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State v. Cato

Court of Appeals of Missouri, Southern District, First Division

December 12, 2017

STATE OF MISSOURI, Plaintiff-Respondent,
VERL JASON CATO, Defendant-Appellant.


          DON E. BURRELL, J.


         Verl Jason Cato ("Defendant") appeals the judgment that followed jury verdicts finding Defendant guilty of six counts of possessing child pornography in 2011 and 2012. See section 573.037.[1] Defendant's sole point on appeal claims the trial court erred in overruling his "Second Motion to Suppress" and admitting at trial evidence he claims was obtained as a result of "the April 12, 2012 search warrant[.]" Defendant maintains that such evidence should have been suppressed because the affidavit supporting the search warrant "contained no facts or circumstances giving rise to probable cause of a crime[.]"

         Because the search was authorized under an earlier warrant not challenged by Defendant, we affirm.

         Governing Law & Applicable Principles of Review

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. Neher, 213 S.W.3d 44, 48-49 (Mo. banc 2007). "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 49, quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, (1983). "Accordingly, in 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." Id., citing State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). An appellate court only will reverse if the issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed. Id., citing State v. Norman, 133 S.W.3d 151, 159 (Mo.App.2004).

State v. Roggenbuck, 387 S.W.3d 376, 379-80 (Mo. banc 2012).

         "Article I, section 15 of the Missouri Constitution provides the same guarantees against unreasonable search and seizures; thus, the same analysis applies to cases under the Missouri Constitution as under the United States Constitution." State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).

         We defer to the trial court on its "factual findings and credibility determinations, " State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007), and we consider "all evidence and reasonable inferences in the light most favorable to the trial court's ruling." Id. In contrast, the legal issue of whether the conduct at issued violated "the Fourth Amendment is an issue of law that this Court reviews de novo." Id.

         Relevant Evidence and Procedural History[2]

         In November 2011, Scott Phelps, a detective with the Poplar Bluff Police Department, was using an investigative software tool to "find IP addresses which have child pornography available to download[.]" The software would also "connect to those IP addresses and attempt to download files or just get the file list." Detective Phelps described an IP address as a unique number for a connection to the internet, and he testified that it is possible to trace an IP address to a physical location. The files at issue were available via "Peer-to-Peer software" that permits a file containing an image of child pornography to be copied directly from one computer to another computer. Detective Phelps knew from "the nationwide registry" that a specific IP address identified in such a manner ("the IP address") could be provided by a particular communications company, and subpoenas were issued to that company to obtain the identity of the subscriber who used the IP address.

         In March 2012, the subpoenaed company identified Defendant as the "account holder/subscriber" for the IP address. Detective Phelps compared files that had been offered via Peer-to-Peer from the IP address with files in a law enforcement library of known images of child pornography, and he determined that 15 files offered from the IP address contained child pornography. Detective Phelps executed an affidavit for a search warrant ("the Phelps affidavit") that included, inter alia, specific descriptions of the content of the images in the 15 identified files available from the IP address.

         The prosecutor then used the Phelps affidavit to apply for a search warrant to be executed at Defendant's residence, and a judge approved and issued the search warrant on April 4, 2012 ("the April 4th search warrant"). We will refer to the April 4th search warrant, the Phelps affidavit, and the prosecutor's application, collectively, as "the April 4th ...

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