enforcement,

the search warrant at issue provided for the seizure of “[a]ll cell phones” located in the

defendant’s apartment. Id. at 216. The description of the item to be seized here was more

specific than the one approved in Johnson over claims that the warrant was “not supported

by probable cause, was not sufficiently particular, was overbroad, and was stale when the

search of the phone was executed.” Id. (emphasis added).

        Search warrant 1 adequately described the cell phone to be seized. Point 1 is

granted, and the trial court’s order quashing search warrant 1 and suppressing the evidence

from search warrants 1 and 2 is reversed.4 The trial court is directed to vacate its July 1,

2019 memorandum and order granting the Motion to Quash and enter instead an order

denying that motion.


DON E. BURRELL, J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




4
 The trial court excluded the evidence from search warrant 2 as the “fruit of the poisonous tree.” Because no
violation of the Fourth Amendment occurred, that doctrine is inapplicable to this case. State v. Esmerovic, 544
S.W.3d 695, 697-98 (Mo. App. E.D. 2018). Having found the warrant valid on its face, we do not reach
Prosecutor’s alternative request for relief. See State v. Pattie, 42 S.W.3d 825, 827 (Mo. App. E.D. 2001).

                                                      6
