Search & Seizure Law in Missouri

Search & Seizure Law in Missouri
Cape Girardeau County Prosecuting Attorney
H. Morley Swingle,
Missouri Association of Prosecuting Attorneys Spring Statewide Training Lodge of the Four Seasons April 8, 2009
Part One - Introduction

I. II.
Contents
Constitutional Authority ........................................................................................................ 1
III. Fourth Amendment Applicability Examples ........................................................................... 1 1. Non-coverage of Place (Other Country) ......................................................................... 1 2. Non-coverage of Place (Open Fields) vs. Curtilage ....................................................... 2 3. Thermal Imaging Device (Heat Leaving Premises; Bodies Inside Home) ........................ 2 4. Abandoned (or Dropped) Property ................................................................................... 2 5. Government v. Private Action ......................................................................................... 3 6. No Expectation of Privacy - Key in Lock ........................................................................ 4 7. Grand Jury Subpoenas or Prosecutors Investigative Subpoenas .................................... 4 8. Non-coverage of Rights of this Defendant (Standing) ................................................... 6 A. Two-Part Test .......................................................................................................... 6 B. Applying the Test ..................................................................................................... 6 1) Seizure of Person .............................................................................................. 6 2) Search of Person ............................................................................................... 6 3) Defendants Own House .................................................................................... 6 4) Defendants Own Car ........................................................................................ 7 5) Passenger in Car............................................................................................... 7 6) Driver of Someone Elses Car - Glove Compartment ........................................ 8 7) Driver of Stolen Car........................................................................................... 8 8) Driver of Car, Owner is Passenger .................................................................... 8 9) Driver of Rental Car of Someone Else .............................................................. 8 10) Overnight Guest in House ................................................................................. 8 11) Guest in House for Drug Deal ........................................................................... 9 12) Trespasser in House.......................................................................................... 9 13) Motel Guest Past Check-Out Time .................................................................... 9 14) Abandoned Property in Public Place .................................................................. 9 15) Someone Elses Purse .................................................................................... 10
Checklist for Busy Practitioner ............................................................................................. 1
IV. If the 4th Amendment Applies, Pass to Question Two Has It Been Violated .................. 10 1. Initial Intrusion .............................................................................................................. 10 2. Scope of Search ........................................................................................................... 10
V. Types of Searches ............................................................................................................. 11 1. Searches With Warrants A. In general, searches without warrants are unreasonable B. Why get a warrant in the first place? C. Burdens of Proof when searches are with warrants and when they are without warrants. 2. Searches Without Warrantst Exceptions to the Warrant Requirement ......................... 11
Part Two - Searches with Warrants

II. I.
III. Particular Issues ............................................................................................................... 15 1. Probable Cause .......................................................................................................... 15 2. Anonymous Calls & Corroboration .............................................................................. 16 3. Drug Cases - Specify Time Drug Seen ....................................................................... 17 4. Staleness .................................................................................................................... 17 5. Search of Suspects Home Not Because Contraband Seen There, But Because of Probable Cause He Committed the Crime and This is His Home ........................... 17 6. Anticipatory Search Warrants/ Prospective Probable Cause ....................................... 18 7. Confidentiality of Informant or Surveillance Location .................................................... 18 8. Search Warrants for Blood & Urine ............................................................................ 18 9. Surgical Invasions ...................................................................................................... 20 10. Pumping Stomach or Inducing Vomiting ...................................................................... 21 11. Removing Baggie of Drugs From Rectum ................................................................... 21 12. Removing Drugs From Mouth...................................................................................... 22 13. Knock & Announce Requirement & Exceptions........................................................... 22 14. Prior Refusal of Judge to Issue Warrant ..................................................................... 25 15. Particularity Requirement - Places to be Searched ..................................................... 25 16. Particularity Requirement - Things to be Seized ......................................................... 26 17. Timeliness of Execution .............................................................................................. 26 18. Receipt, Return & Inventory Requirements.................................................................. 27 19. Nighttime Searches ..................................................................................................... 27 20. Persons on Premises - Detention, Search or Arrest .................................................... 28 A. Detention ................................................................................................................ 28 B. Scope of Detention................................................................................................. 29 C. Handcuffs ........................... ................................................................................... .29 D. Preventing Property Owner from Entry .................................................................. 29 E. Full Searches of Persons on Premises ................................................................. 29 F. Searches of Visitors Purses and Bags ................................................................ 30
Statutory Mechanics Under Missouri Law - Covered By Chapter 542, RSMo .................. 13 1. May only be issued by a Judge 2. Authorizes seizure, photographs, copying or recording of certain items. 3. Items subject to a search warrant include property, articles, material, substances, raw materials, instruments, a kidnapped person, a human fetus, a human corpse, a person with a valid outstanding felony arrest warrant. ...................... 13 Compare to Payton-Steagald Rule authorizing limited Authority to Search for a Suspect in His Home .......................................................................................... 13 4. Search Warrant Application Requirements ................................................................... 14 5. Supplemental Affidavits ............................................................................................... 14 6. Judicial Role in Issuance of Search Warrant ............................................................... 14 7. Retention of the Original application and affidavits and a copy of the Search Warrant by the Court .................................................................................................. 14 8. Search Warrant Requirements ..................................................................................... 14 9. Search Warrants Deemed Invalid when .............................................................. 14-15
Burden of Proof For Evidence Seized By Warrant ............................................................ 13
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21. Extent of Search: Scope - General Law ..................................................................... 22. Extent of Search: Intensity .......................................................................................... A. Closed Containers ................................................................................................ B. Search After Object Found ................................................................................... C. Damage to Property ............................................................................................. 23. Seizure of Evidence .................................................................................................... 24. Strip or Body Cavity Searches .................................................................................... 25. Exclusionary Rule & Good Faith Exception ................................................................. 26. Four Exceptions to Good Faith Exception ................................................................... A. False Information in Affidavit................................................................................. B. Judge Abandons Judicial Role .............................................................................. C. Warrant Clearly Lacks Probable Cause ................................................................ D. Warrant Facially Deficient ..................................................................................... 27. Good Faith Not Applicable to Warrantless Searches - when: ...................................... A. Exception for Warrantless Administrative Search Per Unconstitutional Statute .................................................................................................................. B. Exception for Warrantless Stop on Court Computer Clerk Error ............................ C. Exception for mere negligence of police .............................................................. 28. Good Faith Exception Applies to Arrest Warrants ........................................................ 29. Who Searches ............................................................................................................ 30. Tips for Officers .......................................................................................................... A. Photographs ......................................................................................................... B. Diagrams .............................................................................................................. C. Labeling................................................................................................................ 31. Motions to Close Search Warrant File to Public .......................................................... 32. Dont Let Press Accompany Execution ........................................................................ 33. Computer Searches .....................................................................................................
31 32 32 32 32 33 33 34 35 35 35 35 36 37 37 37 37 37 37 38 38 38 38 38 38 38 41 41 41 41 41 42 42 43 43 43 43 43 44 44 44 44 44 44
Part Three - Warrantless Searches
I. General Rule that Warrantless Search is Unreasonable ...................................................... 1. Search Incident to Arrest ................................................................................................ A. Arrest ........................................................................................................................ B. Probable Cause ......................................................................................................... C. Search Incident to Unlawful Arrest Invalid ................................................................. D. Search of vehicle after handcuffing ............................................................................ E. Scope of Search Incident to Arrest: Body & Immediate Control ............................... 1) Body 2) Area with Reach, Lunge or Grasp ........................................................................ 3) Fingerprinting ........................................................................................................ 4) Clothing & Fingernail Scrapings ........................................................................... 5) Gunshot Residue .................................................................................................. 6) Bringing Defendant to Station ............................................................................... 7) Breathalyzer.......................................................................................................... 8) Hair Samples ........................................................................................................ 9) Urine Sample........................................................................................................ 10) Dental Impression ............................................................................................ 11) Ultraviolet Lamp ............................................................................................... 12) Electronic Pager ..............................................................................................
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2.
3.
4.
5.
13) Automobile Passenger Compartment................................................................ Bright Line Rule ........................................................................................... Towing of Vehicle ............................................................................................ 14) Protective Sweep ............................................................................................. 15) Pretextual Arrests ............................................................................................ 16) Searches Incident to Summons ....................................................................... 17) Custodial Arrests For Infractions ...................................................................... 18) Articulation Proper Grounds For Arrest Not Necessary..................................... 19) An Arrest Upon an Invalid Warrant Can Result in Suppression of Evidence Seized Incident to Arrest, But Does Not Bar Prosecution of Defendant ....................................................................................................... Probable Cause Search of Motor Vehicles .................................................................... A. Probable Cause ....................................................................................................... B. Scope of Search ...................................................................................................... C. Impounding for Later Search .................................................................................... D. Odor of Marijuana Provides Probable Cause .......................................................... E. Marijuana in Car Provides PC For Search of Trunk ................................................ F. Probable Cause in Drug Context ............................................................................. G. Airplanes, Boats & Other Vehicles .......................................................................... Container Exception - Suitcase Exception.................................................................... A. General Rule .......................................................................................................... B. Computer as Container .......................................................................................... C. Rule for Containers Put Into Cars ........................................................................... D. Containers in Mail .................................................................................................... Exigent Circumstances Exception.................................................................................. A. Exigent Circumstances in General............................................................................ B. Hot Pursuit............................................................................................................... 1) Pursuit Immediate & Continuous ......................................................................... 2) Pursuit Begun Outside Officers Jurisdiction ........................................................ 3) Pursuit Begun at Doorway .................................................................................. C. Danger to Police or Other Persons or Evidence ...................................................... 1) Dead Body .......................................................................................................... 2) Wounded Person ................................................................................................ 3) Prevent Injury or Responding to Need for Help ................................................... 4) Preventing Destruction of Evidence or Property Damage .................................... a) Blood Draw as Exigent Circumstances ........................................................... b) To Prevent Burglary ...................................................................................... 5) To Prevent Escape ............................................................................................. 6) Scope Must Be Limited ....................................................................................... a) No Murder Scene Exception........................................................................... b) Fire Investigations .......................................................................................... Stop & Frisk ................................................................................................................. A. Stop Requires Suspicion of Crime .......................................................................... B. Frisk Requires Suspicion of Weapon ...................................................................... C. Okay to Put Suspect in Patrol Car ........................................................................ D. Reasonable Suspicion Less Than Probable Cause & May Be Combination of Otherwise Unsuspicious Facts Court Not to Divide & Conquer .......................... E. Fleeing Police Constitutes Reasonable Suspicion ................................................... F. Tackling Fleeing Suspect Okay .............................................................................. G. Reasonable Belief About Weapon .......................................................................... H. Multiple Officers Knowledge ..................................................................................
44 44 44 45 45 47 47 47 47 48 48 48 49 49 49 49 50 50 50 50 50 51 51 51 52 53 53 53 53 53 54 54 55 58 58 58 59 59 59 59 59 59 61 61 62 62 62 63
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I. Cannot Fingerprint ..................................................................................................... J. Refusal to Identify Allows ID Search.......................................................................... * Statute may require suspect to produce ID ........................................................... K. Patting Down Clothing May Include Looking into Purse ............................................. L. Timing of Frisk .......................................................................................................... M. Interior Compartment of Car ...................................................................................... N. Officer Making Traffic Stop May Order Driver & Passengers Out of Car ................... O. Absent Arrest or Reasonable Suspicion, Traffic Stop Does Not Allow Full Search....................................................................................................................... P. May Not Necessarily Routinely Frisk Traffic Offender Before Placing in Patrol Car .......................................................................................................................... Q. Anonymous Tip + Innocent Detail Corroboration=Reasonable Suspicion.................... R. Anonymous Tip + Little or No Corroboration Reasonable suspicion ....................... S. Furtive Gestures Provide Reasonable Suspicion for Weapon Search ......................... T. Buying Unusually Large Amounts of Cold Medication Amounts to Reasonable Suspicion for Terry Stop .......................................................................................... U. Conduct Indicating Street Drug Deal Justifies Investigative Stop ................................ V. Helping Stopped Motorist........................................................................................... W. Wanted Flyers & Radio Dispatches ........................................................................... X. Brief Seizure of Objects............................................................................................. Y. Drug Profile Stop ....................................................................................................... Z. Roadblocks ................................................................................................................ 1) Drivers License Checks ....................................................................................... 2) DWI Sobriety Checkpoints .................................................................................... 3) Drug Enforcement Checkpoints ............................................................................. 4) Illegal Alien Checkpoints ....................................................................................... 5) Checkpoints or Escape Routes for Serious Crime ................................................ 6. Plain View Doctrine ........................................................................................................ A. Rationale ................................................................................................................... B. Curtilage .................................................................................................................... C. Level of Certainty ...................................................................................................... D. Accompanying Arrestee Into Home ............................................................................ E. Aided Plain View ....................................................................................................... 1) Electronic Eavesdropping .................................................................................... 2) Flashlights ........................................................................................................... 3) Binoculars & Telescopes (Public Place) ............................................................. 4) Binoculars & Telescopes (Looking Inside Building) ............................................ 5) Nightscopes ........................................................................................................ 6) Pen Registers ..................................................................................................... 7) Beepers .............................................................................................................. 8) Cordless Telephones........................................................................................... 9) Secret Taping & Body Wires .............................................................................. 10) Officers in Air Looking Down .............................................................................. F. Plain Feel Doctrine .................................................................................................... G. Plain Sniffs & Drug Dogs ...................................................................................... 7. Consent as Exception..................................................................................................... A. Totality of Circumstances ........................................................................................... B. Consent Waives Need for Probable Cause ................................................................ C. No Reasonable Suspicion Needed to Ask ................................................................. D. Reasonable Suspicion Needed to Detain ................................................................... E. Traffic Stops & Consent ...........................................................................................
63 63 64 64 64 64 65 66 66 66 67 67 67 68 68 69 70 70 70 70 71 71 72 72 73 73 74 75 75 76 76 76 76 76 77 78 78 78 79 79 80 81 82 82 83 83 84 84
During Traffic Stop Officer May Ask for Consent to Search .................................. 84 Probable Cause Not Necessary Ask for Consent .................................................. 84 Drug & Contraband Questions .............................................................................. 86 Extending Traffic Stop Detention by Unrelated Questioning Can Make Search Invalid ....................................................................................................... 87 5) Consent After Illegal Detention Invalid .................................................................. 87 6) Not Necessary to Say Free to Leave.................................................................... 88 7) Reasonable Person Must Realize Free to Leave ................................................. 89 F. Attenuation Doctrine ................................................................................................. 89 G. General Consent Includes Closed Containers ........................................................... 90 H. Scope of Search is Determined by Objective Reasonableness ................................. 90 I. Limiting Consent to Search........................................................................................ 91 J. Revoking Consent to Search ..................................................................................... 92 K. False Statements of Officers...................................................................................... 92 L. Cases Holding Consent NOT Valid ............................................................................ 93 M. Cases Holding Consent Valid .................................................................................... 93 N. Threat to Seek Search Warrant ................................................................................. 94 O. Refusal to Put Consent in Writing ............................................................................. 94 P. Knock & Talk Searches............................................................................................. 94 Q. Miranda Warnings Not Necessary ............................................................................... 95 R. Consent After Invocation of Right to Silence.............................................................. 95 S. Authority to Consent .................................................................................................. 96 1) Co-Tenants May Consent to a Search of Commons Areas of Control ................ 96 2) The Joint User May Consent to a Search ........................................................... 96 3) A Parent May Consent to a Search of a Dependent Childs Room but Not Areas Where There is a Particular Expectation of Privacy .................................. 96 4) Owners May Consent Even Though Guests Do Not ........................................... 97 5) Generally Guests May Not Consent for Hosts ..................................................... 97 6) Consent of Spouses ............................................................................................ 97 7) Implied Consent for Businesses Open to the Public ............................................ 98 8) Landlords May Not Consent to Search of Tenants Apartment ............................ 98 9) Motel Clerk May Not Consent to Search of Guest Rooms .................................. 98 10) Motel Clerk May Consent After Guest Checks Out ............................................. 98 11) Authority of Minor Child to Consent to a Search ................................................. 98 12) Childs Authority to Consent to Search of Parents Car They are Driving............ 98 13) Authority of One Driving a Borrowed Car ............................................................ 98 14) Car Owners Authority to Consent Over the Objection of Passengers ................. 98 15) Authority of Co-Tenant Where Other Tenant is Present and Objects .................. 98 16) Apparent Authority Doctrine................................................................................. 99 8. Inventory Searches ......................................................................................................... 99 A. Inventory of Drunk Taken Into Custody.................................................................... 100 B. Inventory of Purses & Containers ............................................................................ 100 9. Inevitable Discovery/Independent Source Doctrine ........................................................ 101 10. Administrative Inspections & Regulatory Searches ....................................................... 102 A. Inspection of Housing .............................................................................................. 102 B. Inspections of Businesses........................................................................................ 103 C. Searches of Prisoners ............................................................................................. 103 D. Searches of Parolees .............................................................................................. 104 E. School Searches ..................................................................................................... 104
1) 2) 3) 4)
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Part Four - Suppression Hearings

1. 2. 3. 4.
I. Motions to Suppress - Section 542.296 RSMo ................................................................ 107

Persons aggrieved of unlawful seizure may file a Motion to Suppress .......................... Requirements for Motion to be in Writing and Notice Given ......................................... How Motion to Suppress is to be Heard ...................................................................... Grounds for Motions to Suppress .................................................................................
II. Other Provisions Governing Motions to Suppress
107 107 107 107 107 107 107 108 108 108 108 108 108 108 108 108 109 109 111 111 111 112 112 114 115 117
1. The States Burdens..................................................................................................... A. The Burden of Going Forward with the Evidence .................................................... B. The Burden of Persuasion ....................................................................................... 2. Testimony During a Hearing on a Motion to Suppress ................................................. A. Defendants Testimony B. Testimony of Multiple Officers Who Were Working Together ................................... 3. Trial Court Rulings on Motions to Suppress ................................................................. A. Interlocutory Nature of Rulings................................................................................. B. No Collateral Estoppel Absent the Attachment of Jeopardy ..................................... C. If Overruled, Defendant Must Object to Admissibility of Evidence to Preserve the Issue on Appeal ................................................................................................ D. No Jury Instruction is Given Regarding Validity of Consent ..................................... 4. Appeals by the State .................................................................................................... A. State May Appeal an Adverse Ruling on a Motion to Suppress. Appeal is Interlocutory and Must be Filed within 5 Days ....................................................... B. Motions in Limine Treated Like Motions to Suppress in Certain Cases .................... C. Effect of Rulings on Motions to Suppress by a Court of Appeal .............................. Criminal Trials .................................................................................................................. Probation or Parole Violation Hearings ............................................................................. Civil Trials ........................................................................................................................ Grand Jury Proceedings ................................................................................................... Impeachment of Defendants Testimony ........................................................................... Impeachment of Defense Witness .....................................................................................
Part Five - Applicability of Exclusionary Rule

1. 2. 3. 4. 5. 6.
Conclusion .............................................................................................................................. About the Author .................................................................................................................
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Part One Introduction

I. Constitutional Authority
All search & seizure cases are governed by the 4th Amendment, which reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.
This 54-word Amendment was ratified and became law in 1791. It applied first only to federal prosecutions. In 1961 the Supreme Court held that the 4th Amendment also applied to state prosecutions, making inadmissible in state cases evidence obtained by improper search or seizure. probable cause, knocked on defendants door and demanded entrance. Defendant telephoned her lawyer and after talking with him refused to admit the police without a search warrant. The police broke down the door. Although they did not find what they were looking for (a suspect in a bombing) they did HELD: The books should have been find obscene books, for which defendant was charged. inadmissible since the 4th Amendment was violated. The 4th Amendment applies to state court prosecutions as well as federal prosecutions. This Amendment has not had one word added or deleted since 1791, but tens of thousands of cases have interpreted it. The Missouri Constitution has a very similar provision at Article I, Section 15:
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The police, without a warrant or
That the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by written oath or affirmation.
The Missouri Supreme Court has consistently held that Missouris Constitution provides identical protection to that of the 4th Amendment. State v. Jones, 865 S.W.2d 658 (Mo. banc 1993); State v. McCrary, 621 S.W.2d 266 (Mo. banc 1981).
II. Checklist for the Busy Practitioner
1. Is the 4th Amendment even applicable? Do not go to question #2 unless the answer to #1 is yes. 2. Has the 4th Amendment been satisfied? 1. Non-Coverage of Place (Other Country) Brulay v. U.S., 383 F.2d 345 (9th Cir. 1967). Drug smuggling conspiracy. Defendants home was
searched in Mexico without probable cause or a warrant. Drugs were found. Defense wants to suppress evidence at trial in U.S. HELD: 4th Amendment only applies to U.S. The purpose is not to police Mexican police on Mexican soil. Evidence admissible.
III. Applicability Examples
U.S. v. Verdugo Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). Warrantless search of Mexican drug suspects home in Mexico by DEA and Mexican police. HELD: 4th Amendment did not apply to search of property owned by a non-resident alien and located in a foreign country. At the time of the search, defendant was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the 4th Amendment has no application.
2. Non-Coverage of Place (Open Fields vs. Curtilage) Hester v. U.S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Federal agents, trespassing on
moonshiners property, found his still and illegal booze. HELD: 4th Amendment only applies to home and curtilage around the home, not to open fields.
State v. Simpson, 639 S.W.2d 230 (Mo. App. S.D. 1982). Highway patrolmen trespassed in field and found marijuana patch. HELD: 4th Amendment only applies to home and curtilage. U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Peering, without warrant, into
barns front door held not to violate 4th Amendment because: (1) barn was not within curtilage (the area around the home to which the activity of the home extends) and (2) observation from open fields did not violate any other privacy expectation. The barn was on a 198-acre farm, completely encircled by a fence, 60 yards from another fence around the house. The DEA Agent did not go inside the barn, but saw the drug lab from outside. A warrant was later obtained. The Supreme Court provides a good discussion of curtilage: The extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question would be treated as the home itself. Four factors: (1) The proximity of the area claimed to be curtilage to the home; (2) Whether the area is included within an enclosure surrounding the home; (3) The nature of the uses to which the area is put; and (4) The steps taken by the resident to protect the area from observation by people passing by. These factors all bear on the central question whether the area in question is so intimately tied to the home itself that it should be placed under the homes umbrella of 4th Amendment protection. In other words, a mans home is his castle, but his barn is fair game (for peering into).
State v. Schweitzer, 879 S.W.2d 594 (Mo. App. E.D. 1994). The trial court sustained a motion to
State v. Kelly, 119 S.W.3d 587 (Mo. App. E.D. 2003). Sidewalks and steps leading to the door of
suppress marijuana growing in a corn field which had been seized after a warrantless search. HELD: Suppression was affirmed due to lack of a record made by the prosecution. The prosecutor evidently believed all he had to show was that the marijuana was found in a field. He put on no proof about buildings, outbuildings, fences or other things affecting the curtilage of the home. While the prosecution might have been able to show this marijuana was not within the curtilage, it failed to do so by the evidence offered.
a residence are generally open to the public, so items found in plain view in these areas are subject to seizure without a warrant, even if otherwise within the curtilage. (Defendant had dropped a plastic bag of crack cocaine on the stairway leading to his front door.) Admissible.
3. Thermal Imaging Device (Heat Leaving Premises; Bodies Moving Inside Home) Kyllo v. U.S.,533 U.S. 27, 150 L.Ed.2d 94, 121 S.Ct. 2038 (2001). Officers suspected Defendant
of growing marijuana in his home. They used a thermal imaging device to scan the house. It operated like a video-camera, showing heat images inside the home. It revealed the roof over the garage and a side wall as being hot, suggesting indoor grow-lights. This information was used with other facts to get a search warrant, pursuant to which police found a marijuana growing operation. HELD: Where, as here, the Government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. Remanded for determination whether remaining facts in affidavit amounted to probable cause. NOTE: This case reversed prior law. United States v. Pinson, 24 F. 3d 1056 (8th Cir. 1994).
4. Abandoned Property California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L.Ed. 2d 30 (1988). Defendants
garbage put out in bags at curb was searched without a warrant. HELD: No reasonable expectation of privacy. The property was abandoned by defendant. See also: State v. Bordner, 53 S.W.3d 179 (Mo. App. W.D. 2001) (Meth manufacturing items such as empty pseudoephedrine bottles, Heet cans, acetone cans, mason jars and tubing found in trash provided probable cause for search warrant).
State v. Simmons, 955 S.W.2d 729 (Mo. banc. 1997). Police who arrested defendant for murder inventoried his wallet and found pawn tickets and photo receipts. They went to the photo developer and collected the photographs and negatives. They went to the pawn shop and collected the stolen jewelry that defendant had pawned. HELD: The seizure of the pawn tickets and photo receipts was part of a legitimate inventory search of an arrested person. The seizure of the items from the pawn shop and photo shop does not violate the 4th Amendment because the defendant had no legitimate expectation of privacy in the photographs left at the developer or in the stolen jewelry left at the pawn shop. He relinquished any privacy right in these items by leaving them with the businesses, and assumed the risk they might be shown to others, including police. California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed. 2d 690 (1991).
State v. Solt, 48 S.W.3d 677 (Mo. App. S.D. 2001). Defendant was a passenger on a Greyhound
Two police officers wearing street clothes and jackets bearing the word POLICE on the front and back were on patrol in a car in a high crime area. A group of youths, including defendant, huddled around a car parked at a curb. At the sight of the police car, the youths ran. One of the officers left the car and ran around the block to intercept defendant. Defendant was looking behind him as he ran and as soon as he turned his head and saw the officer he tossed away a small rock of what turned out to be crack cocaine. Defendant claims the evidence should be suppressed, arguing that he was seized the moment the officer got out of the car and started chasing him without probable cause. HELD: It is not a seizure to yell, Stop in the name of the law! at a fleeing person. The cocaine abandoned while defendant was running was not the fruit of a seizure and the motion to exclude it was properly denied. See also: State v. Primm, 62 S.W.3d 463 (Mo. App. E.D. 2001); State v. Johnson, 863 S.W.2d 361 (Mo. App. E.D. 1993) for same results in Missouri cases. bus. A narcotics officer boarded the bus during a stop and spoke with each passenger. He woke defendant and asked if the backpack at defendants feet was his. He said it was not. The officer checked his ticket stub, which confirmed that defendant was telling the truth about his destination. With no reasonable suspicion, the officer told defendant to exit the bus. The officer picked up the backpack and carried it off. The officer searched the backpack and found marijuana, then arrested defendant and found marijuana cigarettes in his pockets. HELD: The evidence was properly suppressed. Forcing the defendant to get off the bus was an investigative detention, requiring reasonable suspicion, which the officer did not have. The abandonment of the backpack was a result of this improper detention. Ordinarily, a defendant who voluntarily abandons property has no standing to contest its search and seizure, but this is not true if the abandonment results from a Fourth Amendment violation, as such abandonment cannot be voluntary. Abandonment will not be realized when it is the result of illegal police conduct. NOTE: This result might have been different had the officer merely collected the backpack as abandoned property once defendant disclaimed ownership. Once drugs were found inside it, the defendant could have been arrested.
State v. Looney, 911 S.W.2d 642 (Mo. App. S.D. 1995). Defendant did not voluntarily abandon his
items when his canoe tipped over and an officer retrieved a floating container and opened it without probable cause.
5. Government v. Private Action United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L.Ed. 2d 85 (1984).
Federal Express employees examined a damaged package and found a tube containing ziplock bags of white powder. They called DEA agents, who did a field test on a trace of the white powder and identified it as cocaine. The package was re-wrapped and delivered to the addressee, and then recovered by a search warrant. HELD: The search by Federal Express employees was not government action, so it was not prohibited by the 4th Amendment. The seizure of the trace element by DEA was not unreasonable because a chemical test that merely discloses whether or not a substance is cocaine does not compromise any legitimate expectation of privacy. The DEA did not infringe upon any privacy interests that had not already been frustrated by the private conduct.
State v. Collett, 542 S.W.2d 783 (Mo. banc 1976). Motel manager found keys and buttons in defendants motel room and gave them to police. They were evidence connecting defendant to a robbery. HELD: No governmental action; thus no 4th Amendment rights of defendant were violated.
Commonwealth v. Leons, 386 Mass. 329, 435 N.E.2d 1036 (1992). What if an off-duty police officer is working a second job as a security officer for a store? In the search and seizure context, an off-duty policeman is not automatically acting in concert with or at the direction of government officials simply because he discovers contraband; official involvement is not measured by the primary occupation of the actor, but by the capacity in which he acts at the time in question. An investigation by a police officer privately employed as a security guard does not violate the 4th Amendment when it is conducted on behalf of the private employer in a manner that is reasonable and necessary for protection of the employers property. If, on the other hand, the officer steps out of this sphere of legitimate private action, the exclusionary rule applies as it would to any State officer. People v. Wolder, 4 Cal. App. 3d 984, 84 Cal. Rptr. 788 (1970). Police officer learned that his
A computer repair employee noticed child pornography on defendants computer when it was in the store for repairs. He notified the police, who used his information to get a search warrant. HELD: This was a search by a private person, not the government, so the 4th Amendment is inapplicable.
State v. Allen, 599 S.W.2d 782 (Mo. App. E.D. 1980). Defendant robbed a jewelry store in St. Louis. Security guards from Stix Baer & Fuller caught her as she was in a restroom washing blood from her face and neck. They did not know a robbery had occurred but they took her to their security office and then learned of the robbery. They made her empty her pockets and found a wristwatch stolen in the robbery. HELD: The search and seizure was made by a private citizen, so 4th Amendment is not applicable. United States v. Hall, 142 F.3d 988 (7th Cir. 1998).
State v. Woods, 790 S.W.2d 253 (Mo. App. S.D. 1990). Off-duty officer was hired by defendant who owned several acres of property with a building to patrol the property during deer hunting season to deter poachers. Officer was given keys to the building and permission to enter in event of emergency. One day when the burglar alarm went off, he went in the building to shut it off. He noticed the odor of burned marijuana at the time, but did nothing. Later, he entered to leave a lamp for defendant, and snooped in the kitchen and seized what he believed were marijuana cigarettes from an ashtray, and went into a bedroom and opened drawers and closets, finding marijuana seeds and rolling papers. He went to Sheriff and this information was used for the issuance of search warrant. HELD: Although the original odor of marijuana was noticed when officer was performing his private duties and could have been used, the later searches were not done in his job as security guard but in his criminal investigative capacity. Thus, the evidence was properly suppressed.
daughter and her roommate were being evicted from their apartment. He visited the landlord to find out why. During the conversation the landlord said the daughter had stored boxes in the garage, which she said contained items given to her by her grandmother. The officer said she had no grandmother and asked to see the items, which turned out to be things stolen in a burglary. HELD: This was a private search because the officer had been acting in his role as a concerned parent. The evidence was thus admissible in her burglary prosecution.
6. No Expectation of Privacy - Key in Lock State v. Weaver, 912 S.W.2d 499 (Mo. banc 1995). Not a search to check to see if a key fits a
lock of a car parked outside.
7. Grand Jury Subpoenas or Prosecutors Investigative Subpoenas United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L.Ed. 2d 67 (1973).
A grand jury subpoena is not a seizure and the giving of a voice exemplar is not a search so the 4th Amendment is not applicable. The Court upheld grand jury subpoenas directing 20 people to go to the U.S. Attorneys office to read a specified transcript for a voice recording so the samples could be compared to recordings of unknown voices obtained by court-approved wiretaps. The Court of Appeals had refused to enforce the subpoenas on the ground that there had been no showing of reasonableness of the seizures as required by the 4th Amendment. It viewed the grand jury as seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for a search warrant. The U.S. Supreme Court reversed because neither the summons to appear before the grand jury nor its directive to make a
As to the compelled giving of a voice exemplar, in Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967) we said that the 4th Amendment provides no protection for what a person knowingly exposes to the public, even in his own home or office. The physical characteristics of a persons voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a mans facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will remain a mystery to the world. Likewise, a grand jury subpoena [or an investigatory subpoena] for the presence of a person to provide other evidence to which there is no reasonable expectation of privacy, would not be covered by the 4th Amendment. This includes: 1. Handwriting samples, 2. Fingerprints, 3. Shoe and Footprints, 4. Photographs, 5. Holding a Lineup, 6. Head or Facial Hair. NOTE: Since the taking of a blood sample involves a bodily intrusion, it would be better to proceed by search warrant for blood samples. LaFave, Vol. IV, page 321. NOTE: The subpoena process is considered inherently unlike a stop or seizure by the police. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court. The procedure to follow to attack a subpoena is to make a motion to quash, making a non-constitutional objection to the subpoena, such as it exceeded the permissible scope of grand jury activity. In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3rd Cir. 1973). The trial court required the prosecution to make some preliminary showing by affidavit that each item (handwriting samples, photographs, and fingerprints) was at least relevant to an investigation being conducted by the grand jury, and was not being sought primarily for another purpose. Court holds prosecutors investigative subpoenas constitutional and says they do not require probable cause to issue. The prosecutor requested the issuance of a subpoena duces tecum under 56.085 as a part of a criminal investigation. The statute reads: In the course of a criminal investigation, the prosecuting attorney or circuit attorney may request the circuit or associate circuit judge to issue a subpoena to any witness who may have information for the purpose of oral examination under oath to require the production of books, papers, records, or other material of any evidentiary nature at the office of the prosecuting or circuit attorney requesting the subpoena. The subpoena was issued, and the person subpoenaed moved to quash it, attacking the constitutionality of the statute. The trial court overruled the motion. The witness still failed to comply. The State moved for an order to show cause why the witness was not in contempt. The court ultimately found the witness in contempt and jailed him. On appeal, the witness claimed the issuance of a subpoena should be analyzed under the 4th Amendment with the same criteria as a search warrant, which would require that it be issued by a neutral and detached magistrate after a sworn showing of probable cause. HELD: Wrong! The search and seizure clause of the 4th Amendment was not intended to interfere with the power of the courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence. In regard to pretrial subpoenas duces tecum, the 4th Amendment, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be particularly described. The gist of the protection is in the requirement that the disclosure sought shall not be unreasonable. The U.S. Supreme Court has specifically required only that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.
voice recording infringed upon any interest protected by the 4th Amendment and accordingly there was no justification for requiring the grand jury to satisfy even the minimal requirement of reasonableness imposed by the Court of Appeals. It is clear that the subpoena to appear before a grand jury is not a seizure in the 4th Amendment sense, even though that summons may be inconvenient or burdensome.
Johnson v. Missouri, 925 S.W.2d 835 (Mo. banc. 1996).
State v. Eisenhouer, 40 S.W.3d 916 (Mo. banc 2001). Prosecutor sought investigatory subpoena to require minister to come to prosecutors office and to bring all relevant materials including personal
knowledge to testify under oath. HELD: The Missouri investigative subpoenas are limited by statute to books, papers, records or other material and do not include personal knowledge. Subpoena properly quashed. body of a homicide victim, and fingerprints other than victims were found on the inside and outside of victims car. That particular 8th grade class had 22 male members. The prosecutor sought and obtained an order (similar to an investigative subpoena) to have all 22 of them fingerprinted. The order permitted each pupil to be accompanied by an adult parent, guardian or attorney; directed that the fingerprints only be used in the investigation of the homicide; and specified that upon completion of the investigation the prints should be destroyed. The appellate court affirmed, holding: There is substantial basis to suspect that a member of the school class in question may have had some implication in or material knowledge of the homicide such that fingerprinting all male members of the class was reasonable, having in mind the protective provision of the order for destruction of the prints after completion of the investigation. Under all circumstances . . . we find the existence of such narrowly circumscribed procedures as render the order reasonable within the view of the 4th Amendment.
In re Fingerprinting of M.B., 125 N.J. Super. 115, 309 A.2d 3 (1973). Comment, 32 Rutgers L. Rev. 118 (1979). A class ring of an 8th grade class of a particular school was found next to the
See generally: H. M. Swingle, Criminal Investigative Subpoenas: How to Get Them, How to Fight Them, 54 J. Mo. Bar 15 (1998).
8. Non-Coverage of Person of Defendant (Standing)
A defendant must have standing to challenge a search and seizure. Unless the defendant satisfies the court that his own, personal 4th Amendment rights were involved, the search or seizure is none of his business! Standing is sometimes the last refuge argument by a prosecutor when a search was improper. The evidence would still be admissible even if the police did something wrong because it was not the rights of this Defendant that were violated.
The main question of standing is whether the defendant is asserting his own legal rights and interests rather than raising his claim for relief upon the rights of some third party. A person has 4th Amendment protection from searches of places only where he has a legitimate expectation of privacy. His expectation of privacy is legitimate only if it is one that society is prepared to recognize as reasonable.
A. Two-Part Test for Standing Used by U.S. and Missouri Supreme Courts
Part 2. The expectation of privacy must be reasonable or legitimate.
Part 1. Defendant must have an actual subjective expectation of privacy in the place or thing searched, and
B. Applying the Test:
1) Seizure of Defendants Person. All individuals have a protected privacy interest to be free from unreasonable searches and seizures of their person. Thus, a defendant always can challenge the validity of his own arrest, investigatory stop, or temporary detention. See State v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. 2007). 2) Search of Defendants Person. For the same reason, a defendant can always challenge the legality of a search of his person.
3) Defendants Own House. Obviously, a person has a legitimate expectation of privacy in the search of his own house and would have standing to challenge the legality of the search in court.
4) Defendants Own Car. Obviously, a person has a legitimate expectation of privacy in a search of his own car and would have standing to challenge the legality of the search. 5) Passenger in Car Standing or NOT? Passengers in cars who do not own the car generally to not have standing to object to a search of the car.
BUT A PASSENGER IN CAR DURING AN ILLEGAL TRAFFIC STOP HAS BEEN SEIZED FOR PURPOSES OF FOURTH AMENDMENT AND MAY CONTEST THE ILLEGALITY OF THE STOP.
Radio broadcast of a robbery described the getaway car occupied by two males (later defendants) and two females. Police pulled over and searched a car because it matched the description of the robbery vehicle. They found a sawed-off rifle found under front passenger seat and a box of rifle shells in the glove compartment. The two male defendants were passengers. The owner was the female driver. The defendants did not claim ownership of the gun or shells. HELD: These defendants did not have standing to object to a search of the glove compartment or under seat of the car, since those are not areas where a mere passenger would have a legitimate expectation of privacy in someone elses car. Thus, it was not necessary to consider whether the search of the car may have violated the drivers 4th Amendment rights. Conviction of robbery affirmed. See also: State v. Rellihan, 662 S.W.2d 535 (Mo. App. 1983) (Passenger has no expectation of privacy in trunk of companions car).
Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S. Ct. 421 (1978). Armed robbery.
that was illegally pulled over on a traffic stop. The State concedes the illegality. The officer pulled over the car because he wanted to verify that a temporary permit was affixed to the car, even though he had already confirmed by computer check that the car had a temporary permit and he could see it from his vehicle and tell that nothing was unusual about it. Once he pulled the car over, he recognized the passenger (defendant) and learned that an outstanding warrant existed for him. He arrested him on the warrant and found a syringe cap on his person. A search of the car revealed items used to produce methamphetamine. HELD: The California Supreme Court had ruled that a passenger is not seized by a traffic stop. A unanimous Supreme Court reversed, holding that a passenger is seized by a traffic stop, so the passenger may contest the illegality of the stop. The proper test is the Mendenhall objective test, where one looks at whether a reasonable person would have believed that he was not free to leave and whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. U.S. v. Mendenhall, 446 U.S. 544 (1980); Florida v. Bostick, 501 U.S. 429 (1991). A person in a car during a traffic stop would not feel free to leave. In fact he would reasonably feel that his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave. This comports with previous cases holding that for officer safety, even the passengers in a traffic stop may be ordered out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977). It was error to deny the suppression motion on the ground that the defendant had not been seized, so the case is remanded to see whether the suppression turns on any other issue. A passenger may also challenge a seizure of his person based upon an improper investigatory stop of the driver.
Brendlin v. California, 127 S. Ct. 2400 (2007). Defendant was a passenger in a car
State v. Martin, 79 S.W.3d 912 (Mo. App. E.D. 2002).
Defendant was a passenger in a car pulled over for failing to have a proper license plate. By the time the officer reached the car window, he realized that the car did have a proper tag and that there had been no reason to pull the car over. Ultimately, he asked this passenger to get out of the car and spotted a smoking pipe behind his ear. HELD: The passenger had standing
6) Driver of Someone Elses Car - No Standing as to Locked Glove Compartment.
to contest the improper stop. A passenger may challenge the validity of the stop. Thus, the finding of the pipe was the fruit of an unlawful search.
7) Driver of Stolen Car - No Standing.
Defendant was convicted of possession of cocaine found in the locked glove compartment of the car he was driving. The key to the glove compartment was hidden in the headliner of the car. Defendant claimed it was his girlfriends car which he was driving with her consent but that he had no access to the glove compartment and did not know where the key was located. HELD: Defendant lacks standing to contest the search. The U.S. and Missouri Supreme Courts have rejected the automatic standing rule. Thus, persons charged with crimes, an element of which is possession, can only avail themselves of a 4th Amendment protection if the illegal search and seizure is personal to them. Stated in another way, an accused cannot invoke the 4th Amendment where the illegal search and seizure is of anothers person or property. In this case, defendant does not have a legitimate expectation of privacy in the area searched or the items seized. Defendant denied owning the car and the drugs and claimed he had no knowledge or access to the locked glove compartment. The mere status of being a passenger in a vehicle does not accord the passenger a legitimate expectation of privacy in the vehicle entitling him to assert a 4th Amendment challenge to the search of the vehicle. See also: State v. Sullivan, 935 S.W.2d 747 (Mo. App. S.D. 1996).
State v. Martin, 892 S.W.2d 348 (Mo. App. W.D. 1995).
U.S. v. Hargrove, 647 F.2d 411 (4th Cir. 1981). Defendant who was driving a stolen car
8) Driver of Vehicle with Owner as Passenger Has No Standing.
when stopped by police had no standing to object to the search of the car. Paper bag found behind seat contained drugs. No legitimate expectation of privacy. A wrongful possessor of an article has no right to complain, on 4th Amendment grounds, of its search and seizure. See also: State v. Luleff, 729 S.W.2d 530 (Mo. App. 1987) (stolen tractor in plain view on defendants property - no expectation of privacy).
9) Driver of Rental Car, Rented by Someone Else, Has No Standing.
State v. Sullivan, 735 S.W.2d 747 (Mo. App. S.D. 1996). Defendant was the driver of a vehicle (boat) in which the owner was a passenger. Defendant does not have standing to object to the search of the vehicle. State v. Toolen, 945 S.W.2d 629 (Mo. App. E.D. 1997). Police responding to a call about a
10) Overnight Guest in House.
suspicious car in the neighborhood found an unoccupied rental car with Illinois plates. Defendant was located in a nearby house and said he had driven the car but that it was not his it had been rented in Chicago by someone else. Police searched the car and found drugs. HELD: A defendant who claims the protection of the 4th Amendment must have a legitimate expectation of privacy in the place or thing searched, i.e. he must have an actual subjective expectation of privacy in the place or thing searched and this expectation must be reasonable or legitimate. This car was owned by Hertz and was rented to someone else. There was no evidence that Defendant was an authorized driver of the car by consent of the owner, Hertz. A person does not have a legitimate expectation of privacy in a car where it is shown only that he is in possession of the car by being the driver of the car. He must also show a legitimate basis for being in it - such as permission of the owner.
Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed. 2d 85 (1990). A lone gunman
robbed a gas station and shot the manager. An officer who heard the bulletin suspected Joseph Eaker and went to his house just as a car pulled up and took evasive action. The two occupants of the car fled on foot. The murder weapon and a sack of money and papers of suspect Robert Olson were found in the car. The next day, the police got a phone call from a woman saying Rob drove the car in the gas station killing and told Louanne and Julie that he had done the robbery. The caller said the women lived at 2046 Filmore,
Minneapolis, MN. Police called Louanne. She confirmed that Rob Olson had been living there, but claimed he was not home. Police issued bulletin to pick up defendant but officers were instructed to stay away from 2046 Filmore.. Police telephoned 2046 Filmore at 2:45 p.m. and said Rob should come out. Police heard a male voice say, Tell em I left. Julie said Rob had left. Police entered the home without consent and without a warrant, with weapons drawn, and found Defendant hiding in a closet. Defendant confessed. The confession was admitted at trial. HELD: Reversed for retrial without the confession. An overnight guest has a 4th Amendment expectation of privacy and has standing to object to a police officers warrantless, nonconsentual entry into a friends house to search for and arrest defendant. Defendants friend, the owner of house, had not consented to the entry.
State v. Williams, 577 S.W.2d 59 (Mo. App. 1978). Defendant, who lived with his aunt
11) Guest in House for Drug Deal.
and who slept in his aunts sons bedroom, had standing to claim that police made an illegal search of the room since he had a legitimate expectation of privacy in the room.
Minnesota v. Carter, 525 U.S. 83, 142 L.Ed. 2d 373, 119 S. Ct. 469 (1998). Defendant
12) Trespasser in House.
and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged, they were seen by a police officer, who looked through a gap in a drawn window blind. The information was used as the basis for a car stop when Defendant left the building and got into his car. A search of the car revealed 47 grams of cocaine and a loaded gun. HELD: Defendant had no standing to object to the allegedly illegal search done by peeking into the apartment through the blind. Although an overnight guest in a house may claim the protection of the 4th Amendment, one who is merely present with the consent of the householder may not. Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with [the homeowner], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household.
13) Motel Guest Past Check-Out Time.
Defendant entered an unoccupied house without the owners permission through an unlocked window, where police caught him. HELD: Defendant lacked standing to challenge the warrantless search of the house; thus the robbery loot defendant had in house with him was admissible as evidence.
State v. Thomas, 595 S.W.2d 325 (Mo. App. S.D. 1980).
14) Abandoned Property in Public Place.
State v. Mitchell, 20 S.W. 3d 546 (Mo. App. W.D. 2000). Defendant was staying at a motel, whose staff had called police because of meth lab items they spotted. Defendant was late checking out of the motel, but had not been given permission to stay beyond check-out time. As Defendant was leaving the room, he was detained upon reasonable suspicion. He refused to give consent for a search of the room. Motel employees later entered the room to clean it and found dishes with residue and other items of evidentiary value. They called the police, who looked at the items and got a search warrant. HELD: Defendant did not have standing to object to the search because he did not have a legitimate expectation of privacy in the motel room beyond the check-out time. At that point, the motel has the right to reenter the room to prepare it for the next guest and thus has the right to grant permission to the police to enter it, too. State v. McCrary, 621 S.W.2d 266 (Mo. banc 1981). Defendant had lived with Lydia and had two children by her, but she left him and moved in with Rufus. On November 13, Rufus was shot outside their home, and wounded. On March 8, someone threw a bomb in their window. On March 12, a police officer responded to an anonymous call about a suspicious person in that neighborhood carrying a long cardboard box. The officer saw defendant carrying a long cardboard box. Defendant dropped the box and ran. The box contained a
15) Someone Elses Purse.
.22 rifle, live shells, and a silencer. HELD: The Rakas two-part test of standing is adopted in MO: (1) The Defendant must have an actual, subjective expectation of privacy in the place or thing searched; (2) The expectation of privacy must be reasonable or legitimate. In this case, the defendant had no legitimate expectation of privacy in a dropped box and thus defendant had no standing to object to the seizure of this box and its contents.
was charged with possession of drugs (LSD and Meth) with intent to sell. He had been in someone elses home when the police entered to make an arrest of that other person pursuant to a warrant. Police searched the other occupants of the house, including this Defendant and a woman companion. The police found a large amount of drugs (1,800 tablets of LSD and vials of methamphetamine) in the womans purse. Defendant later admitted the drugs were his. He claims he put them in her purse moments before the police entered the house. A legal issue exists whether the woman consented to the search of the purse. HELD: It doesnt matter whether she consented or not, as to the prosecution of this Defendant. He has no standing to complain about the search of her purse. He did not make a sufficient showing that his legitimate or reasonable expectation of privacy was violated. At the time he dumped thousands of dollars of illegal drugs into her purse, he had known the woman only a few days, had never been in her purse before, and had no right to exclude others from her purse.
Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed. 2d 633 (1980). Defendant
IV. If the 4th Amendment Applies, Then We Pass to Question Number Two Has the 4th Amendment Been Violated or Satisfied?
1. Initial Intrusion
A warrantless search will violate the 4th Amendment only if the Defendant manifested a subjective expectation of privacy in the place searched and it is one that society accepts as objectively reasonable. A mans home is his castle
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It maybe frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement. William Pitt the Elder Warrant Requirement 19 times out of 20, the police cannot go into a persons home without presenting a showing of probable cause to a neutral and detached magistrate, who will then decide if there is probable cause to enter.
U.S. v. Tobin, 923 F.2d 1506 (11th Cir. 1991).
2. Scope of Search
Even if the initial intrusion is good the scope of search is limited. A general rummaging around, fishing expedition is prohibited. Constitutional law says MINIMIZE. Get in and find what you are looking for and get out. Look only where it could be. You cant look for an elephant in a bread box! 4th Amendments particularly described wording requires some specification as to what officers are looking for. If looking for TV set, look everywhere it could possibly be found, but nowhere smaller.
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V. Two Types of Searches Those With Warrants and Those Without Warrants. 1. Searches With Warrants
A. In general, a search without a warrant is unreasonable and the evidence will not be admissible - always get a warrant, unless you cant. B. Why Get a Warrant in the First Place?
The idea is as American are a player; the umpire home is his castle. The home is left to the judge,
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971). The
as the game of baseball. You cant call the balls and strikes if you does it. In the real world, the judge is the umpire. The defendants decision of when police have probable cause to look into a persons a neutral and detached magistrate, who will be fair to both sides.
C. Burden of Proof:
New Hampshire spring thaw revealed the body of 13-year-old Pamela Mason in a snow bank. She had been murdered and probably raped. The Attorney General did a massive investigation that pointed finger of guilt at Edward Coolidge, who had hired her as a babysitter. They put together a detailed search warrant with affidavits showing probable cause to search his house and two cars for evidence of the girls death. One of the finest warrant applications ever prepared! But instead of taking it to a judge at two in the morning, the attorney general himself signed it, under a state provision saying the attorney general in New Hampshire doubled as a justice of the peace. Imagine him proclaiming: We dont need to wake up the judge! Who knows better than I how well it shows probable cause? I wrote it myself! Give me the pen! The Supreme Court held that the wrong person signed it. This goes to the core of the 4th Amendments purpose the warrant requirement is not an exposition in police writing skills, but rather intends to put a neutral and detached magistrate between the policeman and his quarry.
As a practical matter, when a warrant has been issued the burden of proof is on the defendant to show the warrant bad; if no warrant was involved, the burden of proof is on the State to show probable cause. The burden of proof is the tie-breaker; the person who has it loses the ties. A warrant is presumptively good.
U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed. 2d 684 (1965).
2. Searches Without Warrants - Exceptions to the Need to Obtain a Search Warrant
For a more detailed discussion of the burden of proof at suppression hearings, see the SUPPRESSION HEARINGS section at the end of this OUTLINE.
Even the liberal Earl Warren Court said that even though a search warrant might be flawed, the court should bend over backwards to find it good and not be hyper-technical in construing it, because the larger purpose of having a neutral magistrate decide probable cause was served. This encourages police to follow the preferred procedure of getting a warrant.
Several, At Least 10 Categories: Often Described as Jealously and Carefully Drawn, WellRecognized Exceptions to the Search Warrant Requirement A. Search incident to lawful (Constitutionally Permissible) arrest B. Automobile searches upon probable cause C. Suitcase exception - container exception D. Exigent circumstances (emergency) (hot pursuit) E. Stop and frisk F. Plain view doctrine G. Consent H. Inventory searches I. Inevitable discovery J. Certain administrative searches in matters involving a reduced expectation of privacy
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Part Two Searches With Warrants

I. A Search Without a Warrant is Presumed Unreasonable and the Evidence will be Excluded Unless it Falls Into One of the Exceptions to the Warrant Requirement.
General Rule For Officers Always Get a Warrant, Unless You Cant. More Than 90 % of the Time, if You Took the Time to Get a Warrant, the Evidence Will be Admissible in Court. This portion of the outline assumes you have already made the decision to get a search warrant. Here are the nuts and bolts of how to do it.
II. The Mechanics Under Missouri Law are Covered by Chapter 542, RSMo.
1. May ONLY be issued by a Judge - Appellate, Circuit, Associate Circuit. KNOW WHERE THEY LIVE. HAVE SOME TYPE OF ON CALL PROCEDURE. 2. May be issued to search for and seize an item, photograph it, copy or record it. 542.271, RSMo. 3. May be issued to search for and seize, or photograph, copy or record any of the following:
b. Stolen property;
a. Property, article, material or substance that constitutes evidence of the commission of a crime;
c. Property owned by public communications services if the person has failed to remove the property after written notice that it is being used in the commission of an offense; d. Property which is illegal to possess; e. Property for which seizure is authorized or directed by any statute of this state;
g. For a kidnapped person;
f. Property that has been used by the owner or with his consent as a raw material or as an instrument to manufacture or produce anything for which possession is an offense under MO law;
EXAMPLE: Section 578.018 authorizes a search warrant to issue for a public health official or law enforcement officer to enter private property to inspect, care for or impound neglected or abused animals.
h. To search for or seize any human fetus or corpse or part thereof;
i. To search for any person for whom a valid felony arrest warrant is outstanding;
NOTE: Under the Payton-Steagald Rule an arrest warrant carries with it the authority to search that persons home for him, but not to enter or search a 3rd persons home.
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed. 2d 639 (1980). For 4th
Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L.Ed. 2d 38 (1981). Police
may not enter a 3rd persons home without consent when looking for someone else for whom they have a valid arrest warrant.
Amendment purposes, an arrest warrant carries with it the limited authority to enter a dwelling where the suspect lives when there is reason to believe the suspect is inside. Absent exigent circumstances, though, officers may not enter a suspects home to make an arrest without an arrest warrant.
The Payton-Steagald warrant requirement is not applicable in all circumstances. For one thing, if the entry of the premises was obtained on some other lawful basis, then the Payton-Steagald warrant requirement is inapplicable to an arrest thereafter made within provided it is accomplished without exceeding the permissible scope of that entry. Lafave, Vol. III, page 244.
Part Two Searches with Warrants
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arrest inside home where undercover officer had been invited inside while pretending to be participating in criminal activity. Defendants, by extending such an invitation, voluntarily exposed themselves to a warrantless arrest.
U.S. v. Ruiz-Altschiller, 694 F.2d 1104 (8th Cir. 1982). No arrest warrant was needed for
Mahlberg v. Mentzer, 968 F.2d 772 (8th Cir. 1992).
U.S. v. Garcia, 997 F.2d 1273 (9th Cir. 1993). A warrantless arrest within the premises is
A warrantless arrest within the premises is permissible when the prior entry was gained by executing a search warrant for physical evidence.
4. Application shall:
a. Be in writing;
permissible when the suspect or some other person with a significant interest in the premises to admit visitors, voluntarily consented to entry by a known police officer.
b. State the time and date of making application;
c. Identify the property, article, material, substance or person which is to be searched for and seized in sufficient detail and particularity that the officer executing the warrant can readily ascertain it; d. Identify the person, place or thing which is to be searched in sufficient detail and particularity that the officer executing the warrant can readily ascertain whom or what he is to search;
f. Be verified by the oath or affirmation of the applicant; g. Be filed in the proper court;
e. State facts sufficient to show probable cause for the issuance of a search warrant;
5. Application can be supplemented by a written sworn affidavit from witnesses for the judge to consider in determining whether there is probable cause. The judge is NOT to consider oral testimony. 6. The judge shall determine whether sufficient facts have been stated to justify the issuance of a search warrant. The warrant shall be issued in the form of an original and two copies. Have the judge sign all three. 7. The application and any supporting affidavit and a copy of the warrant shall be retained in the records of the court from which the warrant was issued. 8. The search warrant shall:
a. Be in writing; b. Be directed to any peace officer in the state;
h. Be signed by the Prosecuting Attorney of the County where the search will take place; or one of his or her assistants.
c. State the time and date the warrant is issued;
d. Identify the property, article, material, substance or person which is to be searched for and seized in sufficient detail and particularity that the officers executing it can readily ascertain what they are searching for.
f. Command that the described person, place or thing be searched and that any of the described property, article, material, substance or person found thereon or therein be seized and photographed or copied and that photographs or copies be filed with the court within 10 days after the filing of the application;
e. Identify the person, place or thing which is to be searched, in sufficient detail and particularity that the officer executing it can readily ascertain whom or what he is to search;
9. A search warrant shall be deemed invalid:

a. If it was not issued by a judge;
g. Be signed by the judge with his title of office indicated.
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b. If it was issued without a written application having been filed and verified; c. If it was issued without probable cause; d. If it was not issued in the proper county;
f. If it is not signed by the judge who issued it;
e. If it does not describe the person, place or thing to be searched for or the property, article, material, substance or person to be seized with sufficient certainty;
g. If it was not executed within the time prescribed by law. (10 days)
III. Particular Issues
1. Probable Cause
In determining probable cause, the Court is to look to the totality of the circumstances and make a common sense practical decision whether there is a fair probability that contraband or evidence of crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983).
The police received an anonymous letter: This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flies down and drives it back. Sue flies back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000 in drugs. Presently they have over $100,000 worth of drugs in their basement. They brag about the fact they never have to work, and make their entire living on pushers. I guarantee if you watch them carefully you will make a big catch. They are friends with some big drug dealers who visit their house often. Lance & Susan Gates, Greenway in Condominiums.
A search warrant was issued for their house and automobile. The old Aguilar and Spinelli two-prong test was rejected and the totality of circumstances test replaced it. (The old twoprong test was that an informants veracity and basis of knowledge both had to be specifically shown and separately satisfied, usually by the informant having been used successfully in the past and by his opportunity to see or get the reliable information now being supplied.) HELD: This was sufficient probable cause even though the letter was completely anonymous. [T]he quanta of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant . . . Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrates decision. While an effort to fix some general numerically precise degree of certainty corresponding to probable cause may not be helpful, it is clear that only the probability and not a prima facia showing, of criminal activity is the standard of probable cause.
After getting the letter, the police corroborated it by: (1) Revenue records showed drivers license to Lance Gates giving his street address on Bloomingdale Rd; (2) Confidential Informant with access to financial records confirmed that Lance Gates had made a reservation on an airplane from his home here in Bloomingdale, Illinois, to West Palm Beach, Florida, for May 5 at 4:15 p.m.; (3) An Illinois officer watched Gates board the flight; (4) Florida officers saw him arrive and take a taxi to a Holiday Inn and take a room registered to Susan Gates; (5) Florida officers saw him leave at 7:00 the next morning with an unidentified female in a Mercury bearing Illinois plates checking to Gates.
State v. Gardner, 741 S.W.2d 1 (Mo. banc. 1987). Defendant claims a search warrant was issued without probable cause. The test of Illinois v. Gates is used. Probable cause was found, but the court adds that even if no probable cause had been found the Leon good faith
test was met for this search by warrant of a chop shop where stolen cars were being cut
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State v. Neher, 213 S.W.3d 44 (Mo. banc 2007). A confidential informant provided a tip that the defendant had been cooking meth the night before and had all the chemicals necessary to make meth in the house. The affidavit did not say the informant had specifically seen the things in the house. HELD: Under the totality of circumstances, it could be inferred that the informant had seen the items and that the information was based upon personal observation. There was a fair probability that the search would uncover evidence of criminal activity.
up.
2. Anonymous Calls - Try to Corroborate as Much as Possible. State v. Berry, 801 S.W.2d 64 (Mo. banc 1990). A deputy received an anonymous phone call
State v. Beatty, 770 S.W.2d 387 (Mo. App. S.D. 1989). An anonymous call came into a crime stopper hotline concerning the robbery of a gas station. The caller suggested going to a restaurant and inquiring about a female who used to work there as being the person who did the robbery. The officer checked the description of the robber from reports and talked to the restaurant owner, who said it sounded like Sharon Beatty, a former employee. The MULES computer gave a similar description for her. A search warrant was obtained. HELD: This was sufficient corroboration for the anonymous tip. (It later turned out that the tip was from her psychiatrist.)
that the caller had been in Melissa Berrys mobile home the day before as Berry transferred marijuana from four or five large freezer bags into smaller plastic baggies. The caller described the exterior of the mobile home and its location in detail. The deputy verified the details of the exterior in detail (including small deck, above-ground swimming pool, single-wide trailer, tan in color, located at intersection of Highway D and County Road 463, large model two-tone AMC or Chevrolet pickup parked in front of trailer). All in all, there was not much corroboration, but the caller had proclaimed personal knowledge. The judge issuing the warrant found probable cause and issued it. HELD: Although the call was anonymous, the caller gave details indicating personal knowledge. The exterior details were corroborated so there was a fair probability that the details about the marijuana being inside were also true. It was error to grant the motion to suppress. See also: State v. Meyers, 992 S.W.2d 246 (Mo. App. E.D. 1999); State v. Cornelius, S.W.3d 603 (Mo. App. S.D. 1999).
State v. Williams, 9 S.W.3d 3 (Mo. App. W.D. 1999). Police apply for search warrant based on an anonymous crimestopper call saying defendant was selling cocaine and had just received a large shipment. The corroboration for the hearsay tip was that a person of that name did live at that address and police records show he had been arrested one year ago for sale of cocaine and four months ago for possession of cocaine. HELD: The hearsay tip was sufficiently corroborated. An affidavit which relies on hearsay is sufficient as long as there is a substantial basis for crediting the hearsay . . . The concepts of veracity and reliability and basis of knowledge are relevant considerations but they are not entirely separate and independent requirements to be rigidly applied in every case . . . Corroboration from other witnesses and from independent observations of police officers creates a substantial basis for crediting the hearsay statements in an affidavit . . . The fact the informant may not have actually observed criminal activity or contraband is not fatal to establishing probable cause . . . A suspects past criminal behavior can be considered in determining whether probable cause exists to justify a search. Same result: State v. Ford, 21 S.W.3d 31 (Mo. App. E.D. 2000).
November that defendant was cooking meth at his home, the police pulled his trash bags the following May and discovered several empty cans of acetone, several empty cans of charcoal fluid, several empty cans of Heet, several empty bottles of pseudoephedrine pills, coffee filters with red phosphorous, empty cans of lye, numerous used syringes, glass Mason jars with white residue, and rubber tubing. HELD: The search warrant was properly issued. Even though the police did not see the defendant carry out the trash, the bags in front of the house combined with the tips established a fair probability that evidence of a crime will be found.
State v. Bordner, 53 S.W.3d 179 (Mo. App. W.D. 2001). After getting tips in September and
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3. Drug Cases
In drug cases, be sure to show the time the drugs were seen. Search warrants are held invalid, and not even saved by good faith, when they say drugs were seen, but dont say when. If the source was anonymous, corroborate as much as possible. Maybe the suspect has a prior. Maybe his name has come up in other investigations. Keep a drug file. Get as many details as possible from the caller and check them out as much as possible. when the illegal drugs had been seen on the premises, thus no probable cause.
Dixon v. State, 511 So. 2d 1094 (Fla. 1987). Search warrant affidavit for drugs did not say
4. Staleness
If the probable cause is not recent, it may be no probable cause at all. a. Informants seeing stolen items in Defendants hotel room 16 days earlier is not too stale. U.S. v. Golay, 502 F.2d 182 (8th Cir. 1974). b. 48 hour delay for marijuana where no indication of smoking going on, not too stale. U.S. v. Schauble, 647 F.2d 113 (10th Cir. 1981). A 5 day delay for marijuana (over 40 grams) was not too stale. State v. Hodges, 705 S.W.2d 585 (Mo. App. 1986). c. Offer to sell drugs 3 days earlier revitalized probable cause information from 90 days earlier. State v. Abbott, 499 A.2d 437 (Conn. App. 1985). d. 30 day delay OK with respect to warrant for hand grenades. U.S. v. Dauphinee, 538 F.2d 1 (1st Cir. 1976).
5. Search of Suspects Home, Not Because Contraband Seen There, but Because of Probable Cause He Committed the Crime and this is His Home. U.S. v. Dresser, 542 F.2d 737 (1976). The only reason to search defendants residence for
Defendant is being prosecuted for possession of methamphetamine with intent to manufacture. The search warrant for his house was issued upon an affidavit showing he had very recently purchased a large quantity of lithium batteries and lots of ephedrine pills (27 bottles at 50 pills each) under a fake name. Defendant claims the affidavit did not show probable cause because it did not expressly state that anyone had ever seen the items at his residence. HELD: Sufficient showing of probable cause. The state need not prove by its affidavit that drug activity was in fact seen at Defendants residence. Only the probability of criminal activity, not a prima facie showing is the standard of probable cause. The issuing judge may draw reasonable inferences, and it is reasonable to assume that evidence of drug-dealing is likely to be found where the dealer lives. Observations of illegal activity occurring away from the suspects residence can support a finding of probable cause to issue a search warrant for the residence if there is a reasonable basis to infer from the nature of the illegal activity observed that relevant evidence will be found in the residence. Same result: State v. Hawkins, 58 S.W.3d 12 (Mo. App. E.D. 2001) (search of suspected murderers house for change of clothing, etc.). an apartment where two women were murdered and he had several scratches on his body. Search warrants were issued for both his residence and car. HELD: Search warrants can issue for both because probable cause exists to search one or several locations connected to defendant.
State v. Miller, 14 S.W.3d 135 (Mo. App. E.D. 2000).
evidence of robbery (gun and stolen property) is the fact he was identified as the robber and this is where he lives. No one saw any of the stolen items in his house. Nevertheless, this is sufficient probable cause. Same result: United States v. Jones, 994 F.2d 1051 (3rd Cir. 1993).
Iverson v. North Dakota, 480 F.2d 414 (8th Cir. 1973). Facts indicated defendant had been in
It is significant in these cases that there is no substantial danger that the privacy of an innocent person will be invaded. LaFave, Vol. II, at 76.
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6. Anticipatory Search Warrants and Prospective Probable Cause United States v. Grubbs, 126 U.S. 1494 (2006). The defendant ordered child pornography.
Postal inspectors intercepted the order and prepared an anticipatory search warrant to search defendants house as soon as the package would be delivered. The warrant affidavit said: Execution of this search warrant will not occur unless and until the parcel has been received by a person and has been physically taken into the residence. Two days after the warrant was issued, the package was delivered and the officers executed the warrant and caught the defendant in possession of the child pornography. The 9th Circuit ruled the anticipatory search warrant invalid because the warrant itself did not mention the triggering mechanism of the delivery of the package. HELD: The Supreme Court ruled anticipatory search warrants valid. An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place. Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time -- a so-called triggering condition. Typically, it is the delivery of a package of drugs, child pornography or stolen property. The Court points out that all search warrants are anticipatory in the sense that they require the issuing judge to determine (1) probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. The Court says it is adequate for the affidavit to set out the triggering condition the search warrant itself does not need to do so.
See also: State v. Sweeney, 701 S.W.2d 420 (Mo. banc. 1986) (search warrant for stolen watch not actually stolen but in possession of undercover police officer who was going to sell it to defendant); U.S. v. Tagbering, 985 F.2d 946 (8th Cir. 1993) (search warrant for drugs to be delivered to defendants home).
7. Confidentiality of Informant Or Surveillance Location
Probable cause for search warrant may be established by information provided by an informant and it is not necessary to name the informant. State v. Rohrer, 589 S.W.2d 121 (Mo. App. S.D. 1979).
United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981). Where officer testified he observed
an on-the-street drug transaction using binoculars, the court upheld his refusal to disclose his location. We believe the policy justifications analogous to the well-established informers privilege also protect police surveillance locations from disclosure.
8. Search Warrants May Issue for Blood and Urine Tests for Alcohol in Blood in DWI/Vehicular Homicide Cases (Or Any Other Case Where it Would be Relevant).
NOTE: Section 577.020, RSMo has been amended to allow an officer to order the taking of a blood sample even without a warrant or consent when a driver under arrest for a traffic violation who was involved in a vehicle crash resulting in a fatality or readily apparent serious physical injury.
State v. Stottlemyre, 752 S.W.2d 840, (Mo. App. W.D. 1988). Defendant was racing a motorcycle back and forth across a dam at high speed, lost control and his passenger went over rail was impaled on a support post. The victims head ended up 30 feet from his body. Defendant had alcohol on his breath and refused consent for a blood test. The trooper got a search warrant for his blood. HELD: The search warrant was proper as being for evidence of a crime. See also: State v. Willis, 97 S.W.3d 548 (Mo. App. W.D. 2003); State v. Trice, 747 S.W.2d 243, (Mo. App. W.D. 1988). State v. Smith, 134 S.W.3d 35 (Mo. App. E.D. 2004). Defendant was arrested for DWI,
but refused a breath test. The police obtained a search warrant for a blood sample. The defense argued that the wording of the implied consent law barred the issuance of a search warrant. Section 577.041 says that after a refusal to consent to a chemical test, none shall be given. On the other hand, the search warrant statute says that a search warrant may issue for evidence of a crime. 542.271, RSMo. HELD: The Missouri Implied Consent Law
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The Cape Girardeau County Prosecutors Office has standard forms to use in this situation with blanks to fill in so the warrant may be obtained in minutes since time is always of the essence in these cases.
was enacted to codify the procedures under which a law enforcement officer could obtain bodily fluids for testing by consent without a search warrant. It provides administrative and procedural remedies for refusal to comply. Because it is directed only to warrantless tests authorized by law enforcement officers, it does not restrict the states ability to apply for a search warrant to obtain evidence in criminal cases pursuant to Section 542.276 or a courts power to issue a search warrant under Section 542.266. Thus, police may seek and obtain a search warrant after a DWI suspect refuses to voluntarily consent to a breath or blood test.
NOTE: The 4th Amendment does NOT require a search warrant for blood alcohol tests, but the MISSOURI DWI statutes DO for DWI cases that do not involve a fatality or readily apparent serious physical injury. The safer practice is to get the search warrant even in manslaughter cases. blood sample from an unconscious person who had been involved in a fatal accident. HELD: The interests in the scientific determination of intoxication outweighed so slight an intrusion of a persons body so the warrantless search did not violate the 4th Amendment.
Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed. 2d 448 (1957). Police took a
took blood from an injured DWI suspect at request of an officer over suspects objection. HELD: No violation of the 4th Amendment: (1) The extraction of blood did not offend the sense of justice; (2) The privilege against self-incrimination was not violated since it applies only to testimonial evidence; (3) The search and seizure was not unreasonable given the grounds for seeking the blood, the measures used, and the delay that would have been necessary to get a warrant, which would have threatened the destruction of the evidence. case, police had obtained a blood sample from defendant at hospital without a search warrant and without consent. HELD: Missouri implied consent statute contains a provision that if a person under arrest refuses upon the request of the arresting officer to submit to a chemical test then none shall be given. Thus, if the person refuses, the officers cannot have blood drawn warrantlessly [for DWI prosecutions, but can for involuntary manslaughter prosecutions, see Todd below]. Motion to suppress upheld. See also: Murphy v. Director of Revenue, 170 S.W.3d 507 (Mo. App. W.D. 2005).
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966). Physician
State v. Ikerman, 698 S.W.2d 902 (Mo. App. E.D. 1985). In traffic accident DWI-related
NOTE: HOSPITAL RECORDS MAY BE OBTAINED TO SHOW INTOXICATION IN DWI CASES.
Involuntary manslaughter case where officer ordered medical staff at hospital to take a sample of suspects blood, even without consent of suspect, who gave no response when asked. HELD: Under Schmerber, it is constitutionally permissible for an officer arresting a Defendant for manslaughter to take a sample of the suspects blood without his consent and without a warrant.
State v. Setter, 721 S.W.2d 11 (Mo. App. 1986).
State v. Todd, 935 S.W.2d 55 (Mo. App. 1996). Defendant was convicted of two counts of
involuntary manslaughter in connection with a DWI-fatality. Defendant was taken to the hospital immediately after the crash. His blood was drawn for testing by the hospital. The hospitals test showing a blood alcohol of .11 was introduced via a business records affidavit accompanying the lab report. The medical examiner, a doctor, testified as an expert witness as to the meaning of a .11 blood alcohol reading. Defendant claimed the blood test results were inadmissible since the implied consent procedures set out in 577.020 to 577.041 were not followed. HELD: The requirements and protection provided by the implied consent law do not apply to all blood tests offered as evidence but only to those offered pursuant to Chapter 577. This was not a prosecution under Chapter 577 (DWI), but 565 (offenses against person). Thus, the laboratory test results from the hospital are admissible as business records.
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State v. Moore, 128 S.W.3d 115 (Mo. App. E.D. 2003). Defendant was driving while intoxicated and caused a crash that killed someone. At his manslaughter trial, the state offered the blood test results from the sample drawn at the hospital for treatment purposes. Defendant claimed it was privileged, but the court said that by statute, the doctor patient privilege does not apply. See 491.060(5), RSMo.
9. Search Warrants Generally Cannot Issue to Allow Surgical Invasions of a Suspects Body, nor will Exigent Circumstances Generally Allow Surgical Invasions; These Will Generally be Allowed Only After a Contested Hearing Where the 4th Amendment Interests Have Been Weighed by a Court. Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed. 2d 662 (1985). Defendant was a
State v. Overstreet, 551 S.W.2d 621 (Mo. 1977). Defendant was a suspect in a robbery murder. The victim had managed to shoot the robber. Defendant was shortly afterward treated at a hospital for a gunshot wound to the left buttock. When defendant was questioned by police, he first claimed he had been shot by a stray bullet in a drive-by shooting at a particular location. The police checked the location and found the snow undisturbed. After defendant was charged, the prosecutor filed a motion for defendant to be examined concerning the risks of surgery to remove the bullet. The motion was granted. Later, without any additional hearing, the judge issued an order for the surgery after an affidavit was filed from a doctor saying that the bullet could be removed by a very simple surgical procedure, but that there was no compelling medical reason to remove the bullet. HELD: Proper constitutional procedures were not followed because there was no judicial adversarial hearing at which all factors could be weighed by the court prior to the intrusion. The four requirements to determine whether surgery in search of evidence is reasonable are: (1) A judicial adversarial hearing in which defendant is represented by counsel and is given the opportunity to cross-examine and offer witnesses; (2)
United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1976). A dentist was killed in his office with his own gun. Police arrested Sandra Toomer for the murder. She implicated the defendant, saying she and defendant had gone to the office to rob the dentist, a fight ensued, and she fled, hearing several shots as she ran off. When defendant rejoined her, he said hed been shot in his arm and leg, but had killed the dentist. The defendant was arrested and had bandages in both places. X-rays showed bullets in both locations. The prosecutor got an affidavit from a doctor saying the operation on the arm (but not the leg) would merely be minor surgery. The prosecutor sought a court order for removal of the bullet from the arm. The court approved it after an adversarial hearing at which the competing interests were balanced.
suspect in an attempted armed robbery. The shop owner and the robber had exchanged gunfire. The robber was hit in his left side. Defendant was found 20 minutes later, suffering a gunshot wound to his left chest. He was IDd by victim and was charged. Prosecutor moved for a court order directing defendant to undergo surgery to remove the bullet, which was lodged under his collarbone. Medical testimony first indicated the surgery would last 45 minutes, with 4% chance of temporary nerve damage and 1% chance of permanent nerve damage. Later medical testimony indicated that the bullet had moved and now was believed to be just under the skin, with no danger of nerve damage. The trial court issued the order, but then X-rays showed that the bullet was deeper than thought (one inch), and there would be risks of muscle, nerve, and tissue damage, as well as risk of infection. HELD: A compelled surgical intrusion into a suspects body for evidence involves expectations of privacy of such a magnitude that the intrusion may by unreasonable under the 4th Amendment, even if very likely to produce evidence of a crime. The 4th Amendment test balances the individuals interest in privacy versus societys interest in obtaining the evidence. Factors include the magnitude of the intrusion, the risk to the suspects safety, the extent of the intrusion upon the individuals dignity and privacy, the strength of the probable cause, and whether the states need for the evidence is compelling. CONCLUSION: The operation would be unreasonable in that the medical risks are not insignificant, the privacy invasion is severe, and the need for the bullet is not compelling since the other evidence against the defendant is so strong.
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An opportunity for appellate review prior to surgical removal; (3) The evidence sought to be surgically removed must be relevant; and (4) Surgical procedure should be a minor intrusion without risk of harm or injury to defendant. Reversed for new trial without the bullet. murder of the City Marshall of Silex. The Marshall had been in gunfight with his murderer, producing another butt-shot defendant. This bullet lodged 4 inches under the skin of the right hip. The Overstreet test was applied at an adversarial hearing. The trial courts order requiring the surgery was upheld on appeal.
State v. Richards, 585 S.W. 2d 505, (Mo. App. E.D. 1979). Defendant is a suspect in the
10. Pumping Stomach or Inducing Vomiting Falls Between Drawing Blood and Surgery; Search Warrant Probably Best Procedure to Use if Time Permits, Although Exigent Circumstances Exception Can Apply. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Police made forcible
entry into defendants room, saw him put 2 capsules into his mouth, tried unsuccessfully to extract them by force, and then took him to the hospital where a doctor forced him to vomit by putting a drug through a tube into his stomach. HELD: This warrantless conduct shocks the conscience. Illegally breaking into the privacy of defendants home, struggling to forcibly open his mouth, forcibly extracting his stomach contents this method offends a sense of justice.
who had swallowed crack cocaine. Police had approached defendant, who was a suspect in a shooting, in a public place. He put small objects in his mouth and fled. Officers chased and caught him and saw what appeared to be rocks of crack cocaine in his mouth before he swallowed them. After gulping them down, he admitted they were crack cocaine. Officers took him to a hospital and had his stomach pumped. Citing Winston v. Lee, the Court emphasized: (1) Clear probable cause existed to arrest defendant; (2) Method used was reasonable; (3) No health safety risk to defendant, no lasting pain, and procedure was done in hospital; (4) Virtual certainty the procedure would yield the evidence; and (5) Exigent circumstances. Rochin was distinguished since this was not an invasion of the persons home.
State v. Strong, 493 N.W.2d 834 (Iowa 1992). Upheld pumping the stomach of a defendant
11. Removing Baggie of Drugs From Rectum Will Usually Require a Search Warrant (The Crack in Crack Cases) People v. More, 738 N.Y.S.2d 667 (2002). Police obtained consent to enter an apartment
But see: People v. Allman, 2001 Cal. App. LEXIS 1253 (10/25/2001) (Defendant had been
where defendant and others were believed to be cutting up cocaine. Defendant was sitting on a couch with a crack pipe and a rock of crack cocaine on a nearby table. They arrested defendant and patted him down for weapons, finding none. They removed him to a bedroom (away from the other people) to conduct a strip search. When they examined his butt, they saw an outer portion of a plastic baggie protruding from his rectum. A police officer (presumably the low man on the totem pole at that department) removed the baggie, which contained several pieces of crack cocaine. HELD: Even when there is a clear indication that incriminating evidence will be retrieved from a bodily intrusion, search warrants are normally required. In order for this search to be justified, the State would need to show exigent circumstances in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of the evidence. The police made no showing that the evidence would have been destroyed during the time it would have taken to get a search warrant. Notably, no police officer testified that, despite the available means of incapacitating defendant and keeping him under full surveillance, an immediate body cavity search was necessary to prevent access to a weapon or prevent his disposing of the drugs. Nor was there any evidence the police were concerned that the drugs which were wrapped in plastic could have been absorbed into defendants body. The absence of exigent circumstances dictates the conclusion that the body cavity search here was unreasonable. arrested and the jail had a policy requiring a strip search of all persons arrested for being under the influence of drugs. Defendant was walking stiffly and his buttocks were tightly clenched.
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Defendant first consented to a search but objected when the officers focused upon his clenched buttocks. Police summoned paramedics, who transported him to a hospital. On the way he admitted he had a gram of meth in his butt cheeks, but still objected to the search. At the hospital, he was placed on a table and his feet and hands were restrained so he could not destroy the evidence. His buttocks were clenched so tightly the officers still could not retrieve the item. Finally, they told the defendant that they would remove the item by force if he did not cooperate. He relented and an officer used his index finger to swipe the baggie away. It had been between his buttocks, but not inside his rectal cavity. The court holds that this was not a body-cavity search, but a strip search, and was reasonable under the totality of the circumstances. Generally, post-arrest searches of the body to discover controlled substances are permitted. . . Retrieval of concealed contraband preserves evidence, prevents the import of illegal substances into a penal facility, and also guards against accidental overdosing by the individual ingesting or secreting the drugs. Here, the search was not conducted in an unreasonable manner, and the visible contraband was retrieved without invading a body cavity.
12. Removing Bag of Drugs From Mouth May Usually Be Done Without Warrant People v. Fulkman, 2 86 Cal. Rptr. 728 (Cal. App. 4. Dist. 1991). Defendants home was
being searched for drugs pursuant to a search warrant. Defendant was seen putting a two-inch wadof masking tape into his mouth. Police kept him from swallowing it by applying pressure to his chin and throat by placing two fingers on each side of his throat. When he did not spit out the wad on command, an officer put the capped end of his Bic pen into defendants mouth and used a sweeping motion to pry the object out, which proved to be filled with sixteen balloons of heroin. HELD: The Fourth Amendment neither forbids nor permits all involuntary intrusions into the human body. The test is whether the search was reasonable under the circumstances. In order to prevent the destruction of evidence, police may reach into a persons mouth to recover evidence if there is sufficient probable cause to believe a crime is being, or has been committed. The mouth is not a sacred orifice and there is no constitutional right to destroy or dispose of evidence. At the same time, the officers must use only that degree of force necessary to overcome defendants resistance. Factors include: (1) Whether there was probable cause for the search; (2) Whether the procedure used threatened the persons safety; (3) Whether the search would damage the individuals sense of personal privacy and bodily integrity; (4) The communitys interest in fairly and accurately determining guilt or innocence. Search upheld.
13. Entry to Execute Warrant Knock & Announce Requirement Before Forced Entry (Exceptions). Wilson v. Arkansas, 514 U.S. 917, 115 S.Ct. 1914, 131 L.Ed. 2d 976 (1995). While
executing a drug search warrant, officers found the door to defendants home open. They entered before knocking or identifying themselves as police officers. Defendant claimed the 4th Amendment requires officers to knock and announce in order for a search warrant to be reasonable. The trial court disagreed and denied the motion to suppress. The Supreme Court REVERSES, holding that the 4th Amendment protects against unreasonable searches and seizures. A search not preceded by a knock and announce may under some circumstances be unreasonable, and that factor should be considered in determining whether a search was reasonable. Certainly, law enforcement interests in cases where the defendant is dangerous, or where a high risk of escape exists, or where a high risk of destruction of evidence exists should be considered.
Richards v. Wisconsin, 520 U.S. 385, 137 L.Ed.2d 615, 117 S.Ct. 1416 (1997). In 1995, in Wilson v. Arkansas, the U.S. Supreme Court held that the 4th Amendment incorporates the
common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. They said this would not be a rigid rule but could have exceptions based upon reasonableness. In this case, Wisconsin had concluded that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation. We disagree that the 4th
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MISSOURI LAW: Section 105.240, RSMo, states: Every officer may break open doors and enclosures to execute a warrant or other process for the arrest of any person, or to levy an execution, or execute an order for the delivery of personal property, if, upon public demand and an announcement of his official character, they be not opened.
NOTE: Most jurisdictions have some type of statute requiring law enforcement officers executing a search warrant to expressly announce their presence before entering to search a premise. The federal Knock and Announce statute is at 18 U.S.C. 3109.
State v. Hamilton, 8 S.W.3d 132 (Mo. App. S.D. 1999). Police executing search warrant in drug case knew that defendant reportedly had a gun (though perhaps it was a BB gun), plus 25 prior arrests (which included armed robbery and carrying a concealed weapon), and the items being looked for were small pieces of crack cocaine which were small and could easily by discarded through bathroom or kitchen fixtures. HELD: It was reasonable for the officers to enter without knocking and announcing. The police did have a reasonable suspicion that knocking and announcing their presence would have been dangerous or futile or would have allowed the destruction of evidence. See also: State v. Baker, 103 S.W.3d 711 (Mo. banc 2003) (reasonable suspicion that defendant was violent justified a no knock execution of a search warrant).
Amendment permits a blanket exception for the knock and announce rule for this entire category of criminal activity. However, in this particular case, the decision not to knock and announce was reasonable in that when the police officers knocked on defendants door at 3:40 a.m., he opened it a crack, with the chain still on, saw at least one officer in uniform, and quickly slammed the door. The officers waited 2 or 3 seconds before kicking and ramming the door to gain entry, catching the defendant going out a window. They found cocaine hidden above the bathroom ceiling tiles. The test: In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
State v. Williams, 539 S.W.2d 530 (Mo. App. 1976). Held that this section imposes no such requirement of public demand and announcement where no break-in is necessary to execute the warrant. In this case, a policeman who claimed to be a drug customer was let into the house by the wife of the drug dealer who believed he was one of her husbands customers. Ruse, deception or subterfuge may be used by officers to gain entry with a search warrant without knocking, as long as force is not used in the entry. State v. Erwin, 789 S.W.2d 509 (Mo. App. 1990). Police were not required to announce who they were because no force was necessary to break down any door. They had knocked on the door and it swung open as they knocked. They went in without announcing their authority. HELD: No problem with the execution of this search warrant; evidence admitted.
A. How Long to Wait After Knocking Before Breaking?
Once the police knock and announce, how long must they wait before kicking down the door? In general, delays of 30 seconds or more seem to be uniformly upheld; but delays of less than 30 seconds are often held not sufficient, absent exigent circumstances. Burkoff, Search Warrant Law Deskbook, Chap. 12.
United States v. Banks, 124 S.Ct. 521 (2003). Police, armed with a search warrant for cocaine in the apartment of a suspected drug dealer went to his apartment in the afternoon. They knocked on the door, announcing, Police! Search warrant! The apartment was small. The officer at the back door could hear the knock and announce at the front door. After waiting 15 to 20 seconds with no response they used a battering ram to force open the door. They entered and found defendant, dripping wet and clad in a towel. He had just gotten out of the shower. They also found cocaine. Defendant was convicted of possession of cocaine with intent to distribute. HELD: The 9th Circuit ruled
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this to be an unreasonable search under the Fourth Amendment. The Supreme Court reversed, holding that the standard of reasonableness as to the length of time police with a search warrant must wait before entering without permission after knocking depends upon the totality of the circumstances. Because cocaine is quickly disposed of and because this house was small, it was reasonable for the officers to wait no longer than 15 to 20 seconds before knocking down the door. Otherwise the cocaine could have been flushed. B. Exigent Circumstances For Not Knocking Executing officers are entitled to ignore the knock and announce requirement in exigent circumstances. Typical examples are where there is a reasonable likelihood that notice to the occupants of the premises would result in violent resistance or the removal or destruction of evidence.
State v. Parrish, 852 S.W.3d 426 (Mo. App. W.D. 1993). Exigent circumstances excuse noncompliance with statute requiring police officers to announce their authority and purpose prior to forcing their way into residence.
State v. Hamilton, 8 S.W.3d 132 (Mo. App. S.D. 1999). Police executing a search warrant in a drug case know that defendant reportedly has a gun (though perhaps only a BB gun), plus 25 prior arrests (including armed robbery and carrying a concealed weapon) and the items being looked for are small pieces of crack cocaine which are small and could easily be discarded through bathroom or kitchen fixtures. HELD: Reasonable for officers to enter without knocking and announcing.
U.S. v. Garcia, 741 F.2d 363 (11th Cir. 1984). Failure to announce purpose held OK U.S. v. Kane, 637 F.2d 974 (3rd Cir. 1981). Failure to make any announcement at all
where officers heard shuffling noises inside that sounded like occupant trying to hide and where they could reasonably believe that he might try to wash cocaine down the sink.
held OK where officers knew occupants were armed and were engaged in large-scale drug activity. C. Exclusionary Rule Inapplicable IF Officers Have Warrant
Hudson v. Michigan, 126 S.Ct. 2159 (2006). Police got a warrant to search defendants home for drugs and firearms. They knocked but only waited 3 to 5 seconds before entering through the unlocked door. The defendant was sitting in an easy chair with a gun under its cushion and crack cocaine in his pocket. HELD: The exclusionary rule does not apply to violations of the knock and announce rule because a search warrant has already been issued, so the search itself is reasonable in that it was already approved by a judge. The remedy for the defendant is not the suppression of the evidence, but instead a civil suit for any damages to the door or for the momentary invasion of privacy. State v. Gibbs, 224 S.W.3d 126 (Mo. App. W.D. 2007).
D. Exclusionary Rule Still Applies IF Officers Do Not Have Warrant
Defendant had committed a robbery, where he had passed a note saying he had a gun. He got away with lots of cash. Motel employees said that a person matching his description was in a motel room. They provided a key to police. Instead of waiting to get a warrant, the officers opened the door. Defendant saw them and bolted for the window. The officers grabbed him as he was going out the window, but he made it out, only to be nabbed outside. After he was handcuffed, officers found cash, a knife and a crack pipe on his person. HELD: In Payton v. New York, 445 U.S. 573 (1979) the Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspects home in order to make a routine felony arrest. This is a different matter than the recent case of Hudson v. Michigan, 126 S.Ct. 2159 (2006), which held that the exclusionary rule did not apply to a violation of a knock and announce when a search warrant had already been issued by a judge. Payton still governs . . . a failure of knock and announce without a search warrant.
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Exigent circumstances did not justify this entry, since even though the crime was a robbery, there was no showing that a gun was really involved, there was no indication that the suspect would escape if police backed off and got a warrant, nor was there any indication that lives were endangered by holding off and getting a warrant. Thus, the evidence seized incident to defendants unlawful arrest must be suppressed.
14. Significance of Prior Refusal to Issue Warrant.
In order to avoid the undesirable practice of magistrate shopping by the prosecution, when one magistrate has refused to issue a search warrant based upon a ruling of insufficient probable cause, some cases hold that the same information cannot serve - standing alone - as the basis for issuance of a search warrant by a second magistrate. U.S. v. Davis, 346 F.Supp. 435 (S.D. Ill. 1972). Where, however, the information tendered to the second magistrate to support probable cause is not identical to that presented to the first judge (i.e. additional information has been added in the affidavit) there is no constitutional defect in the warrant issued by the second magistrate. State v. Caldwell, 279 S.E.2d 852 (N.C. Ct. App. 1981).
Thus, a prosecutor should NEVER resubmit the same affidavit to a second judge if the first has found no probable cause, without making some change in the affidavit, however innocuous the additional information might appear by itself.
15. Particularity Requirement - Places to be Searched.

The places the warrant this setting officers can
A. Street numbers, geographic indicators, apartment numbers, city, county, and state locations; legal property descriptions, plat map references, directions on a map; descriptions of house color, style, size; description of the neighborhood all of these details may be useful. B. If search warrant is for a car, the make, model, year, color, license plate number, presence of bumper or dealer stickers, VIN #, owners name, and location, are all useful.
to be searched pursuant to a search warrant must be described with particularity in or an attached affidavit in order for the warrant to be constitutional. Particularity in means that the description must be detailed enough to insure that the executing reasonably ascertain and identify the place to be searched.
C. A person may be searched by search warrant, too. Not a bad idea to describe him in detail and include him in the warrant in drug cases, particularly. Often the person would be arrested, anyway, and could be searched incident to the arrest. D. Some prosecutors have tried to include in the search warrants all persons on premises. The U.S. Supreme Court has reserved ruling on this, but the majority of lower courts say this is unconstitutional. See Beeler v. State, 677 P.2d 653 (Okla. Crim. App. 1984). E. In drafting the search warrant, the prosecutor should use language saying that the premises at the particular address is to be searched, assuming there is probable cause for the whole house to be searched. Cases hold that the language premises includes all buildings on the property, all appurtenances thereto, and any vehicles owned or controlled by the owner of, and found upon, the premises. Commonwealth v. Signorine, 535 N.E. 2d 601 (Mass. 1989) (collecting cases).
F. A search warrant to search defendants residence for marijuana allowed the officers to search the entire house, not just the living room where the marijuana had been seen by the informant who gave the affidavit. State v. Hodges, 705 S.W.2d 585 (Mo. App. S.D. 1986).
But see: State v. Varvil, 686 S.W.2d 507 (Mo. App. E.D. 1985), where premises held not to include a second building on the property, completely unmentioned in the search warrant or affidavit. Issue became whether this was saved by good faith exception.
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16. Particularity Requirement - Things to be Seized.
The things to be seized pursuant to the execution of a search warrant must be described with particularity in the warrant or an attached affidavit in order for the warrant to be constitutional. The particularity requirement in this setting is satisfied when the description is as specific as the circumstances and the nature of the activity under investigation permit. A. Contraband Examples: sufficient.
State v. OCampo, 644 P.2d 985 (Idaho 1982).
Controlled substances - description
Tosh v. State, 736 P.2d 527 (Okl. Ct. Crim. App. 1987).
B. Fruits of Crime
Marijuana, a controlled substance, together with other fruits, instrumentalities and evidence of the crime - held sufficient.
Unlike contraband, fruits of crime cannot ordinarily be readily identified by their nature or physical character, and thus their description must be more specific. A bare reference to stolen property, for example, is not sufficient.
State v. Bussard, 760 P.2d 1197 (Idaho Ct. App. 1988). Miscellaneous gold and silver
appliances, hand tools, home furniture, clothing, power drill press not specific enough.
People v. Murray, 143 Cal. Rptr. 502 (Cal. Ct. App. 1978). Television sets, power tools,
jewelry is not specific enough.
C. But a Search Warrant Description will Always be Valid as Sufficiently Particular When it is as Specific as the Circumstances and the Nature of the Activity Under Investigation Permit. motor vehicles, materials used to retag, dismantle and rebuild stolen automobiles and executing officers had every reason to believe that some of the vehicles named in the affidavit would no longer be on the premises . . . and that others would have been added. that could have been used to inflict physical damage on a human body. Held constitutional under circumstances.
U.S. v. Shoffner, 826 F.2d 619 (7th Cir. 1987). Stolen motor vehicles, parts of stolen
U.S. v. McClintock, 748 F.2d 1278 (9th Cir. 1984). A thin belt, or any other type object State v. Strickland, 609 S.W.2d 392 (Mo. 1980). Not mentioning shotgun shells in search
warrant did not require their suppression where warrant authorized police to search defendants residence for shotgun, diamond rings, and a revolver. Green shotgun shell casings had been found at the scene of the shooting but police did not know of existence of green shells at defendants residence when they applied for the search warrant. It was apparent to the police when they saw them, though, that they constituted evidence.
17. Timeliness of Execution.
A search warrant shall be executed as soon as practicable and shall expire if not executed and the return made within ten days after the date of making the application. 542.276.8
A search warrant must be executed both within the jurisdictions maximum time period (in MO, 10 days) and also prior to the time the probable cause which supports the warrant grows stale. As seen, Missouri statute says search is to be conducted as soon as practicable.
State v. Miller, 46 S.W.2d 541 (Mo. 1932). A search made 12 days after issuance was unauthorized and illegal, therefore unreasonable. Evidence should have been suppressed.
WARNING: DONT DELAY TOO LONG.
State v. Jackson, 821 S.W.2d 908 (Mo. App. W.D. 1992). Police got a search warrant for drugs based on informants affidavit that he had seen methamphetamine in defendants house within the last 48 hours. Police waited 6 days to execute the warrant. The defendant claims it had become stale. HELD: Search valid. Test as to staleness is
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resolved by looking at all factors, including the nature of the wrongful activity alleged, the length of the activity, and the nature of the property sought to be seized, to evaluate whether probable cause still existed. It is relevant, but not dispositive, that the execution of the search warrant occurred within the 10 day time frame prescribed by law.
Cave v. Superior Court, 73 Cal. Rptr. 167 (Cal. App. Ct. 1969). A 7-day delay was held
NOTE: In 2008, Section 542.276.8 was amended to clarify that an item seized and removed from the searched premises pursuant to the execution of a search warrant may be searched later at the station even after the 10 days without the necessity of getting a new search warrant.
People v. Hernandez, 118 Cal. Rptr. 53 (Cal. App. Ct. 1974). An 8-day delay held reasonable (10 day statutory max) where the record supported continuing evidence of drug activity.
unreasonable even though the statute provided a 10 day maximum, because there was no continuing probable cause demonstrated and the primary if not the sole reason for the delay was the expectation of finding additional property.
18. Receipt, Return & Inventory Requirements.
The officer shall fill out an itemized receipt for property taken, and leave a copy of the receipt and a copy of the warrant with the person from whom the property was taken, or leave the copies at the site searched if no person is present. 542.291 (It is a good idea to use a standard form for the Return & Inventory, and use carbon paper or a duplicate copies when filling it out at the scene, so a copy can be left.) (NOTE: Copies of the Application and Affidavits do not need to be left with suspect. It is only mandatory to leave a copy of the warrant and a copy of the receipt/return & inventory). A copy of the receipt (Return & Inventory) shall be delivered to the Prosecuting Attorney within 2 working days of the search. 542.291.5
After the search, the warrant and a return, signed by the officer making the search, shall be delivered to the judge who issued the warrant. The return shall show the date and manner of execution, what was seized, and the name of the possessor and the owner, if known. The return shall be accompanied by a copy of the itemized receipt given the suspects under 542.291, if they are separate documents. The judge or clerk shall, upon request, deliver a copy of such receipt to the person from whose possession the property was taken and to the applicant for the warrant.
State v. Hunt, 454 S.W.2d 555 (Mo. 1970). Total failure to file return did not invalidate the search warrant, where the defendant could not show he was prejudiced by its absence, and the court ordered remedied the situation by ordering the prosecution to file a return within 10 days of the hearing. State v. Buchli, 152 S.W.3d 289 (Mo. App. W.D. 2004). One lawyer beat another lawyer
to death at their law office. A search warrant was issued for the suspect lawyers home. No inventory was left at the premises as required by statute, nor was a proper return ever filed. HELD: A return to a search warrant is a ministerial act, and even the total failure to file a return does not affect a warrants validity.
NOTE: Effective 8/28/2004, officers in Missouri were required to also provide the court with photographs or copies of the items seized. Section 542.276.6(6), RSMo. This short-lived requirement was repealed, effective 8/28/2005.
19. Nighttime Searches.
Most jurisdictions require search warrants to be executed during daytime hours unless a special showing of need to search at night is made to the issuing judge and noted on the warrant.
The Missouri statute says: The search may be made at night if making it during the daytime is not practicable. 542.291.
One would assume nighttime means between sunrise and sunset, but that is not always the case. Jurisdictions have variously pegged nighttime as beginning somewhere between 7:00 to
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Execution of a search warrant only a few minutes after the beginning of nighttime may sometimes be treated as de minimis and, hence, lawful. This is also true if it began before nightfall and continued into the night.
10:00 p.m. and ending 6:00 to 7:00 a.m.
If there is a reasonable probability that the evidence sought will be removed or destroyed before a warrant could be executed in daylight, a nighttime search will always be OK.
James v. State, 658 S.W.2d 382 (Ark. 1983). Search after 8:00 p.m. nighttime rule held to be OK where it began at 7:00 p.m., paused, began again at 9:15 p.m. and was finished by 10:40 p.m.
Evidence existed that the stolen
People v. Siripongs, 247 Cal. Rptr. 729 (Cal. 1988). property was to be quickly disposed of.
and they would be at least partly sold that night.
State v. Salley, 514 A.2d 465 (Me. 1986). Evidence that defendant was selling the drugs State v. Paul, 405 N.W.2d 608 (Neb. 1987). Evidence that marijuana was being smoked
NOTE: A violation of the nighttime search prohibition is not necessarily considered a constitutional violation. Only half of the jurisdictions apply the exclusionary rule in this situation. Almost certainly, the Supreme Court would rule that under Hudson v. Michigan, 126 S.Ct. 2159 (1006) the exclusion rule would not apply. exclusionary rule on ground that nighttime search prohibitions are NOT constitutionally required.)
that night and might be burned up by morning.
Pianzano v. State, 423 So.2d 258 (Ala. Crim. App. 1981) (exclusionary rule applied); U.S. v. Anderson, 851 F.2d 384 (D.C. Cir.), cert den. 109 S.Ct. 324 (1988) (declined to apply
20. Persons on Premises - Detention, Search or Arrest. Detention of Persons On or Near Search Premises.
A. Detention Occupants of search premises may be detained during the execution of a search warrant for contraband but may not be searched or arrested in the absence of additional information establishing probable cause. Persons found leaving the search premises may also be detained (but not arrested or searched) during the execution of a search warrant for contraband if the executing officers reasonably believe they are occupants of the premises.
Michigan v. Summers, 452 U.S. 692 (1981). Defendant was coming down exterior front steps when police arrived and detained him. Drugs were found in his pocket. HELD: Evidence admissible. A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.
NOTE: Detention held unconstitutional where defendant was stopped while driving away from search premises. U.S. v. Taylor, 716 F.2d 701 (9th Cir. 1983). But opposite result
In Summers one person was barely outside the home, having just come down the steps when the police got there. He was also lawfully required to reenter and remain there while they conducted the search. They found out he was owner and after drugs were found in the house they arrested him. They found more heroin in his pocket.
The detention is lawful even in the absence of probable cause or reasonable suspicion that any specific occupant has committed a crime. This is because by issuing the warrant the judge had determined that police have probable cause to believe that someone in the home is committing a crime. Also, risk of harm to everyone is minimized if the occupants selfinterest induces them to open locked containers so they dont get damaged.
State v. Rios, 840 S.W.2d 284 (Mo. App. W.D. 1992). A search warrant for a house carries with it the right to detain occupants of the house while officers conduct search.
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B. Scope of Detention
reached in U.S. v. Cochran, 939 F.2d 337 (6th Cir. 1991). Detention held unconstitutional where defendants were stopped while driving 5 miles away from search premises. U.S. v. Tate, 694 F.2d 1217 (9th Cir. 1984).
NOTE: The Summers decision legitimized detention of the occupant of search premises, without explicitly stating what was meant by that term. Lower courts have interpreted occupant broadly enough to not require ownership of the search premises before detention is permissible, but narrowly enough so as to preclude the detention of known nonoccupants.
C. Handcuffs
Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984). Known visitor arrived after search began and said, Hey, whats going on? Police said, Search warrant. Assume the position. With no specific reason to think he was armed, an officer frisked him and had him take a place on the floor next to the others. Drugs were found in a vial in his pocket. HELD: Absent reasonable belief he was armed or probable cause to believe he possessed drugs or contraband, it was unlawful to search defendant merely because he arrived at scene of search.
The Detention Should Employ the Least Intrusive Means Reasonably Necessary, But can Include Use of Handcuffs if Reasonably Necessary for Safety of Officers.
Muehler v. Mena, 544 U.S. 93 (2005). Police detained Mena and others in handcuffs
D. A. Preventing Property Owner from Entry
an airport included handcuffing her before probable cause was developed, but while reasonable suspicion existed. Since there were six suspects and only three officers, the Court held that the record supported the officers concerns that the suspects should be handcuffed for safety concerns in order to maintain the status quo in order to achieve the purposes of the investigative detention, i.e., determine if there was probable cause to arrest any of the suspects for a drug offense.
U.S. v. Miller, 974 F.2d 953 (8th Cir. 1992). An investigative detention of a suspect at
for three hours during a search of the premises they occupied. The warrant authorized a search for weapons and evidence of gang membership, relating to a gang-related shooting. The use of handcuffs was reasonable since a search for weapons in a gangrelated crime is inherently dangerous and the use of handcuffs minimizes the risk of harm to both officers and occupants. The need to detain multiple occupants made the use of handcuffs all the more reasonable.
Defendant Whom the Police Have Probable Cause to Believe has Drugs in His Home May Be Prevented From Entering the Home Unsupervised While the Police are Awaiting the Issuance of the Warrant.
E. Full Searches of Persons On or Near Search Premises.
Illinois v. McArthur, 531 U.S. 326, 148 L.Ed.2d 838, 121 S.Ct. 946 (2001). Police officers with probable cause to believe that defendant had hidden marijuana in his home prevented him from entering the home unaccompanied by an officer for about two hours while they were obtaining a search warrant. Once they had the warrant, they entered the house and found the marijuana and drug paraphernalia. HELD: The officers acted reasonably. The temporary intrusion of preventing defendant from entering his home was reasonable in light of the possibility that he would destroy the evidence if he got inside. NOTE: The same procedure was followed in State v. Edwards, 36 S.W.3d 22 (Mo. App. W.D. 2000).
An individual may be searched if he or she is specifically identified as a search target in the search warrant. The Supreme Court made it clear that a warrant to search a place does not normally authorize a full search of each individual in that place.
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Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). A warrant to
Doe v. City of Chicago, 580 F.Supp. 146 (1983).
PRACTICE TIP: In drafting a search warrant, the police and prosecutor should word it to cover the specific defendant and any other known individuals expected to be present, as well as the place. In such cases, those people may be thoroughly searched as well as the premises.
A search warrant was issued to search an apartment and a specifically-described white male. The police did strip searches of a mother, who was arrested, and her two teenage daughters, just because A persons mere propinquity to others they were on the premises. HELD: independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. The prohibition against open ended or general warrants means that a warrant to search a place cannot be construed to authorize a search of each individual in that place.
search a place cannot normally be construed to authorize a search of each individual in that place. The search of a bar patron simply because of his presence at the scene of search is held improper. A search warrant had been issued to search the bar and the bartender for heroin and controlled substances. Defendant was simply one of the many patrons at the bar.
F. Searches of Purses or Bags of Visitors on Search Premises.
NOTE: An individual who is lawfully detained on a search premises pursuant to the execution of a search warrant may thereafter be lawfully arrested if probable cause develops from things found to establish probable cause for the arrest. Once lawfully arrested, the arrestee may then be searched incident to that arrest. Burkoff, 13.3 & 3.4.
A search warrant was being executed on the premises of Sheldon Tellers house, plus an arrest warrant for Teller. The object of the search was money, the fruit of a crime. While the search was going on, the defendant (Tellers wife) arrived in her car, parked it in the driveway, and walked in, carrying a purse. She put the purse on a bed in the bedroom and left it there, leaving the room. The officer searching the bedroom searched the purse 20 minutes later and found heroin. HELD: Defendants purse, lying on the bed, was merely another household item subject to lawful execution of the search warrant of the premises. This was not a search of the person of the defendant.
the apartment of James Stewart for drugs. Officers entered the apartment while Stewart was climbing out a window, and defendant, a woman, was sitting on a couch. A purse was on the coffee table in front of the couch. The officers searched the purse and found narcotics and arrested her. Before entering Stewarts apartment, police had been advised that defendant was a visitor on the premises. HELD: The search of the purse was within the scope of the warrant to search the premises. The purse was not being worn by defendant and was thus not a search of her person. The dissent felt the search was not permissible because the purse was clearly the visitors, not James Stewarts, and it would have been valid only if incident to her arrest.
United States v. Johnson, 475 F.2d 977 (1973). A search warrant was being executed on
United States v. Teller, 397 F.2d 494 (7th Cir. 1968).
State v. Hodges, 705 S.W.2d 585 (Mo. App. S.D. 1986). Police were searching a house pursuant to a search warrant and looked through the purse of a visitor, finding a gun used in a robbery. The gun actually belonged to the occupant of the house, even though it was found in the purse of the visitor. HELD: The owner of the house did not have standing to object to the search of the visitors purse. U.S. v. Giwa, 831 F.2d 538 (5th Cir. 1987). Officers were executing a search warrant on
the apartment of Aurya for credit card fraud. The only person in the apartment when they arrived was defendant, Giwa, clad in a bathrobe. He claimed to be a visitor. When asked for ID he said it was in his flight bag in the closet. Giwa asked to get it himself but the officers refused, saying they would get it. He said it was in the side pocket. Officers found
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it, as well as credit cards in other names which were evidence of the credit card fraud they were investigating. Defendant claims the search was improper since he was just Auryas visitor. HELD: Search was proper. We begin with the proposition that any container situated within residential premises which is the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant. If a person claims merely to be a visitor, the court should look at the relationship between the person and the place. A mere passerby like the customer in the bar would have a higher expectation of privacy and could not have his bag searched. Giwas bag could be searched on these facts.
State v. Andrews, 201 Wis. 2d 383, 549 N.W.2d 210, 51 A.L.R.5th 833 (1996). Police
BUT COMPARE:State v. Lambert, 710 P.2d 693 (Kan. 1985). Police were executing a search warrant for the apartment of Randy for cocaine. Three women were in the apartment at time of the search one sick in bed, the others sitting at the kitchen table with a serving tray of marijuana between them. All three women were arrested. The defendant was one of the women at the table. A purse on the kitchen table was searched. Marijuana and amphetamine were found in it. HELD: Defendants person and purse could not be searched just because she was on the premises of Randy when there was no reason to believe this was Randys purse. NOTE: The issue of whether this was a valid search incident to an arrest was not even discussed. Somebody goofed!
executing a search warrant for an apartment found drugs in a duffel bag lying in the master bedroom. The bag belonged to a visitor. The Wisconsin Supreme Court approved the search, pointing out that the touchstone of the 4th Amendment is reasonableness and it was reasonable for the officers to search any container on the premises that could contain the object of the search, unless it was actually worn by or in the physical possession of a person whose search was not authorized by the warrant. The Court rejects the suggestion of Giwa that some special relationship between the person and the place must be shown.
21. Extent of Search: Scope.
Use of terms like premises is a good idea, because premises has been interpreted as including all land, all buildings, all appurtenances, carport, garage, doghouse, chicken coop, storage sheds, and all vehicles of owners on the land. But see: State v. Varvil, 686 S.W.2d 507 (Mo. App. E.D. 1985). NOTE: Vehicles not on premises may not be searched unless specifically described in warrant.
The scope of a search undertaken pursuant to a warrant is strictly limited by the explicit area or item limitations set out in the warrant itself.
General Rule: Any container situated within residential premises which is the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant. United States v. Gray, 814 F.2d 49 (1st Cir. 1987); United States v. Giwa, 831 F.2d 538 (5th Cir. 1987). As stated by the U.S. Supreme Court: A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found . . . When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home . . . must give way to the interest in the prompt and efficient completion of the task at hand. United States v. Ross, 456 U.S. 798 (1982). The wording used in the warrant can be very important.
State v. Pourtes, 744 P.2d 644 (Wash Ct. App. 1987). A warrant for a search of the premises did not justify a search of a car parked along the curb of the street.
State v. Franklin, 144 S.W.3d 355 (Mo. App. S.D. 2004). The police were executing a
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search warrant for a meth lab, specifically for chemicals, precursors, methamphetamine, paraphernalia, scales, substances and equipment used in the production of illegal drugs, computers, written records or documents used in the manufacture or distribution of illegal drugs. The officers noticed 25 to 30 unmarked videotapes in a television room. Knowing that people who manufacture meth sometimes have homemade training videos showing them how to make meth, they briefly watched each tape. One contained children having sex with an adult male. HELD: Since the officers knew tapes were used to teach people how to make meth, these videotapes, even though not specifically listed in the warrant, could constitute drug paraphernalia as all equipment or material . . . of any kind . . . used in manufacturing a controlled substance. Thus, it was not beyond the scope of the warrant to check the contents of each videotape.
22. Extent of Search: Intensity.

A. Closed Containers
The intensity of the search undertaken pursuant to a warrant is strictly limited by the nature of the items sought under the warrant. All items, including closed containers, in which the object searched for could be hidden, may be searched.
U.S. v. Ross, 456 U.S. 798 (1982). A warrant that authorized an officer to search a
B. Search After Object Described in Warrant is Found.
State v. Shaon, 145 S.W.3d 499 (Mo. App. W.D. 2004). Police executing a search warrant authorizing them to look for methamphetamine opened a small closed metal Altoids can in a kitchen cabinet and found marijuana inside it. The defense claims that opening the can exceeded the scope of the search, particularly since the search warrant said nothing about marijuana. HELD: Under the search warrant, Trooper Ahern was authorized to open and search the kitchen cabinet. He was also authorized by the search warrant to search any containers inside the kitchen cabinet where methamphetamine could reasonably be hidden, such as an Altoids can, because methamphetamine may be hidden in a small container. It didnt matter that the officer actually suspected he might find marijuana in the tin can since hed found marijuana in Altoids cans in the past. The important rule is that a lawful search extends to all areas and containers in which the object of the search may be found.
home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marijuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.
After the objects sought under a warrant have been located, the applicable intensity rules change.
U.S. v. Gagnon, 6354 F.2d 766 (10th Cir. 1980). Once a search warrant has been
fully executed and the fruits of the search secured, the authority under the warrant expires and further governmental intrusion must cease. Where, however, the executing officers have found some, but not necessarily all, of the items described in the warrant, the search may lawfully continue.
C. Damage or Destruction of Property.
Where damage is reasonably necessary to effect a search pursuant to a warrant, the 4th Amendment is not violated.
Dalia v. U.S., 4414 U.S. 238 (1979). Officers executing search warrants on occasion State v. Sierra, 338 So.2d 609 (La. 1976). But in executing a search warrant, to the
must damage property in order to perform their duty.
extent possible, due respect should be given to the property of the occupants of the
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premises searched.
U.S. v. Ramirez, 523 U.S. 65, 140 L.Ed.2d 191, 118 S.Ct. 992 (1998). Police got a
no-knock warrant to look for a dangerous fugitive, believed to be at defendants home. The police broke a window and stuck a gun through it while executing the search warrant. Defendant claimed the evidence should be suppressed since his property was damaged (broken window) in the course of the search by an excessive use of force. HELD: Damage to the property is no reason for suppression of evidence.
23. Seizure of Evidence.
Evidentiary items, including papers and documents, specified in a search warrant or discovered in plain view during the execution of a search warrant may be seized, provided it is immediately apparent to the seizing officers that the items are those described in the warrant or that they otherwise possess a nexus with criminal activity.
Horton v. California, 496 U.S. 128 (1990). Police may seize without a warrant any evidence in plain view during a legal search, even if they had expected in advance that the evidence would turn up at the scene but had not listed that evidence in the search warrant. Inadvertent discovery is not a requirement of admissibility. State v. Strickland, 609 S.W.2d 392 (Mo. 1980).
Not mentioning shotgun shells in the search warrant did not require their suppression where the warrant authorized police to search defendants residence for shotgun, diamond rings, and revolver. Green shotgun shell casings had been found at scene of the shooting but police did not know of existence of green shells at Defendants residence prior to discovering them during the authorized search, and it was apparent to the police that they constituted evidence so it was lawful to seize them.
24. Strip or Body Cavity Searches.
Effective 1980, Missouri has a specific statute dealing with strip and body cavity searches. 544.193, RSMo. It reads as follows: A. As used in sections 544.193 to 544.197: (1) Body cavity search means the inspection of a persons anus or genitalia, including but not limited to inspections conducted visually, manually or by means of any physical instrument. (2) Strip search means the removal or rearrangement of some or all of the clothing of a person so as to permit an inspection of the genitals, buttocks, anus, breasts, or undergarments of such person, including but not limited to inspections conducted visually, manually or by means of any physical instrument. B. No person arrested or detained for a traffic offense or an offense which does not constitute a felony may be subject to a strip search or a body cavity search by any law enforcement officer or employee unless there is probable cause to believe that such person is concealing a weapon, evidence of the commission of a crime or contraband. C. All strip searches and body cavity searches conducted by law enforcement officers or employees in this state shall be performed by persons of the same sex as the person being searched, and shall be conducted on premises where the search cannot be observed by any person other than the person physically conducting the search, except that nothing herein shall be interpreted to prohibit a readily available person from being present at the request and consent of the person being searched. D. A body cavity search of any person detained or arrested for a traffic offense or an offense which does not constitute a felony may only be conducted pursuant to a duly executed search warrant, under sanitary conditions and by a physician, registered nurse or practical nurse, licensed to practice in this state. E. Every law enforcement officer or employee conducting a strip search or body cavity search shall: (1) Obtain the written permission of the person in command of the law enforcement
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agency in which the strip search or body cavity search is to be conducted authorizing the strip search or body cavity search; and (2) Prepare a written report regarding the strip search or body cavity search. The report shall include: (a) The written permission required in sub. 1 above; (b) The name of the person searched; (c) The name of the persons conducting the search; and (d) The time, date and place of the search. A copy of the report shall be furnished to the person searched. Doe v. City of Chicago, 580 F.Supp. 146 (1983). Police officer got search warrant to search apartment and white male who lived there for marijuana. Officers executing warrant found the white male present with his wife and two teenage daughters and a young male friend of the family. Marijuana was found in pots on the back porch. A female jail matron was summoned, and she had each female lift her nightgown and lower her underpants and squat for inspection for hidden drugs. The adults were arrested but the teenagers were never charged with anything. HELD: The strip searches violated the 4th Amendment and subjected the city to liability. They were unreasonable. No probable cause existed to believe they could have hidden anything on their persons in so short a time.
Kathriner v. City of Overland, Missouri, 602 F.Supp. 124 (1984). The District Court held the city liable for violating detainees constitutional rights when a strip search was conducted without belief that detainee possessed contraband or weapons and without circumstances warranting such search. D.F. v. Florida, 682 So.2d 149 (1996).
The statute prohibiting strip searches does not apply to persons committed to a correctional institution or jail by judgment of a court of competent jurisdiction. Section 544.197, RSMo.
A Florida strip search statute, much like Missouris, required that a street officer obtain approval from a supervisor before conducting a strip search. The officer arrested defendant on outstanding traffic warrants. At the station he felt a plastic baggie during a pat-down search of the buttocks. Without the approval of a supervisor, he ordered the defendant to drop his trousers and saw the tip of a baggie sticking out from his butt cheeks. He ordered the defendant to spread his legs, but the defendant would not. The officer spread defendants legs and the baggie of five rocks of cocaine fell to the floor. The Court held this was a strip search that by statute required a supervisors permission in advance. Thus, the evidence was suppressed.
25. Exclusionary Rule and Good Faith Exception.
GENERAL RULE If an officer executing a search warrant collects evidence based upon that warrant, the evidence will still be admissible in court even if it turns out later that there was a problem with the warrant, as long as the officer believed the warrant was constitutional at the time he did the search.
STATED ANOTHER WAY: Evidence seized pursuant to an unconstitutional search warrant or unconstitutional execution of a constitutional search warrant may be suppressed from admission in the prosecutions case-in-chief in a criminal trial (but only if) the law enforcement officers involved did not have an objectively reasonable belief in the warrants constitutionality. IN OTHER WORDS: In Leon, the Court held that the exclusionary rule should be modified so as not to bar the use in the prosecutions case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. LaFave at53. Penalizing the officer for the
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Good Faith Exception When Warrant was Obtained, but was Later Found to be Invalid.
Those who drafted the 4th Amendment may not have specifically contemplated the exclusionary rule, but surely they expected the commands of the Amendment to be adhered to. LaFave at 27. The cost argument was rejected when the 4th Amendment was adopted. LaFave at 27, quoting Justice Traynor.
[judges] error, rather than his own, cannot logically contribute to the deterrence of 4th Amendment violations. Leon.
U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1984). In August 1981,
Burbank police got a search warrant to search Alberto Leons home for drugs. The warrant was later found to have been issued without enough probable cause. The U.S. Supreme Court created a good faith exception to the exclusionary rule. Now evidence seized by officers relying in good faith on the validity of a warrant issued by a judge will not necessarily be excluded. The court reasoned that the exclusionary rule serves to deter police misconduct, so it does not apply to good faith actions by policemen relying upon a warrant.
26. The Court Noted Four Exceptions:

A. False Information in Affidavit If the judge was misled by information in the affidavit, the officer either knowing it was false or recklessly disregarding its falsity;
Test for Knowledge of Falsity or Reckless Disregard:
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A rape
defendant claimed that the officers affidavit for a search warrant contained false information. The Court says that a search warrant affidavit that is knowingly false or recklessly disregards the truth may cause the entire search to be unconstitutional, but:
1) If probable cause can still be established by other parts of the affidavit the evidence is still admissible; 2) Burden of proof is on the Defendant by preponderance of evidence to prove his allegations of perjury or reckless disregard; 3) Every fact in affidavit does not necessarily have to be correct the test is whether the affiant believed the facts were true or recklessly disregarded the truth.
State v. Sherman, 927 S.W.2d 350 (Mo. App. W.D. 1996). Franks v. Delaware test used State v. Watson, 715 S.W.2d 277 (Mo. App. 1986). Mistakes made by officer citing facts
by Missouri Courts.
B. Where the judge wholly abandons his judicial role;
in affidavit as to the description of a car held not shown to be knowingly false nor a reckless disregard of the truth by the officer. The defendant must offer substantial proof of deliberate falsehood or reckless disregard.
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed. 2d 920 (1979). The Leon Court specifically referred to this case as an example. A judge had viewed two
Warrant Clearly Lacking Probable Cause
films purchased at an adult bookstore, concluded they were obscene, and issued a warrant to search the store for other copies of those films, and issued a second warrant for other unspecified items, said to have been determined by the judge to be illegal. The judge then accompanied the police on the raid of the bookstore and at the scene made an item-byitem determination of what else could be seized. The Supreme Court said the judge allowed himself to become a member, if not the leader, of the search party which was essentially a police operation and thereby caused an erosion of whatever neutral and detached posture existed at the outset.
In circumstances where the affidavit on which the warrant was issued is so clearly lacking in indicia of probable cause that no reasonably well trained officer would rely on it;
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This is an instance where the police officer cannot excuse his own mistake by pointing to the greater incompetence of the judge. LaFave, quoting Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). say when the illegal drugs had been seen on the premises; thus, even the good faith exception could not save it because it was so lacking in indicia of probable cause.
Dixon v. State, 511 So.2d 1094 (Fla. 1987). A search warrant affidavit for drugs did not State v. Pattie, 42 S.W.3d 825 (Mo. App. E.D. 2001).
Witness giving affidavit had seen child pornography in the male suspects home 13 months earlier. A search warrant was issued and videotapes of children in sex acts were found. Defendant claims the information had been too stale. HELD: Unlike marijuana, which would be smoked up, child pornography is the sort of thing that a pedophile could be expected to keep around to use over and over. Even if 13 months was too stale, the issue was too close for the officer to be expected to second-guess the issuing judge, so the search is saved by the good faith exception.
D. Warrant so facially deficient officers cannot presume it valid.
State v. Brown, 708 S.W.2d 140 (Mo. banc 1986). Under the totality of circumstances there was probably no probable cause for the issuance of this search warrant, but even assuming there was no probable cause, the good faith exception applied. The police officer was investigating a burglary of a hardware store that occurred in August. In November he saw lots of tools in defendants home, still in new packages, including a gray bench grinder. He cannot say they are exactly the same as the 200 tools taken, but they look similar. Defendant tells the officer it is none of his business where he got the tools and to get out of his house. The officer took a hardware store owner with him to execute the search warrant and only seized those items the victim could identify. This was reasonable.
based on 4th hand hearsay was so lacking in indicia of probable cause that reliance on the search warrant was unreasonable. A police officer was told by an informant that his wife told him that another lady told her that defendants mother told her that there was going to be a drug meeting at defendants house where lots of people were coming to buy, use and trade drugs. The officer had known the informant for years and found him to be truthful and reliable, but nothing was indicated in the affidavit about the reliability of the informants wife, the unnamed person who talked to informants wife, or defendants mother. Although hearsay may be the basis of probable cause, there were so many levels of hearsay here it did not amount to a fair probability that a crime was being committed and was so lacking in probable cause that reliance on the search warrant was unreasonable.
State v. Hammett, 784 S.W.2d 293 (Mo. App. E.D. 1989). A search warrant affidavit
Groh v. Ramirez, 124 S.Ct. 1284 (2004). An ATF agent typed up a search warrant, supporting affidavit and application to search Ramirezs home for various firearms and grenades. The affidavit and application were okay, but the search warrant completely omitted any description whatsoever of the items to be seized. Neither the agent nor the judge noticed, and the judge signed the defective warrant and the agents executed the search. HELD: The 4th Amendment requires a warrant to describe the things to be seized. This warrant was so clearly invalid on its face that no reasonable officer could claim to presume it valid. Even a simple glance would have shown it to be defective. State v. Cummings, 714 S.W.2d 1 (Mo. App. 1986). The search warrant said to search the
2nd house east of LaCompte Road, but the police searched the 3rd house. The search warrant address was incorrect, but the officer had been able to tell which house was the proper one by the description of a metal bin on the property and immediately realized the warrant should have said 3rd house. HELD: Even though search warrant had a mistake in it, the good faith exception applied to save the search.
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27. Good Faith Not Applicable to Warrantless Searches

NOTE: As of now, the Good Faith Exception Under Leon is Limited to With Warrant Cases. It does not Extend to Cases Where the Police Officer has Conducted a Warrantless Search Solely on the Basis of His Own Judgment About the Existence of Probable Cause or Exigent Circumstances. Three narrow exceptions:
Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Police conducted
over the defendant for a traffic violation, routinely put his name into the computer in the patrol car and discovered an outstanding arrest warrant. He arrested the defendant and in a search incident to the arrest found a bag of marijuana in the car. It turned out that the warrant had been recalled but never removed from the computer due to the failure of court clerk to notify law enforcement that the warrant had been quashed. HELD: The reasoning of Leon made the exclusionary rule inapplicable. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions. No deterrent basis exists for applying the exclusionary rule.
Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). An officer pulled
a warrantless search of an auto junkyard pursuant to an administrative inspection statute later held unconstitutional. HELD: The good faith exception to the 4th Amendment exclusionary rule applies when an officers reliance on the constitutionality of a statute is objectively reasonable.
Herring v. United States, ___ U.S. ___ (1/14/2009). A police officer knew that defendant
was coming to an impound lot to pick up his car. He asked the dispatcher to check for outstanding warrants. She found one from a neighboring county and the officer arrested defendant and found meth in his pocket and a gun in his car incident to the arrest. The other police department had been negligent in not removing the recalled warrant. HELD: Although reckless or intentional failure to remove the warrant from the active list could result in suppression, negligence does not all for application of the exclusionary rule.
28. Good Faith Exception Applies to Arrest Warrants:
The good faith exception applies to arrest warrants as well as search warrants. Thus, in situations where an arrest warrant was issued improperly (without sufficient probable cause or for some other reason) the exclusionary rule can be avoided and the evidence admitted if the officer conducting the arrest reasonably relied upon a warrant that appeared valid upon its face. U.S. v. Gobey, 12 F.3d 964 (10th Cir. 1993) (summons issued without judicial finding of probable cause was later converted to bench warrant, still without finding of probable cause; although the warrant was thus invalid, the search incident to the arrest was saved by the good faith exception). See also: Juriss v. McGowan, 957 F.2d 345 (7th Cir. 1992). A. A search warrant may be executed only by a peace officer. Peace officer is defined in 542.261 as: a police officer, member of the highway patrol to the extent otherwise permitted by law to conduct searches, sheriff or deputy sheriff. B. Section 43.200, RSMo, provides that the Missouri Highway Patrol may request the prosecutor to apply for, and members of the patrol may serve search warrants anywhere in MO, provided that the Sheriff or his designee shall be notified about the application and the Sheriff or his designee shall participate in the search. C. The Missouri Supreme Court has said that a prosecuting attorney should not accompany a sheriff in serving a search warrant in absence of exceptional circumstances. State v. McIntosh, 333 S.W.2d 51 (Mo. 1980).
29. Who Searches:
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30. Some Practical Tips for Officers Regarding Conducting Searches.

A. Photographs: Photograph every room before beginning search.
Photograph each item in place found before moving. B. Diagram:
Photograph every room when you leave to show lack of damage. Diagram the layout of house (you will quickly forget it if you dont) indicating where items were found. Easiest way - Separate items in boxes or bags by parts of house, with each item in a bag separately numbered.
C. Labeling:
31. Motions to Close Search Warrant File to Public:
Although no Missouri statute addresses the issue, nor do any Missouri appellate cases address it, cases in other jurisdictions set out the common law that the judge who issues a search warrant has the authority to order all or part of the search warrant file sealed. This can keep the target criminal from finding out about the search warrant before its execution, or from reading the probable cause affidavit containing the known facts, informants, etc. prior to the search. Missouri prosecutors have successfully used a Motion For Sealing Search Warrant Affidavits. Some applicable cases include: Baltimore Sun Company v. Goetz, 886 F.2d 60, 6465 (4th Cir. 1989); Certain Interested Individuals, John Does I-IV, Who Are Employees of McDonnell Douglas Corporation v. Pulitzer Publishing Company, 895 F.2d 460 (8th Cir. 1990); In re Search Warrant for Secretarial Area, 855 F.2d 569 (8th Cir. 1988); Times Mirror Company v. U.S., 873 F.2d 1210 (9th Cir. 1989).
32. Do Not Let Press Accompany Police Into Someones Home for the Execution of a Search or Arrest Warrant. Wilson v. Layne, 526 U.S. 603, 143 L.Ed.2d 818, 119 S.Ct. 1692 (1999). In a unanimous
decision, the Court held that it violates the 4th Amendment for police to allow a news reporter and photographer to accompany them into a suspects home for the execution of a warrant (in this case an arrest warrant). Police doing so can face civil liability.
who obtained a search warrant, made the decision to execute it, and brought the television station with him to film the inside of the defendants home without defendants permission violated the 4th Amendment and subjected himself to civil liability. A search warrant carries with it the authority for the police to enter upon the premises, but not for the press to do so. They are trespassers in that situation. See also: Le Mistral, Inc. v. CBS, 61 A.2d 491, 402 N.Y.S. 2d 815 (1978) (A camera crew accompanied Health Inspector on the search of restaurant for unsanitary conditions. This violated 4th Amendment. Although health inspector had the right to enter, he did not have the right to bring the TV station employees, who only had the same right of entry as the general public).
Parker v. Clark, 905 F.Supp. 638 and 910 F.Supp. 460 (E.D. Mo. 1995). The police officer
33. Computer Searches
The magnitude of a computer search is understood when one considers that the contents of an entire library can fit on a hard drive.
Probable cause to seize a computer and its hard drive or disks is not all that difficult to establish, nor is it based on any special rules. Searches and seizures of computers, by their nature, however, inherently involve particularity problems. John Wesley Hall, Search and Seizure, Sec. 40.9 (3d ed. 2000).
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In most ways, searching a computer is analogous to searching a file cabinet for specific documents. The key is to describe with particularity what the officer is to look for, to prevent a general rummaging expedition. child pornography consisting of minors engaged in sexually explicit conduct and sexual conduct between adults and minors was sufficiently specific. Police officers executing the warrants were not unguided and free to rummage through defendants property.
United States v. Hall, 142 F.3d 988 (7th Cir. 1998). Description of files to search for as
United States v. Clough, 246 F. Supp. 2d 84 (D. Me. 2003). Warrant for all text files of
The ability to use a utility program to search computer data for key words or files enables the searcher to drastically limit the scope of the search. Hall at Sec. 40.10. Once a warrant or consent is obtained to search the contents of the computer, an additional warrant is not required to use one of these search applications.
computer of a drug suspect for names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to the sale and distribution of controlled substances. This was sufficient for items found pertaining to drug dealing. However, when the officer stumbled across a picture in the computer that was child pornography, he should have stopped and gotten another search warrant for child pornography. While that first picture was in plain view the later ones were not, since by that point he was opening files he was fairly certain were child pornography rather than drug information. The child pornography evidence should have been suppressed.
United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). Police got warrant to search the
any variety in a computer was too overbroad since it included no description of the alleged crime under investigation. The search warrant should have included the same language used in the affidavit that the officers were to look for evidence of the crime of possession of unregistered machine guns and destructive devices. The affidavit was not incorporated by reference into the search warrant, however.
Commonwealth v. Copenhefer, 587 A.2d 1353 (Pa. 1991).
When officers are trying to determine which computer disks are subject to seizure under a warrant, the disks may be perused (just like documents) to determine whether they may be seized. The officer is not required to accept the label as being truly indicative of the contents.
Defendant kidnapped a bank vice president and sent a ransom note for money in exchange for her safe return, but ended up killing her, anyway. The FBI executing a search warrant for the contents of his computer found the ransom note in it. He had deleted it from his directory, but the officers used a program designed to find deleted files. He argued that an additional search warrant should be been obtained to use this program. The court held that no additional search warrant was necessary.
United States v. Aldahondo, 2004 WL 170252 (D. Puerto Rico).
With probable cause, police may seize a computer and, like a suitcase or other container, hold it a reasonable time while they are applying for a search warrant.
In a child pornography case, the entire computer system and all videotapes can be searched because of the likelihood of deliberate mislabeling.
defendants computer at the computer store found child pornography. It was permissible for the police to have it held an additional day while they were applying for a search warrant. Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Fourth Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. Citing United States v. Place, 462 U.S. 696 (1983).
United States v. Hall, 142 F.3d 988 (7th Cir. 1998). A computer repair man working on
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The United States Department of Justice has written guidelines for federal law enforcement officers pertaining to searches of computers. The document is 200 pages long and collects the relevant cases. It can be downloaded from the Department of Justice web page. It is called: Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations.
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Part Three - Warrantless Searches

I. General Rule: A Warrantless Search is Presumptively Unreasonable Unless it Fits Into a Recognized Exception to the Warrant Requirement.
1. Search Incident to Arrest
This is the oldest exception, talked about by Sir Matthew Hale in 1687, and not even new then. A SEARCH INCIDENT TO LAWFUL ARREST, NOW MORE PROPERLY CALLED A SEARCH INCIDENT TO A CONSTITUTIONALLY PERMISSIBLE ARREST. In general, there is no such creature as a valid search incident to an unlawful arrest. The arrest must be LAWFUL under the Fourth Amendment (i.e. based upon probable cause or upon a warrant). It may be for a misdemeanor or felony (or a traffic offense if defendant is taken into custody). The issues usually involve the scope of the search. A. ARREST: Missouris Arrest Statute is 544.216: Any [law enforcement officer] may arrest on view, and without a warrant, any person he sees violating or who he has reasonable grounds to believe has violated any law of this state, including a misdemeanor or infraction, or has violated any ordinance over which such officer has jurisdiction. B. PROBABLE CAUSE: State v. Ard, 11 S.W.3d 820 (Mo. App. S.D. 2000). Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officers, and of which they have reasonably trustworthy information, are sufficient to warrant a belief by a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested. While the quantum of information necessary to furnish probable cause means more than mere suspicion, its existence must be determined by practical considerations of everyday life on which persons act and not the hindsight of technicians.
State v. Adams, 719 S.W.2d 873 (Mo. App. W.D. 1990). Probable cause to arrest is determined on the facts collectively available from all officers participating in the arrest; it is not necessary for the arresting officer to personally possess all of the available information.
Maryland v. Pringle, 124 S.Ct. 795 (2003). An officer stopped a car for speeding and pursuant to a consent search found 5 baggies of cocaine hidden behind the backseat armrest and $763 in the glove compartment. He arrested all three occupants: the driver, the front-seat passenger, and the back-seat passenger. Defendant (front-seat passenger) confessed later that morning. The defense claims his confession should be suppressed as the fruit of an illegal arrest unsupported by probable cause. HELD: The Supreme Court holds 9-0 that being one of three occupants of a car in which 5 baggies of cocaine are found constitutes probable cause to be arrested. It was an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the vehicle. Thus, a reasonable officer would conclude that probable cause existed to believe that Pringle possessed cocaine, either solely or jointly.
C. A SEARCH INCIDENT TO AN UNLAWFUL ARREST IS INVALID: State v. Gant, 211 S.W.3d 655 (Mo. App. W.D. 2007). Defendant was arrested without a warrant outside a motel room where police had already found cocaine. Probable cause did not exist for his arrest. Additional crack cocaine was found in his pocket. HELD: The police lacked probable cause for the arrest so the search incident to that arrest was unconstitutional and the evidence found on his person had to be suppressed. BUT: A SEARCH INCIDENT TO AN ARREST CAN BE VALID EVEN WHEN THE ARREST WAS INVALID UNDER STATE LAW, AS LONG AS THE ARREST WAS CONSTITUTIONALLY PERMISSIBLE UNDER THE FOURTH AMENDMENT.
Virginia v. Moore, 128 S.Ct. 1598 (2008). A police officer pulled the defendant over for driving
while suspended. Unlike Missouri, Virginia had a statute saying that for this particular level of
Part Three Warrantless Searches
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misdemeanor offense, the officer shall release the offender on a citation, unless (1) the suspect refuses to discontinue the unlawful act; or (2) the offender is likely to cause harm to himself or others; or (3) the offender is likely to disregard a summons. In spite of the statute, the officer who pulled over the defendant made a custodial arrest, handcuffed him, and put him in the patrol car. The officer later admitted that none of the statutory reasons existed for this custodial arrest. A search of the defendants pockets incident to the arrest revealed 16 grams of crack cocaine. The defense argued that the evidence should be suppressed since the arrest was invalid under Virginia law. This argument looked like a winner since it has long been held that there is no such thing as a valid search incident to an unlawful arrest. The State argued that the search was valid under the 4th Amendment so the evidence should not be suppressed simply because the arrest violated state law. HELD: The Supreme Court holds that since the arrest was based upon probable cause, it was a valid arrest for Fourth Amendment purposes; thus, the evidence was seized pursuant to a constitutionally permissible search. Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence . . . Warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution . . . [W]hile States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendments protections. The Court finds it significant that the Virginia legislature and courts do not apply any state exclusionary rule to violations of this arrest statute. It is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. The Court concludes: We affirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. NOTE: This could have application in Missouri to warrantless arrests of drunk drivers beyond 90 minutes of the offense. As long as the arresting officer had probable cause, a violation of 577.039 should no longer result in the suppression of evidence.
D. THE SEARCH OF THE PASSENGER COMPARTMENT OF A VEHICLE MAY TAKE PLACE EVEN AFTER THE SUBJECT AS BEEN HANDCUFFED AND PUT INTO THE OFFICERS CAR.
State v. Scott, 200 S.W.3d 41 (Mo. App. E.D. 2006). Defendant was pulled over for driving with a burned-out taillight. After learning that his license was suspended, the officer arrested him for driving while suspended, handcuffed him, and put him in the patrol car. The officer then searched the passenger compartment (admittedly for drugs) and found a small container attached to the key chain in the ignition. Inside, he found crack cocaine. HELD: The search was a valid search incident to arrest of the passenger compartment of a car under the Bright Line test of New York v. Belton, 453 U.S. 454 (1981). Because of the bright line rule, the passenger compartment may be searched even though the defendant was already in handcuffs and no longer in a place where he could grab a weapon. The search of Scotts car was a valid search incident to his arrest regardless of the officers intent to search for drugs or the fact that Scott was handcuffed in the patrol car at the time of the search.
Incident to a valid arrest (upon probable cause or with arrest warrant) police may search the person and area within his immediate control without probable cause to believe he has evidence upon him.
E. SCOPE OF SEARCH INCIDENT TO ARREST:
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). After arresting
defendant in his home for burglary of a coin shop, police officers conducted a full search of his entire three-bedroom house, including the attic, garage, workshop and drawers. The search was done over defendants objection. Several stolen coins were found. HELD: The search was invalid since it went far beyond his person and the area from which he could
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have obtained either a weapon or seized an destroyed evidence. A warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in the possession or under the control of the person arrested. Justice Potter Stewart explained the exception well: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestees person and the area within his immediate control - construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. See also: U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); U.S. v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). There are three classic rationales to allow searches incident to arrest. 1) To protect officers from weapons; 2) To prevent defendant from destroying evidence; 3) To prevent defendant from escaping by getting access to weapons or other items. The number of officers vs. number of defendants can affect the size of the area considered within immediate reach. Seven officers to one defendant could search a smaller zone than one officer to seven suspects.
The wingspan of Muhammad Ali in his prime (who could float like a butterfly and sting like a bee) would be much larger than the wingspan of Whistlers invalid mother sitting in her rocking chair. The immediate area includes: 1) Includes body. 2) Includes area within his reach, lunge or grasp immediate control. The Wingspan of defendant. 3) Includes fingerprinting. State v. Blair, 691 S.W.2d 259 (Mo. 1985). 4) Includes clothing and fingernail scrapings. State v. Magnotti, 198 Conn. 209, 502 A.2d 404 (1985). 5) Includes gunshot residue. State v. Howell, 524 S.W.2d 11 (Mo. 1975); State v. Parsons, 513 S.W.2d 430 (Mo. 1974). 6) Includes bringing arrested defendant to station after arrest for thorough search. A station search includes searching any closed containers in defendants possession, in accordance with departments established inventory procedures. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed2d 65 (1983). Includes going back at a later time to search more closely any clothing or effects that were seized from defendant at the jail and held in a property room at the jail. U.S. v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Defendant was in jail about 10 hours after his arrest when police collected his clothing and searched it for paint chips after they learned that paint had been chipped from the window when entry had been made in a burglary with a pry bar. Once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing and the taking of the property for use as evidence.
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7) Includes giving breathalyzer to arrestee. U.S. v. Reid, 929 F.2d 990 (4th Cir. 1991). 8) Includes taking small hair sample from arrestees head. U.S. v. Weir, 657 F.2d 1005 (8th Cir. 1981). 9) Split whether it includes urine sample. Yes says Ewing v. State, 160 Ind. App. 138, 310 N.E.2d 571 (1974); No says People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976). 10) Includes taking dental impressions from arrestee. Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990). 11) Includes putting hands under ultraviolet lamp. U.S. v. Baron, 860 F.2d 911 (9th Cir. 1988). 12) Includes checking messages on an electronic pager found on or near the person at the time of arrest. U.S. v. Chan, 830 F.Supp. 531 (Cal. 1993) (pager checked immediately at time of arrest contemporaneously with arrest); U.S. v. Lynch, 908 F.Supp. 284 (Vir. Isl. 1995). 13) Includes automobile passenger compartment and containers therein. The Court has drawn a Bright Line around the passenger compartment of an automobile, holding that it may be searched incident to the arrest of a person in the automobile. (Plus containers therein.) New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 728 (1981); Note, 47 Mo. L. Rev. 545 (1982). A Trooper pulled a car over for speeding. He smelled burnt marijuana and saw envelope marked Supergold which he associated with marijuana. He arrested the four people in the car for possession of marijuana and patted them down. He checked the Supergold envelope and found marijuana. He checked the passenger compartment of the car and found a coat with cocaine in the pocket. HELD: The search was lawful because of the bright line around the interior of a car for a search incident to arrest. The bright line area does not apply to the trunk, but does apply to a locked glove compartment. State v. Reed, 157 S.W.3d 353 (Mo. App. W.D. 2005). Defendant was pulled over for having a license plate on his car that belonged to a different car. It turned out that he was driving without a valid license so the officer arrested him for these two traffic offenses. During a search of the car incident to the arrest the officer found methamphetamine and drug paraphernalia. HELD: Searches incident to arrest are appropriate even in traffic violations, including driving without a valid drivers license. Belton made it clear that an officer making a lawful custodial arrest of the occupant of an automobile may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Noble v. State, 647 S.W.2d 174 (Mo. App. S.D. 1983). The search of a car after it was towed to the police station was upheld under Belton. U.S. v. Valiant, 873 F.2d 205 (8th Cir. 1989). The defendant was driving recklessly near Kansas City and wrecked the stolen car after a high-speed chase. The defendant was arrested after police pulled him from the car. He had a locked briefcase in the car. The officers forced it open and found cocaine. This was a valid search incident to arrest, which extended to closed containers in the passenger compartment. Thornton v. U.S., 124 U.S. 2127 (2004). The officer noticed defendant driving a car with tags listed to a different vehicle. Before he could pull the car over, the defendant drove to a parking lot, parked, and hopped out of the car. The officer pulled up right behind him. The suspect consented to a pat-down and the officer found drugs and arrested him. Incident to the arrest, he found a gun in the car. The defendant moved to suppress the gun. HELD: The Belton Bright Line rule extends to a recent occupant of a car. NOTE: The Bright Line rule for a search incident to arrest of a car interior only applies when the person was an occupant either the driver or a passenger of the car. Otherwise, the Chimel immediate control test would apply.
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14) Includes protective sweep of house if defendant is in a house when arrested. Protective Sweep - In effecting a lawful arrest the officers may also conduct a protective sweep of the premises to discover the presence of other people (not evidence) who might be security risks. The sweep must be quick and cursory, but items observed under the plain view doctrine during the sweep may be seized. State v. Miller, 499 S.W.2d 496 (Mo. 1973); State v. Dayton, 535 S.W.2d 479 (Mo. App. 1976). Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Police officers were investigating an armed robbery. One of the suspects had been wearing a red running suit. The officers obtained arrest warrants for the two suspects. One of the warrants was executed at the house of one of the suspects. Upon entering the house one of the suspects emerged from the basement and was arrested. An officer went to the basement to make a protective sweep to be sure no one else was hiding there and found in plain view a red running suit. The officer seized the running suit as evidence. HELD: A warrantless protective sweep of a house in conjunction with an arrest is permissible under the 4th Amendment if the officer reasonably believes the area to be swept harbors an individual posing danger to the officer or others. State v. Johnson, 957 S.W.2d 734 (Mo. banc 1997). Police were called to defendants home on a severe sick case. They found his wife dead at the scene, beaten so severely it was impossible to tell if shed been shot or died from the beating. Defendant was kicking walls, claiming a rival biker gang had killed her. Police also learned that a young son lived in the home. Right after learning that his wife was dead, defendant flew into a rage and told the police and paramedics to leave. Instead, they did a protective sweep of the house to make sure no one else was present. Various items were seen in plain view, including a bloody washcloth in a sink, blood and hair samples in various places, and a dented pipe. HELD: The police had first entered the home upon consent. Once the dead body was found, it became a crime scene and they could lawfully do a cursory check (protective sweep) of the home for other victims or suspects. Evidence seen in plain view would be admissible. All items seized were in plain view except a rifle which had been under a sofa, not visible until the sofa was moved, and a pair of bloody jeans under a bed, not visible until the bed was moved. Except for those two items, the evidence was admissible. 15) Pretextual Arrests Okay as long as some violation occurred. Whren v. U.S., 517 U.S. 806 (1996). As long as a traffic violation really occurred, it does not matter if the officer had an ulterior motive for pulling over the defendant. Regardless of whether the police officer subjectively believes that the occupants of a car may be engaging in some other illegal behavior, as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation, the stop is legal. In this case, police officers were in a high drug area and saw a truck with temporary plates and youthful occupants stopped at a stop sign. The driver was looking down into lap of the passenger. They sat there an unusually long time more than 20 seconds. The police car did a U-turn to go back for another look. The truck turned suddenly without signaling and sped off at an unreasonable speed. Police followed and caught up when it stopped behind other traffic at a red light. An officer
applicable when defendant was not an occupant of the car immediately prior to the arrest, but was merely standing at the tail of the Cadillac, and was only linked to it because the keys to the car were found upon his person. From his position it would have been impossible for him to have reached anything in the passenger compartment of the car. Brown v. Commonwealth, 890 S.W.2d 286 (Ky. 1994). A search of the trunk is usually permissible if at the time of the arrest defendant was standing at the open trunk of a car.
United States v. Adams, 26 F.3d 702 (7th Cir. 1994). Chimel rather than Belton is
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got out and went to the drivers door and ordered the driver to put the car in park. He immediately saw two bags of crack cocaine in passenger Whrens hands. State v. Mease, 842 S.W.2d 98 (Mo. banc. 1992). The Court overruled State v. Blair, 691 S.W.2d 259 (Mo. banc. 1985) and State v. Moody, 443 S.W.2d 802 (Mo. 1969), which involved the pretextual arrest doctrine. In Mease, a murder case, the officer had arrested the defendant on a nonsupport warrant. Even though part of the reason for issuing the nonsupport warrant had been the desire to locate and question the defendant concerning the murder, the facts truly did support issuing a nonsupport warrant. Under the new law, as long as there really was a valid reason for stopping defendant, so long as the police do no more than they are objectively authorized and legally permitted to do the officers other motivations for pulling defendant over and making an arrest are irrelevant. State v. Malaney, 871 S.W.2d 634 (Mo. App. S.D. 1994). The officer saw defendants car weaving from center line to side line three times. He pulled the car over. Because of observations he made after pulling the defendant over, he asked for consent to search the contents of the car. Defendant consented. Defendant claims this was a pretextual use of a traffic violation to pull over a car the officer wanted to search. HELD: The officers motives and state of mind in wanting to search the car were irrelevant as long as the traffic offense really occurred. The stop was not unlawful and the consent given was valid. Same result: State v. Peterson, 964 S.W.2d 854 (Mo. App. S.D. 1998); State v. Bunts, 867 S.W.2d 277 (Mo. App. S.D. 1993). State v. Rodriguez, 877 S.W.2d 106 (Mo. banc. 1994). The defendant was driving a tractor-trailer rig. He stopped at a weight station for a safety inspection. As the inspectors did their routine work (about 25 minutes) they became suspicious that he might have something more than onions and potatoes in his padlocked truck bed. They called the Highway Patrol, who arrived before the regular inspection was over. The officer was given consent to search by the defendant, and found 700 grams of marijuana among the potatoes. HELD: The search was valid. A commercial operator of a motor vehicle has a low expectation of privacy. As long as the length of the stop is consistent with the requirements of a vehicle inspection, the subjective reasons the inspectors had in calling the Highway Patrol were irrelevant. The length of the stop was okay and the consent to search was valid. State v. Mathis, 204 S.W.3d 247 (Mo. App. E.D. 2006). A police officer on patrol developed reasonable suspicion that the defendant was selling bootleg CDs out of the trunk of his parked car. The officer called in the plate and discovered that it had expired. When the defendant got into the car and started driving away the officer pulled him over and arrested him for driving with invalid plates. The officer advised defendant of his rights and asked if the CDs he was selling were real or copies. The defendant did not answer, but looked down and rolled his eyes. The officer asked for consent to search and defendant gave it. Inside the trunk, the officer found over a thousand bootleg CDs. Defendant claims the evidence should be suppressed in that the traffic stop was pretextual. HELD: A routine traffic stop is a justifiable seizure under the Fourth Amendment. Defendant argues that [the officers] purpose for stopping and arresting defendant was pretextual. However, a police officers intent or motive for a making a routine traffic stop is unimportant as long as the officers actions were lawful. The plate really was expired, so the stop and arrest were lawful. A search of the passenger compartment was permissible incident to the arrest. The search of the trunk was based upon voluntary consent.
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2. Probable Cause Search of Motor Vehicles The Automobile Exception to the Warrant Requirement (Second Oldest Exception, Vintage 1925). Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Prohibition was in full
swing in the U.S., but Canada was wet. Large quantities of booze were brought over the U.S.Canadian border through Detroit and transported to Grand Rapids. The road between them was known as Whiskey Run. Police spotted George Carroll, a known liquor runner. His car was running suspiciously low, a tell-tale sign that bootleg whiskey was in it. He was pulled over. Police tapped the seats and realized the upholstery was harder than it should be. They tore open the seat and found 68 bottles of whiskey under the upholstery. HELD: A person has a reasonable expectation of privacy in a car, but it is not as great as in a house. The movable nature of car makes it reasonable to search it upon probable cause without the need of getting a warrant. A SEARCH WARRANT IS NOT NORMALLY REQUIRED TO SEARCH A CAR SO LONG AS THE OFFICERS HAVE PROBABLE CAUSE TO BELIEVE IT CONTAINS CONTRABAND OR EVIDENCE SUBJECT TO SEIZURE.
Maryland v. Dyson, 527 U.S. 465, 144 L.Ed.2d 442, 119 S.Ct. 2013 (1999).
A. Probable Cause
A separate finding of exigency is not necessary if the officer has probable cause for a search of a motor vehicle.
The Definition of Probable Cause for a Search is Best Set Out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task (of the judge reviewing the actions of the police officer) is to make a practical, common-sense decision whether, given all the circumstances known to the police, including the veracity and basis information, there is a fair probability that contraband or evidence of a crime will be found in that particular place.
I.E. Probable cause exists when there are facts and circumstances within the knowledge of the seizing officer that are sufficient to warrant a person of reasonable caution to have the belief that an offense is being committed or that the contents of the car offend against the law. The Gates Test has Been Held to Apply to Warrantless Searches of Cars. U.S. v. Blackman, 904 F.2d 1250 (8th Cir. 1990). You May Search the Entire Car, Including the Trunk (i.e. Anywhere the Item You Are Looking For Could Have Been Hidden).
B. Scope: Under Automobile Exception
U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Police had a tip from a reliable informant that the defendant had drugs in his car trunk and was selling them out of his trunk. An informant had just seen defendant sell some drugs, and defendant had told the informant he had more drugs in his trunk. The informant gave a good description of defendant (Bandit) and the car, a purplish-maroon Chevrolet Malibu, currently parked at 439 Ridge Street. Without warrant, police spotted the car, ran its license plate and saw it checked to Albert Ross, a/k/a Bandit. Police stopped it and searched the trunk. A brown paper bag, containing heroin, and a leather pouch, containing $3200, were found in trunk. HELD: If the police have probable cause, the entire car may be searched, including any closed containers. Wyoming v. Houghton,526 U.S. 295, 143 L.Ed.2d 408, 119 S.Ct. 1297 (1999). A search
of a car upon probable cause includes inspecting a passengers belongings that are capable of concealing the object of the search, including the purse of a female passenger.
NOTE: Compare search incident to arrest (passenger compartment may be searched even without probable cause to search) with probable cause search of car (an arrest is not necessarily involved, but the entire car may be searched with probable cause).
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C. Impounding for Later Search
With Probable Cause, You May Search at the Scene, or Impound and Search Later with the Probable Cause. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Childress, 828 S.W.2d 935 (Mo. App. S.D. 1992); State v. Shigemura, 768 S.W.2d 620 (Mo. App. 1989).
State v. Lane, 937 S.W.2d 721 (Mo. banc. 1997). A Trooper pulled over a car for failure to
D. Odor of Marijuana Provides Probable Cause
signal a lane change. Defendant was a passenger. After completing the registration and license check, the Trooper asked the driver if the car contained anything illegal such as guns or drugs. The driver said no. The Trooper asked for permission to search, which was initially denied, but after the trooper said he would detain the car briefly for a drug dog to arrive for a sniff search (based upon reasonable suspicion of bloodshot eyes, strong scent of deodorizer, and nervousness), the driver gave consent. The trooper found two bags of marijuana in a duffel bag and a gallon bag of marijuana in the drivers suitcase. The Trooper arrested the driver and asked the defendant to drive the car to Headquarters for a more detailed search. At Headquarters, the Trooper found psilocybin mushrooms in a duffel bag bearing defendants name. The trial court granted a motion to suppress as to the mushrooms in defendants duffel bag. HELD: The search was proper. The search of the bag was based upon the automobile exception to the warrant requirement. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search, including luggage and closed containers. Having the car moved to Headquarters did not remove the probable cause to continue the search. An officer may search a vehicle on the spot where it was stopped and/or search it after it has been moved to the station.
E. Small Amount of Marijuana Found in Passenger Compartment Provides Probable Cause For Search of Trunk
smelled the odor of marijuana as he approached the car. He ordered the occupants out and frisked them, finding marijuana in defendants pocket. HELD: Where there is a legitimate reason to stop a car and the officer thereafter detects the odor of marijuana, an ensuing search is based on probable cause.
State v. West, 58 S.W.3d 563 (Mo. App. W.D. 2001). After lawfully stopping a car, the officer
F. Other Examples of Probable Cause in Drug Context:
and was arrested for DWI. A search of the passenger compartment incident to arrest produced a small amount (7.9 grams) of marijuana in a duffel bag and 3.0 grams in an Altoids tin in the center console. The officer then searched the trunk. HELD: Finding the marijuana in the passenger compartment provided probable cause to believe there may be more in the trunk.
State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. 2006). Defendant was stopped for speeding
State v. Burkhardt, 795 S.W.2d 399 (Mo. banc. 1990). Two troopers stopped a car for speeding 64 in 55 zone on I-44. Defendant driver came back to troopers car. Defendant was from California and had rented the car. Passenger was from North Carolina. They were going from California to Ohio. Trooper asked why defendant rented a car to travel from CA to OH, but defendant had no answer. Trooper asked how long defendant had known passenger and got story that they had known each other for a long time, that defendant went to college with passengers sister, and that passenger worked near defendants home. Defendant was nervous, figity. Officer asked for permission to search the car. Defendant said officer could search the car but not the suitcases because she didnt want her underwear stretched out over the highway. Officer said he wouldnt know if the car contained drugs unless he looked inside the luggage. Defendant asked, Are you going to search it, anyway? He said he felt he had probable cause. She said, Im not going to tell you where its at. The search revealed 127
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State v. Milliorn, 794 S.W.2d 181 (Mo. banc. 1990). No probable cause for search in car stop. No inevitable discovery via inventory. Defendant was arrested for speeding 4 miles over limit. Trooper smelled marijuana in passenger compartment, but did not find any there. Trooper could not see into back of truck defendant was driving, which was enclosed by camper shell, because windows were tinted. Trooper took defendants keys and opened the door of the camper shell and found 15 trash bags of marijuana. Court says an inventory search must be valid in scope. The justification for the search is threefold: 1) Protection of vehicle owners property; 2) Protection of police from claims of lost property; and 3)Protection of police from potential danger.
pounds of marijuana in the luggage. HELD: Probable cause existed for search of car. The factors establishing probable cause included: (1) the speeding violation occurred on a route that was notorious for use by drug traffickers in bringing controlled substances into the State (I-44 near Joplin); (2) trained observers (police) could consider the late hour when the automobile was stopped for speeding; (3) the driver of the car was from California and passenger was from North Carolina and they were driving 2500 miles instead of flying; (4) defendants suspicious conduct and movements, stories of driver and passenger not matching as to how they met, where they lived, jobs, etc., and nervousness on part of defendant while speaking to the trooper; (5) defendants statement to trooper, Im not going to tell you where its at! after trooper told defendant he felt he had probable cause to search defendants luggage and car for drugs.
G. Airplanes, Boats and Other Vehicles
State did not assert these reasons to justify the search of the camper shell, nor did the evidence show that this inventory search complied with established written policy of the department. Defendant has greater expectation of privacy in locked trunk or camper shell than in passenger compartment. The automobile exception also includes airplanes, boats, and other motor vehicles. State v. Sullivan, 935 S.W.2d 747 (Mo. App. S.D. 1996). Applies to boats. California v. Carney, 471 U.S. 386 (1985). Applies to motor homes.
3. Container Exception Suitcase Exception.
A. General Rule: When Probable Cause is Focused on a Container (Suitcase, Baggage, Etc.), the Container May be Seized Without a Search Warrant; It May be Detained Briefly Upon Reasonable Suspicion, and May be Detained for a Reasonable Amount of Time (Sometimes Days) Upon Probable Cause, But it May Not be Opened and the Contents Seized Until the Police Have Obtained Search Warrant.
U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
B. Computer as Container
The search of a locked footlocker at railroad station. Police may seize a suitcase warrantlessly but must get a warrant to get inside the suitcase. A person has a greater expectation of privacy in a suitcase than in a car.
C. New Rule for Containers Put Into Cars, Where the Probable Cause is for the Container, and not the Whole Car: If the Container is Put Into the Car, it May be Searched Without a Warrant Upon Probable Cause, Just Like all Other Containers in the Car.
A computer repair man working on defendants computer at the computer store found child pornography. It was permissible for the police to have it held an additional day while they were applying for a search warrant. Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Fourth Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. Citing United States v. Place, 462 U.S. 696 (1983).
United States v. Hall, 142 F.3d 988 (7th Cir. 1998).
California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). After a controlled delivery of narcotics at a home, officers saw the defendant leaving the home with
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NOTE: Once you find the stuff in the container, arrest the defendant, search the rest of the interior as search incident to arrest, then impound the vehicle and search it again following standard inventory procedures.
a bag about the size of the packages that had been delivered. Acevedo placed the bag in the trunk of his car and drove off. He was shortly thereafter stopped by the officers, who immediately searched the trunk, found the bag, and then searched the bag, finding drugs without a warrant. HELD: The Supreme Court established a new bright line rule for searching containers in cars, when the probable cause is for the container as opposed to the whole car: 1) If an officer has probable cause concerning the criminal content of the closed container; and 2) The container is located within a vehicle, then 3) The automobile exception to the warrant requirement will apply to a search of the closed container, WITH THE ONLY EXCEPTION BEING THAT: 4) If the probable cause is focused solely on the container and not the rest of the vehicle, the warrantless search must be limited to the container once it is found within the vehicle. It becomes a question of scope.
State v. Borotz, 654 S.W.2d 111 (Mo. App. 1983).
D. Containers Placed in Mail, UPS, Etc.
was okay for warrantless search of packages removed from vehicle upon probable cause. As long as probable cause existed, the search did not need to be simultaneous with the seizure. If all police have is reasonable suspicion, though, even a 90-minute delay is too long. U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
U.S. v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). Three-day delay
Defendant left the location where marijuana sales occurred and put his attache case in the car. HELD: Probable cause existed to believe that he was carrying a controlled substance as he left the apartment, either on his person or in the attache case so that once he entered the car he, in effect, tainted the interior and extended probable cause to any area within his reach and thus no warrant was needed to search the attache case.
United States v. Van Leeuwen, 398 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). It is
reasonable to delay a package placed in the U.S. mail for 29 hours while probable cause is being developed and a warrant is then obtained to search it.
4. Exigent Circumstances Exception, (Emergency) (Hot Pursuit)

A. Exigent Circumstances in General While the courts have long recognized the concept of exigent circumstances as a basis for the few specifically established and well-delineated exceptions to the warrant requirement, it was said in 1972 that the contours of this exception have not fully been developed . . . and the Supreme Court has never pinned it down to a workable and effective meaning. Two decades of litigation have, at least, given some form to the specter of exigent circumstances. John Wesley Hall, Jr. Search and Seizure (3rd Ed. 2000)
Whether sufficient exigent circumstances exist for the police to make a warrantless search and seizure defies a bright line rule analysis simply because the question is always so fact bound. Nevertheless, the question is not as difficult to apply on the streets and in court as it first may seem. Ultimately, exigent circumstances can only be determined by considering the totality of the (exigent) circumstances involved. As with probable cause, this is a flexible, easily applied standard [which] will better achieve the accommodation of public and private interests that the 4th Amendment requires. Id.
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Although no comprehensive list of exigencies can be compiled, a number have come up over and over again. These include: (1) Imminent destruction or removal of evidence; (2) Hot pursuit of a fleeing suspect; and (3) Immediate threats to public safety. Paul R. Joseph Warrantless Search Law Deskbook (1998)
B. Hot Pursuit
The United States Supreme Court has Outlined the Exigent Circumstances Exception as Follows: A warrantless intrusion into a home may be justified by: a. Hot pursuit of a fleeing felon; or b. Imminent destruction of evidence; or c. The need to prevent a suspects escape; or d. The risk of danger to the police or to other persons inside or outside the dwelling. ** In absence of Hot Pursuit, there must be probable cause that one or more of the other factors were present. ** In assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). If an Officer is in Hot Pursuit of a Person Whom He Has Probable Cause to Arrest for a Crime Freshly Committed and if He Reasonably Believes that Person to be Dangerous, He May Enter a Premises to Search for that Person, and May, with Probable Cause, Seize that Suspect, and Weapons, or Other Evidence that Might Otherwise have been Destroyed if the Officer had to Stop to Get a Warrant. Defendant robbed a taxi station. Taxi drivers who overheard what happened followed the fleeing robber and saw him go into a house. Police responded and entered house, finding defendant in bed, pretending to be asleep. They found the weapon in the head of the toilet (running water) and clothing worn by robber in washing machine. The key word in 4th Amendment is reasonableness. It is not reasonable to require an officer chasing an armed robber to freeze at door of house when the robber goes inside. But compare Minnesota v. Olson:
Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
was robbed at 6:00 a.m. A lone gunman fatally shot the manager. An officer who heard the report suspected Joe Ecker and went to Eckers home. He saw an Oldsmobile pull up and he gave chase. The car took evasive action, spun out of control and stopped. Two men got out and ran. Ecker was captured and identified as the gunman. The other man escaped. In the car, the police found the money and the murder weapon and a rent receipt made out to Rob Olson at 3151 Johnson St. The next morning a woman giving her name called and said a man named Rob drove the car in the gas station robbery and that Rob was going to leave town by bus. At noon, the woman called back and said Rob had told Maria and two other women - Louanne and Julie - that he was the driver in the robbery, and that Louanne was Julies mother and they lived at 2406 Fillmore. The police talked to Louannes mother, Helen Niederholfer, who lived next door. Although Louanne and Julie were not home, Helen confirmed that a Rob Olson had been staying upstairs but was not then home. At 2:45 p.m. Helen called police and said Olson had returned. Police surrounded the house. The police called Julie and told her Olson should come out. They heard a male voice say, Tell them I left. Julie said Rob had left. At 3:00 p.m. the police went in without Julies permission or a search warrant, and with weapons drawn. Defendant was found hiding in a closet. HELD: Not enough exigent circumstances because no indication existed that Julie was in danger and since the defendant was not going anywhere since he was surrounded; the police could have gotten warrant. Also, the defendant was not suspected of being the murderer but only the driver, and the murder weapon had already been recovered. CONFESSION SUPPRESSED.
Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). A gas station
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1) Hot Pursuit Must Usually be Immediate and/or Continuous.
2) Hot Pursuit Must Have Begun in Officers Jurisdiction
Police entered defendants home to arrest him for DWI only minutes after a witness had observed him in an apparently intoxicated condition fleeing from a car he had been driving erratically which had gone off the road. HELD: The claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the Defendant from the scene of the crime. It was also significant in this case that Wisconsin had classified DWI at the time as an infraction carrying no jail time, so it was not a serious offense.
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
defendant commit a traffic offense but does not activate his red lights until the defendant is outside the city limits. He pulls him over and determines he is drunk and calls for a State Trooper to take over. The trooper arrives and does the field sobriety tests and runs the suspect on a breathalyzer. HELD: The evidence is inadmissible. Missouris hot pursuit statute, Section 544.157, RSMo, requires that fresh pursuit must be initiated from within the officers jurisdiction and implies instant pursuit. Absent fresh pursuit, the municipal officer had no authority to pull over the suspect outside the city limits. NOTE: For a municipal or misdemeanor case, a stop by an officer outside his jurisdiction that does not meet the fresh pursuit requirements is not saved by the law allowing for a citizens arrest. City of Ash Grove v. Christian, 949 S.W.2d 259 (Mo. App. S.D. 1997).
State v. Renfrow, 224 S.W.3d 27 (Mo. App. W.D. 2007). A municipal police officer sees
3) Hot Pursuit Begun at Door of Defendants House:
C. Danger to Police or Other Persons or Evidence.
An undercover officer arranged to buy heroin from McCafferty and waited outside while McCafferty went into Santanas house (her supplier) to obtain the drugs. After McCaffertys return and her delivery of heroin to the officer, he placed her under arrest. Other officers traveled the two blocks to the Santana residence. Santana was standing in her doorway with a bag in her hand. They approached her and announced their office. She turned and retreated into the house. They followed and caught her in the vestibule, finding the marked money from the purchase on her person. HELD: Defendants act of retreating into her home could not thwart her arrest. The case was a true hot pursuit. Even though this normally connotes some sort of chase, it need not be an extended hue and cry. This chase ended almost as soon as it began. Once Santana saw the police, there was a realistic expectation that any delay would result in the destruction of evidence.
United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).
As a matter of constitutional principle, the emergency doctrine is not just another means to justify a warrantless search, but for entry onto private premises to respond to urgent need for aid or protection, promptly launched and promptly terminated when the exigency which legitimized the police presence ceases. State v. Rogers, below. 1) Dead Body
State v. Rogers, 573 S.W.2d 710 (Mo. App. W.D. 1978). Report from dispatcher of dead body at certain residence. Responding officers entered the home without consent (occupants fled) and found the dead body of a badly beaten female victim lying upon a recliner chair. A sweep of the house revealed some items of evidence in plain view. A more extensive search revealed a rope behind a heater (used to bind the victim), bottles of vodka and fingernail polish in the trash (used to poison the victim by forcible consumption), and bottles of alcohol and silver polish from the kitchen cabinets (also used to poison her). HELD: Although the entry was valid pursuant to the exigent circumstances exception and anything seen in plain view during the protective sweep was properly seized, the scope of the search was limited to plain view unless there had been apt cause for concern that evidence would have been lost, destroyed or removed before a search warrant could be obtained. Thus, the items seized from behind the heater, from the trash can and from the
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2) Wounded Person
Defendants mother-in-law was suspicious that defendant might have harmed her daughter and grandchildren. Daughter and children had been missing several days. The defendant told her his wife had gone shopping in nearby Columbia, but the mother-in-law noticed her daughters purse was still at the house and called the police. Responding officers detected the odor of death. Without consent, they went inside and searched the home and found the bodies of defendants wife and children in the bedrooms. HELD: The exigent circumstances exception applied. Whenever the police have reliable information of a death, an emergency exists sufficient to justify an immediate search because apparent death may turn out to be a barely surviving life, still to be saved . . . Here, although the odor of decomposing flesh would indicate death of one of the persons involved, at least three persons were missing under very unusual circumstances and defendant could not be found. One or more could have been in immediate need of help to prevent death. Following entry, the officers could seize evidence of the crime in the bedroom under the theory of plain view.
kitchen cabinets should have been suppressed.
State v. Epperson, 571 S.W.2d 260 (Mo. banc. 1978).
Smith v. State, 789 S.W.2d 172 (Mo. App. E.D. 1990). blood into murder victims home needed no warrant.
Police who followed a trail of
3) Prevent Injury or to Respond to Need for Help
State v. Butler, 676 S.W.2d809 (Mo. banc 1984). If exigent circumstances exist, a warrantless entry of a home is permissible to search in emergency situations in response to a need for help. This was a medical emergency. The police got call from victim that he had just been shot by his wife in his home. From outside the house, police could see him lying on the floor in his family room. Brigham City, Utah v. Stuart, 547 U.S. 398 (2006).
Police officers responding to complaint about a loud party were standing in the backyard of a residence and saw a fight going on inside the house. Through the screen door and windows they could see four adults trying to restrain a teenager, who broke free and punched one of them in the face. The victim began spitting blood. The officers rushed in and stopped the fight. The homeowner was later charged with contributing to the delinquency of a minor and disorderly conduct. HELD: Exigent circumstances applied, even though this assault was just a misdemeanor. Officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. . . . Here, the officers were confronted with ongoing violence occurring within the home. We think the officers entry was plainly reasonable under the circumstances. . . . Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious or semiconscious or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing or hockey referee, poised to stop a bout only if it becomes too one-sided. Reasonable belief of medical emergency existed where defendants grandmother had been missing for 7 days and defendant refused to allow the police to enter the home he shared with the grandmother when they responded to a missing person report to check on her well-being. She was known to be elderly, not very mobile, and with a heart condition. Her blinds had been drawn for days, when usually kept open. Meals on Wheels visits had been canceled, the phone was never answered, and she had failed to keep her regular church visits. When the defendant came to the door he claimed she was at his sisters house but that he did not know the address or phone number. He said he would go with them to the sisters house and told them to wait while he got his jacket. He closed the door. He came back and said hed called his sisters house and his grandmother and sister were not home because theyd gone shopping. The police said they wanted to enter to see if your grandmother is there and he refused, saying, Well, you need a search warrant. HELD: No warrant
State v. Orso, 789 S.W.2d 177 (Mo. App. E.D. 1990).
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necessary because there are numerous facts to support a reasonable belief that a medical emergency existed or that a need for help existed.
State v. Burnett, 230 S.W.3d 15 (Mo. App. W.D. 2007). A DFS worker requested police
State v. Tattamble, 720 S.W.2d 741 (Mo. App. E.D. 1986). Where officers knew the suspect had passed out from alcohol in his home, an entry without a warrant was not constitutionally permissible under an exigent circumstances theory. Facts: Defendants adult daughter came to the police station and said her father had just raped her when she visited him at his house. She said he had weapons in the house but was currently passed out drunk. Officers went to the house and knocked on the door but could get no response. They went in without a warrant. HELD: The evidence clearly falls short of establishing the exigent circumstances exception to the warrant requirement. At the time the police went into the house, no criminal activity was in progress, no need for help existed, and no reason existed to fear that defendant would escape. The information that he was passed out was corroborated by the absence to their knocking. The information he had weapons was nullified by equally reliable information that he was in no shape to use them because he was passed out. State v. Miller, 486 S.W.2d 435 (Mo. 1972). In response to a radio call that a man was down in a washroom at a bus station, police found defendant lying on the floor. They tried to wake him, checked him for injuries, and checked his pockets and found a syringe and some pills. HELD: Not an unreasonable search. The emergency doctrine makes a search of an unconscious person both legally permissible and highly necessary. Police summoned to investigate the circumstances of a distressed person who seems to be having a medical emergency can look for identification in their efforts to help. State v. Young, 991 S.W.2d 173 (Mo. App. S.D. 1999). Defendant was a passed out
to assist with a well-being check on a 20-month-old child. The legal custodian of the child, the paternal grandmother, had been hospitalized. The biological father of the child (whose rights had been terminated for sexual abuse and use of drugs) had picked up the child and was believed to be at the biological mothers house. Police responded to the house and knocked on the door, but received no answer. They could hear movement in the house and at one point saw the silhouette of an adult in the house holding what appeared to be a baby. Eventually, a 10-year-old child came to the door and told the officers to leave since in his legal opinion they had no right to come in. The pesky officers entered, anyway. HELD: When a young child is at risk from an individual with a history of violent or abusive behavior, exigent circumstances exist which may justify a warrantless search. The evidence seized in plain view during this entry (photographs taken of the child) was admissible.
4) To Some Extent to Prevent Destruction of Evidence or Property Damage.
passenger in a drunk drivers car. Police were not alarmed by his unconscious state and did not consider it a medical emergency, but checked his wallet just to see who he was, and ran across a packet of meth. HELD: While exigent circumstances could justify checking the ID of an unconscious person, the state failed to show a medical emergency in this case.
were doing a knock & talk and defendant came to door with a hot plate in his hand, red phosphorous stains on both hands, and the odor of cooking meth billowed out of the door he just opened. Defendant tried to shove the officer out of way to close the door, then fled back into house. The officers pursued, arrested defendant, and did a protective sweep of home. They saw meth cooking in plain view. They secured the scene and applied for a search warrant for a further search. HELD: The police conduct met the 4 factors for exigency that allow entry of a home to seize evidence to prevent its destruction: (1) Clear probable cause; (2) Serious crime; (3) Limited in scope to the minimum intrusion necessary; and (4) Supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse.
U.S. v. Scroger, 98 F.3d 1256 (10th Cir. 1997). Exigent circumstances applied when police
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Dorman v. U.S., 435 F.2d 385 (D.C. Cir. 1970). Four armed men robbed a clothing store, leaving 6 people tied up in a stock room. A shot was accidently fired and the robbers fled, arms full of clothing. A police officer saw them emerge from the store and pursued them, but they got away. An officer working the crime scene found probation paperwork pertaining to the defendant. A photograph was obtained and within 2 hours the victims had identified defendant from a photo lineup. Search warrant procedures were begun for defendants home, but no judge was available. At 10:20 p.m., 4 hours after the robbery, the officers went to defendants home and knocked on the door. As his mother was saying he was not there they heard a noise in a back room and brushed past her. Although defendant was not found, when they looked for him in a walk-in closet, the police found a brand new suit, unhemmed, with the label of the store that had been robbed. HELD: The search was valid under the exigent circumstances exception. While the numerous and varied street fact situations do not permit a comprehensive catalog of the cases covered by the exigent circumstances, the court suggests several factors to consider: (1) The gravity of the offense involved; (2) Reasonable belief that the suspect is armed; (3) A clear showing of probable cause; (4) Strong reason to believe the suspect is in the premises being entered; (5) A likelihood that the suspect will escape if not swiftly apprehended; (6) Reasonableness in amount of force used in making the entry; (7) Time of day or night of entry.
NOTE: LaFave calls the Dorman case the most ambitious attempt to articulate the factors that bear upon the issue of whether it would have been objectively reasonable to conclude that exigent circumstances were present in a particular case. Although the U.S. Supreme Court has never officially adopted the Dorman factors, in Welsh v. Wisconsin, supra, they did refer to it as a leading case defining exigent circumstances.
State v. Rowland, 73 S.W.3d 818 (Mo. App. S.D. 2002). Motel staff alerted police that a strong smell of ether was coming from a motel room. Police noted the distinctive odor of ether and knocked on the door. Defendant opened it, started to step out, recognized them as police, and tried to get back inside and shut the door. Police stopped him, grabbing him and pulling him out of the room and handcuffing him. They entered the room for a protective sweep, finding the odor very strong, and noticed in plain view coffee filters with a white substance (meth) on them, plus scales, jars, and baggies. They seized the items without a search warrant. HELD: The odor of ether established exigent circumstances. Given the rooms proximity to other rooms, the volatility of the chemical, and the possibility of unconscious persons being located in the room, it was reasonable that officers would have investigated the matter without a search warrant. Once inside, plain view doctrine applied.
State v. Glisson, 80 S.W.3d 915 (Mo. App. S.D. 2002). Officers went to defendants house to investigate a report that a witness had seen someone carry a stolen rifle into the house. When they arrived, a man was outside next to a car in the driveway. They asked to see his I.D. While the officer went to the patrol car to run the I.D., the man went into the house and locked the door. The officers could see that despite the cold February weather, all windows of the house were open. They could smell a tremendous and strong odor of ether. They knocked on the front door. Defendant answered. They asked for consent to search but defendant cursed and turned away, running into the depths of the house. The officers followed him because of the possible presence of the reported weapon and because of the possibility that a drug lab could be destroyed before a warrant could be obtained. They did a protective sweep, located three people in the house, and handcuffed them and brought them to the front porch to await a search warrant. The evidence was not seized until a search warrant was obtained. HELD: Exigent circumstances justified the initial warrantless entry into the residence. The officers had reason to believe that weapons were present that could be used against them, and that evidence could be destroyed if they did not reenter without a warrant to secure the premises. The trial court order suppressing the evidence is reversed.
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involving an informer and marked money was suddenly moved from the informers car to the sellers apartment. This alarmed the police because dangerous people were in the apartment and the informant would be out of sight of the observing police officers. This provided exigent circumstances for a warrantless entry of the apartment by police officers. The court noted that the officers acted in good faith; they had planned the transaction to occur in the car within their view; in addition to the risk to the informer when the deal moved inside, there was the possibility that the marked money might disappear when the people in the apartment disappeared.
People v. Valencia, 237 Cal. Rptr. 128 (Cal. 1987). The location of a controlled drug buy
State v. Vega, 875 S.W.2d 216 (Mo. App. E.D. 1994). Police obtained a search warrant to search a residence for drugs. Five suspects (people other than defendant) were the supposed dealers. Defendant happened to be one of people on the premises when the police arrived. When the police forced the door open, defendant fled the front room to a rear bedroom, where he picked up a black pouch and put it in his pants. An officer retrieved the pouch, which contained bags of cocaine. HELD: It is not necessary to consider whether the search of defendants person exceeded a pat-down of a non-suspect on the premises, because when probable cause exists to believe that evidence will be removed or destroyed before a warrant is obtained, a warrantless search and seizure can be justified under the exigent circumstances doctrine. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900(1973).
An Informant calling a tip line provided police with information that suspects Wiley, Umfleet and Moore were storing drugs in the refrigerator of their apartment, that they were at the apartment right now eating a meal, and that they were taking the drugs to Illinois as soon as they finished the meal. The prosecutor and police started working on a search warrant but couldnt find a judge. In the meantime, other people came to the apartment, spotted the police, and took off. The police decided they had to go in without a warrant to keep the drugs from being destroyed. They entered and arrested defendants and went straight to the refrigerator and seized a white plastic bag of drugs from the refrigerator. Nothing else was searched or seized. HELD: This search was justified as a reasonable search under the exigent circumstances exception. When agents have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The Court cautions that this is a restricted fact situation and it was important that there was specific reason to fear the destruction of the evidence and that the scope of the search was limited to the one specific place (refrigerator) and was not a general search.
State v. Wiley, 522 S.W.2d 281 (Mo. banc. 1975).
Ray v. State, 304 Ark. 489, 803 S.W.2d 8894 (1991). Gunshot residue test of arrestees
Defendant Murphy voluntarily appeared at the police station with counsel for questioning in connection with the strangulation murder of his estranged wife. Shortly after his arrival, police noticed a dark spot on defendants finger. Suspecting it might be dried blood and knowing that evidence of strangulation is often found under the fingernails of the assailant, they asked defendant if they could take a sample of scrapings from his fingernails. He refused and put his hands behind his back, appearing to rub them together, then put them in his pocket. The police took the samples without his consent. They were found to contain traces of skin and blood cells and fabric from the victim and her nightgown. HELD: With probable cause, a search for evidence on the person of a defendant which might be unavailable later may be made even without a search warrant or an arrest. hands without warrant can be considered a warrantless search upon probable cause and exigent circumstances since had defendant washed his hands, the chance to conduct the test would have been gone. Defendant was convicted of
State v. Varvil, 686 S.W.2d 507 (Mo. App. E.D. 1985).
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receiving stolen property. A search warrant had been issued to search a chop shop operation for stolen car parts. The search warrant only described building A, but there was also a building B, with defendant inside it, which the officers searched without a warrant. They had sufficient manpower that they could have secured the scene while a second warrant was obtained. Instead, they went ahead and searched building B and found a stolen car, for which defendant was prosecuted. HELD: The Court cites with approval the Dorman factors and concludes that since the crime did not involve violence and since evidence of cars being cut up was not the sort of thing that could easily be destroyed in the time it would take to get a valid search warrant, the exigent circumstances exception did not apply.
a) BLOOD DRAW AS EXIGENT CIRCUMSTANCES: See Search Warrants For Blood and Urine, supra. b) Emergency Circumstances to Protect Victims Property from Burglary Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987). Police properly entered a
5) To Prevent Escape
NOTE: Police may enter private property for the purpose of protecting the property of the owner or an occupant or some other person. One example is where the police reasonably believe that that the place has been or is being burglarized. LaFave, Vol. III at 403.
A good neighbor reported a burglary in progress. Police arrived, saw the rear door slightly open, heard a ringing phone not being answered, and saw that the lights and TV were on. They entered without warrant. HELD: The entry was proper under exigent circumstances under the totality of the circumstances.
Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995).
fraternity house in response to a radio call reporting burglary in progress, where a lone car was parked in the driveway and the frat boys were then on Christmas break. Officers found the back door unlocked and went in and arrested two people inside, who turned out to be two of the fraternity boys who were lawfully there. They filed civil suit, which they lost because the search was reasonable under exigent circumstances.
State v. Wright, 30 S.W.3d 906 (Mo. App. E.D. 2000). A rape victim had just escaped
State v. Adams, 51 S.W.3d 94 (Mo. App. E.D. 2001). A kidnapping victim escaped from
from her rapist who had bound her with duct tape. She told police he was last seen at his apartment where the rape occurred just hours before. The officers responded and knocked on the door. They heard a commotion inside. Fearing that if they left he would escape or destroy evidence, they entered the apartment with a landlords key and caught the defendant inside. They also seized duct tape and rubber gloves in plain view. HELD: Exigent circumstances exist if the time required to obtain a warrant would endanger life, allow a suspect to escape, or risk the destruction of evidence because of an imminent police presence. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Evidence admissible. her captor and called the police. She took them to the house where she had been held and reported that the suspects were a man and a woman, both armed. They had handcuffed her and put duct tape over her mouth. The officers approached the house and saw a woman inside. They entered and arrested her, finding a gun in a coat nearby. They did a protective sweep for the man, but did not find him, but did find weapons, duct tape and handcuffs. HELD: Exigent circumstances exist if the time required to obtain the warrant would endanger life, allow a suspect to escape, or risk the destruction of evidence because of imminent police. Several factors are considered in determining when exigent circumstances exist, including: (1) the gravity of the offense; (2) whether the subject is reasonably believed to be armed; (3) whether there is a clear showing of probable cause;
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6) Scope of Search Under Exigent Circumstances:
(4) whether the subject is inside the premises to be searched; (5) whether the suspect is likely to escape if not apprehended quickly; and (6) whether the entry is made peaceably. All six factors were present here, says the Court. Once it is determined that the suspicion which led to the entry was without substance, the officers must depart rather than explore the premises further. Thus, where entry of a hotel room was undertaken for the purpose of aiding a person the police were told had suffered a gunshot wound, but the room turned out to be unoccupied, it was illegal for the officers to open a suitcase found in the room. U.S. v. Goldstein, 456 F.2d 1006 (8th Cir. 1972). a) No Murder Scene Exception Although the initial entry may be valid under the emergency doctrine, the SCOPE of the subsequent search may be limited. FOR EXAMPLE, THERE IS NO MURDER SCENE EXCEPTION TO THE SEARCH WARRANT REQUIREMENT.
b) Fire Investigation Exception
officer was killed in shootout in suspects home in an undercover drug buy gone bad. Police conducted a 4-day warrantless search of the scene. HELD: The fact the premises searched was the scene of a recent murder did not automatically justify an extensive warrantless search of the premises when there was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. The burden is on the state to show the need for the search and the reasonableness of the belief that a warrant could not be obtained. There is no general murder scene exception to the search warrant requirement. Same result: Flippo v. West Virginia, 528 U.S. 11, 145 L.Ed.2d 16, 120 S.Ct. 7 (1999); State v. Rogers, 573 S.W.2d 710 (Mo. App. W.D. 1978), discussed supra. The exigent circumstances exception also allows firemen to go into a building to extinguish the fire and determine the cause and origin of the fire. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Once the fire is out and reasonable administrative inspections are finished, however, the inspection can turn into a search that would require a warrant.
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). A police
5. Stop & Frisk and Similar Lesser Intrusions.
The stop is a watered-down junior varsity arrest. The frisk is a watered-down junior varsity search. Hon. Charles Moylan. A. Stop The officer must have reasonable suspicion to believe that a crime has occurred, is occurring or is about to occur.
When an officer observes unusual conduct leading him to reasonably believe criminal activity may be afoot, he may stop that person, identify himself as a police officer, and make reasonable inquiries. Reasonable suspicion or articulable suspicion is all that is required, not probable cause. The Supreme Court has noted that the level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). It will suffice if at the time of the stop there exists a substantial possibility that criminal conduct has occurred, is occurring or is about to occur. LaFave, Vol. IV at 146.
B. Frisk The officer must have reasonable suspicion to believe the person may be armed.
If a reasonably prudent man in the officers position would believe his safety or that of others is in danger, he may go a step further and pat down the exterior clothing of the person for weapons. The officer need not be absolutely certain the defendant is armed. The test is whether a reasonably prudent person in same circumstances would believe he was in danger.
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Reasonable suspicion and articulable suspicion is what is required, not probable cause.
Terry v. Ohio, 392 U.S. 1 (1968). Officer Martin McFadden of Cleveland PD was patrolling in plain clothes in downtown at 2:30 p.m. on Halloween. He had been a police officer for 39 years. He saw two men hed never seen before standing on a corner. They didnt look right. He moved out of sight and watched. One man left the others and walked past some stores, looked in a store window, walked a short distance, turned around and walked back toward corner, paused to look in same window, rejoined his companion, and they talked. Then the second man did the same thing. They were briefly joined by a third man, who spoke to them and left. They did this five or six times. McFadden suspected they were casing a job, a stick-up and he feared they might have a gun. They met the third man and stopped in front of a jewelry store. The officer came up to them, identified himself as a police officer and asked for their names. They mumbled something. He grabbed Terry and spun him around so they faced the other two. He patted down Terrys clothing and found a loaded .38 in the upper breast pocket of Terrys overcoat. He ordered all three men into the store and found another gun on Chilton. HELD: This case established the stop and frisk doctrine Terrys conviction for CCW was affirmed. Sibron v. New York, 392 U.S. 40 (1968).
State v. Purnell, 621 S.W.2d 277 (Mo. 1981). Defendant was looking into a business at
2:00 a.m. when every store or place of business in the area was closed and as the marked police car approached the defendant began to hurriedly walk away. This was reasonable suspicion.
A narcotics officer watched the defendant standing on a street corner, engaging in a number of brief encounters with passing pedestrians, who seemed to be getting something from him. The officer thought the man was probably selling drugs. The officer followed him into all-night chop-suey joint. Both partook of chop suey. Defendant left. The officer followed him. Outside, the defendant reached into his pocket, saying, I know what youre after. As the defendant reached into his pocket, the officer stuck his hand in defendants pocket, too. Together, they pulled out a packet of heroin. The honest officer admitted he had not suspected that defendant was drawing a weapon, but rather thought the pocket contained a stash of drugs. The officer said he was not afraid at all. HELD: The only reason a warrantless frisk is allowed without probable cause is to protect an officers life, not to get evidence. This search was improper.
State v. Valentine, 584 S.W.2d 92 (Mo. 1979). The stop of a car was proper after a detective doing a stakeout noticed that it had passed by a cleaning establishment several times at the same time of evening that earlier cleaning establishment robberies had taken place. The officer had been doing the stakeout specifically because of the robbery problem in the neighborhood.
State v. Haldiman, 106 S.W.3d 529 (Mo. App. W.D. 2003). A State Trooper got a call that a gray Camaro was transporting illegal drugs, but the broadcast contained no corroboration nor did it indicate the source of the information. He spotted the car and followed it. After it veered onto a shoulder he pulled it over for the traffic offense. The driver came back and sat in the patrol car. The driver was not antagonistic, nor did he make any hostile moves. The trooper got consent to search the car. The trooper admitted that he did not fear for his safety. Nevertheless, after backup arrived, he told the driver to step outside the patrol car and he patted him down, and found a golfball-sized baggie of methamphetamine inside the drivers boot. HELD: The pat-down frisk was not reasonable under the Fourth Amendment. A Terry frisk must be supported by specific and articulable facts that the suspect is armed and presents a risk to the safety of the officer. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. Also: Consent to search a vehicle does not automatically equate consent to a pat-down search. Nothing had been said about a pat-down, so the pat-down exceeded the scope of the consent.
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C. Scope Limitation Behind the Stop Must be Brief, Must be in That Place, Not to Station House. Although, Okay to Put Suspect in the Police Car.
Pliska v. City of Stevens Point, 823 F.2d 1168 (7th Cir. 1987). Officer suspected a person of casing a burglary in a neighborhood and made a proper Terry stop for investigation. He put
the suspect in a locked police car and drove a short distance while still determining his identity. No force was used, the detention lasted only 10 minutes, and the only intrusion was asking questions. This was reasonable.
D. Reasonable Suspicion is Much Less Than Probable Cause and May Consist of a Combination of Otherwise Unsuspicious Facts Court Should Not Divide and Conquer When Analyzing Those Facts
United States v. Arvizu, 534 U.S. 266 (2002). A border patrol officer developed reasonable suspicion that a van might be transporting illegal aliens or drugs, based upon a combination of otherwise unremarkable facts. The van had taken an unpaved back road, as if trying to avoid a checkpoint; when it drove by, the driver sat stiff and ignored the officer; the direction it was going led to nowhere and was rarely traveled; the children in the back were riding unusually high, as if sitting on something; the children waved mechanically for four full minutes, as if being coached by the adults in the front. The officer ran the license plate and found that the van was registered to an address in an area notorious for alien and narcotics smuggling. He stopped the van on reasonable suspicion and obtained consent to search. He found 128 pounds of marijuana worth $99,080.00. HELD: The combination of facts amounted to reasonable suspicion. The test is whether reasonable suspicion exists to believe that criminal activity may be afoot. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity . . . Courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing . . . Although an officers reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. In this case the 9th Circuit had improperly taken each factor and found that each, standing alone, was not suspicious. A 9-0 Supreme Court precludes this sort of divide-and-conquer analysis. Rather, the Court looks at all of the facts together, and holds that reasonable suspicion did exist that the van was engaged in illegal activity. State v. Bizovi, 129 S.W.3d 429 (Mo. App. W.D. 2004). Defendant was pulled over on the
interstate for a traffic offense. While waiting for the computers response on the license and criminal history checks, the officer noticed that defendant was nervous, was not driving his own car, had inadequate luggage for a week-long trip from Nevada to Michigan, had food wrappers and a cooler indicating a straight-through drive, his story that he planned to stay in Michigan for a week did not jibe with his later story that he planned to start school in Nevada in four days, and he was traveling from a known drug source (Nevada) to a known drug destination (Detroit). HELD: Although each factor alone was innocent, added together they amounted to reasonable suspicion to detain him for the few minutes it took for the drug dog to arrive. Factors that may be consistent with innocent conduct alone may amount to reasonable suspicion when taken together. BUT NOTE: NERVOUSNESS, AN ATLAS ON THE CAR SEAT AND FAST FOOD WRAPPERS ON THE FLOOR DO NOT AMOUNT TO REASONABLE SUSPICION.
State v. Richmond, 133 S.W.3d 576 (Mo. App. S.D. 2004). Defendant was pulled over for a traffic offense. As he was being issued a warning, he seemed nervous. He had an atlas open on the seat and fast food wrappers on the floor. He was alone in the car. He said he was traveling from California to Michigan in his girlfriends car, but she was not along because of her pregnancy. Based upon these facts, the officer detained the car for 50 minutes awaiting a drug dog. He let the defendant leave on foot. HELD: The nervousness, atlas and fast food wrappers did not amount to reasonable suspicion in this era of carry-out dining and cannot
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serve to separate the suspicious from the innocent traveler. The motion to suppress was properly granted. NOTE: The defendant had reason to be nervous he had 40 kilos of marijuana in his trunk! E. Fleeing From Police Constitutes Reasonable Suspicion for Terry Stop.
Illinois v. Wardlow, 528 U.S.119, 145 L.Ed.2d 570, 120 S.Ct. 673 (2000). Defendant fled upon seeing a caravan of four police cars come to an area of Chicago known for being a place where drug deals occur. The officers chased him and caught him and frisked him for weapons. They found a gun. HELD: No 4th Amendment violation. A persons presence in a high crime area, standing alone, is not reasonable suspicion, but nervous, evasive behavior in a high crime area is a relevant consideration, and headlong flight - where ever it occurs - is the consummate act of evasion and did provide reasonable suspicion for a stop.
F. Scope Limitation - Amount of Force Should be Least Amount Necessary, but Tackling a Suspect who Flees is Reasonable.
State v. Hernandez, 954 S.W.2d 639 (Mo. App. W.D. 1997).
Officers had reasonable suspicion to believe that defendant was throwing rocks at the back of a building, based upon a call describing 4 Hispanics throwing rocks at the back of a building at a particular location. They respond and find 4 to 6 Hispanic men. One of them, defendant, put his hand in his pocket and took off running. The police chased him. He was carrying a black object in his hand. He ran back and forth across a very busy street fleeing from the officers. One officer caught and tackled him. Defendant popped up and produced a knife, raising it above his head as if to cut the officer still on the ground. Another officer caught his arm and prevented the stabbing and banged defendants hand on the ground until he dropped the knife. Defendant claims the seizure of the knife was improper. HELD: The police were making an investigative Terry stop of defendant based upon reasonable suspicion. When he ran it became reasonable for the officer to tackle him since the officers had reasonable suspicion he had committed a crime and was fleeing.
G. Scope Limitation A Stop & Frisk For Weapons Requires Reasonable Suspicion that the Person is Violating the Law and is Armed With a Weapon.
Taylor v. State, 234 S.W.3d 532 (Mo. App. W.D. 2007). The Kansas City Police Department designated a certain area of town as a zero tolerance enforcement zone. They vigorously enforced a jaywalking ordinance by stopping people who were walking in the middle of the street and giving them citations. In this case, they stopped defendant, and immediately told him to put his hands on the police car so they could frisk him for weapons and sharp objects. The defendant had NOT been arrested, so this was not a search incident to arrest. The officer admitted that he did not honestly expect to find a weapon on this individual because he knew him and had frisked him more than 50 times in the past, and had never once found a weapon on him, nor had this individual ever committed a violent crime. HELD: While stopping the person and giving him a citation was a reasonable stop and he could be detained a reasonable amount of time while issuing the citation, the additional frisk was not supported by specific reasonable grounds to believe that this suspect was armed. The fact that it was a high crime neighborhood in general was not enough to overcome the known fact that the officer had frisked this person 50 times and he had never been armed. In this case, the defendants appellate counsel had failed to raise this search and seizure issue on appeal. The court finds this failure constituted ineffective assistance of counsel since the dereliction was beneath the level of expertise expected from a reasonably competent attorney. State v. Bones, 230 S.W.3d 364 (Mo. App. S.D. 2007). Defendant was pulled over for an
improper turn traffic offense. The officer, also a member of the SWAT team, recognized defendant as a person who had been present two or three times when the SWAT team was called out to assist on search warrants for high risk houses where drugs were found. The officer got defendants license and car title and asked the dispatcher to run a check for defendants license status and any outstanding warrants. Defendant admitted he did not have
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his proof of insurance with him. The officer asked defendant to step out of the vehicle. Concerned that he must have a weapon, he began patting him down. At the moment when the officer felt a long, hard object that might be a weapon, the defendant pulled away and began running. Defendant dropped the object, which turned out to be a hard plastic cylinder filled with 144 grams of methamphetamine. HELD: Defendants claim that the search was improper is overruled. First, the detention was a lawful traffic stop. Second, the officer may order a person stopped for a traffic offense to get out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977). Third, the officer had reasonable suspicion for a pat-down, based on his recognizing defendant as being present at the scene of prior searches involving drugs and guns. When a valid traffic stop has been made, officers may pat down a suspects outer clothing if they have a reasonable, particularized suspicion that the suspect is armed. H. When Multiple Officers are Working Together, 4th Amendment Test of Reasonable Suspicion or Probable Cause is Satisfied if the Information Known by All of the Officers Collectively Amounts to Probable Cause or Reasonable Suspicion.
knowledge, have had reasonable suspicion for the stop, the court should look at the facts known by all of the officers in determining whether reasonable suspicion existed. HELD: When multiple police officers are working together closely in order to effect an arrest or engage in an investigatory stop, the 4th Amendment is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion. See also: State v. Goff, 129 S.W.3d 857 (Mo. banc 2004). I.
State v. Hernandez, 954 S.W.2d 639, 642 (Mo. App. W.D. 1997). Officers were making a Terry stop of defendant and he ran. Although the officer who tackled him might not, on his own
Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). A warrantless station house detention for fingerprinting on less than probable cause was unreasonable . The full protection of the 4th Amendment comes into play when the police, without probable cause or a warrant, forcibly remove a person from his house or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.
Scope of Detention If Suspect Refuses to Give Name and Address, the Detention may Include a Search for ID.
Scope Limitation of Detention Cannot Fingerprint on Less than Probable Cause.
J.
State v. Flynn, 92 Wis.2d 427, 285 N.W.2d 710 (1979). A police officer was told to patrol an area for suspects in a just-completed burglary. Thirty minutes later he saw two men emerge from an alley one fit the description of the burglar. The one who fit IDd himself, but the other refused to do so, even after the officer explained the reason for the inquiry. The officer frisked the detainee for a wallet, checked the ID, and found that a pick-up order was out for him. The officer also found pliers and flashlight during the frisk. HELD: In Adams v. Williams the Court stated that an officer may stop a person [upon reasonable suspicion] in order to determine his identity. To accept defendants contention that the officer can stop the suspect and request ID, but that the suspect can turn right around and refuse to provide it, would reduce the authority of the officer . . . recognized by the U.S. Supreme Court in Adams . . . to identify a person lawfully stopped by him to a mere fiction. Unless the officer is given some recourse in the event his request for ID is refused, he will be forced to rely either upon the good will of the person he suspects or upon his own ability to simply bluff that person into thinking he actually does have some recourse. Using the 4th Amendment reasonableness test, the Court balanced the need for the search against the invasion of personal rights that the search entails. The intrusion was limited, the scope narrow and the defendant could have avoided the intrusion by simply producing the ID himself. Thus, the police action was justified, particularly when you consider that if the officer lets the suspect go without even identifying him, and it later turns out he was the perpetrator, locating him will be impossible. LaFave points out that the right to remain silent under the 5th Amendment does not necessarily encompass an unlimited freedom
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to remain anonymous. LaFave, Volume IV at 304.
NOTE: If a state or municipality wants to make it a crime to refuse to provide identification after being stopped on reasonable suspicion, it may do so. Such a law allows the officer to arrest the uncooperative suspect once the suspect refuses to provide any ID. Hiibel v. Sixth Judicial District, 124 U.S. 2451 (2004). K. Scope Limitation on Frisk Must be Confined to Pat Down of Exterior of Clothing Surface. That is Enough to Serve the Purpose of Looking for Weapons (Guns, Knives, Blackjacks, Brass Knuckles, etc.) Scope of frisk for weapons may include looking into purse.
State v. Fernandez, 691 S.W.2d 267 (Mo. 1985). Where the suspect was stopped because of
a citizens report that she was armed, the officer is justified in taking a purse from defendants hands and looking inside it. Timing of Frisk
L.
The officer does not need to ask any questions and may do the frisk immediately if his reasonable suspicion is for a crime of violence or that the suspect is committing, has committed or is about to commit a crime for which he would likely be armed, such as robbery, burglary, homicide, rape, assault with a weapon or dealing in large quantities of narcotics. LaFave, Vol. IV, page 225. Connolly told him while he was alone on patrol duty in the early morning in a high crime area that a person (defendant) seated in a nearby vehicle was carrying narcotics and had a gun at his waist. No details of how he knew. Sgt. Connolly approached the vehicle and tapped on the window, asked defendant to open the door, then seized the gun. HELD: The stop & frisk was justified by reasonable suspicion. As Justice Harlan said in his concurrence in Terry: Where such a stop is reasonable ... the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to lawful arrest requires no additional justification, a limited frisk incident to lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer did a Terry stop and did the frisk before asking any questions at all. An informant known to Sgt.
M. The Terry Frisk Doctrine Extends to the Interior of a Passenger Compartment of a Car.
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Two deputies
State v. Hutchinsen, 796 S.W.2d 100 (Mo. App. S.D. 1990). In this case the State appealed an order granting a motion to suppress all objects seized at the scene of the arrest. The Court rejected the States position that the officer was entitled to conduct a limited Terry search during a traffic stop for erratic driving. The officer had seen handcuffs as he wrote the ticket. The officers testimony, though, did not support a reasonable belief based upon specific articulable facts that the suspect was armed and dangerous. Other than the handcuffs, nothing indicated any danger at all; the officer said he was not afraid or worried about his safety when he searched the jacket in the back seat and found a gun in its pocket.
saw a car traveling erratically and go off the road into a ditch. Defendant got out of the car and seemed to be under the influence of something. Defendant was near his car door. An officer saw a knife on the floorboard and seized it and frisked him and searched the rest of the passenger compartment, finding some marijuana. HELD: The stop and frisk doctrine applies to the passenger compartment, including locked glove compartments of vehicles. Under Long, a protective frisk of the passenger compartment is valid even though the passengers have been removed from the car prior to the frisk taking place. Factors typical for establishing an objectively reasonable belief to justify a compartment frisk include: (1) Facts giving rise to stop itself; (2) Events occurring during the detention of the occupants of the vehicle; (3) Nervous behavior; (4) Furtive conduct and movements; (5) Evasive actions; (6) Lying; and (7) The existence of other incriminating information about the vehicle or its occupants.
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Turner v. U.S., 623 A.2d 1170 (1993). Where a police officer had reasonable suspicion that a
State v. Duke, 924 S.W.2d 588 (Mo. App. S.D. 1996). An officer pulled over defendants car for a Terry investigatory stop based upon reasonable suspicion that the car contained illegal drugs. After being stopped, the defendant consented to a search of the car, and drugs were found. Trial court had granted a motion to suppress, but appellate court reverses. HELD: Police may conduct Terry stops of moving vehicles upon reasonable suspicion that the occupants are involved in criminal activity. Reasonable suspicion is dependent upon the totality of the circumstances. In this case, at the time the officer stopped the car, his reasonable suspicion included: (1) He had been called by an informant earlier in the day who told him that a man named Utley had a substantial amount of drugs in his house; (2) He had done surveillance of Utleys house and had seen one Bradshaw drive away from the house, had stopped him, searched the vehicle with consent, and found marijuana; (3) He had returned to the house within 10 minutes and then found defendants car parked outside the drug house; (4) He recognized defendants truck as being defendants, a known drug dealer based upon information from other reliable informants; (5) He watched defendant exit Utleys house and get into the truck and drive away after being at the house just a few minutes. He then stopped defendant and obtained consent to search. Marijuana was found.
N. A Police Officer Making a Traffic Stop may Order Both Driver and Passengers to Get Out of Car.
small hatchback car driven by defendant contained a gun, he could conduct a limited weapons search of the passenger compartment under Michigan v. Long and also search a covered storage compartment in the back of the hatchback which would be considered part of the passenger compartment since defendant could have reached it by reclining the front seat.
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Police stopped
car over for speeding. He noticed that car had no license plate and had a torn piece of paper saying Enterprise Rent-A-Car dangling from its rear. While he had been following the car, he had noticed that its two passengers kept looking back at him and ducking out of view. As he approached the car after stopping it, the driver alighted and met him halfway, trembling and nervous. The driver produced a valid drivers license. The officer had him return to the car to retrieve the rental documents. The front seat passenger (defendant) was sweating and appeared nervous. The officer ordered defendant out of the car. As defendant got out, he dropped some crack cocaine on the ground. HELD: In Pennsylvania v. Mimms (1977) the U.S. Supreme Court held that a police officer as a matter of course may order the driver of a lawfully stopped car to exit the vehicle. The Court now extends the rule to passengers as well. This rule is established by a 4th Amendment reasonableness test of balancing the government invasion of personal security against the public interest. In this case, the great weight of improved officer safety outweighs the de minimis intrusion of being asked to step out of the car.
Maryland v. Wilson, 519 U.S. 408, 137 L.Ed.2d 41, 117 S.Ct. 882 (1997). An officer pulled a
defendant on a traffic violation and directed the driver to step out of the car, which was a standard procedure in this situation. When the driver got out, the officer noticed a large bulge under his sports jacket. Consequently, he frisked him and found a revolver. HELD: Frisk was reasonable.
Knowles v. Iowa, 525 U.S. 113, 142 L.Ed.2d 492, 119 S.Ct. 484 (1998).
Defendant was pulled over for speeding 43 in a 25 zone. The officer issued him a ticket, but then conducted, without consent or probable cause a full search of the car and found a bag of marijuana and a pipe. HELD: The bright-line rule of Belton allowing searches of cars incident to the arrest of an occupant, does not apply to traffic cases in which the person just received a ticket. Officer safety is sufficiently accomplished by the Wilson and Mimms cases, which allow the officer to order the driver and passengers out of the car, and to further pat them down if reasonable suspicion exists that they might be armed and dangerous.
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O. A Traffic Stop is a Lawful Terry Stop of Everyone in the Car, But in Order to Pat Down For Weapons, the Office Must Have Reasonable Suspicion to Believe the Person Patted Down May Be Armed and Dangerous.
Arizona v. Johnson, ___ U.S. ___ (1/26/2009). Police officers pulled over a car for a traffic violation. Three people were in the car, two in the front seat and one in the back seat. While one officer dealt with the driver, another spoke with the back seat passenger and noticed that he was in a neighborhood associated with the Crips gang, the guy was wearing a blue bandana associated with Crips membership, he had a police scanner in his pocket, he volunteered that he was from Eloy, Arizona, a place known to harbor a Crips gang, and he had just got out of prison. Suspecting he might be armed, the officer patted him down and found a gun. HELD: During a traffic stop, the driver or passengers may be patted down for a weapon when the officer has reasonable suspicion to believe the person is armed and dangerous.
P. Split of Opinion Whether Officer May Routinely Frisk Traffic Offender for Weapons Before Placing in Patrol Car
State v. Lozada, 92 Ohio St. 3d 74 (2001). During a routine traffic stop, the police officer
OHara v. State, 27 S.W.3d 548 (Tex. App. 2000). A police officer was giving a traffic ticket to a truck driver at 3:30 a.m. The trucker was wearing a belt knife. The officer asked him to come back to the patrol car while the license was run, and asked him to leave the knife in the truck, which he did. The officer then said he would need to pat him down for weapons before he put him in the car. He found marijuana. HELD: Although it would be improper to routinely frisk every single traffic offender placed into a squad car, in this case it was reasonable because it was the middle of the night in a rural area and he had already noticed a knife upon this particular person.
Q. Anonymous Tip + Innocent Detail Corroboration = Reasonable Suspicion:
asked the defendant to exit the car and show his drivers license. The officer requested the defendant to accompany him to his patrol car while he ran the license. He asked if the defendant had on him any guns, knives or hand grenades. The defendant said no. The officer then said hed pat him down to make sure he had no weapons. He found cocaine. HELD: Although an officer may ask a traffic offender to come to the patrol car, he may not automatically pat down the person for weapons just because the person is getting into his car; rather, he must have some specific articulable reason to suspect a weapon. We hold that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.
Police got anonymous telephone call that Vanessa White would leave Apt. 234 of Lynwood Apts at a particular time later that day and get into a brown Plymouth with right taillight broken, and would go to Dobeys Motel, and she would have one ounce of cocaine in a brown briefcase. Police saw a woman leave the apartments and get into a car of that description. Nothing was in her hands. She drove to the area of Dobeys Motel, where she was pulled over for a Terry stop. She consented to a search of her car and cocaine was found in a briefcase. HELD: The anonymous tip plus the innocent detail corroboration equaled reasonable suspicion.
Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
State v. Berry, 54 S.W.3d 668 (Mo. App. E.D. 2001). An anonymous caller reported that the defendant would be bringing drugs from Mexico, MO. The caller called back three times, reporting that the defendant would be in a white Cadillac with fancy wheels and a temp tag in the left rear window, and giving the approximate time of arrival at 3:00 to 4:00 p.m. The officers set up surveillance and spotted a car in the area being driven by the defendant, whom he knew from prior drug arrests. The car was stopped. Consent to search was obtained. Cocaine was found hidden in a speaker box in the trunk. HELD: The search was valid. The anonymous call was sufficiently corroborated, especially since the caller had provided predictive information about appellant.
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R. Anonymous Tip + Little or No Corroboration Reasonable Suspicion:
Defendant was driving a car stopped by police. They were responding to a call about a disturbance but when they arrived they saw no sign of any disturbance. They did see a dark-colored SUV similar to one mentioned by the caller as belonging to one of the other people in the disturbance. They pulled it over. HELD: An anonymous tip, without more, seldom demonstrates the reliability of the information provided, but if the police corroborate the tip it may exhibit sufficient indicia of reliability to provide the reasonable suspicion needed to make in investigatory stop. This tip merely described a vehicle; it did not show how the vehicle was involved in any crime, nor any particular knowledge of the tipster, nor any predictive information as to where the SUV would go. The motion to suppress should have been granted. S. Furtive Gestures Provide Reasonable Suspicion to Search Vehicle for Weapon.
Barnette v. State, 624 So.2d 507 (Ala. 1993). Officers received an anonymous tip that two black males wearing described clothing were selling drugs at a particular location. When they went to that location, they saw three males wearing clothing that did not match the tip. They immediately frisked them and found crack hidden in the crotch area of one of them. HELD: This tip was not sufficiently corroborated to justify the search. Alabama v. White said the anonymous tip: (1) Should contain facts not easily predicted, facts indicating the tipster had actual familiarity with the subject of the tip; and (2) The police, to the extent possible, should corroborate the tip by their independent investigation. Both criteria were lacking in this case. State v. Bergmann, 113 S.W.3d 284 (Mo. App. E.D. 2003).
Florida v. J.L., 529 U.S. 266, 146 L.Ed.2d 254, 120 S.Ct. 1375 (2000). An anonymous caller told police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a concealed weapon. Officers responded and saw three black males, one of whom, J.L., age 15, was wearing a plaid shirt. Apart from the tip, the police had no reason to suspect anyone of illegal conduct. The officers approached J.L. and ordered him to put his hands on the bus stop, frisked him, and found a gun in his pocket. HELD: This anonymous tip was not sufficiently corroborated and did not, standing alone, have sufficient indicia of reliability to provide reasonable suspicion of criminal activity for Terry stop. The tip did not contain predictive information such as future movements of the suspect as in Alabama v. White. This was merely a bare-boned and uncorroborated tip involving no indicia of reliability.
State v. McFall, 991 S.W.2d 671 (Mo. App. W.D. 1999). Police pulled over defendant for failing to use a turn signal. They waited 5 minutes before approaching his car. The officer saw defendant making furtive movements as if scooting to get something out of his pocket, then leaning forward as if hiding it under the seat. Defendant was removed from the car and patted down to assure he was unarmed. Following the pat down, the officer went to the car and searched the area under the seat and found a baggie of several rocks of crack cocaine. HELD: The standard for a Terry protective search of a car is whether the officer possesses a reasonable belief based upon specific and articulable facts that his safety or that of others is in danger. Many jurisdictions have addressed whether furtive gestures by a vehicles occupants during a traffic stop support a reasonable suspicion that the occupants are armed and potentially dangerous . . . Generally, movement indicating that a driver is attempting to conceal something in the car is found to support an officers reasonable suspicion that the driver may have a weapon. NOTE: In this case the defendant denied making furtive gestures and claimed he just sat still awaiting the officer. The trial judge resolved the swearing match in favor of the defendant so appellate court deferred to that ruling.
T. Buying Unusually Large Amounts of Cold Medication Can Amount to Reasonable Suspicion for Terry Stop
State v. Monath, 42 S.W.3d 644 (Mo. App. W.D. 2001). Two different store managers called police to report that a man in a car with a specified license plate had just tried to buy large quantities of cold medicine, i.e., pseudoephedrine pills. At one store, he bought three packages (the store limit) after trying to buy six. Police stopped the car and obtained consent to search
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the vehicle. They found multiple containers of ephedrine and pseudoephedrine, glass tubing and other items related to manufacturing methamphetamine. HELD: The tip from the citizens that defendant was trying to buy large quantities of pseudoephedrine provided sufficient reasonable suspicion to make a Terry stop. U. Conduct Indicating Street Drug Deal Justifies Investigative Stop
known for drug transactions saw a car pull up. Its passenger got out and met with a man who came from a building. In a 30-second hand-to-hand transaction, something passed between them before the passenger returned to the car. The officer pulled over the car and got consent to search from the driver. Meanwhile, another officer asked the passenger (defendant) to consent to a pat-down for weapons. Defendant consented. The officer immediately felt a paper bag with a leafy substance in it. Without manipulating the bag, the officer immediately believed it was a bag of marijuana. He removed it. HELD: The officers had reasonable suspicion to stop and detain the car to investigate whether a drug transaction had just occurred. The totality of circumstances high crime area, recent reports of drug transactions, hand-to-hand transaction amounted to a particularized and objective basis for suspecting wrongdoing. The pat-down was justified for weapons for officer safety. Under the plain feel exception to the warrant requirement, once the officer felt the bag, he had probable cause to believe he was touching a bag of marijuana, so he could seize it. with large problem with drug sales saw a car parked 12 inches from the curb, with its engine running, occupied by three males, with several other males leaning into open windows on the drivers side. The men outside the car took off running in various directions as the patrol car approached. The men in the car looked nervous and made furtive movements as if hiding something. The officer drew his gun, ordered them to keep their hands where he could see them, and radioed for backup. A limited search for weapons was done when backup arrived and a gun was found under the front seat. HELD: The Terry stop was based upon reasonable suspicion, as was the frisk of the car for weapons. NOTE: The following cases said such conduct was not only suspicious, but amounted to probable cause: United States v. Hughes, 898 F.2d 63 (6th Cir. 1990) (one person in drug area hands small object to another in return for money); United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972) (well-dressed man slides paper currency to shabbily-dressed man in exchange for small brown package); United States v. Orozco, 982 F.2d 152 (5th Cir. 1992) (young man on bicycle removes something small from his mouth and hands it to another person in exchange for money); In re J.D.R., 637 A.2d 849 (D.C. App. 1994) (possessing a ziplock bag in an area known for drug trafficking). V. Pulling Up Behind a Parked Car and Turning on Flashing Lights and Approaching It to Offer Help is not an Improper Stop.
State v. Hawkins, 137 S.W.3d 549 (Mo. App. W.D. 2004). A police officer working an area
State v. Lanear, 805 S.W.2d 713 (Mo. App. W.D. 1991). A police officer patrolling an area
pulling up behind an already stopped vehicle and turning on the patrol cars flashing lights amounts to a Terry stop that must be justified by reasonable suspicion, as opposed to a routine procedure to offer assistance to a motorist possibly in need of help, depends largely upon the type of behavior exhibited by the police officer after he leaves the car and walks up to the subject vehicle. We believe that a trial court should ordinarily find a stop that must be justified by reasonable suspicion whenever officers pull up behind a stopped car, activate their lights, and approach the car in an accusatory manner. On the other hand, a trial court should ordinarily find no stop whenever officers pull up behind a stopped car, activate their lights, and approach the car in a deferential manner asking first whether the occupants need help. To classify the latter type as an investigatory detention under Terry would discourage officers from assisting potential stranded motorists, acting in the interest of the safety of the traveling public, or from acting in the interest of their own safety.
State v. Baldonado, 847 P.2d 751 (N.M. App. 1993). Whether the action of police officer in
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W. Terry Stop Based Upon a Wanted Flyer or Radio Dispatch.
State v. Miller, 894 S.W.2d 649 (Mo. banc. 1995). Detective Himmel called Officer Thomas on his portable telephone and told him the probable cause information to pull over a car. Thomas relayed this to Officer Robinson. Robinson and another officer pulled the car over. The information was that a red Nissan Sentra, belonging to Ramona Tope, VJS976 plate, would be transporting controlled substances in the vicinity of the Rainbow Village Trailer Court. A car of that description was spotted and pulled over. Tope was driving. Defendant Miller was passenger. When Miller got out, he put his hand in his pocket. The officer made him show what was in his hand. It was a vial with cocaine residue. HELD: The prosecutor screwed up by not calling Himmel to testify as to the basis of his information. Although the court would have looked at the collective information known to all officers to determine whether there was reasonable suspicion, the officers who testified at the suppression hearing did not know the basis for Himmels information. Remanded for further proceedings. State v. Norfolk, 966 S.W.2d 364 (Mo. App. E.D. 1998).
State v. Franklin, 841 S.W.2d 639 (Mo. banc. 1992). Officer Duncan testified that he got a radio dispatch saying: Party armed, occupying a black 1984 Pontiac Fiero in the area of 4200 East 60th Terrace. He went to that area, saw the Fiero, and pulled it over. He approached the car with gun drawn, had the driver get out, handcuffed him, patted him down but found no weapon. He searched the car for a weapon and found none. He asked defendant for a drivers license. Defendant did not have one so the officer arrested him for failure to display a drivers license. On a search incident to arrest, the officer found a marijuana cigarette in defendants pocket, and three more in the car. HELD: The Court holds this initial stop unconstitutional. A Terry stop can be based upon information received from other officers, but evidence seized pursuant to the Terry stop and frisk is inadmissible if the officer or department requesting the stop lacked reasonable suspicion to make the stop. In this case, the State produced no evidence whatsoever concerning the basis of the radio dispatch, other that Officer Duncans testimony that it was ultimately determined that the call seemed to be unfounded. The record was devoid of evidence that the initial dispatch was supported by reasonable suspicion. Officer Duncan did not have reasonable suspicion based just on the facts he observed, either. Thus, the stop and all evidence obtained from it were properly subject to a motion to suppress.
court held the stop illegal since the flyer did not communicate the factual basis of the suspicion. The Supreme Court disagreed, holding the Terry stop proper. It is only necessary that: (1) The officer making the stop has acted in objective reliance on the flyer or bulletin; (2) The police who issued the flyer or bulletin had a reasonable suspicion justifying the stop; and (3) The stop that in fact occurred was not significantly more intrusive that would have been permitted by the issuing department.
United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Upholds a Terry stop based on a wanted flyer that defendant was a suspect in a robbery. The lower
Defendant was prosecuted for possession of crack cocaine found in his car after a car stop and search incident to arrest for being in possession of a stolen car. The car was stopped because it was on a hot sheet, which was a list of reportedly stolen cars circulated each day to law enforcement officers. At the suppression hearing, the State merely offered proof that the car was on the Hot Sheet but did not offer any other proof that the car was really stolen or how cars end up being listed on the Hot Sheet. HELD: A car stop may be made on reasonable suspicion, and the fact that a car is reportedly stolen is reasonable suspicion. In order to prevail at a suppression hearing, though, the State must offer not just proof from the officer making the stop that the car was reportedly stolen, but must also offer proof that the officer disseminating the information had a reasonable suspicion which would have allowed him to make the stop himself. The State needed to show the origin of the information on which the officers relied. The motion to suppress should have been granted. Remanded.
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X. Brief Seizure of Object at Terry Stop.
United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Agents were
Bond v. United States, 529 U.S. 334, 146 L.Ed.2d 365, 120 S.Ct. 1462 (2000). Border Patrol Agent boarded a bus to check the immigration status of its passengers. As he was leaving, he went down the aisle squeezing the soft luggage placed in overhead storage. He squeezed a canvas bag above defendants seat and noticed it contained a brick-like object. Defendant admitted owning the bag and consented to a search, revealing a brick of methamphetamine. HELD: Defendant had an actual expectation of privacy, one that society is prepared to recognize as reasonable. When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another [but] he does not expect that other passengers or employees will, as a matter of course, feel the bag in a exploratory manner. The manipulation of the bag amounted to a violation of the 4th Amendment as an unreasonable search.
suspicious that defendant was transporting drugs, but defendant refused a consent search of his luggage at the airport and the officers did not have probable cause yet. They detained his luggage for a drug dog to sniff it, but no dog was one the premises. It took 90 minutes for the dog to arrive. They gave the defendant the choice whether to stay or leave and he left, leaving a phone number. Since it was Friday, they did not get a search warrant until Monday. HELD: The Terry balancing test applies. When an officers observations lead him to reasonably believe that a traveler is carrying luggage that contains narcotics, Terry permits the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided the investigative detention is properly limited in scope. (This 90 minutes is considered too long.)
State v. Joyce, 885 S.W.2d 751 (Mo. App. 1994). A Trooper giving speeding ticket developed reasonable suspicion that two suspects in car were transporting drugs. They gave different stories as to where they were going in the rental car and were very nervous. Although the officer had reasonable suspicion, he did not have probable cause. They denied consent to search. He called for a drug-sniffing dog and detained them at the side of the road for the 10 minutes it took the dog to arrive. The dog alerted, providing probable cause to search, and HELD: The 10 minute detention based upon 59,939 grams of marijuana were found. reasonable suspicion was not unreasonable. U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
Defendant was stopped by DEA agents as he returned to Hawaii from trip to Miami. He fit the drug profile in that he paid for tickets with $2,100 in cash from roll that looked like $4,000; he wore a jumpsuit and lots of jewelry; he and a female with him carried four handbags onto the plane but checked no luggage; the name given his ticket agent was not the same name as telephone number he gave; he stayed in Miami only 48 hours. The drug dog doing a sniff during this brief detention alerted positive for drugs and the officers got a search warrant. The officers found 1,063 grams of cocaine in his carry-on bags. Defendant pled guilty to possession of cocaine with intent to distribute. HELD: The U.S. Supreme Court rules these facts enough for defendant to be detained and questioned because they constituted reasonable suspicion.
Y. A Category of Terry Stop is the Drug Profile Stop
Officers should remember that the fact a person fits a drug courier profile merely gives reasonable suspicion, not necessarily probable cause. The officer should: (1) Look for some other valid reason to detain the person (such as a traffic offense); (2) Try for consent; (3) Try to build probable cause via a drug dog or inconsistent stories or other accepted ways. Z. Stops Roadblocks Based Not Upon Individualized Suspicion, but Pursuant to a Neutral Plan. 1) Drivers License & Registration Checks.
car stop to check for a license or registration is reasonable under the 4th Amendment (absent reasonable suspicion) must be judged by balancing its intrusion on the individuals
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Whether a
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4th Amendment interests versus its promotion of legitimate governmental interests. Prouse declared unconstitutional a random and discretionary procedure of pulling people over to check for licenses, but hinted that roadblocks where discretion was not involved would be okay. Questioning all incoming traffic at roadblock-type stops is one possible alternative. Justice Blackmun in his concurrence notes that it would be possible to stop every 10th car, for instance, instead of 100% of the cars, so long as neutral selection criteria foreclosed a subterfuge being used.
United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). Defendant was traveling
in a car and came to a police roadblock, the purpose of which was a routine check of drivers licenses, vehicle registration, and proofs of insurance. During the short check, before the officer finished the check, another officer walked a drug-sniffing dog around the vehicle and the dog alerted to the trunk of the car. The car was then searched without consent under the automobile exception to the search warrant requirement. Officers found 126 pounds of marijuana. HELD: A brief roadblock detention to check for valid drivers licenses, vehicle registrations and proofs of insurance is reasonable under the 4th Amendment. The dog sniff was not a search within the meaning of the 4th Amendment, and thus individualized reasonable suspicion of drug-related criminal activity was not required before the dog could sniff the air around the car. There is a lesser expectation of privacy in a vehicle than in a home and when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor. A search warrant was not necessary. Neither was consent. The dog established probable cause, and the automobile exception to the warrant requirement applied.
2) DWI Roadblocks/Sobriety Checkpoints.
The Missouri Highway Patrol established a roadway sobriety checkpoint. A sign warned Sobriety Checkpoint Ahead. Flares were used to route approaching traffic. Patrol vehicles with flashing lights were readily visible and a trooper with a light directed vehicles to stop or proceed. When a vehicle stopped, a trooper would approach, ask to see a drivers license, and make a general observation of the driver. The delay for a sober motorist would be less than 60 seconds. If reasonable suspicion indicated a driver might be intoxicated, he was requested to move his vehicle to a nearby parking area, where he would be given field sobriety tests. There was no random selection as to which vehicle to stop. All were stopped. HELD: This procedure is constitutional under the 4th Amendment balancing test. See also: State v. Payne, 759 S.W.2d 252 (Mo. App. E.D. 1988). 3) Drug Enforcement Traffic Checkpoints.
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The Court used the balancing test to balance the public interest being served by the practice of DWI sobriety checkpoints against the 4th Amendment interests of the individuals who are interfered with by being stopped. HELD: The balance of the States interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the program. State v. Welch, 755 S.W.2d 624 (Mo. App. W.D. 1988).
City of Indianapolis v. Edmond, 531 U.S. 32, 148 L.Ed.2d 333, 121 S.Ct. 447 (2001). Police conducted vehicle checkpoints in an effort to catch drug offenders. At the checkpoint, each car would be stopped, an officer would advise that it was a drug checkpoint and would ask the driver to produce a license and registration. Meanwhile, a drug-dog would walk around the outside of the vehicle while the officer checked for visual signs of impairment or drugs. The duration of each stop would be two to three minutes or less, absent probable cause developing or consent being given for a further search. HELD: In balancing the privacy interests of the individual against the governments interest in public safety, checkpoints for drunk drivers, illegal aliens and unlicensed drivers have been upheld,
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but the Court notes: We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing . . . Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the 4th Amendment would do little to prevent such intrusions from becoming a routine part of American life. The general attempt by the State to rid the community of drugs is much broader than the specific effort of DWI checkpoints to deal with an immediate vehicle-bound threat to life and limb. Also, they are far removed from the border context crucial in the illegal alien checkpoints. The Court will always look at the purpose of a checkpoint; if it is primarily to uncover evidence of ordinary crime, it will violate the 4th Amendments requirement of individualized suspicion being required for a stop. Edmond overrules State v. Damask, 936 S.W.2d 565 (Mo. banc. 1996).
State v. Mack, 66 S.W.3d 706 (Mo. banc 2002). Officers conducting a drug checkpoint
placed a sign warning of POLICE DOG DRUG CHECKPOINT ONE MILE AHEAD. Instead of actually searching people at a checkpoint one mile ahead, though, they were really only going after people who took a low-traffic exit before reaching the advertised checkpoint. On that particular late night, there was little or no valid reason to take the exit, which only led to the high school, a church and a couple of residences. Defendants car veered suddenly when it saw the exit and came up it. He was stopped and gave consent for a search. Drugs were found. HELD: The case is distinguished from Edmond because of the quantum of individualized suspicion. The conduct of the driver in swerving up the ramp to avoid the checkpoint amounted to reasonable suspicion for a Terry stop. NOTE: The dissent argues that reasonable suspicion was not present, as it would have been had the defendant made an obvious U-turn to avoid the checkpoint.
4) Illegal Alien Checkpoints.
U.S. v. Marinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Court upheld a checkpoint for illegal aliens, at which every car passing by would be briefly stopped and checked for illegal aliens. The locations were not selected by the field officers, but by their superiors; every car was stopped, so no discretion was left to enforcement. HELD: Under a 4th Amendment reasonableness test, the minimal intrusion on the public is outweighed by the legitimate need, purpose and public interest involved. [In 1973 alone, 17,000 illegal aliens were apprehended at the San Clemente checkpoint.]
** Assume a serious crime has just occurred, such as an armed robbery of a bank, and that it is known that the robber fled in a particular direction in a vehicle. Under these circumstances, would it be permissible for the police to set up a roadblock to check all vehicles passing that point in an effort to identify and apprehend the robbers? Yes, according to the Model Code of Pre-Arraignment Procedure, Sec. 110.2(2) (1975): A law enforcement officer may, if a) he has reasonable cause to believe that a felony has been committed; and
5) Roadblocks for Checkpoints or Escape Routes Pertaining to Recent Serious Crime.
b) stopping all or most automobiles, trucks, buses or other such motor vehicles moving in a particular direction or directions is reasonably necessary to permit a search for the perpetrator or victim of such felony in view of the seriousness and special circumstances of such felony, order the drivers of such vehicles to stop, and may search such vehicles to the extent necessary to accomplish such purpose. Such action shall be accomplished as promptly as possible under the circumstances.
United States v. Harper, 617 F.2d 35 (4th Cir. 1980). A roadblock was set up on the only
paved road leading away from a place where a large-scale smuggling operation was occurring. Authorities had intercepted a vessel on the high seas and found it loaded with 400 bales of marijuana. It proceeded to its destination. Agents moved in but learned that several of the drug-smugglers awaiting delivery had fled. A roadblock was set up on the only paved road leading from the area and all passing vehicles were stopped and the
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NOTE: Undoubtedly, there could be circumstances where a roadblock would be set up so far from the crime as to be unreasonable, but this can only be taken up on a case-by-case basis. LaFave, Vol. IV at 310. Also, the seriousness of the crime is an important factor in the balancing process. As U.S. Supreme Court Justice Robert Jackson wrote: If we assume, for example, that a child is kidnapped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). run driver. A week later, police set up a checkpoint at the same place and stopped every car going by, handing out flyers seeking information about the accident and trying to locate any witnesses. Each detention lasted only 10 to 15 seconds. Officers ended up noticing that this defendant was driving drunk and arrested him. HELD: The initial stop was reasonable under the 4th Amendment test of balancing the government interest (in this case grave) against the individuals privacy interest (in this case just 10 to 15 seconds).
Perry v. State, 422 So.2d 957 (Fla. App. 1982). The Court approved a roadblock set up after an escape of 3 felons from the Key West jail. The Court stressed that the unique geography of Monroe County and the fact that the Overseas Highway is the only means of egress from Key West were important factors in determining the reasonableness of the roadblock.
occupants questioned. One of those stopped ultimately implicated himself, but then claimed the roadblock violated the teachings of Delaware v. Prouse, but the Court disagreed: We think this analysis misses the mark. In Prouse, the Supreme Court was concerned with random stops of vehicles made at the will and whim of officers in the field, where the officers have no reason to stop any particular vehicle, other than for general police surveillance. Here, the problem is very different. The purpose of these stops was to arrest suspects for a known crime, not to discover evidence of undetected crimes by the happenstance of visual searches. A serious crime had been committed involving numerous participants, some of whom were known to be fleeing the scene along a route reasonably expected to be used for their escape. Stopping all cars was, under such circumstances, a necessary means of law enforcement, and as such, justifies the minimal intrusion on privacy rights posed to passing motorists . . . By virtue of the exigency of fleeing, perhaps dangerous suspects, we think the stops of all persons found on a likely access route to the scene of the crime was reasonable, both in its purpose and in the manner in which it was conducted.
Illinois v. Lidster, 124 S.Ct. 885 (2004). A 70-year-old bicyclist was killed by a hit-and-
6. Plain View Doctrine
A. No search really involved, just a seizure.
If an officer can, by virtue of use of his senses, plainly observe evidence which the officer knows is subject to seizure and the officer makes the observation from a lawful vantage point, then there is no search just a seizure this is the plain view doctrine. Two elements: 1. The officer is in a place he has the right to be. (Searching per warrant or hot pursuit or consent or valid traffic stop or vehicle parked in public place or search incident to valid arrest, etc.) 2. Probable cause to believe thing seized is indeed evidence. (I.E. it is immediately apparent to the officer that the item is either contraband or evidence.)
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Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). A police officers slight movement of stereo equipment to obtain serial numbers while he was properly in an apartment to investigate a report about a gunshot, absent probable cause to believe equipment was stolen, was an unreasonable search under the 4th Amendment. The police had entered defendants apartment under the emergency exception to the warrant requirement because just minutes before a gunshot was fired through the floor of defendants apartment, striking a man below. This entry was to search for the shooter, other possible victims and weapons. The police found three weapons and a mask. They also noticed expensive stereo equipment that seemed out of place in the squalid apartment. A police officer moved the equipment to see its serial numbers. He used phone to call headquarters to compare the serial numbers to a list of stolen items. It matched a stereo taken in a recent robbery. Defendant was convicted. HELD: (1) Moving the equipment was a search - a warrantless search; (2) A warrantless search must be strictly circumscribed by the exigencies which justify its initiation and this went beyond the search for the shooter; (3) This could have been seized under plain view if officer had probable cause it was stolen, but this did not amount to probable cause before the additional search. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Applied plain view
doctrine to car searches. Defendant was stopped at midnight at a routine drivers license checkpoint. The officer asked to see defendants drivers license and shined his flashlight into the car and saw the defendant withdraw his right hand from his pants pocket and drop an opaque green party balloon, knotted about half an inch from the tip. The officer then shifted position to get a better view of the interior and saw, in the open glove compartment, small plastic vials with loose white powder and an open bag of balloons. HELD: Due to the officers experience with drug cases, he recognized the balloons were tied in such manner as being drug packaging. He was justified under plain view in seizing them and arresting the defendant. The Court also said there was no problem with the officer changing his position to get a better view or in using his flashlight to illuminate the passenger compartment.
Horton v. California, 495 U.S. 128, 100 S.Ct. 2301, 110 L.Ed.2d 112 (1990). A robbery occurred. The defendant was a suspect because he matched the description. A search warrant was issued, but it only listed and described the stolen property; the police forgot to mention the machine gun and stun gun used by the robbers. The officers doing the search knew about them, though, and when they saw these items during the execution of the search warrant it was immediately apparent to them that they were evidence. HELD: Police may seize without a warrant any evidence that is in plain view during a legal search, even if they had expected in advance that the evidence would turn up at the scene, but had not listed that evidence in the search warrant. Inadvertence (previously a 3rd element necessary in the plain view analysis) is no longer a requirement for admissibility under plain view. See also: State v. Allen, __ S.W.3d __ (Mo. App. W/D/ 12/2/2008); State v. Rowland, 73 S.W.3d 818 (Mo. App. S.D. 2002); State v. Collins, 816 S.W.2d 257 (Mo. App. E.D. 1997) (Inadvertence in observing evidence which is seized is no longer a necessary precondition to plain view seizure).
B. Plain View in Curtilage Police Spotting Items in Plain View During Warrantless Entry Upon Sidewalk to Knock on Front Door of Residence.
State v. Edwards, 36 S.W.3d 22 (Mo. App. W.D. 2000). Police officers, having received an anonymous tip that defendant was growing marijuana in his home, responded to the house. They walked up the walk way and knocked on the garage door, then continued to front door where they knocked again. In the process, they saw fertilizer boxes, a pump sprayer and boxes of root cubes, all commonly used for plant cultivation. Minutes later, defendant came outside. Although he refused to sign a consent form, he admitted he was growing 500 marijuana plants in his attic and blamed an ex-sister-in-law for the anonymous tip. HELD: Defendants motion to suppress was properly denied. Even though police were within the curtilage of the home, they were in an area open to the public conducting an investigation. The issue in determining the legitimacy of police entry into a particular area is whether the occupant of the premises has somehow exhibited a reasonable expectation of privacy in that area . . . As LaFave summarizes
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C. What Level of Certainty Must Seizing Officer Have That the Item is Evidence or Contraband? Probable Cause. State v. Collett, 542 S.W.2d 783 (Mo. 1976). Police entered a motel room to look for a man wanted for escape, based upon a photo ID made by the hotel manager. They did not find the man, but they came upon two womens purses on the floor, which they searched for clues about the whereabouts of the fugitive. In the purse they found ID cards of recent robbery victims. The defendant ends up being charged with the robbery. HELD: In upholding the seizure of the purses, the Court explained that it was reasonable for the officers to conclude that the purses might provide some evidence or clue as to where the defendant might be located or with whom he might be found. State v. Rushing, 935 S.W.2d 30 (Mo. banc. 1996). Immediately apparent means probable cause. See Plain Feel below. State v. Blankenship, 830 S.W.2d 1 (Mo. 1992). Police entered defendants bedroom to arrest him but he was not present. An officer saw a card case on the floor containing defendants drivers license. The officer promptly picked it up and removed the license and checked it and the card case for any information that could lead to defendants whereabouts. Instead, they found a bus pass that had been stolen in the robbery, which they knew had been stolen. HELD: Valid plain view search.
the general rule: When the police come onto private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations from such vantage points are not covered by the 4th Amendment.
D. Plain View When Arresting Officer Accompanies Arrestee Inside his Home After Arrest Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982). Campus police officer stopped defendant outside his dormitory room. Defendant had a bottle of gin and appeared to be underage. An officer asked for ID. The defendant said his ID was in his dorm room and asked to retrieve it. The officer accompanied him and noticed drugs in plain view. HELD: A police officer after an arrest may accompany the defendant who wants to go inside his home to get something. It is not unreasonable under the 4th Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officers need to ensure his own safety as well as the integrity of the arrest is compelling. Such surveillance is not an impermissible invasion of privacy or personal liberty of an individual who has been arrested. Any evidence or contraband the officer sees inside the home in plain view can be seized. United States v. Butler, 980 F.2d 619 (10th Cir. 1992). The defendant was arrested outside his mobile home. He was barefoot, and broken glass and trash were on the ground. The officer directed defendant to go inside his home and put on some shoes. The officer went with him and saw an illegal firearm in plain view. HELD: The Crisman doctrine fits because the presence of a legitimate and significant threat to the health and safety of the arrestee justified telling him to go inside and get his shoes, and the officer was entitled for the usual safety reasons to stay with him and was in a place he was entitled to be when he made the plain view observation. The Court warns: This in no way creates a blank check for intrusion upon the privacy of the sloppily dressed. State v. Wise, 879 S.W.2d 494 (Mo. banc. 1994). After defendant was arrested outside his wifes apartment, he sent his step-son inside the apartment to get his jacket, shoes and cigarettes. An officer followed the step-son inside and saw BMW keys that were obviously evidence in plain view, and then searched the jacket pockets before providing it to the defendant and found credit cards that had been stolen from the murder victim. HELD: Police may accompany an arrestee at his elbow if he is being allowed to retrieve items in areas that would otherwise be protected from warrantless search, and likewise they may also accompany a third person sent to retrieve items for the arrestee. Police safety is the rationale. Evidence seized in plain view thereby is admissible.
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E. Aided Plain View: Flashlights, Binoculars, Telescopes, Nightscopes, Etc. 1) Electronic Eavesdropping NOTE: When we talk about Aided Plain View, we are not talking about electronic eavesdropping, which since Katz has been unconstitutional unless done by warrant under the strict guidelines of federal and Missouri statutes. See A Prosecutors Introduction to Electronic Surveillance: Missouris Drug Wiretap Law, by John M. Morris.
2) Flashlights
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The FBI, without seeking a warrant, put a bug in an outdoor telephone booth to monitor calls of Katz, a gambling suspect. HELD: Defendant had a reasonable expectation of privacy in his telephone calls from the uninvited ear. It violates the 4th Amendment to eavesdrop and record telephone calls without a search warrant from a judge.
U.S. v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed.2d 1202 (1927). A boat carrying illegal booze (71 cases) was pulled over by coast guard, who used a search light to see the 71 cases in plain view upon the deck. HELD: Such use of a search light is not prohibited by the Constitution. U.S. v. Johnson, 506 F.2d 674 (8th Cir. 1974). A police officer stopped a car for running
a stop sign and shined his flashlight into the car. In the process he saw the butt end of a shotgun in plain view. HELD: The fact that the contents of the vehicle were not visible without the flashlight does not preclude the application of the plain view doctrine.
Many cases have held that the use of a flashlight to illuminate a dark place does not make a plain view search any less plain.
3) Binoculars & Telescopes Defendant in Public Place.
State v. Gibbs, 600 S.W.2d 594 (Mo. App. W.D. 1980). A trooper pulled over a car for a traffic offense. He shined his flashlight into the car from the passenger side and saw a handgun partially hidden under the seat. The use of a flashlight to see what would be in plain view in the daytime does not convert that which would not be a search in daylight into a search in the Constitutional sense at nighttime.
It can be of Constitutional significance both where the person is when police are looking at him and the strength of the visual aid used since both of these factors can affect the defendants reasonable expectation of privacy. There will virtually never be a legitimate expectation of privacy from observation when a person is outside upon a public street.
State v. Hawkins, 482 S.W.2d 477 (Mo. 1972). A police officer was writing a parking ticket to the defendant and used his flashlight to look at the sticker on the windshield. He saw a hand-rolled marijuana cigarette on the dashboard. HELD: The impact of the plain view doctrine was not altered by the use of the flashlight.
State v. Armstrong, 609 S.W.2d 717 (Mo. App. 1980). Police doing surveillance with binoculars from a distance of 50 yards saw defendant conceal a gun on his person on a parking lot outside a public store. He was convicted of CCW. Defendants argument that binoculars took the ordinary observation of him out of the plain view doctrine failed. State v. Speed, 458 S.W.2d 301 (Mo. 1970). Police made observations of drug dealing going on in the street about 60 to 70 yards away, using a telescope. HELD: Okay. State v. Collins, 816 S.W.2d 257 (Mo. App. E.D. 1991). Police used binoculars from
block away to observe drug dealing on street. HELD: Okay.
4) Binoculars & Telescopes Looking Into Building.
Police did surveillance of defendants home. Defendant was suspected of drug manufacture. They used a high-powered telescope to do the surveillance. They saw people inside the apartment cutting the ends off plastic baggies and messing around with white powder. They could read the labels on jars
U.S. v. Taborda, 635 F.2d 131 (2nd Cir. 1980).
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of chemicals used in drug manufacture. They put this info into a search warrant affidavit and got a search warrant. They found lots of drugs and money. The observations had been made from an apartment across the street. The surveillance lasted several days. HELD: Citing Katz that what a person knowingly exposes to the public is not private, the Court says the analysis is two-fold: (1) That the person has an actual, subjective expectation of privacy; and (2) That the expectation is one that society is prepared to recognize as reasonable. The fact this was defendants home was significant. But where defendant places items so they can be seen by people outside his home by unaided viewing is important. Any enhanced viewing does encounter the 4th Amendment unless it fits in an established search warrant exception. Remanded for additional hearing as to what could be seen by the naked eye and whether that information would have been sufficient to uphold the search warrant.
U.S. v. Van Damme, 48 F.3d 461 (9th Cir. 1995). No search where officer in helicopter U.S. v. Whaley, 779 F.2d 585 (11th Cir. 1986).
No search to observe with binoculars operation of drug lab in basement with large, uncurtained windows while lights on within, especially because the activity was visible by naked eye from neighboring property.
looked through 600 m.m. telephoto lens on normal video camera to see marijuana through an open door of a greenhouse which was outside the curtilage of the home.
using an 800 m.m. telescope with a 6 m.m. opening to observe activities within the defendants apartment. Agents watched him from a building 1/4 mile away, with equipment so powerful they could read the magazines in defendants hands as he sat on his couch in his fourth floor apartment. The sophisticated visual aids available to the government can intrude on individual privacy as severely as the electronic surveillance in Katz . . . It is inconceivable that the government can intrude so far into an individuals home that it can detect the material he is reading and still not be considered to have engaged in a search . . . If government agents have probable cause to suspect criminal activity and feel the need for telescopic surveillance, they may apply for a warrant; otherwise, they have no right to peer into peoples windows with special equipment not generally in use. The quest for evidence directed at Kims apartment is not exempted from 4th Amendment regulation by the plain view doctrine . . . A plain view of Kims apartment was impossible; only an aided view could penetrate. In view of the powerful technology used by the law enforcement officers in this case, the plain in plain view must be interpreted as permitting only an unaided plain view.
U.S. v. Kim, 415 F.Supp. 1252 (D. Haw. 1976). The FBI violated the 4th Amendment by
Kyllo v. U.S., 533 U.S. 27, 150 L.Ed.2d 94, 121 S.Ct. 2038 (2001). In thermal imaging
5) Nightscopes
device case, Supreme Court points out that where the Government uses a device not in general public use to explore details of a home previously unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.
1982). Police used a nightscope to watch the home of a person suspected of growing marijuana in a barn. They spotted the defendant, a known drug dealer, arrive and go into the barn. The ID was made using the nightscope and the information was used to get a search warrant. HELD: The use of the nightscope was upheld to observe defendants outdoor activities. Defendant had no expectation of privacy in his conduct outdoors, even when carried on after dark.
U.S. v. Ward, 546 F.Supp. 300, affd in part & revd in part 703 F.2d 1058 (8th Cir.
Police were stationed within 40 feet of defendants apartment and maintained almost constant surveillance with binoculars by day and nightscope by night for 9 days. The surveillance revealed intimate details about defendant and others who visited the apartment. HELD: The use of the nightscope in such an extensive and far-reaching surveillance violated the defendants reasonable expectation of privacy.
Commonwealth v. Williams, 494 Pa. 496, 431 A.2d 964 (1981).
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6) Pen Registers
Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
7) Beepers
NOTE: This result was changed by statute in 1986 by 18 U.S.C. 3121-27. Judicial approval is now required for pen registers or tracing devices, absent the consent of the subscriber. A beeper is an electronic device that can be placed on something and allows police to follow that item without maintaining visual surveillance.
A female victim in a robbery started getting frightening and harassing calls from a man who said he had been her robber, once even telling her to step outside and then driving past her house. She got the license plate of his car and gave it to the police, who had a pen register put on defendants telephone. When he called her again they confirmed that it came from his telephone. They used the pen register information in the search warrant affidavit to get a warrant to search his home, where they found a phone book with the page containing victims phone number turned down. HELD: A pen register is something the phone company can use to keep track of the phone numbers a particular telephone is calling. It is not the same thing as electronic eavesdropping since the content of the conversations is not being monitored. A person does not have an actual legitimate expectation of privacy in the phone numbers being called by his telephone.
beeper into a 5-gallon drum at a chemical company for a chemical used in the manufacture of methamphetamine. The company agreed to sell that drum to defendant if he came in. Defendant Armstrong made the purchase and went to Defendant Petchins house, where the drum was transferred to Petchins car, which police followed to Wisconsin. Police lost contact with the car but a helicopter picked up the signal again at a cabin in the boondocks. Police got a search warrant ad found a meth lab in the cabin. HELD: Defendant had no expectation of privacy in the use of this beeper to track the drug while it was in public places or the fact that it went to a particular location.
U.S. v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). Police put a
8) Cordless Telephone Transmissions
U.S. v. Karo, 468 U.S. 705, 1045 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Although it does not violate the 4th Amendment for police to put a beeper into a container of chemicals expected to be sold to a drug dealer, and then monitored, it can become a 4th Amendment violation to continue monitoring the beeper after it goes into the privacy of someones home. In Karo, DEA agents put a beeper into a container of ether to be sold to a suspected drug manufacturer. They traced it over a period of days from one home to another, then continued with a sustained monitoring of it once it went into a persons home. Ultimately they got a search warrant for the home. HELD: The initial placement of the beeper in the container did not violate the 4th Amendment, but the monitoring of it once defendant went inside his home was improper. Warrants for installation and monitoring of beepers are desirable and could end up being critical if the beeper ends up going into someones home.
State v. King, 873 S.W.2d 905 (Mo. App. S.D. 1994). A neighbor overheard defendant, who was using a cordless telephone, arranging to buy some marijuana for resale. She recognized defendants voice and reported it to the Highway Patrol. She heard the details of where the defendant and the seller were going to meet for the delivery. The Patrol nabbed defendant at the place of the meeting. They approached him and told him the information they had received and asked for consent to search the vehicle. Defendant said: Go ahead. As officers searched, one started unzipping a pocket on the rear of the front passenger seat and defendant called out, Stop! At that time, the officer found a syringe with clear liquid and a spoon inside the pocket. The liquid turned out to be HELD: (1) A cordless telephone communication is not a wire methamphetamine.
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communication that would require a prosecutor to get a warrant under the Missouri wiretapping statute; (2) Defendant had no reasonable expectation of privacy in the conversations on cordless telephones; and (3) Since officers had probable cause to search the car based on information from the neighbor and the fact defendant arrived at the prearranged time and place, no consent was necessary for the search. NOTE: Effective 10/25/94, 18 U.S.C. Section 2511 was amended so that cellular telephones and cordless telephones would now be protected from eavesdropping without a warrant.
9) Tape-Recording of Telephone Calls or Use of Body-Wires
As long as one party to the conversation knows it is being recorded, it is legal to secretly tape a conversation in Missouri. Defendant has simply misplaced his confidence in that particular person. Missouri and Federal eavesdropping statutes specifically do not apply as long as one party to the conversation knows it is being recorded. WARNING: About a dozen states prohibit tape-recording any conversation without the other persons knowledge or a search warrant. Illinois is one of those states.
On-Lee v. U.S., 343 U.S. 747 (1952).
State v. Barrett, 41 S.W.3d 561 (Mo. App. S.D. 2001). After a 13-year-old girl reported sexual abuse by her stepfather, the investigators had her make a cool call to the suspect. With her consent, the call was tape-recorded by police. She got him to discuss the abuse over the telephone, which ended up being devastating admissions. HELD: It does not violate the Constitution or wiretapping laws to secretly tape-record a conversation as long as one party to the conversation knows it is being recorded. Also, no Miranda warnings are necessary since the defendant is not in custody.
a surreptitious tape-recording: (1) Showing that recording device was capable of taking testimony; (2) Showing that operator of device was competent; (3) Establishment of authenticity and correctness of the recording; (4) Showing that changes, additions or deletions have not been made; (5) Showing of manner of preservation of the recording; (6) ID of speakers; (7) Showing that the testimony elicited was voluntarily made without any kind of inducement. See also: State v. Wahby, 775 S.W.2d 147 (Mo. banc. 1989) (transcripts of the tape may be used); State v. Ianniello, 671 S.W.2d 298 (gives sample Not-in-MAI jury instruction regarding use of transcripts at trial).
A person does not have an expectation of privacy in his conversation with another person even if that person is secretly taping him or allowing someone else to eavesdrop; rather, his confidence has simply been misplaced. Thus, the overheard conversation between defendant and a confidential informant was admissible.
State v. Spica, 389 S.W.2d 35 (Mo. 1965). Sets out 7-prong test for admissibility of
10) Plain View: Officers in Airspace Looking Down Upon Defendants Property.
California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). Airplane flyover on anonymous tip showed marijuana plants growing within fenced yard. They were seen with the naked eye from 1000 feet. HELD: Plain view. No reasonable expectation of privacy. Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835, (1989). Defendant lived
in a mobile home on 5 acres of rural property. He had an enclosed greenhouse, covered with corrugated roofing panels, but the roof had a 10-foot gap. Police officer flew in helicopter 400 feet over greenhouse and with naked eye saw the marijuana plants and used those observations to get a search warrant. The 400 feet was a height at which helicopters commonly and lawfully fly. HELD: Defendant did not have a reasonable expectation of privacy that his greenhouse was not subject to observation from that altitude. investigating Dow Chemical Co. and used an airplane commonly used for map-making photos to take aerial-map type photos from 1,200 to 12,000 feet, at all times within
Dow Chemical v. U.S., 476 U.S. 226, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). EPA was
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F. Plain Feel Doctine
navigable airspace. HELD: Although the things seen could not have been seen with the naked eye, the aerial photos were taken with common technology generally available to the public form navigable airspace. No violation of 4th Amendment.
State v. Rushing, 935 S.W.2d 30 (Mo. banc. 1996). Defendant was convicted of possession of a controlled substance with intent to distribute based upon crack cocaine found in his pocket. A juvenile officer had seen defendant furtively handing something to a person in an area known to be a place where drugs are frequently sold. He reported it to the police, and accompanied the responding officer to the scene where they found defendant (whom the juvenile officer recognized as the person hed seen in the suspected drug deal) on the porch of house where the officer had previously executed two drug-related search warrants. The officer approached defendant and said he had received information that defendant was dealing drugs. The officer was concerned for his safety because of gang graffiti in the neighborhood, so he did a pat-down of defendant. The officer felt a tubular item in defendants front pants pocket. The officer immediately thought it was a tubular plastic Life Saver Hole candy container, which is a common container used by crack dealers to carry their crack cocaine in. This was based upon the information he had from the juvenile officer, his knowledge of the neighborhood they were in, and his previous training and experience as a drug officer (including a list of his cocaine arrests and seizures including references to the types of containers). The police officer removed the tubular object and found it to be a cylindrical plastic medicine bottle, 2 and 3/4 inches long, with a one inch diameter. It contained 10 rocks of crack cocaine. HELD: The investigative stop was permissible since the officer was able to point to specific and articulable facts which, taken with rational inference from those facts, created a reasonable suspicion that a person has committed or is about to commit a crime. Once a valid stop is made, police may pat a suspects outer clothing if they have a reasonable, particularized suspicion that the suspect is armed. The plain feel exception to the warrant requirement is that if a police officer lawfully pats down a suspects outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspects privacy beyond that already authorized by the officers search for weapons; if the object is contraband, its warrantless seizure would be justified. In this case, it was immediately apparent to the police officer that the object was probably a tube commonly used to transport crack cocaine. The court points out that in order to justify a seizure under the plain feel doctrine, the officer must have only probable cause to believe the item felt is contraband. This was supplied by: (1) The officers feel of the object; (2) His knowledge of the suspicious transaction observed by the juvenile officer; (3) The reputation of the neighborhood as a drug trafficking area; and (4) His knowledge of commonly used drug containers. Conviction affirmed.
Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In a landmark 9-0 decision, the Court officially adopted a plain feel exception to the search warrant requirement. In other words, a police officer conducting a Terry frisk of a suspect based upon reasonable suspicion that he is armed and dangerous may seize evidence other than a weapon, if, in conducting the frisk, the contraband nature of the evidence is immediately apparent to the officer based upon his feel of the object through the suspects clothing. The Court noted: We think that this doctrine [plain view] has an obvious application by analogy to the sense of touch during an otherwise lawful search. By a 6-3 vote, the Court held that the particular seizure in this case was invalid. The officer had seen the suspect coming out of a crack house and had frisked him, and had squeezed and manipulated a plastic baggie he felt in the suspects clothing until he determined that it contained a lump of cocaine. The officer testified: As I pat-searched the front of his body . . . I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane. Thus, it was clear that the contraband nature of the lump was not immediately apparent. The officer had continued the exploration of the baggie after having concluded that it contained no weapon, and thus his continued feel of it had lost its justification under Terry. Because the further search of the pocket was constitutionally invalid, the seizure of the cocaine was likewise unconstitutional.
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G. Plain Sniffs & Drug Dogs
A police officer went to defendants home to do a knock and talk because of a tip that defendant was spending a lot of time in the garage so a neighbor suspected he might be cooking meth. Defendant was in his yard when the officer arrived. He wore a large hunting knife and seemed to be intoxicated. The officer asked for permission to search the premises, which was granted. He patted defendant down for weapons, because of the knife. He felt a cylinder in defendants pocket and took it out. It turned to be a metal, military-style match holder. The officer opened it and found methamphetamine. He did not ask defendants permission to open the cylinder. HELD: The trial court properly suppressed the evidence. Unlike State v. Rushing, 935 S.W.2d 30 (Mo. banc 1996), it was not immediately apparent to the officer that probable cause existed to believe the container contained contraband. The officer in Rushing was acting on eye-witness testimony from a juvenile officer who reported seeing a drug deal taking place. Thus, when the officer felt a container of the sort used for drugs, probable cause existed to believe it contained drugs. In this case, the officer knew the container certainly did not contain a weapon. He had insufficient facts to reasonably conclude it was immediately apparent drugs were in the container.
State v. Kelley, 227 S.W.3d 543 (Mo. App. S.D. 2007).
When an officer or dog is in a place he has a right to be, the odors he detects can also be used to form probable cause for a search. Cases have repeatedly held that a person does not have a reasonable and legitimate expectation of privacy in the odors of drugs emanating from his car, suitcase or other property.
Illinois v. Caballes, 125 S. Ct. 834 (2005). A state trooper stopped defendant for speeding. The canine officer overheard the radio traffic and responded immediately, arriving while the first officer had defendant in his patrol car, writing out a warning ticket. The canine officer immediately walked his dog around the car. It alerted that drugs were in the trunk. Based on that alert, the officers found marijuana in the trunk. The entire incident lasted less than 10 minutes. The Illinois Supreme Court held that because the canine sniff was performed without any specific and articulable facts to suggest drug activity, it was unreasonable in that it had unjustifiably enlarged the scope of a traffic stop into a drug investigation. HELD: The Fourth Amendment does not require reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. A canine sniff by a well-trained narcotics dog is sui generis because it discloses only the presence or absence of narcotics, a contraband item. It does not infringe upon any legitimate privacy interests. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. It is important to note that this case did not involve a situation where the suspect was being detained beyond the time needed for the traffic ticket. Nor did it involve a situation where the suspect was being detained upon reasonable suspicion while awaiting a drug dogs. In those cases, a detention of 90 minutes has been held to be too long to be reasonable, U.S. v. Place, 462 U.S. 696 (1983), while a detention of 32 minutes has been held to be reasonable. State v. Logan, 914 S.W.2d 806 (Mo. App. W.D. 1995).
in a car and came to a police roadblock, the purpose of which was a routine check of drivers licenses, vehicle registration, and proof of insurance. During the short check, before the officer finished the check, another officer walked a drug-sniffing dog around the vehicle, and the dog alerted to the trunk of the car. The car was then searched without consent under the automobile exception to the search warrant requirement. Officers found 126 pounds of marijuana. HELD: A brief roadblock detention to check for valid drivers licenses, vehicle registrations and proofs of insurance is reasonable under the 4th Amendment. The dog sniff was not a search within the meaning of the 4th Amendment, and thus individualized reasonable suspicion of drug-related criminal activity was not required before the dog could sniff the air around the car. There is a lesser expectation of privacy in a
United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). Defendant was traveling
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State v. Logan, 914 S.W.2d 806 (Mo. App. W.D. 1995). Defendant was convicted of possession of marijuana with intent to distribute for marijuana found in his car trunk. The officer had stopped him for weaving on the roadway. During the routine traffic stop, the officer developed reasonable suspicion that defendant and his passenger were involved in criminal activity in that the defendant was very nervous, defendant and passenger told inconsistent stories about the name on the title of the car and the destination of their trip, it was unusual for someone borrowing anothers car to have the title with him, and they were coming from Arizona, a known source state for drugs. THE DETENTION AWAITING THE DRUG DOG LASTED 32 MINUTES BEYOND THE END OF THE TRAFFIC STOP. The dog arrived and quickly alerted to the presence of marijuana in the trunk. HELD: If during normal traffic stop the officer develops reasonable suspicion based upon specific and articulable facts that the person is involved in drug trafficking, the defendant and automobile may be detained for a reasonable length of time to await the arrival of a drug-sniffing dog. The U.S. Supreme Court has said that 90 minutes is too long. This 32 minute detention is not too long and is therefore not unreasonable. Logan cites with approval the quote from the Supreme Court concerning the use of drug dogs: We are aware of no other investigative procedure that is so limited, both in the manner in which the information is obtained and in the content of the information revealed by the procedure. U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1985). State v. Slavin, 944 S.W.2d 314 (Mo. App. W.D. 1997). Trooper pulled over defendant for a traffic offense on I-70. Defendant was cooperative, but nervous. At the conclusion of the traffic stop (8 minutes), the officer told defendant he would only receive a warning. Trooper then asked for consent to search the vehicle. Defendant refused, saying that his brother, an attorney, said he should never consent unless there was a reason for a search. The Trooper detained the defendant for an additional 12 minutes beyond the end of the traffic stop while they awaited a drug dog. Defendant claims the officer did not have reasonable suspicion to justify the additional detention. HELD: The officer did not have reasonable suspicion and the additional detention violated the 4th Amendment. Unlike other cases, the totality of the circumstances here did not create a reasonable suspicion of criminal activity. Nervousness is not enough. Refusal to consent is not enough.
NOTE: YOU MUST HAVE REASONABLE SUSPICION TO DETAIN WHILE AWAITING DRUG DOG.
vehicle than in a home and when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor. A search warrant was not necessary. Neither was consent. The dog established probable cause, and the automobile exception to the warrant requirement applied. NOTE: If the primary purpose of the checkpoint had been for drug detection, the stop would be unconstitutional under City of Indianapolis v. Edmond, 531 U.S. 32, 148 L.Ed.2d 333, 121 S.Ct. 447 (2001).
7. Consent as Exception.
Three Big Issues: 1) Was consent voluntarily given under totality of the circumstances? 2) Did the scope of the search exceed the consent given? 3) Did the person consenting have authority or apparent authority to give the consent? A. Totality of the Circumstances Test: The State has the burden of proving that, considering the totality of all the circumstances, the consent was voluntarily given. The State must prove this by a preponderance of evidence.
When the prosecution seeks to justify a warrantless search under the consent exception, the burden of proof falls upon the prosecution to show by a preponderance of the evidence that the consent was freely and voluntarily given under the totality of the circumstances.
Although it is impossible to list all possible factors, some factors traditionally considered can be culled from the leading cases of Schneckloth v. Bustamonte, 412 U.S. 218 (1973); State v.
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Blair, 638 S.W.2d 750 (Mo. banc 1982); and State v. Berry, 526 S.W.2d 92 (Mo. App. 1975). They include:
1) Whether the person was in custody when the request was made; (Blair) 2) The number of officers present; (Blair) 3) The degree to which the officers emphasized their authority; (Blair) 4) Whether weapons were displayed; (Blair) 5) Whether there was any fraud on the part of the officers; (Blair)
6) The acts and statements of the person consenting, (Blair) including his state of intoxication; (Berry) 8) The length of the questioning; (Schneckloth) 7) The age, intelligence and education of the person; (Schneckloth)
9) The use of physical punishment such as deprivation of food or sleep; (Schneckloth) 10) Whether the person was advised of his right to refuse consent. (Schneckloth) NOTE: No single factor will control the finding of voluntariness; rather, the Court looks at the totality of the circumstances.
was convicted of possessing a check with intent to defraud. The check was found in a car in which defendant was a passenger. Defendant claims the consent was invalid since he had not realized he had the right to refuse consent. HELD: Supreme Court adopts the totality of the circumstances test and finds that the consent was voluntary.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Defendant
B. Consent Waives the Need for Probable Cause
State v. Berry, 526 S.W.2d 92 (Mo. App. S.D. 1975). Fact defendant was intoxicated does not necessarily invalidate the consent under totality of circumstances.
IMPORTANT to remember that consent is not just an exception to the warrant requirement, but is also a waiver of the need for probable cause. Thus, police may approach someone in a public place (without probable cause or reasonable suspicion) and request consent to search, so long as a reasonable person would realize that he could refuse to cooperate; but he may not be detained, even momentarily, without reasonable grounds for doing so.
State v. Hernandez, 776 S.W.2d 34 (Mo. App. S.D. 1989). Fact that gun was drawn by officer does not necessarily invalidate the consent under totality of circumstances. See also: State v. Apel, 156 S.W.3d 461 (Mo. App. W.D. 2005).
C. No Reasonable Suspicion Needed to Ask
Florida v. Bostick, 501 U.S. 429, 115 L.Ed.2d 389, 111 S.Ct. 2382 (1991). As a part of a
boarded a bus during a stop and went down the aisle, asking the passengers for consent to search their luggage and person. The officers did not specifically tell passengers that they were free to refuse to cooperate, but were polite and explained what they were doing. They found HELD: The officers were not packages of drugs taped to the inside of defendants thighs. required to specifically tell the passengers they had the right to refuse consent. Rather, the
United States v. Drayton, 536 U.S. 194, 153 L.Ed.2d 242, 122 S.Ct. 2105 (2002). Officers
routine drug interdiction effort, two police officers with badges boarded a bus during a stopover and asked to inspect the ticket and ID of one of the passengers. They had no reasonable suspicion for a detention or search. They explained to him that they were looking for drugs and asked for his permission to search his luggage. They clearly advised him that he had the right to refuse. He consented and they found cocaine. HELD: Consent search was valid. The 4th Amendment permits police to approach individuals at random in airport lobbies and other public places (in this case on a bus) to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.
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State v. Talbert, 873 S.W.2d 321 (Mo. App. S.D. 1994). Police officers approached defendant in a bus station after noticing that he had gotten off a bus, had a days growth of beard, and was carrying a large travel bag. A police officer identified himself and asked defendant questions about where he had been and where he was going. He looked at defendants ticket. Another officer obtained defendants claim check for his other luggage and took it to the luggage area of the bus station, leaving defendant with the first officer. The first officer asked if he could look in the travel bag for drugs. Defendant said he could do so and opened the bag and shuffled some of the contents around. The officer asked if he could look for himself. Defendant agreed. The officer found a pound of marijuana inside the bag. About two minutes had passed from the time officers had first approached defendant. The officers had not told the defendant at any point that he was free to leave, did not have to answer questions, nor had to consent to the search. HELD: Although the Court reaffirms the law that officers have the right to initiate a police-citizen encounter without reasonable suspicion or probable cause, to ask them questions and to request permission for a search [Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Rodriguez, 469 U.S. 1 (1984); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)], the manner in which the officers do so must make it clear to a reasonable person that he would have the right to refuse to cooperate or to discontinue the encounter. Also, this does not give the officers the right to detain the person even momentarily without that persons voluntary consent unless the officer has reasonable suspicion for a Terry stop. In this case, the trial court believed that the officers had not made it sufficiently clear to the defendant that he did not have to let the officer look into his bag. There was evidence that the officers conveyed the message that compliance with their requests was required, and it changed this encounter from consensual to non-consensual. Under totality of circumstances, Court felt the consent had not been given freely and voluntarily. The trial court sustained the motion to suppress; the appellate court said the decision was not clearly erroneous.
D. Reasonable Suspicion Needed to Detain BOTTOM LINE TO OFFICERS: BE SURE TO MAKE IT CLEAR TO THE PERSON GIVING CONSENT TO SEARCH THAT HE HAS THE RIGHT TO REFUSE.
validity of the consent is determined by voluntariness based upon the totality of the circumstances. The Court refused to adopt a per se requirement that individuals be specifically informed of their right to refuse consent.
Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Police can be too
E. Traffic Stops and Consent
intrusive in detaining a suspect, even when they have reasonable suspicion, thus rendering consent involuntary. Officers approached defendant at airport. He fit the drug courier profile. They asked him to speak with them. He produced his ticket and drivers license, which an officer took from him without consent. The ticket bore a different name. Two officers asked him to accompany them to a closet-sized room. Another officer went and got defendants luggage, without defendants consent, using defendants ticket stub. Officers still had not given back defendants drivers license and ticket, and never told him he was free to leave. Officers asked for consent to search. Defendant said nothing but produced his key. His suitcase was opened and drugs were found . Officer asked for the key to the other suitcase. Defendant said he did not have one. Officer said he might have to damage the suitcase. Defendant said to go ahead. HELD: Defendant was being unlawfully detained at the time the consent was sought. Defendant had been seized and the bounds of a Terry investigative stop had been exceeded by the time consent was sought. The officers conduct was more intrusive than necessary for an investigative stop.
1) During Traffic Stop, Officer May Ask for Consent to Search
2) It is Not Necessary to have Probable Cause to Ask for Consent, and Police May at Any Time Ask a Citizen if he has Contraband on his Person or in his Car and May Ask for Permission to Search.
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State v. Shoults, 159 S.W.3d 441 (Mo. App. E.D. 2005). Defendant was one of two passengers in drivers car. Driver was pulled over for an expired temporary tag. The officer asked the occupants to step out of the car while she looked into the matter. After about three or four minutes, she had checked the drivers ID but decided to just give him a warning and told him to make sure to get the car properly registered. The officer felt the driver was free to leave at that point, although she did not specifically say the magic words. She then asked for consent to search the car. The driver was calm and cooperative and said, Sure, go ahead. Two other officers arrived. The officer found a red tank with a valve on it of the type used to carry anhydrous ammonia. The driver said it was not his. The officer asked for consent to search the trunk. The driver consented. The officer found a padlocked leather bag containing some methamphetamine in the trunk. Defendant had the key to the bag. HELD: A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment. So long as the police are doing no more than they are legally permitted and objectively authorized to do, the resulting stop or arrest is constitutional. However, the fact that police may detain a person for a routine traffic stop does not justify an indefinite detention. The detention may only last for the time necessary to conduct a reasonable investigation of the traffic offense. This includes asking for the drivers license and registration; requesting the driver to sit in the patrol car; and asking the driver about his destination and purpose. Once the traffic stop is over, the driver is free to leave. Further questioning following the conclusion of the traffic stop is allowed if the encounter has become consensual. So long as the person is free to leave, the officer can talk to him, and is free to ask whether he has contraband on his person, or in his car, or in his residence. Although no litmus test exists for determining whether continued questioning is consensual or constitutes a seizure of the person questioned, our courts have found guidance in United States v. Mendenhall, 446 U.S. 54 (1980). Mendenhall held there may be a seizure of the person when there is the threatening presence of multiple officers, if the officer displayed a weapon, whether the officer touched the suspect, or if the officer used language or tone of voice indicating that compliance with the officers request might be compelled. An officer does not need to inform a suspect that he or she is free to leave the scene in order for the encounter to become consensual. However, that option must be
State v. Scott, 926 S.W.2d 864 (Mo. App. S.D. 1996). Trooper stopped defendant for traffic violation and had defendant come back to the patrol car. The entire stop lasted no more than 7 minutes. After about 5 minutes, the Trooper had finished running radio checks on defendants drivers license, and wrote him a warning ticket. The Trooper gave everything back to the defendant, and asked if defendant had any drugs or guns or anything illegal in his truck. The defendant said no. The Trooper asked for permission to search the truck, and defendant said he could. The search ultimately revealed marijuana hidden in the gas tank. Defendant claims that the consent was the product of an unlawful detention of the defendant, since the traffic stop had been concluded before the Trooper asked for consent. HELD: Consent is freely and voluntarily given to a search when, considering the totality of all the surrounding circumstances, an objective observer would conclude that the person giving consent made a free and unconstrained choice to do so. It is not necessary for there to be probable cause before an officer requests permission to search. Police may at any time ask a citizen if he has contraband on his person or in his car and may ask for permission to search. There is no litmus paper test for determining when a seizure has exceeded the bounds of an investigative stop. In traffic violation encounters there are endless variations in facts and circumstances. In the present case, the Court looked at factors like whether there was the threatening presence of several officers, a display of weapons, any physical touching, the use of language or tone of voice compelling compliance, and found that the record did not indicate that a reasonable person would not have felt free to leave after getting the ticket. The trial court did not err when it found no indicia of coercion and found the consent freely and voluntarily given. See also: State v. Burkhart, 795 S.W.2d 399 (Mo. banc. 1990).
85
3) Drugs and Contraband Questions
apparent from the circumstances. In this case, the continued conversation was consensual. If the person has not been lawfully seized, the officer may ask for permission to search. Consent is voluntary when considering the totality of the circumstances, the objective observer would conclude that the person giving consent made a free and unconstrained choice to do so. Factors include the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether the person was already in custody, whether there was any fraud on the part of the officers, and the evidence of what was said by the person consenting. The officer is not required to tell the suspect he or she can refuse to give consent to search. In this case, the consent to search was voluntarily given. There was no indicia of coercion. An Officer Conducting a Traffic Stop May Question the Driver About Weapons and Contraband, As Long As Doing So Does Not Prolong the Traffic Stop Beyond the Time It Would Normally Take. an informant that a Chevy Tahoe had drugs in it. The officer noticed that it was missing its front license plate, a traffic violation, so he pulled it over. He approached the drivers window and asked to see the drivers license and registration. The driver, obviously nervous, delayed giving a response and started to reach for the back seat. The officer told him not to reach for the back and asked if he could better reach his drivers license if he got out of the car. The driver said he could. Before opening the door and letting him out, the officer asked Mr. Stewart if he had any weapons or contraband in his vehicle that I [the officer] should be concerned about. The driver responded that he had a gun under the drivers seat. The officer checked under the seat and found a handgun, loaded, with the safety off. He arrested the driver. The defense claims the questioning about weapons and contraband was improper at a traffic stop. HELD: As long as police questioning did not extend the length of detention, there is no Fourth Amendment issue with respect to the content of the questions. The correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officers traffic stop questions extended the time that a driver was detained, regardless of the questions content. Mr. Stewart concedes that it certainly cant be said that Sergeant Wintertons question in and of itself appreciably extended the duration of the stop. This admission ends our inquiry. The question was proper, so the finding of the gun was proper, so the arrest was proper, so a subsequent sniff of the car by a drug dog was proper and the search of the Tahoe based upon the automobile exception was proper. NOTE: The court cites Muehler v. Mena, 544 U.S. 93 (2005) (where questioning of occupants of premises during the execution of a search warrant was held proper.)
United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007). A police officer was alerted by
State v. Jones, 204 S.W.3d 287 (Mo. App. S.D. 2006). Drugs were found in defendants truck after he was stopped for a traffic offense. He claims they were found at a time when he was being detained longer than necessary for a reasonable investigation of a routine traffic stop and in the absence of any specific or articulable facts supporting a detention for criminal activity. When the defendant was pulled over, the officer had him come back to the patrol car. He passed a portable breath test. The officer requested a full check on defendant and his driving record, which would impact whether the officer would give him a ticket or a warning. While awaiting the response from the dispatcher, the officer filled out the racial profiling form required for each traffic stop. Still not having heard from the dispatcher, he asked if defendant had any weapons, drugs or anything illegal in his truck. Defendant said that he did not, but refused consent, saying that his attorney said to never let anyone search his car. At this point, the dispatcher reported that defendant had several traffic offenses, and added that she would have some more information soon. By this time, the stop had lasted six minutes. The officer and the defendant continued their conversation. Less than two minutes later, the dispatcher radioed the last bit of information. Thirty seconds later the defendant consented to a search of the vehicle, a
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4) Extending Traffic Stop Detention by Unrelated Questioning Can Make Search Invalid
total of eight minutes since the initial stop. HELD: As long as the officer is investigating [the traffic offense], running the records check, and issuing the citation, the officer may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver. The consent was valid. The traffic stop had not yet concluded at the time the defendant consented to the search. The officer, who had just received the last bit of information he needed 30 seconds before, had not yet finished filling out the ticket.
Extending the Traffic Stop Detention by Unrelated Questioning Aimed Only at Making a Drug Case Makes the Continued Detention Improper and the Subsequent Probable Cause Established by the Drug Dogs Sniff Invalid.
5) Consent After Illegal Detention Invalid
State v. Maginnis, 150 S.W.3d 117 (Mo. App. W.D. 2004). A trooper pulled over the defendant and his passenger for speeding (three miles over limit) and changing lanes without a turn signal. When the trooper began talking with the driver, his focus was on things like where he was going, the identity of his passenger, their occupations, and how long theyd known each other. It was a full four minutes (the conversation was taped) before the officer even got around to asking for registration papers for the vehicle, and he never once called in to verify defendants drivers license. A different officer only did so later after arriving after the search for drugs. After getting inconsistent stories as to where they were going (the driver gave details that they were going from Nebraska to Florida to help sort some times of his recently-deceased brother, but the passenger said he did not know where they were going, that they were just headed up the road) the officer decided that he had reasonable suspicion to have his drug dog do a sniff. The dog alerted for drugs. HELD: During a traffic stop, an officer may request a drivers license and vehicle registration, run a computer check, and issue a citation. As long as the officer is doing these things, he may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver. The evidence here shows that even if the initial stop was about infringement of traffic laws, the interrogation of the two travelers was not at all about traffic violations, but rather was about the officers desire to obtain the opportunity to flush out any possible drug activity. The officers questions delayed the resolution of the traffic violation and impermissibly detained defendant beyond what was reasonable in view of the nature of the stop. The evidence was thus improperly seized. NOTE: The Courts comment at one point that Missouri law allows only limited questioning during a traffic stop is too broad to be 100% accurate. Certainly, while awaiting a response on the computer check of the drivers license, the officer could talk with the driver about anything he wished. The real issue is whether he is being impermissibly detained. See Stewart and Jones above.
Consent Obtained After a Detention Not Supported by Reasonable Suspicion is Fruit of the Poisonous Tree and is Not Voluntary.
State v. Woolfolk, 3 S.W.3d 823 (Mo. App. W.D. 1999). Police pulled over defendant for an improper rear light. After giving a warning, the officer noticed that the defendant was nervous and had lied about not having any prior arrests (a radio check had confirmed defendants prior drug arrest). The officer asked for consent to search, which was denied. The officer said he would detain defendant to await the drug dog. Defendant then consented. Defendant does not contest the legality of the initial stop, but claims his consent was not voluntary because his continued detention was illegal since not based upon reasonable suspicion. HELD: Defendant is correct. Although police may detain a person for a routine traffic stop, the detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic stop. This would include: (1) Asking for the subjects drivers license and registration; (2) Requesting that the subject sit in the patrol car; and (3) Asking the driver about his or her destination and purpose. Once these steps are completed and the officer has
87
6) Not Necessary to Say Free to Leave
State v. Granado, 148 S.W.3d 309 (Mo. banc 2004). Defendant was pulled over on a cold January night for weaving upon an interstate highway. The officer noticed he was nervous. The driver and passenger had discrepancies about their trip. The driver said they were going to Memphis, Michigan and that the driver would be coming back alone. The passenger said they were going to Capac, Michigan, and would come back together. The officer checked the drivers license and registration, checked his driving record, then gave him a written warning and told him he was free to go. The officer then asked for consent to search, but defendant refused. The officer detained him for the arrival of the drug dog, which alerted to 36 pounds of marijuana. HELD: The marijuana should have been suppressed. The detention went beyond the time reasonably necessary to effect its initial purpose. No new factual predicate existed for reasonable suspicion to justify the additional detention while awaiting the drug dog. Whereas an officer may question the driver [further] if the encounter has turned into a consensual one and the person realizes he is free to leave, the record in this case did not support the idea that a reasonable person would have felt free to leave. Conviction reversed. WARNING: This per curiam decision contains careless wording that amounts to a misstatement of law. After correctly stating that the basis for the reasonable suspicion must arise within the perimeters of the traffic stop itself the opinion seems to incorrectly suggest that none of the information the officer learned during the traffic stop could be considered in determining whether reasonable suspicion existed. The opinion seems to say the court should only consider what occurred (nothing) after defendant was told he was free to leave. The court says: No specific, articulable facts developed between the time Granado got out of the patrol car and returned to his truck that justified detaining Granado to ask him further questions. The court adds: There is nothing in the record, after the traffic stop concluded, that would give the patrolman reasonable suspicion that Granado was engaged in criminal activity. To the extent these comments suggest that information the officer gleaned during the traffic stop could not be considered, they are clearly incorrect.
checked the drivers record, the officer must then allow the driver to proceed without further questioning unless specific, articulable facts create an objectively reasonable suspicion that the individual is involved in criminal activity. In this case, nervousness and failure to mention a prior arrest was not enough to continue detaining the defendant. His detention was unlawful; thus, his consent to search was not freely and voluntarily given, but was only a submission to a claim of lawful authority. Same result: State v. Weddle, 18 S.W.3d 389 (Mo. App. E.D. 2000).
It is Not Necessary for the Officer at Traffic Stop to Tell Defendant He is Free to Leave Before Asking For Consent to Search.
Ohio v. Robinette, 519 U.S. 33, 136 L.Ed.2d 347, 117 S.Ct. 417 (1996). Defendant was
pulled over for speeding. Deputy Roger Newsome of the Montgomery County, Ohio, Sheriffs Department, went up to defendants car and asked for his drivers license, ran a computer check, then asked defendant to step out of his car, turned on a mounted video camera, issued a verbal warning, and returned defendants license. The deputy then said, One question before you get gone: Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that? Defendant said no. The deputy asked if he could search the car. Defendant consented. The deputy searched and found a small amount of marijuana and a methamphetamine pill. Defendant claims the search was invalid on the theory that a person who has been detained on a traffic stop must be told they are free to go before a consent given to a search would be considered voluntary. HELD: Consent to a search is determined from the totality of the circumstances. It does not make a constitutional difference whether defendant was told he was free to go. The consent here was voluntary. Same result: State v. Scott, 926 S.W.2d 864 (Mo. App. S.D. 1996); State v. Shoults,159 S.W.3d 441 (Mo. App. E.D.
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7) Reasonable Person Must Realize Free to Leave
2005).
But a Continued Detention is Not Consensual if A Reasonable Person Would Not Have Realized He Was Free To Go About His Business
State v. Barks, 128 S.W.3d 513 (Mo. banc 2004). Defendant was pulled over for speeding. The officer got his drivers license and proof of registration, returned to the patrol car, ran an operators check on the validity of the license, and wrote the speeding ticket. After giving the ticket, with red lights still flashing, he kept questioning the defendant. He told defendant he seemed nervous, and asked why. Defendant claimed he had a small child at home. The additional questioning eventually produced a consent search, which revealed methamphetamine. HELD: This traffic detention lasted beyond the time necessary to conduct the reasonable investigation of the traffic violation, and it would not have been clear to a reasonable person in that situation that he was free to go. The evidence should have been suppressed.
An officer pulled over the defendant for not having a front license plate, but quickly determined that he had been mistaken. Instead of letting her go immediately, he explained his mistake, but still asked to see her drivers license. He never told her she was free to leave. She didnt have her license with her, but did have an identification card which he seized and took back to his patrol car and used to run a license check, thereby learning of an outstanding warrant for her arrest. Upon her arrest he found marijuana in her purse. HELD: Although the original stop was valid because the officer had a reasonable suspicion that a traffic offense had occurred, the detention extended beyond the time reasonably necessary to effect its initial purpose. Such a stop can become consensual, so long as a reasonable person would feel free to disregard the police and go about his business. A court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the encounter. In this case, the officers request to see her license was made after he had already determined that she had done nothing wrong. He did not make it clear enough to her that she did not need to comply. In our view, [simply admitting he had been wrong about pulling her over] was insufficient to convey to a reasonable person, who had been stopped for an apparent traffic violation, that he or she was free to go without complying with [his] request to produce her license and vehicle registration. Thus, the evidence should have been suppressed. Same result: State v. Martin, 79 S.W.3d 912 (Mo. App. E.D. 2002). See also State v. Johnson, 148 S.W.3d 338 (Mo. App. W.D. 2004) (pulling away from a curb without use of a blinker did not amount to a traffic violation justifying a stop and request for consent search).
State v. Taber, 73 S.W.3d 699 (Mo. App. W.D. 2002).
F. Attenuation Doctrine
When a Consent Comes After An Unlawful Detention, the State Meet the Dual Requirement of Showing the Consent was Voluntary AND that it was Sufficiently Independent From the Primary Illegality to Purge the Taint.
Sate v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. 2007). Police were conducting a wellbeing check in an effort to help a parent to find her runaway teenage daughter. The police went to the front door of the house where the girl was believed to be, but no exigent circumstances existed for a warrantless entry. They knocked but got no answer. Officers in the back radioed that someone went out the back door. When police went to the backyard, this defendant was leaning against the house with his hands in his pockets. Police ordered him to take his hands out of his pockets. He did so. He was not free to leave. The police asked for consent to pat him down and he put his hands on the wall. The pat-down revealed a knife in his pocket. He voluntarily told them about another knife concealed in his boot. HELD: The search was unlawful. Ordering defendant to remove his hands from his
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G. General Consent Includes Closed Containers
pockets was a seizure. In dealing with the States claim that the encounter became consensual, the question is whether the evidence to which objection is made has been come to by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . Under the attenuation doctrine, the State must meet the dual requirement of proving that the consent is voluntary and that it is sufficiently independent from the primary illegality to purge the taint of that illegality. In making that determination, the court should consider the following factors: (1) the temporal proximity of the illegality and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. In this case, even if the consent was voluntary, the State failed to show that the search was sufficiently independent from the illegal stop to purge the taint of that illegality.
An officer who has been given consent to search a car may also search closed containers in the car unless the subject explicitly limited his consent. The scope of a search is determined by objective reasonableness: What would a reasonable person have understood by the exchange between the officer and the person.
Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Consent to search a car includes consent to search a closed bag on the floor. The officer does not need a separate consent to look inside closed containers. Jimenos car was stopped after a traffic violation. The officer told Jimeno he believed drugs were in the car and asked for permission to search. Jimeno agreed. Cocaine was found in a folded paper bag on the cars floorboard. HELD: If a suspect gives consent to search a vehicle, it includes closed containers within the vehicle that might contain contraband, unless the suspect explicitly objects to or limits the scope of the search. Court uses the objective reasonableness standard. State v. Hyland, 840 S.W.2d 219 (Mo. banc. 1992). An officer pulled defendant over for
speeding. While writing the ticket, and before returning defendants drivers license, the officer became suspicious of defendant and asked for permission to look in the trunk. Defendant agreed and opened the trunk. The officer saw a suitcase sealed with duct tape, and asked for permission to look inside the suitcase. Defendant removed the tape and opened the suitcase, revealing articles of clothing. The officer reached under the clothes and found a brick of marijuana. HELD: The search of the suitcase was valid as the product of a voluntary consent. The scope of the search was reasonable, since a reasonable person would conclude that consent to look inside the suitcase included consent to look under the clothes. Defendants consent to the search was obtained during the time reasonably necessary to carry out the purposes of the traffic stop. The additional time for the search was simply due to the search, which had been consented to.
H. Scope of Search is Determined by Objective Reasonableness
THE SCOPE OF THE SEARCH IS DETERMINED BY OBJECTIVE REASONABLENESS What would the typical reasonable person have understood by the exchange between the officer and the person.
State v. Law, 847 S.W.2d 134 (Mo. App. 1993). An officer pulled defendant over for speeding. While writing out the ticket, the officer became suspicious of defendant (who was on probation for drug possession and who seemed much more nervous than a person getting a traffic ticket should be) and after he completed writing the ticket, asked: Do you have anything illegal in you car? Defendant said, No. Officer: Any illegal guns or knives? Defendant said, No. Officer: Would you mind if I searched your car? Defendant said he did not mind, got his keys from the ignition and opened the trunk. The officer found marijuana hidden in a shaving kit and marijuana seeds in a prescription bottle. HELD: The search was valid. The standard for measuring the scope of a suspects consent is that of objective reasonableness what would the typical reasonable person have understood by the exchange between the officer and the suspect? A reasonable person would have
90
concluded that consent to search a vehicle included bags and containers in the trunk. The Court notes that a person, when giving consent, can expressly limit it to certain areas, but that this was not done here. Thirty-nine minutes passed from the time the ticket was written until the marijuana was found, but this was not due to an arrest, but due to the search, which had been consented to. speeding. The officer asked if defendant was carrying marijuana. He said he was not. After telling the defendant he had decided not to give him a ticket, the officer asked for permission to search the vehicle. Defendant agreed. The officer saw a can of air freshener under a jacket on the front seat. Defendant, the sole occupant of the car, had said he was going from Texas to Chicago, but there was no luggage in the trunk. Another air freshener was in the trunk. The back of the rear seat, visible from the trunk, had been spray painted. An adhesive material used to restore cars was on the back of the sear. Looking in the back of the car, the officer found that the area behind the seat seemed to be solid metal, very hard. At this point, the officer pulled the back seat forward, breaking its seal, revealing ore adhesive material and a strong odor of marijuana. He found packages of marijuana inside this hidden compartment. HELD: The officer had consent for the initial search. By the time the officer damaged the car by pulling the seat forward, he had probable cause to believe he would find drugs.
State v. Garza, 853 S.W.2d 462 (Mo. App. 1993). An officer pulled the defendant over for
State v. Riddle, 843 S.W.2d 385 (Mo. App. 1992). An officer pulled defendant over for
I.
Limitating Consent to Search
State v. Haldiman, 106 S.W.3d 529 (Mo. App. W.D. 2003). A State Trooper obtained consent to search a car after a traffic stop. Before searching the car, he told the driver to stand outside the car and patted him down, finding a golfball-sized baggie of meth inside the drivers boot. HELD: Consent to search a vehicle does not automatically equate consent to a pat-down search. The consent was for a search of the car, and nothing was said at all about consent to search the person. Thus, the pat-down exceeded the scope of the consent.
following too closely and gave him a ticket. After returning defendants drivers license to him, the officer asked if he was hauling anything illegal in the car. Defendant said no. The officer asked if he could search the car. Defendant said he could search the car, but that he did not have a trunk key because the rental company had not given him one. The officer went to the car and opened the trunk by pressing the trunk release button in the glove box. Inside the trunk, he found 80 pounds of marijuana under the spare tire. HELD: The traffic stop had concluded before the officer asked for permission to search, and the record gives little indication of the voluntariness of defendants consent. You could tell the Court of Appeals wanted to reverse the trial courts suppression of the evidence, but there were not enough facts on the record to say the trial court was wrong. The Court of Appeals noted that the burden of proof was on the State. NOTE: Garza shows that consent can be given even after the traffic stop was done, but in this case, the record was not clear that defendant had consented to a search of the trunk.
Even Without an Explicit Limitation, the Surrounding Circumstances Might Reasonably Imply a Limit on the Scope of the Consent.
For example, if an officer links a request to search an area with a desire to find a particular item, it may be reasonable to presume that a generalized consent to search is limited to areas in which the target object might be. Paul R. Joseph, Warrantless Search Law Deskbook, Section 16.5 (1997). Citing Florida v. Jimeno: The scope of a search is generally defined by its expressed object.
United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). An officer investigating drug case
asked for consent to search the defendants apartment. Earlier, when the defendant mentioned that he had a pornographic videotape, the officer had said, Im not a bit interested in that. The written consent was for a search of the premises and property
91
under my control. The officers seized his computer and got a search warrant for drug records. The officer stumbled across one child pornography picture, but instead of stopping to get another search warrant aimed at child pornography, kept looking at lots and lots of child pornography files, which ended up being the basis for the child pornography charges against the defendant. HELD: The consent for the search of the apartment did not continue over to the contents of the computer files, especially since the scope of the consent by its own terms talked about the apartment and the officer had given the impression he was not looking for anything related to pornography. out to look for a green pickup. An officer pulled over a green pickup and asked, Do you have any weapons in there, mind if I look? Defendant answered no and assisted with the search. Defendant later claims this was not valid consent, and that it only applied to a search for weapons, and thus the bag of money found during the search should be suppressed. HELD: The word choice, plus defendants friendly demeanor and actions in assisting with the search rendered the consent voluntary.
United States v. Gleason, 25 F.3d 605 (8th Cir. 1994). Bank was robbed. Broadcast went
J.
Revoking Consent to Search
A Suspect May Revoke the Consent.
Police indicated a desire to search defendants premises for drugs, but really wanted to open and look at certain documents. As the search progressed, defendant said, Does that look like narcotics! The search is over. Im calling off the search. The officer said, Sorry, Pal, we are here now and this is what we are going to do. HELD: Consent invalid. A search pursuant to consent may not be more intensive than was contemplated by the giving of the consent; a search for narcotics does not require an examination of documents. Papers seized after the consent was withdrawn should be suppressed. motor boat. A Missouri Water Patrol officer stopped them for illegally sitting on top of the back of the seat. While he was talking with defendant, he asked if he could look in her purse. She first said okay, and opened it, but then turned around with it and began to walk away. The officer had not noticed anything illegal during his brief glimpse, nor was she under arrest. He followed her and grabbed the purse. He found drugs inside. HELD: Defendants consent to a search of her purse was clearly withdrawn when she turned with her purse and walked away. Exigent circumstances did not save this search because the officer admittedly did not have probable cause to believe anything illegal was in the purse.
U.S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971).
State v. Howes, 150 S.W.3d 139 (Mo. App. E.D. 2004). Defendant was a passenger in a
K. False Statements or Misrepresentations by Officers
State v. Hayes, 51 S.W.3d 190 (Mo. App. W.D. 2001). A citizen may choose at any time to limit the scope of his consent. When a person limits the scope of a consent to search the officer must limit the search to the area or the extent of the consent, absent other reasonable suspicion to justify the search . . . [Also] when consent is withdrawn, an officer must cease the search absent a warrant or probable cause.
False Statements or Misrepresentations by Officers May or May Not Affect the Voluntariness of the Consent. Use of Deceptions by Officers is only One Factor to Consider in the Totality of Circumstances Test. * False statements as to the identity of the officers will not affect the consent.
Lewis v. U.S., 385 U.S. 206 (1966). Officer posed as drug customer and was invited into
On Lee v. U.S., 343 U.S. 747 (1952). No different result when informant wore a body wire
Defendants home for purpose of buying drugs. Defendant had consented to anything the officer would see as a drug customer, in spite of the lies of the officer pretending to be a drug customer. to tape-record conversations in defendants home. The consent to enter the home was not rendered unlawful by the deception as to the purpose of the entry.
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People v. Catania, 398 N.W.2d 343 (Mich. 1986), reversing 366 N.W.2d 38 (Mich. App.
L.
Gouled v. U.S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed.2d 647 (1921). A business acquaintance of defendant, working with and acting under orders of police, pretended to visit defendant as a social guest, but ransacked private areas of defendants home when defendant left the room. HELD: In spite of the fact the initial intrusion was consensual, the search was invalid since the scope so greatly exceeded the consent given a social guest to enter a home. State v. Lorenzo, 743 S.W.2d 529 (Mo. App. W.D. 1987). Officer misled motorist when he State v. Earl, 140 S.W.3d 639 (Mo. App. W.D. 2004).
asked to peek inside the vehicle when he ended up doing a full search and found a backpack under a seat containing a film canister of marijuana. Consent held invalid.
Cases Holding Consent Invalid
*False statements as to the scope, nature or purpose of the search may render the consent invalid.
1985). A young female officer got into defendants home by falsely claiming car trouble and saying she needed to use the telephone, when her real purpose was to investigate alleged drug activity. When she chatted with defendant about being on the way to a party, he whipped out some marijuana. The consent to enter was valid.
Police responded to investigate suspicious circumstances, possible a domestic assault. The officer spoke to a man and woman and smelled alcohol, but the man passed field sobriety tests. The officer asked the man (defendant) for permission to search him. Defendant asked why he wanted to search him. The officer, knowing he did not have probable cause, said, Because I have probable cause. Defendant responded, If youve got that then go ahead. Small amounts of meth and marijuana were found in his pocket. HELD: The search was invalid because it was not voluntary. We agree that deceitfulness will not necessarily vitiate consent, but the state overlooks that defendant conditioned his consent on a fact that the officer knew to be false. An officer is not free to conduct a warrantless search on the basis of consent if he had reason to know that the consent was not knowingly granted.
U.S. v. Bosse, 898 F.2d 113 (9th Cir. 1990). Officer claimed he was present to assist in a
People v. Daugherty, 514 N.E.2d 228 (Ill. App. 1987). Police officer falsely told defendant he was still investigating defendants earlier complaint about being the victim of a theft offense, when he was really searching for marijuana. Consent held invalid.
Police obtained entry to defendants apartment upon the false claim that they were investigating a gas leak. A critical fact in holding 4th Amendment violated was that it could falsely appear to Defendant that a failure to permit entry might result in injury to himself or other persons and property.
state licensing inspection of firearms dealer being conducted by another agent, but was really there to obtain information to be used in preparing search warrant in connection with criminal investigation. Consent not voluntary under totality of circumstances. Special limitations apply when a government agent obtains entry by misrepresenting the scope, nature or purpose of a governmental investigation.
People v. Jefferson, 43 A.D.2d 112, 350 N.Y.S.2d 3 (1973).
M. Cases Holding Consent Valid:
U.S. v. Turpin, 707 F.2d 332 (8th Cir. 1983). Defendant had killed his friend and put the body
in a car on railroad tracks to make it look like a train-car collision. Officers, already knowing it was no accident, went to defendants home and falsely told him that his friend had been killed in a train accident, but did not tell him he was a suspect in a homicide investigation. HELD: The failure to tell defendant that his friend had been murdered and that he was a potential suspect did not invalidate defendants consent to police entry and search of his home.
U.S. v. Andrews, 746 F.2d 247 (5th Cir. 1984). Officers asked to see shotgun on ruse that
they were trying to connect it with a robbery, when their actual purpose was to charge defendant with illegal possession of a firearm by a convicted felon. Court says deceit only one factor to consider under totality of circumstances and holds consent voluntary.
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U.S. v. White, 706 F.2d 806 (7th Cir. 1983). Consent to search flight bag valid, where given State v. Stevens, 367 N.W.2d 788 (Wis. 1985).
Garbage collector was really acting as sheriffs agent, but this did not vitiate defendants consent for him to enter garage to pick up garbage. Consent valid. No different from undercover officer or confidential informant situation. to permit search for drugs, even though police were really looking for money and jewelry.
N. Threat to Seek a Search Warrant if Consent is Not Given.
The Courts have experienced considerable difficulty in dealing with those cases where the police have obtained consent to search after threatening that if consent is not given they will proceed to seek or obtain a search warrant. Consents given in response to a threat to seek a warrant have been upheld as voluntary. U.S. v. Raines, 536 F.2d 796 (8th Cir. 1976); U.S. v. Larson, 978 F.2d 1021 (8th Cir. 1992).
Some courts have said consent is NOT voluntary if the officers make no distinction between seeking a warrant and obtaining one. U.S. v. Boukater, 409 F.2d 537 (5th Cir. 1969); U.S. v. Faruolo, 506 F.2d 490 (2nd Cir. 1974). The Faruolo case says the officer should not give the impression that the warrant would automatically be issued. The agent can always be on the safe side of the line by plainly indicating that he will apply for a warrant and believes one will be issued, but that the decision whether to issue the warrant rests with the judge or magistrate to whom the agent will apply. The 8th Circuit holds that a theat to obtain a search warrant is only one factor in the totality of the circumstances inquiry. U.S. v. Severe, 29 F.3d 444 (8th Cir. 1994).
LaFaves conclusion: Although not all of the cases can be explained on this basis, it may generally be said that a threat to obtain a search warrant is likely to be held to invalidate a subsequent consent if there were NOT then grounds upon which a warrant could issue, and likely not affect the validity of the consent of the police then had probable cause upon which a warrant could issue. Needless to say, a false claim by police that they have a search warrant when they really do not makes the consent involuntary. Bumper v. North Carolina, 391 U.S. 543 (1968).
O. Oral Consent Followed by a Subsequent Refusal to Put Consent into Writing.
P. Knock and Talk Searches
The police obtain what appears to be a voluntary oral consent, after which they attempt to have the person sign a consent-to-search form, which the person declines to do, so the police make the search on the basis of the oral consent. The claim that the subsequent refusal to sign a consent form operates to make the prior oral consent a nullity has been rejected by the courts. U.S. v. Thompson, 876 F.2d 1381 (8th Cir. 1989). Likewise, a written consent is not essential to establish a valid consensual search. U.S. v. Chaidez, 906 F.2d 377 (8th Cir. 1990). A Knock & Talk of a Persons Home is Nothing More Than the Usual Consent Search, But it is a Good Idea to Use a Written Consent Form or Tape Record the Conversation Since a Person has Such a High Expectation of Privacy in his Home.
State v. Kriley, 976 S.W.2d 16 (Mo. App. W.D. 1998). Officers planned to do a knock and talk at defendants home, but a mean-looking dog was on a chain near the front door, so they went around to the back, but there was no normal back door. Instead, there was a shed attached to the building. The shed had an open door to the yard, with a closed door to the house. Officers went inside the shed to knock on the back door and noticed a jar
State v. Smith, 488 N.E.2d 210 (N.C. 1997). Local police had a knock & talk procedure, by which officers who were unable to obtain probable cause for a search warrant for lack of evidence would visit the suspects home and request permission to enter and search. HELD: As long as consent was given under the totality of the circumstances we find no support for the [trial] courts conclusion that defendants constitutional rights were violated in that the officers entered inside the house without a search warrant in an effort to circumvent the 4th Amendment by searching the house without a search warrant. Search okay.
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Q. Miranda Warnings not Necessary
For an extensive look at the law on knock & talk searches see: H. M. Swingle & K. M. Zoellner, Knock and Talk Consent Searches: If Called By a Panther, Dont Anther, 55 J. Mo. Bar 25 (1999). A Request for Consent is not Interrogation and Does Not Require Miranda Warnings, Especially if Defendant is not in Custody.
A state trooper received an anonymous tip that an active meth lab was in a particular house. He visited the house the next day and noticed a strong chemical odor. He saw a truck pull into the residence. He approached the driver (defendant), who identified himself as a resident of the premises. The officer asked who was in the residence. The defendant said he didnt know. The officer asked he if could go inside to identify the occupants. Defendant initially hesitated, but then agreed. The officer pulled his gun as he entered for safety reasons. Once inside, he spotted items in plain view which he later seized without a search warrant. HELD: Defendant fails to recognize that [the officer] did not need probable cause to go to the residence. The police, in the course of a criminal investigation, may enter the curtilage around a home and knock on the door to seek admittance or to converse with the resident. The consent was voluntary under the totality of the circumstances. The drawing of the gun, under the circumstances, was not unreasonable. Entry of the house could have been perceived as a significant safety risk in view of the apparent methamphetamine production in progress. Once inside, he could seize items in plain view so long as there is probable cause that the object is connected to a crime.
with drug residue on a shelf inside the shed. HELD: Although an officer who approaches a common access route to a house may do so with his eyes open, if a side or back door is set up in such a way so as not to be generally open to the public, it is improper for the officers to go to that particular door, and the items spotted are not considered to have been in plain view.
State v. Apel, 156 S.W.3d 461 (Mo. App. W.D. 2005).
State v. Pena, 784 S.W.2d 883 (Mo. App. 1990). Defendant was pulled over for speeding. The officer noticed white powder on the dashboard, but did not say anything about it. Back in the patrol car, the officer asked defendant for consent to search, which was given. The officer seized the white powder. Defendant moved to suppress, claiming he should have been given Miranda warnings. HELD: Warnings not needed. Defendant was not in custody, nor was there interrogation. Consent is not an incriminating statement. Miranda warnings do not need to be given before requesting consent to search. Same holding with detailed discussion: State v. Metz, 43 S.W.3d 374 (Mo. App. W.D. 2001). Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Roadside questioning in traffic stops is not custodial interrogation and does not call for Miranda warnings
unless and until defendant has been placed under arrest.
R. Consent to Search After Invocation of Right to Remain Silent
Even after defendant has said he invoked his right to remain silent he may still be asked to give consent to a search if officer asks him and he gives voluntary consent. In White, defendant was the potential suspect in the theft of a red toolbox and a new bed. The police went to his apartment and knocked. He said, Come in. They noticed a new bed matching the generic description of stolen one. Defendant was painting his apartment white. They asked him to voluntarily come to station. He agreed. At the station he was advised of rights and said he bought the bed from two guys he did not know, who had it in a van. He then refused to answer other questions and asked for lawyer. He was arrested. A police officer asked for and received written consent to search the
A Defendant May be Asked for Consent to Search Even After he has Invoked his Right to Remain Silent, Since Search and Seizure Law is Governed by the 4th Amendment, not the 5th Amendment.
State v. White, 770 S.W.2d 357 (Mo. App. E.D. 1989).
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apartment and found a red toolbox recently painted while containing some of victims tools. HELD: The consent was voluntarily given under totality of circumstances. Invocation of 5th Amendment Miranda warnings only applies to interrogation. Not same test as 4th Amendment search and seizure.
State v. Williams, 159 S.W.3d 480 (Mo. App. S.D. 2005). Defendant was arrested for rape. He invoked his Miranda rights and questioning ceased. The next day an officer asked him for
consent for a blood sample. Defendant gave written consent for the search.
search if the consent was otherwise voluntarily given. A request for consent to search is not an interrogation for purposes of Miranda because consent is not an incriminating statement. A Miranda violation, however, is a factor to be considered in determining whether the consent was voluntary. Factors in addition to the Miranda violation include the number of officers present when consent was given, the degree to which the officers emphasized their authority, whether any weapons were displayed, whether the person was in custody, whether any fraud was committed by officers, and the acts and statements of the person who consented to the search. This consent was voluntary under the Fourth Amendment.
Miranda, once an individual requests to speak to an attorney, all interrogation must cease until an attorney has been provided. A violation of Miranda does not, however, vitiate consent to
HELD: Under
U.S. v. Cherry, 794 F.2d 201 (5th Cir. 1986).
S. Authority or Apparent Authority to Consent.
Cody v. Solem, 755 F.2d 1323 (8th Cir. 1985). Even if a defendant is in custody, a request to search does not have to be preceded by Miranda warnings.
Consent by third persons has generally been upheld when the third party had the right to access or control for most purposes over the place searched or the thing seized. It is necessary to consider the consenting partys authority over the particular area searched. 1) Co-Tenants May Consent to a Search of Common Areas of Control.
Defendant who was murder suspect invoked rights and asked for lawyer. Interrogation continued and defendant eventually confessed. He also signed a consent to search his office and the murder weapon, a gun, was found above his ceiling. HELD: The confession was not admissible because of 5th Amendment violation, but the gun was admissible since the consent to search was voluntarily under the totality of the circumstances.
State v. Woods, 861 S.W.2d 326 (Mo. App. S.D. 1993). Girlfriend gave consent to seize TV. Consent was valid since she had control over the apartment. State v. Martin, 792 S.W.2d 37 (Mo. App. E.D. 1990). Defendants sister, with whom he
resided, gave consent to search flats basement. Consent valid. 2) The Joint User of a Container May Consent to its Search.
U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Defendant was a suspect in a bank robbery. He had been living in a house with his girlfriend and her parents, in her parents home. Defendant and girlfriend shared one bedroom in the house. After defendant was arrested outside the house, girlfriend gave consent for police to search the house. HELD: Girlfriends consent was sufficient because it was obtained form a 3rd party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected. The Court explained that joint tenants each have the right to permit inspection and that the others have assumed the risk that one of them might permit the common area to be searched. NOTE: The Matlock case is also important because it holds that the prosecutor may offer the hearsay testimony of police that the cotenant had said she shared the bedroom with defendant and gave her consent. This becomes important where, as here, the girlfriend has changed her mind and become a witness for her boyfriend.
3) A Parent May Consent to a Search of a Dependent Childs Room, Although Areas Where the Child has a Particular Expectation of Privacy, Such as a Closed Footlocker, May Sometimes be Treated Otherwise.
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State v. Blair, 638 S.W.2d 739 (Mo. 1982). State v. Pinegar, 583 S.W.2d 217 (Mo. App. 1979). Defendant, an adult, still had a room
in home of his parents and would often stay there. His mother never cleaned his room. Defendant had a footlocker at the foot of his bed and the family understood that it was his private personal footlocker. Police, with consent of parents, searched the footlocker. HELD: Invalid search since parents did not have authority to consent to the search of the private footlocker in the adult sons room.
Vandenberg v. Superior Court, 8 Cal. App.3d 1048, 87 Cal. Rptr. 876 (1970). Holds valid
4) The Owner of the Premises in Which He Lives may Consent to a Search of his Home Even if a Guest Objects. LaFave, Volume III, at 800.
a fathers consent to a police search of his 19-year-old sons room. Son had encouraged father: Dont let them look, they dont have a search warrant! Son did not have any area of the house where his father was not commonly allowed. In his capacity as the owner with legal interest in the property, a father can transfer to the police the limited right to enter and search the entire premises including that portion of the real property which has been designated by the parent for the use of his children . . . In his capacity as the head of the household, a father has the responsibility and authority for the discipline, training and control of his children. In the exercise of his parental authority, a father has full access to the room set aside for his son for purposes of fulfilling his right and duty to control his sons social behavior and to obtain obedience . . . Permitting an officer to search a bedroom in order to determine if his son is using or trafficking in narcotics appears to us to be a reasonable and necessary extension of a fathers authority and control over his childrens moral training, health and personal hygiene.
State v. Buckles, 495 F.2d 1377 (8th Cir. 1974). Defendant was overnight guest at home
State v. Rollins, 882 S.W.2d 314 (Mo. App. 1994). Owner of home which defendant was State v. White, 755 S.W.2d 363 (Mo. App. 1988). Defendant is a guest temporarily living with his friend. She is the one who signed the lease and lives there with two sons. She had authority to consent to a search of the apartment.
of Mrs. Utley. Police came with an arrest warrant for Mrs. Utleys husband, who was not home. Police asked for consent to search, which she gave. Police spotted defendant and arrested him. Police saw jacket and asked Mrs. Utley for permission to seize it. She said it wasnt hers, so they could seize it. Stolen money orders were found in the jacket. HELD: Owner could give consent for search of home, including guests jacket, since she had use and control of the area where the jacket was found. painting could consent to police officers search of defendants duffel bag which was located in the basement. Defendant assumed risk that owner might permit inspection of her home.
5) Ordinarily a Guest May Not Consent to a Search of the Hosts Premises. The Result will Depend Upon the Amount of Authority the Guest has been Given.
U.S. v. Turbyfill, 525 F.2d 57 (8th Cir. 1975). Guest was more than a casual visitor and
6) There is a Rebuttable Presumption that One Spouse May Consent to a Search of any Area of a Home Where the Married Couple Lives. A Spouse May Consent to a Search of Jointly Occupied Areas Into Which the Person Consenting is not Allowed, if any.
had run of the house consent was merely for police to enter into common area where visitors would normally be received. Thus, this limited consent was valid.
U.S. v. Duran, 957 F.2d 499 (7th Cir. 1992). Separate building on a farm was used by U.S. v. Brannon, 898 F.2d 107 (9th Cir. 1990). Where wife had moved out of her home,
husband as a gym. Wife consented to search of it. Her testimony that she could have entered the gym at any time established the requisite access.
charging husband with spousal abuse and husband changed the locks, the wife, who was still an owner of the home and who still had many possessions in the home, still had actual authority to consent to a search of the house.
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7) Consent is Implied to Enter Areas Where a Business Normally Holds Itself Open to the Public.
8) Landlord May Not Consent to Search of Tenants Apartment in Spite of his Authority Under Lease to Enter to Inspect or Repair.
9) Motel Clerk May Not Consent to Search of Guests Room Before Guest has Checked Out or Abandoned it.
People v. Sedrel, 540 N.E.2d 792 (Ill. App. 1989). Defendant was 3 days late paying rent so landlord entered to see if defendant still resided there and saw drugs and weighing scales. Did not seize them, but informed police and gave them permission to enter, which they did without a warrant. Since the lease was still pending, and the grace period had not yet run, it was not yet to the point where the defendant had abandoned his expectation of privacy. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); State v. Brasel, 538 S.W.2d 325 (Mo. banc. 1976). Abel v. U.S., 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). State v. Mitchell, 20 S.W.3d 546 (Mo. App. W.D. 2000) (or after checkout time had
Chapman v. U.S., 365 U.S. 610, 815 S.Ct. 776, 5 L.Ed.2d 828 (1961). Landlord was suspicious that his tenant was operating a still and gave police permission to break a window and enter through a window. HELD: Invalid search.
10) Motel May Permit Search of Room After Departure of guest.
11) Minor child living at home the scope of the minor childs authority to consent should be determined by looking at two factors of particular importance: (1) The age of the child; and (2) The scope of the consent given.
expired).
The age is important because, as children grow older, they gradually acquire discretion to admit whom they will upon their own authority, and thus it is important to examine a childs mental maturity, his ability to understand the circumstances in which he is placed, and the consequences of his actions. Annot. 99 A.L.R. 3d 598 (1980); LaFave, Vol. III at 773. babysit can consent to search.
People v. Holmes, 536 N.E.2d 1005 (Ill. App. 1989). An 11-year old often left alone to
12) Child, minor or otherwise, driving parents car may consent to search. 13) A driver who has borrowed the car he is driving.
State v. Griffin, 756 S.W.2d 475 (Mo. 1988). A 13-year old could consent to police entry of common areas of house for purpose of speaking to her mother.
14) The owner of the vehicle in which non-owner passengers are riding over the objections of the passenger, but his would not extend to closed containers belonging to passenger.
15) Consent by one co-tenant is not valid in the face of the refusal of another physically present co-tenant.
Georgia v. Randolph, 126 S.Ct. 1515 (2006). The wife called 911 for a domestic dispute and officers responded to the home she shared with defendant. She ratted him out as a cocaine user and divulged that items of drug evidence were in the house. She consented to a search but the defendant showed up and specifically refused to consent. Based on her consent, an officer went with her inside the house to a bedroom and retrieved a drinking straw with cocaine residue. When he left the house for an evidence bag the wife withdrew her consent. Based upon what he had already found, he obtained a search warrant. The issue was whether police can go ahead with a search of a house based on the consent of one co-tenant when the other co-tenant is present and specifically denying consent. HELD: A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of
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consent given to the police by another resident. Particularly interesting is the fine line the Court draws between the specifically-objecting co-tenant and a co-tenant who was not asked for his input. The second loose end is the significance of Matlock and Rodriguez after todays decision. Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguez defendant was actually asleep in the apartment, and the police might have roused him with a knock on the door before they entered with only the consent of an apparent co-tenant. If those cases are not to be undercut by todays holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenants permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. This is the line we draw, and we think the formalism is justified.
State v. Oliver, ___ S.W.3d ___ (Mo. App. S.D. 12/16/2008).
16) Apparent Authority Doctrine Increasingly relied upon by lower courts in recent years in upholding 3rd party consent searches.
Police were investigating reports that defendant had taken photos of naked children, including his own. They went to his house and asked for permission to look at images in his digital camera and computer. He refused. After he left, his wife gave consent for the police to seize his camera and computer. They got a search warrant to look at the images. HELD: Georgia v. Roberts is limited to physically present tenants. Once the husband left, the wife was free to give consent.
Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Police were called to the home of Dorothy Jackson, the mother of Gail Fischer. Fischer was the girlfriend of defendant, who had just beat her up. She said defendant beat her at defendants apartment, which she referred to repeatedly as our apartment. She showed signs of a severe beating. She said defendant was back in the apartment asleep and she consented to travel with police back to the apartment to let them in with her key. The police believed she was still living in the apartment with the defendant. They entered after she unlocked it. They found the defendant asleep and arrested him. They also found cocaine and drug paraphernalia in plain view and he was charged with the drug possession. Fischer later testified for the defense that she had moved out of the apartment a month before the assault, had just been a visitor at the time of the assault, and had taken the key without defendants knowledge. HELD: A warrantless search based upon a third partys consent is valid if the police reasonably believed the third party had common authority over the premises at the time of the consent, even if it later turns out she did not. State v. Moore, 972 S.W.2d 658 (Mo. App. S.D. 1998). Police obtained consent to search
the house from someone they had seen at the house before, whom they reasonably believed lived there.
State v. Lewis, 17 S.W.3d 168 (Mo. App. E.D. 2000). Police got consent from a woman who answered the door and said she was defendants wife and that she lived at the residence.
8. Inventory Searches.
An inventory search is the thorough search performed upon property and persons taken into custody. It is justified not on the basis of probable cause, but on the basis that it is a reasonable administrative task, useful in safeguarding property, the police, and jail security. Typical example: Defendant is arrested while in his car, and has no one with him to take his car home. Police may seize the car, rather than leave it on the side of road. The car is inventoried to protect the owner and the police from any claim they took or lost something. Also can occur if the car is seized as evidence or as a forfeiture. In this day and age it is malpractice for any department not to have a fixed written policy on seizing and inventorying vehicles and contents. The written policy should also specifically address the
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closed container issue.
South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). A car
Cady v. Dombrowski, 479 U.S. 367, 93 S.Ct. 739, 37 L.Ed.2d 706 (1973). An off duty Chicago police officer was arrested for DWI in Wisconsin after a traffic accident. The Wisconsin police, by standard procedure, went to the place where his wrecked vehicle had been towed to inventory it for the police officers service revolver, to protect the public. They found bloody police trousers with defendants name, Dombrowski, on them, bloody towels, and other bloody objects. A body was later found on defendants brothers farm. Defendant was convicted of murder. This inventory search is held to be reasonable. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Routine inventory
search of closed containers in impounded vehicles approved. The key is to have a routine policy that is followed in all seizures of cars. The police department in Bertine would always seize cars of persons taken into custody from a vehicle. This was a DWI arrest. Drugs were found in backpack and sealed containers.
was impounded by police for parking violations, pursuant to standard department policy. A police officer saw a watch on the dashboard and other personal property in the backseat. Using a standard inventory form and practices, the officer inventoried the car and found marijuana in the closed glove compartment. Defendant was convicted of misdemeanor possession of marijuana. Inventory searches are reasonable because: (1) They protect the owners property while it is in police custody; (2) They protect the police from claims or disputes over lost or stolen property; and (3) They protect the police form potential danger.
Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). A police department must have a set policy concerning opening of closed containers encountered in an inventory search in order for evidence discovered therein to be admissible. A Highway Patrolman had stopped defendant for speeding, smelled alcohol on defendants breath and arrested him for DWI. The officer impounded the car and inventoried it, including opening a locked suitcase in the trunk, which contained marijuana. The conviction was reversed since the Highway Patrol had no policy governing searches of closed containers in an inventory. State v. Jones, 865 S.W.2d 658 (Mo. banc. 1993).
State v. Meza, 941 S.W.2d 779 (Mo. App. W.D. 1997). Police officer stopped defendant for a
An officer stopped defendant for his headlight being out. He noticed the inspection sticker was expired, the renewal stickers did not match, and the plates were expired and in someone elses name. The trooper decided to arrest defendant on the traffic charge. By MSHP written policy, when a lone driver is arrested on a traffic offense, his car will be inventoried before being towed. During the inventory, the trooper found a loaded gun in the trunk. Defendant was charged with being a convicted felon in possession of a handgun. HELD: The inventory procedures were in writing and were followed in good faith. Evidence is admissible.
A. Inventory of Drunk Person Taken Into Protective Custody.
traffic violation, smelled marijuana, administered some field sobriety tests (which defendant passed), and asked about the marijuana odor, but defendant said he had nothing to say. The officer asked defendant to sign the traffic ticket, but defendant would not respond. The officer arrested defendant for C&I, then inventoried vehicle, finding marijuana. HELD: As long as the officer could validly arrest defendant for C&I, it was okay to do the arrest and inventory the car. The fact the officer also had an investigatory motive does not make the inventory search invalid.
State v. Friend, 711 S.W.2d 508 (Mo. banc. 1986). Inventory of defendants person after he
B. Purses, Shoulder Bags And Other Items Coming Into Police Custody May Also Be Inventoried Pursuant To Established Department Policies.
had been picked up on a 12-hour hold for being intoxicated in public under Section 67.315, RSMo. was valid and evidence admissible.
Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Defendant was arrested for disturbing the peace for a loud argument with a theater manager. He was taken to
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the police station. At the station, police inventoried his purse-type shoulder bag and found 10 amphetamine pills inside it. HELD: The personal effects including any container or article in his possession of an arrested person may be searched and inventoried as a part of the routine administrative procedure at a police station incident to booking and jailing the suspect. Under the 4th Amendment balancing test, the intrusion on the individual is outweighed by the promotion of legitimate governmental interests involved. at the airport. When he discovered his mistake, he called the police department and an officer came to pick it up. The boy had already opened the suitcase and had found a gun in it. The police officer seized the suitcase and inventoried it so he might protect all persons concerned from claims of theft and from dangerous instrumentalities. Drugs were also found. HELD: It was reasonable for the police to do a full inventory on contents of a suitcase coming into their custody under these facts.
U.S. v. Rabenberg, 766 F.2d 355 (8th Cir. 1985). Suitcase was mistakenly picked up by a boy
9. Inevitable Discovery/Independent Source Doctrine.
If evidence is found as a result of a violation of a suspects rights, it may still be admissible if the State can show that the evidence was found or would inevitably have been found, anyway, through a source independent of the violation of defendants rights.
Murray v. U.S., 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Independent Source or Inevitable Discovery rule reaffirmed. The 4th Amendment does not require suppression of evidence observed in plain view during a warrantless search of a building, which was later seized pursuant to a later search warrant validly issued, if the obtaining of the warrant was wholly independent of the prior illegal search. FACTS: Agents had probable cause to believe the defendant had marijuana in a warehouse. Defendant left the warehouse and agents moved in and searched it without a warrant. They found 270 bales of marijuana. They left but kept it under surveillance while other officers got a search warrant. The affidavit for the search warrant mentions the facts showing the original probable cause, without mentioning the warrantless entry. HELD: The search warrant was valid and the evidence was admissible. Sufficient proof existed that the agents would have gotten the search warrant anyway, even without the warrantless entry. State v. Butler, 676 S.W.2d 809 (Mo. banc. 1984). Any half-decent investigation would have discovered the bullet holes in the bedclothes, even absent the confession, thus confession is admissible. Cites Nix v. Williams.
Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Police find body of a murdered girl pursuant to defendants illegally obtained confession. But at the time he confessed, the police were already combing the fields where the body was hidden. They had dozens of men walking the fields in a grid pattern, sure to cover the whole area. They ultimately would have found the body, even without the confession. HELD: The evidence of the location of body and evidence concerning it were admissible, even though the confession was not.
State v. Byrne, 595 S.W.2d 301 (Mo. App. E.D. 1980). Defendant robbed a jewelry store and
Defendant was convicted of murder for beating her 5-year-old stepdaughter to death with a wooden stake. The stake was seized from defendants home after consent to search from a 3rd party. The 3rd party consent was probably invalid since it came from an adult son of defendant who did not live with defendant. HELD: The inevitable discovery rule applies since the medical evidence known to police was that victim had died of some sort of multiple blunt trauma to head and it was their obligation to look for the
exchanged gunfire with police, then fled. Defendant ran to the home of an elderly lady and had her call an ambulance. The police came to the door and had the lady come outside. They confirmed that the suspect was inside, wounded and armed. The police went in and found him in the kitchen. They asked him where the gun was and he said it was under the cookie dish. HELD: It was inevitable that the gun would have been found, anyway, even if a Miranda violation had not occurred. NOTE: In light of New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), this was not a Miranda violation, after all.
State v. Hicks, 722 S.W.2d 650 (Mo. App. S.D. 1987).
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murder weapon and it was inevitable that absent the consent they would have done a search warrant to search the murder scene for the weapon. Exclusion of vital physical evidence that would have inevitably been discovered perverts the judicial process and inflicts a totally unacceptable burden on the administration of criminal justice.
U.S. v. Mancera-Londono, 912 F.2d 373 (9th Cir. 1990). Inevitable discovery often comes up in
State v. Milliorn, 794 S.W.2d 181 (Mo. banc. 1990). The inevitable discovery rule can save the fruit of an improper search when a department has routine inventory procedures in place. The Missouri Supreme Court stressed four factors: (1) The vehicle must be legally impounded; (2) The inventory search must be motivated by a police desire to prevent false claims of lost property or to safeguard the impounded property; (3) The inventory must be according to a routine, standardized procedure; and (4) The inventory search must be inevitable, meaning that the search would be performed in any similar situation. In this case, a trooper pulled over a pickup with camper shell for speeding. The driver did not have a valid license. The pickup was owned by someone else. The license plate on the truck went to a different vehicle. The trooper arrested defendant for driving without a license. A pat-down revealed an unmarked bottle with various controlled drugs. The trooper searched the cab and found nothing. The trooper claimed, but was disbelieved by the judge, that he smelled marijuana coming from the camper, so he searched the camper. HELD: No probable cause existed for the search of the camper (since the judge did not believe the trooper about being able to smell the marijuana) and the State offered no evidence that it was inevitable that once this truck was impounded it would have been inventoried. Once again, the department must have a set procedure for inventory searches and the prosecutor must put it into evidence.
TO INSURE AN INVENTORY SEARCH WILL BE UPHELD, THE POLICIES OF THE SEARCHING AGENCY SHOULD BE IN WRITTEN FORM AND THE INVENTORY SHEET SHOULD BE STANDARDIZED. PROSECUTORS SHOULD ALWAYS BE PREPARED TO OFFER THE NECESSARY TESTIMONY IF THIS MIGHT BE A BACK-UP THEORY OF ADMISSIBILITY.
the context of car inventory searches. In this case, an illegal warrantless search (lack of probable cause since an anonymous drug tip had not been sufficiently corroborated) of a car by DEA agents yielded evidence (150 kilos of cocaine) that would ordinarily have been suppressed. It was ruled admissible in spite of the improper search, though, since it would have been found anyway through the valid inventory of the car. The testimony was that DEA agents have a policy in force where they always conduct a routine inventory of rental cars coming into their possession before they turn them over to the rental agency. It was a standard practice following a written policy.
FURTHER, THESE POLICIES SHOULD ALSO EXTEND TO ANY CLOSED CONTAINERS FOUND IN SEIZED VEHICLES.
10. Administrative Inspections & Regulatory Searches.
Many searches may be upheld even without the usual requirements of a warrant or probable cause because they are particular types of administrative inspections or regulatory searches, as opposed to criminal investigations.
A. Inspection of Housing - Absent consent, a warrant is needed, but probable cause does not depend upon specific proof of violations.
Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
An inspector for the Division of Housing in San Francisco entered an apartment building to make a routine annual inspection for possible housing code violations. The building manager informed him that the tenant on the ground floor, Ronald Camara, was using the rear part of the building as a personal residence. Since this would violate the existing permit of occupancy, the inspector confronted Camara and demanded to be allowed to inspect the premises. Camara refused, and was charged with the crime of refusing to permit a lawful inspection in violation of the code. Camara claimed the code was unconstitutional since it allowed for a search of his
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B. Inspections of Businesses: Closely Regulated Industries Exception:
premises without probable cause or a search warrant. HELD: It was unconstitutional to allow the search without a warrant. Once a person like Camara refuses consent to a search, the 4th Amendment requires that a warrant be obtained. However, the probable cause needed to justify the issuance of such a warrant does not depend upon specific proof or knowledge that this particular person is violating any law, but may be based instead upon the passage of time, the nature of the building, or the condition of the area. In reaching this decision that a lower level of proof was needed for a warrant in this context, the court balanced the need to search against the invasion the search entails. The conclusion was that the need for compliance with housing safety regulations was high, while the particular invasion of a persons privacy by this type of inspection (which can often be done by appointment) is small. Certain industries have such a history of governmental involvement that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. Many types of businesses are routinely inspected to ensure compliance with fire, health and safety regulations. Also, particular businesses are subject to inspections of their business records or materials.
For the most part, these inspections are intended to ensure compliance with particular statutes and administrative regulations intended to protect the public, customers of the businesses, or employees of the businesses.
Some examples include taverns, liquor stores, pawn shops, auto repair shops, junk dealers, firearms dealers, pharmacies, hospitals, funeral parlors, massage parlors, race tracks, coal mines, gambling operations, and producers and distributors of food products.
New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Holds that a
C. Searches of Prisoners.
warrantless search of an automobile junk yard pursuant to a statute authorizing such inspections fell within the exception to the warrant requirement for administrative inspections of pervasively regulated industries.
Persons incarcerated in jails or prisons have very little, if any, expectation of privacy against searches of their cells, personal effects, persons, or even monitoring of their conversations, communications or mail.
State v. Johnson, 456 S.W.2d 1 (Mo. 1970), appeal after remand, 476 S.W.2d 516 (1972). Interception and examination of mail of inmates is permitted, and does not violate the 4th Amendment.
F.2d 22 (4th Cir. 1984). A prison inmate brought a 1983 civil rights suit against a prison guard claiming that he had violated the 4th Amendment by conducting a shakedown search of his cell and destroying his property for purposes of harassment. The Court said: The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. We strike the balance in favor of institutional security, which we have noted is central to all other correctional goals. A right of privacy in traditional 4th Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that loss of freedom of choice and privacy are inherent incidents of confinement.
Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), on remand, 744
Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). Inmate of a New York jail was visited by his brother, and their conversation was electronically intercepted and recorded by jail officials. HELD: No 4th Amendment violation occurred. [T]o say that a public
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jail is the equivalent of a mans house or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the court has been far from niggardly in construing the physical scope of the 4th Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the 4th Amendment, may become a persons house, and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of 4th Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office or a hotel room. In prison, official surveillance has traditionally been the order of the day.
State v. Lucero, 96 N.M. 126, 628 P.2d 696 (App. 1981).

BUT SEE:
Three men were arrested and placed in a police car. The officer secretly turned on a tape recorder and left to inventory their car. HELD: They had no reasonable expectation of privacy in a police vehicle.
Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
D. Searches of Parolees Without Probable Cause
NOTE: Even if eavesdropping on an inmates conversations does not violate the 4th Amendment, it may violate the 6th Amendment right to counsel if the person to whom he is talking is his attorney. People v. Haarfmann, 38 Colo. App. 19, 555 P.2d 187 (1976) (looking in room where inmate and attorney were meeting was an impermissible intrusion into an attorney-client consultation); State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963) (bugging attorney-client conference in jail violated defendants right to counsel). Parolees have a reduced expectation of privacy and may be searched by police or parole officers even without reasonable suspicion or warrant.
Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a retraction justified by the considerations underlying our penal system. But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protection when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.
Samson v. California, 126 S. Ct. 2193 (2006). Defendant was on parole in California for being
E. School Searches.
a felon in possession of a firearm. California law provides that every prisoner released on state parole shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause. A police officer recognized defendant walking down the street and stopped him. Based solely on his status as a parolee he searched him. The officer found a cigarette box in defendants pocket. Inside the box he found methamphetamine. HELD: Prisoners on parole do not enjoy the absolute liberty to which every citizen is entitled. They have a reduced expectation of privacy. But for the fact they got out of prison early, they would still be behind bars serving their sentences, perhaps even in solitary confinement. Parole is an established variation of imprisonment of convicted criminals. The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence. The privacy interest here is reduced and the government interest in integrating prisoners back into the community while preventing them from continuing to violate the law is great. This search passes the reasonableness test of the Fourth Amendment.
Searches of students divide mostly into two groups: Searches of dormitory rooms of college students or searches of the lockers, effects or persons of elementary or secondary students. Because of the high expectation of privacy in a dorm room, and the intrusiveness of a search for illegal items, it is a safer practice for police to get a search warrant.
Children in schools, though, have a lesser expectation of privacy, and thus the 4th Amendment
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New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). School authorities caught a 14-year-old smoking in the bathroom in violation of school rules and took her to principals office. She denied smoking. They searched her purse and found cigarettes, as well as marijuana and rolling papers. HELD: Search warrants and probable cause are not required for school officials to search students. Rather, the 4th Amendment test is reasonableness under all the circumstances. The school search must be both (1) justified at its inception; and (2) reasonably related in its scope to the circumstances justifying it in the first place. Usually, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. This search was reasonable and thus not a violation of the 4th Amendment. Veronia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). School districts policy authorizing random drug urinalysis testing of student athletes does not violate the 4th Amendment. Seventh-grader had signed up for football but was denied participation because he and his parents refused to sign the testing consent forms.
balancing test allows searches of them upon just reasonable suspicion.
In re Gregory M., 82 N.Y.2d 588, 606 N.Y.S.2d 579, 627 N.E.2d 500, 31 A.L.R.5th 829 (1993). Student (age 15) arrived at school without proper ID card and was sent to deans office to get new card. School policy required the student to leave his bookbag with the security officer until he got a new card. When he tossed the bag onto a shelf it made a metallic thud, which caused the security officer to run his fingers over the outer surface of the bookbag, where he felt the outline of a gun, causing the dean to ultimately open the bag and find a .38 caliber handgun. HELD: The balancing test of the 4th Amendment clearly comes out in favor of this search being reasonable. The intrusion on the child was minimal; the prevention of guns coming into schools is a governmental interest of the highest urgency. The childs diminished expectation of privacy was clearly outweighed by the governmental interest.
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Part Four - Suppression Hearings

I. Section 542.296 RSMo. Motions to Suppress
1. A person aggrieved by an unlawful seizure may file a motion to suppress the evidence. Section 542.296, RSMo. governs suppression hearings. 2. Motion must be in writing, with notice to the prosecutor and filed in the court in which there is a pending criminal prosecution arising out of the subject matter of the seizure.
However, a motion can be filed just before the jury is sworn for voir dire. An oral motion is not a formal motion to suppress and preserves nothing for appellate review. State v. Hardiman, 943 S.W.2d 348 (Mo. App. 1997).
3. The motion is to be taken up before trial out of the presence of the jury, in open court, on the record, with defendant and attorney present.
NOTE: Unlike Missouri, federal courts and most states hold that motions to suppress may not be filed prior to preliminary hearing, and the judge at a preliminary hearing may consider evidence offered by the prosecution without regard to whether that evidence was obtained by an illegal search.
The trial court must rule upon pretrial motion to suppress and may not defer the ruling until a later time like it could with a motion in limine. State v. Dwyer, 847 S.W.2d 102 (Mo. App. 1992). The trial court will not ordinarily pause mid-trial to have an evidentiary hearing about the way in which an item of evidence was obtained; if a pre-trial motion to suppress was not filed to exclude illegally obtained evidence, the objection is waived. State v. Dwyer, 847 S.W.2d 102 (Mo. App. 1992).
4. The motion to suppress may be based upon any one of the following grounds:
However, at the trial courts discretion the court may entertain a motion to suppress at any time during trial. Rule 24.05. A. That the search and seizure were made without warrant and without lawful authority;
F. That the warrant was improper upon its face or was illegally issued, including the issuance of a warrant without a proper showing of probable cause; G. That the property seized was not that described in the warrant and that the officer was not otherwise lawfully privileged to seize the same; H. That the warrant was illegally executed by the officer;
I. That in any other manner the search and seizure violated the rights of the movant under the Missouri Constitution, Art. I, Sec. 15, or the 4th or 14th Amendments of the U.S. Constitution.
II. Other Provisions Governing Motions to Suppress

1. The States Burdens
A. The burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled. Section 542.296, RSMo. But proof beyond a reasonable doubt is not required. State v. Sanders, 16 S.W.3d 349 (Mo. App. W.D. 2000). B. When a search was based upon a search warrant, the court gives great deference to the initial judicial determination of probable cause made at the time of the issuance of the warrant. State v Bowen, 927 S.W.2d 463 (Mo. App. 1996); State v. Berry, 801 S.W.2d 64 (Mo. banc. 1990). Thus, in warrant cases, the States burden is usually met simply by showing that the search was by warrant. U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The judicial determination of probable cause made by the judge issuing the warrant will be overruled only if clearly erroneous. State v. Rush, 160 S.W.3d 844 (Mo. App. S.D. 2005).
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C. In warrantless search cases, the burden is on the State to justify a warrantless search and to demonstrate that such falls within an exception to the warrant requirement. State v. Burkhardt, 795 S.W.2d 399 (Mo. banc. 1990). D. Although it is the States burden motion should be overruled, it is search and seizure by showing Burkhardt, supra; State v. Baker, S.W.2d 935 (Mo. App. 1992). to show by preponderance the defendants burden to his own 4th Amendment 632 S.W.2d 52 (Mo. App.
of evidence that a suppression establish standing to challenge rights were violated. State v. 1982); State v. Childress, 828
2. Testimony During a Hearing on a Motion to Suppress
A. When a defendant testifies at his motion to suppress evidentiary hearing, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). His testimony from the suppression hearing may, however, be used to impeach his testimony at trial. People v. Sturgis, 58 Ill.2d 211, 317 N.E.2d 545 (1974).
3. Trial Court Rulings on Motions to Suppress
B. When multiple officers are working together, the 4th Amendment test of reasonable suspicion or probable cause is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion. State v. Hernandez, 954 S.W.2d 639, 642 (Mo. App. W.D. 1997). Officers were making a Terry stop of defendant and he ran. Although the officer who tackled him might not, on his own knowledge, have had reasonable suspicion for the stop, the court should look at the facts known by all of the officers in determining whether reasonable suspicion existed. HELD: When multiple police officers are working together closely in order to effect an arrest or engage in an investigatory stop, the 4th Amendment is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion. A. The ruling on a pretrial motion to suppress is interlocutory only and additional evidence produced at trial may prompt the trial court to alter its pretrial ruling. State v. Howell, 524 S.W.2d 11 (Mo. banc. 1975); State v. Trimble, 654 S.W.2d 245 (Mo. App. 1983).
B. Since a motion to suppress ruling is interlocutory, even if one judge has ruled that the evidence should be suppressed, the issue can be taken up again in front of a different judge and it is incumbent on the second judge to hear evidence and make a ruling without relying on what had been done in the first proceeding; there is no collateral estoppel even if the prosecutor dismisses and refiles after an adverse ruling on a motion to suppress, as long as the first ruling was made prior to jeopardy attaching (jury being sworn). State v. Pippenger, 741 S.W.2d 710 (Mo. App. W.D. 1987); State v. Keightly, 147 S.W.3d 179 (Mo. App. S.D. 2004).
C. When a motion to suppress is overruled, the defendant must make specific objections to admission of evidence when it is offered at trial or he has not preserved the issue for appeal and it will be reviewed only for plain error. State v. Matney, 721 S.W.2d 189 (Mo. App. 1986). D. No jury instruction is given regarding the validity of the consent.
4. Appeals by the State
State v. Sullivan, 49 S.W.3d 800 (Mo. App. W.D. 2001). The defense wanted to give a jury instruction for the jury to determine whether defendants consent to a search had been voluntary. It was patterned after the instruction that deals with voluntariness of a confession, MAI-CR 3d 310.06. HELD: Voluntariness of a confession is to be determined by the court, not the jury. It would have been improper to give such an instruction.
A. The prosecution may appeal an adverse ruling on a motion to suppress, causing the trial to be postponed pending the appellate court ruling. Section 547.200.2(2), RSMo. The appeal must be filed within 5 days.
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B. If a motion in limine has effect of being a motion to suppress it may be appealed by State. Difference is that a motion in limine excludes evidence on some rule of evidence whereas a motion to suppress excludes it because it was illegally obtained. State v. Swope, 939 S.W.2d 491 (Mo. App. 1997) (limine ruling that hearsay statements of child do not meet indicia of reliability threshold); State v. Dwyer, 847 S.W.2d 102 (Mo. App. 1992) (limine ruling on admissibility of evidence in a murder trial of a prior uncharged assault is not appealable); State v. Foster, 959 S.W.2d 143 (Mo. App. S.D. 1998) (legal character of a pleading is determined by its subject matter and not its title thus, a limine motion that sought to exclude evidence because it was illegally obtained was really an appealable motion to suppress instead of an unappealable motion in limine). C. When the appellate court rules that a motion to suppress should have been granted, the case should be remanded for the state to either proceed to trial without the evidence or to conduct a new suppression hearing with additional evidence. State v. Davis, 985 S.W.2d 876 (Mo. App. E.D. 1998).
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1.
Criminal Trials
Part Five - Applicability of Exclusionary Rule
When the defendant in a criminal case has shown that the evidence against him was obtained through an illegal search or seizure, the exclusionary rule generally requires that such evidence be suppressed.
The exclusionary rule applies not only to items obtained by the illegal search, but also to any derivative evidence which is discovered based upon the knowledge gained by the police through the illegal police conduct. This derivative evidence has been called the fruit of the poisonous tree. As seen, the exclusionary rule wont keep the evidence out if the good faith exception applies, the inevitable discovery exception applies, or the evidence is saved by some other exception.
2. Probation Violation Hearings/Parole Hearings
Missouri appellate courts have not yet addressed the issue of whether the exclusionary rule applies to probation violation hearings and there is a split of authority in other jurisdictions.
Pennsylvania Board of Probation v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344
Holds that the exclusionary rule does not apply to probation violation hearings and that evidence illegally seized is admissible at those hearings. The opinion says the vast majority of jurisdictions, if not all of reported cases, view it this way.
U.S. v. Frederickson, 581 F.2d 711 (8th Cir. 1978).
(1998). Court refused to extend the exclusionary rule to bar illegally seized evidence at parole revocation hearing.
U.S. v. Workman, 585 F.2d 1205 (4th Cir. 1978).
Court decided that exclusionary rule should apply to probation violation hearings since a violation of probation has approximately the same result and the same potential for injury as the regular criminal trial itself.
3. Civil Trials As a general rule, evidence illegally obtained by governmental agencies may be used in private litigation.
Honeycutt v. Aetna Insurance Co., 510 F.2d 340 (7th Cir. 1975).
Evidence suppressed in a criminal arson trial because it was illegally obtained is still admissible in the civil suit. Same result: Kassner v. Fremont Mut. Ins. Co., 47 Mich. App. 264, 209 N.W.2d 490 (1973).
John Wesley Hall, Jr. Search & Seizure, Section 5.61
Tirado v. C.I.R., 689 F.2d 307 (2nd Cir. 1982). Narcotics agents violated the law in seizing illegal
What if one of the parties in the civil suit is the same governmental body that violated the defendants rights in the first place? This can come up in forfeiture actions. FORFEITURE ACTION:
drugs and thus the evidence was suppressed in the criminal case, but the evidence was not barred by the exclusionary rule in subsequent civil litigation.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170
(1965). Officers seized evidence in violation of the 4th Amendment so it was suppressed in the criminal trial, but the State still tried to offer it at a forfeiture proceeding of the car used to transport the illegal alcohol. HELD: The exclusionary rule does apply since the forfeiture action was a quasi-criminal proceeding, with the object being to penalize the defendant. Thus, the general rule that the exclusionary rule does not apply to civil proceedings has an exception as to forfeiture cases.
What if one party is a governmental body, but not the same governmental body that had violated the law? The exclusionary rule will not apply as long as it is not the same sovereign.
U.S. v. Janis, 428 U.S. 433 (1976).
State police in Los Angeles had executed a search
Part Five Applicability of Exclusionary Rule
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warrant for bookmaking paraphernalia at defendants premises and collected evidence of bookmaking, plus $4,940 in cash. Criminal charges were filed and a motion to suppress was sustained on due to invalidity of the search warrant. The criminal prosecution ended. Meanwhile, the IRS had calculated the tax owed by defendant and filed a levy on the $4,940 in cash. Defendant filed suit to recover the money from the IRS. In the civil suit, the defendant moved to suppress the evidence on the ground it had been illegally seized. HELD: The exclusionary rule would not be extended to cover this situation. The evidence would be admissible in the civil case because the local law enforcement officials had already been punished by the exclusion of the evidence in the state criminal trial, so the purpose of the exclusionary rule had been accomplished. It was significant that a different sovereign had committed the constitutional violation, so any deterrent effect on the IRS would have been marginal.
Ritchie v. Director of Revenue, 987 S.W.2d 331 (Mo. banc. 1999).
Court holds that exclusionary rule does not apply to civil drivers license suspension and revocation cases. Thus, the fact that the officer did not have probable cause or reasonable suspicion to stop the motorists vehicle is irrelevant in the administrative suspension case for driving with a blood alcohol level over .10.
4. Grand Jury Proceedings
NOTE: Even though as a matter of Constitutional law the exclusionary rule does not apply to a grand jury proceeding, it could be argued that because of the wording of Section 542.296, RSMo, it might apply in Missouri since the word investigation is used.
Defendant was being investigated by a grand jury. He was a suspected loanshark. Part of the evidence included records seized pursuant to a search warrant. The grand jury subpoenaed the defendant, who took the 5th. He also filed a motion to suppress any evidence collected via the warrant. The trial court found that the search warrant lacked probable cause and that the evidence seized exceeded the scope of the warrant, so the evidence should not be admitted before the grand jury. HELD: Reversed. The exclusionary rule simply does not apply to grand jury proceedings.
U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
5. Impeachment of Defendants Testimony
The short answer now is that when a motion to suppress is granted and evidence has been excluded, the defendant who takes the stand risks opening the door to being cross-examined about that evidence, and the defendant risks opening the door by the things he says in his direct examination and by the things he says in his answers to any cross-examination questions within the scope of his direct examination. The status of the law now in the words of Justice William Brennan is that in practical terms even the moderately talented prosecutor will be able to work in evidence that has been suppressed via cross-examination.
The use of suppressed evidence to impeach a defendants testimony, as opposed to its use to prove the case against the defendant in the States case-in-chief, has been the subject of vigorous debate in the U.S. Supreme Court, producing a chain of four cases that might be characterized as a topsy-turvy roller-coaster ride, with the final result being that the U.S. Supreme Court flip-flopped in 1980 from its initial position in 1925.
U.S. v. Havens, 446 U.S. 620, 100 S.Ct. 1512, 64 L.Ed.2d 559 (1980). Defendant, a lawyer, and his accomplice were from Indiana and were smuggling cocaine from Peru into the U.S. by sewing extra pockets inside the shirt the accomplice was wearing under his suit and packing them with cocaine. The only thing the defendant was carrying connecting him to the crime was a suitcase containing a T-shirt from which the pocket had been cut that had been sewn into the clothing of the accomplice. The accomplice had been caught going through customs and a legal search had found the cocaine on him. An illegal search had found the incriminating T-shirt in defendants suitcase. The motion to suppress the T-shirt was granted. The State was proceeding
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only with the testimony of the accomplice in the case-in-chief, who said defendant had acted with him and had actually sewn the pockets into the clothing. Excerpts from the direct and cross: DIRECT Q: And you heard accomplice say this material was draped around his body? Q: Did you ever engage in that kind of activity with [accomplice]?
A: Yes, I did. A: No.
CROSS
A: I said I had nothing to do with [accomplice] in connection with this cocaine matter.
Q: In direct, you said you had nothing to do with the wrapping of any material under [accomplices] clothes? Q: And your testimony is that you had nothing to do with the sewing of the cotton swatches to make pockets on that T-shirt? A: Absolutely not. Q: Sir, when you came through customs, didnt you have in your suitcase some size-40 medium T-shirts? A: Not to my knowledge. [Objection, which is overruled]
Q: Was this T-shirt in your luggage that day? Prosecutor was then allowed to call the customs agent in rebuttal who had found that T-shirt with the missing pieces of cloth in defendants bag. HELD: The cross was proper and the admission of the T-shirt into evidence in rebuttal was also proper. It is one thing to say that the government cannot make affirmative use of evidence unlawfully obtained; it is quite another thing to say that the defendant can turn the illegal method by which evidence was obtained to his own advantage and provide himself with a shield against contradictions of his untruths. Such extension of the exclusionary rule would be a perversion of the 4th Amendment. We hold that a defendants statements made in response to proper cross-examination, reasonably suggested by the defendants direct examination, are subject to otherwise proper impeachment by the government, even by evidence improperly obtained that was inadmissible in the case-in-chief. A: Not to my knowledge, no.
[Exhibit #9 handed to Defendant]
Walder v. U.S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed.2d 503 (1954). Defendant was being prosecuted for four counts of selling drugs in 1952. He had a prior case from 1950 where he had been charged with selling heroin but a motion to suppress had been granted and the case had been dismissed. Defendant took the stand and denied all four counts of selling the drugs to the Confidential Informant and in his direct exam was asked, Now, Mr. Walder, tell the jury whether you have ever sold narcotics to anyone. Defendant said, I have never sold narcotics to anyone in my life. Defendants lawyer then asked, Have you ever had any narcotics in your possession?
Agnello v. U.S., 269 U.S. 20, 465 S.Ct. 4, 70 L.Ed.2d 145 (1925). Defendant was charged with conspiracy to sell cocaine. Police searched his home and found a can of cocaine. It was suppressed, however, and was not admitted in the case-in-chief. Defendant took the stand and testified in direct that he did not know that the packages he had received from a co-defendant contained cocaine. On cross, the prosecutor asked whether defendant had ever seen cocaine. Defendant claimed he had not. Over objection, the prosecutor produced the can of cocaine seized from defendants bedroom and asked if he had ever seen it. Defendant said he had not and denied ever seeing it in his home. In rebuttal, over objection, the prosecutor was permitted to put on evidence about the search and seizure of the can of cocaine from defendants bedroom. HELD: Conviction reversed. The evidence should not have been used because the defendant, in his direct exam had done nothing to waive the exclusionary rule.
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Defendant said no. HELD: Defendant clearly opened the door during direct, so the prosecutor was allowed to impeach him by questioning him about the heroin seized from his home in his presence in 1950, and was allowed to put on an officer who had participated in the 1950 search and a chemist who analyzed the heroin in 1950. Affirmed. with twice selling heroin to an undercover police officer. At trial, defendant admitted making the sales, but claimed that what he was selling was not cocaine, but was really baking powder. On cross, the prosecutor was allowed to ask defendant about statements defendant had made, which had been suppressed. Those statements clearly contradicted defendants trial testimony. HELD: Every criminal defendant is privileged to testify in his own defense, but that privilege cannot be construed as a right to commit perjury. Once he took the stand, defendant was under the obligation to speak truthfully and accurately. William F. Ringel in Searches & Seizures, Arrests & Confessions points out that these cases put a special burden on defense lawyers to preview the defendants testimony to plan for any hidden impeachment evidence that the prosecutor might have in store. A defendant who wins a motion to suppress might be better off not taking the stand.
Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Defendant was charged
6. Impeachment of Other Defense Witnesses
Although the prosecution will be able to impeach the defendant with suppressed evidence, the same does not apply to other defense witnesses. The prosecution is not allowed to use evidence that has been suppressed to impeach other defense witnesses when the defendant has not testified.
James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990). Defendant was in a
State v. Burnett, 637 S.W.2d 680 (Mo. banc. 1982). Defendant and a friend, Barry Stidham, had a fight with a bail bondsman at the bondmans office. Defendant did not testify but Stidham did. The bondsman claimed that defendant pulled a gun on him and that the bondsman had been injured in the resulting fight. Stidham claimed defendant had no gun, but that the bondsman pulled a gun on them. The suppressed evidence had been a briefcase containing a revolver holster and several bullets found in defendants car. When Stidham took the stand he did not talk about not having a gun. At the end, the prosecutor asked, You guys did not have a gun with you? Likewise with the holster and bullets. Stidham denied having any of them with him. The prosecutor then called in rebuttal the officer who had found the briefcase with the holster and bullets. HELD: The defendant did not waive his 4th Amendment rights because he did not testify. Absent defendant testifying, the suppressed evidence could not be used.
group of boys fighting with another group of boys. Defendant was suspected of shooting at the other group. The investigating officer, looking for defendant, found him the next day at his mothers beauty salon sitting under a hair dryer. His hair was now black and curled. He admitted that the day before his hair had been reddish-brown, long, and combed back. The admissions about his change of appearance were suppressed. Defendant did not testify so the prosecutor did not get the chance to impeach him with this evidence. But defendant did call a friend who said that on the day of the shooting she had taken defendant to register for high school and at the time he had black curly hair. The prosecutor was the allowed to put on as rebuttal evidence the testimony of the police officer that defendant had admitted having reddish-brown hair on the night of the shooting and dying it the next day. HELD: Reversed. Defendant had not opened the door because he had not testified. A defense witness other than defendant cannot open the door to let in the excluded evidence for several policy reasons: (1) The threat of a perjury prosecution could keep defense witnesses off the stand; (2) The possibility that his defense witnesses might be cross-examined about suppressed evidence might chill the defendant from calling a witness who otherwise had some important truthful testimony; (3) Defense lawyer might not have control over a regular witness to keep them from opening the door; and (4) The reason for the exclusionary rule - deterring police misconduct - would be diluted if police knew that defense witnesses could be questioned about suppressed evidence.
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Conclusion
Pieces are continually being added to the 4th Amendment mosaic Somehow, the more I learned about the 4th Amendment, the more there seemed to be that remained to mastered. Wayne R. LaFave
Search & Seizure
The Bottom Line for Police Officers and Prosecutors: Always Get a Search Warrant, Unless You Absolutely Cant. Know Your Search Warrant Exceptions Backwards and Forwards.
Conclusion
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116
About the Author

Morley Swingle, has been the Prosecuting Attorney for Cape Girardeau County, Missouri, for more than twenty years, and has taught at seminars around the country. He has tried more than 125 jury trials, prosecuted over 70 homicide cases and written dozens of law journal articles and law book chapters. Since 1999 he has served on the Missouri Supreme Courts Committee on Procedure in Criminal cases (formerly called the Committee on Jury Instructions and Charges). In 1992, Swingle was selected by the FBI as one of only 50 prosecutors in the country to attend and graduate from the Advanced Course for Prosecutors at the FBI Academy in Quantico, Virginia. In 2007 he received an Honorary Order of the Coif Award from the University of Missouri-Columbia School of Law. Swingle is also a writer. He is the author of two mystery novels with legal themes, The Gold of Cape Girardeau, which won the Missouri Governors Book Award in 2005, and Bootheel Man, which was a finalist for the 2008 William Rockhill Nelson Award for excellence in fiction. He has also written a true crime and humor memoir about being a prosecutor, Scoundrels to the
Hoosegow: Perry Mason Moments and Entertaining Cases From the Files of a Prosecuting Attorney. Vincent Bugliosi calls Scoundrels excellent and highly
recommended. schools. Less than a year after its publication, it was already in 200 libraries around the country, including those of over a quarter of the nations law He is a member of Mystery Writers of America and his short story Hard Blows (a prosecutor may strike hard blows but fair ones) appears in the MWA fiction anthology The Prosecution Rests published by Little Brown in April of 2009.
About the Author
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16) Does not include full searches for traffic stops where suspect is only being given a traffic ticket. was pulled over for speeding 43 in a 25 mph zone. The officer issued him a ticket, but then conducted, without consent or probable cause, a full search of the car and found a bag of marijuana and a pipe. HELD: The bright-line rule of Belton allowing searches of cars incident to the arrest of an occupant, does not apply to traffic cases in which the person just received a ticket. Officer safety is sufficiently accomplished by the Wilson and Mimms cases, which allow the officer to order the driver and passengers out of the car, and to pat them down if reasonable suspicion exists that they might be armed and dangerous.
Knowles v. Iowa, 525 U.S. 113, 142 L. Ed.2d 492, 119 S.Ct. 484 (1998). Defendant
17) Defendant may be arrested even for offenses punishable only by a fine.
18) Officer Need Not Articulate Correct Basis For Arrest, As Long As There Was One
Atwater v. City of Lago Vista, 532 U.S. 318, 149 L.Ed.2d 549, 121 S.Ct. 1536 (2001). A Texas statute made it a misdemeanor, punishable by fine, to fail to wear a seatbelt. The officer made a full custody arrest of a Soccer Mom who was in her truck with her children, none of whom were wearing seat belts. HELD: The question is whether the 4th Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not. An arrest may be made upon probable cause without violating the 4th Amendment, whether the offense is a felony or misdemeanor, and whether punishable by jail or fine. States may provide more protection to citizens by statute. For example, in Missouri, officers cannot make an arrest solely for a seatbelt offense. Atwater was followed in Missouri in State v. Mondaine, 178 S.W.3d 584 (Mo. App. E.D. 2005).
front license plate in violation of Missouri law. The officer pulled him over and asked for his drivers license, which defendant claimed not to have. A further check with the dispatcher revealed an arrest warrant for defendant for a parking violation. The officer arrested him on the warrant and found cocaine in his pocket. HELD: Whether or not the parking violation arrest warrant was valid is irrelevant, because the officer had probable cause to arrest defendant for not having a front license plate. Thus, at the time of the arrest the officer had probable cause to arrest him. It doesnt matter if the officer thought he was arresting him for something else. The test for determining the validity of Mr. Shaws arrest is whether [the officer] had actual probable cause to arrest him, not whether [the officer] articulated the correct basis for the arrest.
State v. Shaw, 81 S.W.3d 75 (Mo. App. W.D. 2002). Defendant was driving without a
19) An Arrest Upon an Invalid Warrant Can Result in Suppression of Evidence Seized Incident to Arrest, but Does Not Bar Prosecution of Defendant
Unlawfulness of an arrest can result in the suppression of the evidence seized incident to that arrest, but does not affect the jurisdiction or power of the trial court to proceed in a criminal case. Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975) (warrant issued without finding by judge of probable cause rendered the continued detention of defendant without a probable cause hearing unconstitutional; but this did not mean that he could not be prosecuted at all, however, because of the established rule that illegal arrest or detention does not void a subsequent conviction). See also: Ker v. Illinois , 119 U.S. 436, 30 L.Ed 421, 7 S.Ct. 225 (1886). In addition, the good faith exception applies to arrest warrants as well as to search warrants, so in many instances the evidence will still be admissible. U.S. v. Gobey, 12 F.3d 964 (10th Cir. 1993) (a summons issued without a judicial finding of probable cause was later converted to bench warrant, still without a finding of probable cause; although the warrant was thus invalid, the search incident to the arrest was saved by the good faith exception).
47

Search & Seizure Law in Missouri

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Search & Seizure Law in Missouri

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Search & Seizure Law in Missouri

Cape Girardeau County Prosecuting Attorney

Part One - Introduction

Constitutional Authority ........................................................................................................ 1

Checklist for Busy Practitioner ............................................................................................. 1

Part Two - Searches with Warrants

Burden of Proof For Evidence Seized By Warrant ............................................................ 13

Part Three - Warrantless Searches

Part Four - Suppression Hearings

I. Motions to Suppress - Section 542.296 RSMo ................................................................ 107

II. Other Provisions Governing Motions to Suppress

Part Five - Applicability of Exclusionary Rule

Conclusion .............................................................................................................................. About the Author .................................................................................................................

Part One Introduction

II. Checklist for the Busy Practitioner

III. Applicability Examples

Part One - Introduction

Part One - Introduction

Part One - Introduction

Part One - Introduction

Johnson v. Missouri, 925 S.W.2d 835 (Mo. banc. 1996).

Part One - Introduction

8. Non-Coverage of Person of Defendant (Standing)

B. Applying the Test:

Part One - Introduction

State v. Martin, 79 S.W.3d 912 (Mo. App. E.D. 2002).

Part One - Introduction

6) Driver of Someone Elses Car - No Standing as to Locked Glove Compartment.

7) Driver of Stolen Car - No Standing.

State v. Martin, 892 S.W.2d 348 (Mo. App. W.D. 1995).

8) Driver of Vehicle with Owner as Passenger Has No Standing.

9) Driver of Rental Car, Rented by Someone Else, Has No Standing.

10) Overnight Guest in House.

Part One - Introduction

11) Guest in House for Drug Deal.

12) Trespasser in House.

13) Motel Guest Past Check-Out Time.

State v. Thomas, 595 S.W.2d 325 (Mo. App. S.D. 1980).

14) Abandoned Property in Public Place.

Part One - Introduction

15) Someone Elses Purse.

U.S. v. Tobin, 923 F.2d 1506 (11th Cir. 1991).

Part One - Introduction

2. Searches Without Warrants - Exceptions to the Need to Obtain a Search Warrant

Part One - Introduction

Part One - Introduction

Part Two Searches With Warrants

g. For a kidnapped person;

h. To search for or seize any human fetus or corpse or part thereof;

Part Two Searches with Warrants

Mahlberg v. Mentzer, 968 F.2d 772 (8th Cir. 1992).

b. State the time and date of making application;

c. State the time and date the warrant is issued;

9. A search warrant shall be deemed invalid:

g. Be signed by the judge with his title of office indicated.

Part Two Searches with Warrants

f. If it is not signed by the judge who issued it;

III. Particular Issues

Part Two Searches with Warrants