CONTENTS

PART ONE - INTRODUCTION

PART TWO - SEARCHES WITH WARRANTS

I. Burden of Proof For Searches With Warrants

II. Statutory Mechanics Under Missouri Law - Covered By Chapter 542, RSMO

1. Arrest Warrant Carries Limited Authority

To Search For Suspect in His Home 

2. Must be Executed As Soon As Practicable

III. Particular Issues

1. Probable Cause 

2. Anonymous Calls & Corroboration 

3. Drug Cases - Specify Time Drug Seen 

4. Staleness 

6. Prospective Probable Cause: Anticipatory

Search Warrants

7. Confidentiality of Informant

8. Search Warrants For Blood & Urine 

9. Surgical Invasions 

10. Pumping Stomach or Inducing Vomiting

11. Knock & Announce Requirement 

12. Prior Refusal of Judge to Issue Warrant 

13. Particularity Requirement - Places to Be Searched

15. Timeless of Execution

16. Nighttime Searches 

17. Persons on Premises - Detention,

Search or Arrest 

Detention 

Scope of Detention 

Full Searches of Persons On Premises 

Searches of Visitors’ Purses & Bags 

18. Extent of Search: Scope - General Law

19. Extent of Search: Intensity 

Closed Containers 

Search After Object Found 

Damage to Property 

20. Seizure of Evidence 

21. Strip or Body Cavity Searches

22. Exclusionary Rule & Good Faith

Exception 

23. 4 Exceptions to Good Faith Exception

1. False Information in Affidavit

2. Judge Abandons Judicial Role

3. Warrant Clearly Lacks Probable Cause

4. Warrant Facially Deficient

1. Exception for Warrantless Administrative

Search Per Unconstitutional Statute

2. Exception for Warrantless Stop On

Court Computer Clerk Error

25. Who Searches

26. Tips For Officers

28. Don't Let Press Accompany Execution

PART THREE - WARRANTLESS SEARCHES

1.                 Search Incident to Arrest

                    Rationale

    Probable Cause

    Scope of Search

    Impounding For Later Search

Probable Cause in Drug Context

Airplanes, Boats & Other Vehicles

3. Container Exception - Suitcase

Exception

New Rule for Containers Put Into Cars

Containers in Mail

4. Hot pursuit - Emergency or Exigent

Circumstances Exception

Four General Categories

(1) Hot Pursuit 

Pursuit Immediate & Continuous

Pursuit Begun at Doorway

(2) Danger to Police or Other Persons 

Dead Body

Wounded Person 

Scope Must Be Limited

Fire Investigations

5. Stop & Frisk 

Okay to put Suspect in Patrol Car

Tackling Fleeing Suspect Okay

Multiple Officers’ Knowledge 

Cannot Fingerprint 

Refusal to Identify Allows ID Search

Patting Down Clothing 

Looking into Purse 

Timing of Frisk 

Interior Compartment of Car 

Helping Stopped Motorist 

Wanted Flyers & Radio Dispatches 

Brief Seizure of Objects 

Drug Profile Stop 

Roadblocks

Driver’s License Checks 

DWI Sobriety Checkpoints 

Drug Enforcement Checkpoints

Illegal Alien Checkpoints 

Escape Routes for Serious Crime 

6. Plain View Doctrine 

Level of Certainty 

Accompanying Arrestee Into Home 

Aided Plain View 

Electronic Eavesdropping 

Flashlights 

Binoculars & Telescopes 

Nightscopes 

Pen Registers 

Beepers 

Cordless Telephones 

Secret Taping & Body Wires

Officers in Air Looking Down

Plain Feel Doctrine

Plain Sniff Doctrine 

7. Consent as Exception

Totality of Circumstances 

No Reasonable Suspicion Needed to Ask

Reasonable Suspicion Needed to Detain 

Not Necessary to Say Free to Leave 

False Statements of Officers 

Threat to Seek Search Warrant 

Refusal to Put Consent in Writing

Knock & Talk Searches 

Miranda Rights Not Necessary 

Authority to Consent

Apparent Authority Doctrine 

8. Inventory Searches 

Inventory of Purses & Containers

9. Inevitable Discovery/Independent

Source Doctrine 

10. Administrative Inspections & Regulatory

Searches

1. Inspection of Housing

2. Inspections of Businesses

3. Searches of Prisoners

4. School Searches

11. Suppression Hearings 

Burden of Proof 

Interlocutory Nature 

Appeal by Prosecution 

Dismiss & Refile

Defendant’s Testimony to Impeach 

Multiple Officers & Probable Cause 

12. Applicability of Exclusionary Rule 

1. Criminal Trials 

2. Probation or Parole Violation Hearings

3. Civil Trials

4. Grand Jury Proceedings 

5. Impeachment of Defendant’s Testimony

6. Impeachment of Defense Witness 

PART ONE - INTRODUCTION

"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 construed Missouri's Constitution as providing identical protection to that of the Fourth 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 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?

III. APPLICABILITY EXAMPLES

Hester v. U.S., 265 U.S. 57, 44 S. Ct. 445, 68 L.Ed. 898 (1924). Federal Agents, trespassing on moonshiner's property, find still and illegal booze. HELD: 4th Amendment only applies to home & curtilage, not to open fields.

State v. Simpson, 639 S.W. 2d 230 (Mo. App. S.D. 1982) Highway patrolmen trespass in field on big wooded area and find marijuana patch. HELD: 4th amendment only applies to home & curtilage.

U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Peering, without warrant, into barn's front 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 198 acre farm - completely circled by fence - 60 yards from house and 50 yards from another fence around house. DEA Agent did not go in. Saw drug lab in barn. Warrant later obtained. Supreme Court gives good discussion of what is 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:

(4) And 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 home's umbrella of 4th Amendment protection." I.E. - A man's 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 suppress marijuana seized growing in a corn field which had

been seized after a warrantless search. HELD: Suppression is 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.

3. Thermal imaging device (Heat Leaving Premises)

THERMAL IMAGING DEVICE -- A police flight over Defendant's house in a plane and use of a "thermal imaging device" or "Forward Looking Infrared Device" (FLIR) that allowed them to determine that more heat was escaping from his house than from his neighbors' houses, did not violate the 4th Amendment. There is no privacy interest in heat escaping from a building. The method of heat detection used was neither offensive nor embarrassing. This information could be used in getting a search warrant. United States v. Pinson, 24 F. 3d 1056 (8th Cir. 1994). But different result reached in State v. Young, 123 Wash. 2d 173, 867 P.2d 593 (1994) (where it was held to be a search).

4. Abandoned Property

California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L.Ed. 2d 30 (1988). Defendant's garbage put out in bags at curb was searched. No reasonable expectation of privacy. The property was abandoned by defendant.

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 had relinquished any privacy right in these items by leaving them with the businesses, and had 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). Two police officers wearing street clothes but jackets with word "POLICE" on front and back were on patrol in a car in a high crime area. A group of youths, including D, was 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 D. D 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. D claims the evidence should be suppressed, arguing that D was seized the moment the officer got out of the car and started chasing him. No probable cause at that point. HELD: It is not a seizure to yell, "Stop in the name of the law!" at a fleeing form. The cocaine abandoned while D was running was not the fruit of a seizure and the motion to exclude it was properly denied.

See also: State v. Johnson, 863 S.W.2d 361 (Mo. App. E.D. 1993) for same result in Missouri case.

State v. Berry, 609 S.W. 2d 948 (Mo. banc 1981). Officer was chasing suspicious person he had seen hiding in bushes and trespassing, saw the person (defendant) throw an object away during chase. It was a lighter used by defendant during a rape. HELD: When a suspect drops property during a chase, and officer had probable cause to be chasing him, the property is abandoned and no violation of Fourth Amendment.

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 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 zip lock 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 rewrapped and delivered to the addressee, and then recovered by a search warrant. HELD: The search by Federal Express was not government action, so it was not prohibited by Fourth 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 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 some keys and buttons in defendant's motel room and gave to police. Significant evidence connecting defendant to a robbery. HELD: No governmental action, thus no Fourth Amendment rights of defendant were violated.

State v. Allen, 599 S.W.2d 782 (Mo. App. E.D. 1980). Defendant robbed a jewelry store in St. Louis, and security guards from Stix Baer and Fuller caught her as she was in 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 Fourth Amendment is not applicable.

Commonwealth v. Leone, 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 & 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 employer's 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 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. Evidence thus admissible in her burglary prosecution.

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 his 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 burglar alarm went off, he entered 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 kitchen and seized what he believed were marijuana cigarettes from ashtray, and went into bedroom and opened drawers and closets, finding marijuana seeds and rolling papers. He went to Sheriff and this information was used for 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 done not in his job capacity as security guard but in his criminal investigative capacity. Thus, evidence was properly suppressed.

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.

7. Grand Jury Subpoenas or Prosecutor's Investigative Subpoenas

United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L.Ed. 2d 67 (1973). In Dionisio the Court held that 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 at all to such a procedure. The Court upheld grand jury subpoenas directing 20 persons to go to the office of the U.S. Attorney 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 on the ground that "neither the summons to appear before the grand jury nor its directive to make a 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."

"[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 person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's 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 & Footprints.

4. Photographs.

5. Holding a Lineup.

6. Head or facial hair.

7. 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 try to attack such a subpoena is to make a motion to quash, making a non-constitutional objection to the subpoena, such as if it exceeded the permissible scope of grand jury activity. In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3^rd Cir. 1973). The trial court required the prosecution to make "some preliminary showing by affidavit that each item (handwriting samples, photographs & fingerprints) was at least relevant to an investigation being conducted by the grand jury, and was not being sought primarily for another purpose.

Johnson v. Missouri, 925 S.W.2d 835 (Mo. banc. 1996). Court holds that prosecutor's investigative subpoenas are constitutional and do not require probable cause to issue. The prosecutor had 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 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 the subpoena, attacking the constitutionality of the statute. The trial court overruled the motion to quash. 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 the 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." Affirmed.

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 body of a homicide victim, and fingerprints other than victim's were found on the inside and outside of victim's 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 of 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."

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 Fourth 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 Fourth 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."

TWO-PART TEST FOR STANDING

USED BY U.S. AND MO SUPREME COURTS

1. Defendant must have an actual, subjective expectation of privacy in the place or thing searched; and

2. The expectation of privacy must be reasonable or legitimate.

APPLYING THE TEST:

(1) SEIZURE OF DEFENDANT’S 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.

(2) SEARCH OF DEFENDANT’S PERSON.

For the same reason, a defendant can always challenge the legality of a search of his person.

(3) DEFENDANT’S 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) DEFENDANT’S 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 – NO STANDING.

Passengers in cars who do not own the car generally do not have standing.

Rakas v. Illinois, 439 U.S. 128, 58 L.Ed. 2d 387, 99 S.CT 421 (1978). Armed robbery. Radio broadcast described getaway car occupied by two males (later defendants) and two females. Police pulled over and searched car because it matched description of robbery vehicle. Sawed-off rifle found found under front passenger seat; box of rifle shells found in 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 else's car. Thus, it was not necessary to consider whether the search of the car may have violated the driver's Fourth 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 companion's car).

(6) DRIVER OF SOMEONE ELSE’S CAR – NO STANDING

AS TO LOCKED GLOVE COMPARTMENT.

State v. Martin, 892 S.W.2d 348 (Mo. App. W.D. 1995). 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 girlfriend's car which he was driving with her consent but that he had no access to the glove compartment and had not known 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 another's 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 of 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).

(7) DRIVER OF STOLEN CAR – NO STANDING.

U.S. v. Hargrove, 647 F.2d 411 (4th Cir. 1981) - Defendant who was driving stolen car when he was 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. Wrongful possessor of an article has no right to complain, on Fourth 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 defendant's property - no expectation of privacy).

(8) DRIVER OF VEHICLE WITH OWNER AS PASSENGER

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.

(9) DRIVER OF RENTAL CAR, RENTED BY SOMEONE

ELSE, HAS NO STANDING.

State v. Toolen, 945 S.W.2d 629 (Mo. App. E.D. 1997). Police responding to a call about a 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. Whether the search was consensual was one issue. HELD: A defendant who claims the protection of the 4th Amendment must have a legitimate expectation of privacy in the place or thing searched. To determine whether a criminal defendant has a legitimate expectation of privacy in the place or thing searched, the defendant must have a 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.

(10) OVERNIGHT GUEST IN HOUSE.

Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed 2d 85 (1990). Lone gunman robbed gas station & shot manager. Officer who heard 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. Murder weapon and sack of money and papers of suspect Robert Olson found in car. Next day, police get phone call from a woman saying "Rob" drove the car in the gas station killing and had told Louanne & Julie that he had done the robbery. Caller said the women lived at 2046 Fillmore, Minneapolis, MN. Police spoke to Lauanne. She confirmed that Rob Olson had been living there, but claimed he was not then present. Police issue 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, which confession was admitted at trial. HELD: Reversed for retrial without the confession. Overnight guest has a Fourth Amendment expectation of privacy and has standing to object to police officer's warrantless, nonconsentual entry into friend's house to search for and arrest defendant. Defendant's friend, 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 and who slept in aunt's son's bedroom, had standing to claim that police made illegal search of the room, since he had a legitimate expectation of privacy in the room.

(11) GUEST IN HOUSE FOR DRUG DEAL.

Minnesota v. Carter, 525 U.S. ___, 141 L.Ed. 2d 373, 119 S.Ct. 469 (1998). Defendant and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged, they were observed by a police officer, who looked through a gap in a drawn window blind. The information was used as the basis of 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 has no standing to object to the allegedly illegal search of viewing into the apartment through the blind. Although an overnight guest in a house may claim the protection of the 4^th 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."

(12) TRESPASSER IN HOUSE.

State v. Thomas, 595 S.W. 2d 325 (Mo. App. S.D. 1980). Defendant entered an unoccupied house without owner's permission through an unlocked window, where police caught him. HELD: Defendant lacked standing to challenge the warrantless search of the house, thus robbery loot defendant had in house with him was admissible as evidence.

(13) ABANDONED PROPERTY IN PUBLIC PLACE.

State v. McCrary, 621 S.W. 2d 266 (Mo. banc 1981) - Defendant had lived with Lydia, had two children by her, and she left him and moved in with Rufus. On November 13, Rufus was shot outside their home, wounded. On March 8, someone threw a bomb in window. On March 12, police officer responded to an anonymous call about a suspicious person in that neighborhood carrying a long cardboard box. Officer saw defendant carrying a long cardboard box. Defendant dropped box and ran. Inside box was a .22 rifle, live shells, and a silencer. HELD: Rakas two-part test of standing adopted in MO: (1) 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. No legitimate expectation of privacy in a dropped box, and thus defendant has no standing to object to the seizure of this box and contents.

(14) SOMEONE ELSE’S PURSE.

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Defendant was charged with possession of drugs (LSD & Meth) with intent to sell. He had been in someone else’s 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 woman’s purse. Defendant later admitted that the drugs were his. He claims he put them into her purse moments before the police entered the house. A legal issue exists whether the woman consented to the search of the purse. HELD: Doesn’t 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 expectancy 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.

IV. IF THE 4TH AMENDMENT APPLIES, THEN WE PASS TO QUESTION NUMBER TWO -- HAS THE 4TH AMENDMENT BEEN VIOLATED OR SATISFIED?

1. Initial intrusion

2. Scope of Search

1. Initial Intrusion -- A warrantless search will violate the 4^th 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 man's home is his castle"

U.S. v. Tobin,

"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 person's home without presenting a showing of probable cause to a neutral and detached magistrate, who will then decide if there is probable cause to allow the officer to enter.

2. Even if good initial intrusion -- Scope of search is limited. General rummaging around, fishing expedition is prohibited. Constitutional law says MINIMIZE. Get in and find what you are looking for, look only where it could be. Can't look for an elephant in a bread box. 4th Amendment has

"particularly described" wording that specifies what officers are looking for. If looking for TV set, look everywhere it could possibly be, no where smaller.

V. TWO TYPES OF SEARCHES -- THOSE WITH WARRANTS AND

THOSE WITHOUT WARRANTS.

IN GENERAL -- A SEARCH WITHOUT A WARRANT IS UNREASONABLE AND THE EVIDENCE WILL NOT BE ADMISSIBLE---ALWAYS GET A WARRANT, UNLESS YOU CAN'T.

VI. EXCEPTIONS -- SEVERAL, AT LEAST 10 CATEGORIES:

OFTEN DESCRIBED AS "JEALOUSLY AND CAREFULLY DRAWN,

WELL-RECOGNIZED EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT"

1. SEARCH INCIDENT TO LAWFUL ARREST

2. AUTOMOBILE SEARCHES UPON PROBABLE CAUSE

3. SUITCASE EXCEPTION - CONTAINER EXCEPTION

4. HOT PURSUIT (EMERGENCY CIRCUMSTANCES)

5. STOP & FRISK

6. PLAIN VIEW DOCTRINE

7. CONSENT

8. INVENTORY SEARCHES

9. INEVITABLE DISCOVERY

10. CERTAIN ADMINISTRATIVE SEARCHES IN MATTERS

INVOLVING A REDUCED EXPECTATION OF PRIVACY

WHY GET A WARRANT IN THE FIRST PLACE? Idea as American as the game of baseball. You can't call the balls and strikes if you are a player; umpire does that. In real world, the judge is the umpire. Defendant's home is his castle. The decision of when police have probable cause to look into a person's home is left to the judge, a neutral and detached magistrate, who will be fair to both sides.

BURDEN OF PROOF: 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, the burden of proof is on the State to show probable cause. Burden of proof is the tie-breaker; the person who has it loses the ties. A warrant is presumptively good.

For a more detailed discussion of the burden of proof at suppression hearings, see SUPPRESSION HEARINGS section at the end of this OUTLINE.

PART TWO - SEARCHES WITH WARRANTS

I. A SEARCH WITHOUT A WARRANT IS PRESUMED UNREASONABLE &

THE EVIDENCE WILL BE EXCLUDED UNLESS IT FALLS INTO ONE OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT.

GENERAL RULE - ALWAYS GET A WARRANT, UNLESS YOU CAN'T. MORE THAN 90% OF TIME, IF YOU TOOK THE TIME TO GET A WARRANT, THE EVIDENCE WILL BE ADMISSIBLE IN COURT.

THIS PORTION OF THE DISCUSSION ASSUMES YOU HAVE ALREADY MADE THE DECISION TO GET A SEARCH WARRANT. NOW COMES THE NUTS AND BOLTS OF HOW TO DO IT.

II. THE MECHANICS UNDER MISSOURI LAW ARE COVERED BY CHAPTER 542, RSMO.

1. Issued only 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.

3. May be issued to search for and seize, or photograph, copy or record any of the following:

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed 2d 639 (1980). For 4th Amendment purposes, an arrest warrant carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Absent exigent circumstances, though, officers may not enter a suspect's home to make an arrest without an arrest warrant.

Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Police may not enter a 3rd person's home without consent looking for someone else for whom they have a valid 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.

U.S. v. Ruiz-Altschiller, 694 F.2d 1104 (8th Cir. 1982). No arrest warrant was needed in home where undercover officer had been invited in while pretending to be participating in criminal activity. Defendants, "by extending such an invitation, voluntarily exposed themselves to a warrantless arrest."

Mahlberg v. Mentzer, 968 F.2d 772 (8th Cir. 1992). A warrantless arrest within the premises is permissible when the prior entry was gained by executing a search warrant for physical evidence.

U.S. v. Garcia, 997 F.2d 1273 (9th Cir. 1993). A warrantless arrest within the premises is 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.

i. To search for and seize any deceased human fetus or corpse, or part thereof.

4. Application shall:

a. Be in writing;

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;

e. State facts sufficient to show probable cause for the issuance of a search warrant;

f. Be verified by the oath or affirmation of the applicant;

g. Be filed in the proper court;

h. Be signed by the Prosecuting Attorney of the County where the search will take place; or one of his assistants.

5. Application can be supplemented by a written sworn affidavit from witnesses for judge to consider in determining whether there is probable cause. Judge is NOT to consider oral testimony.

6. Judge shall hold a nonadversary hearing to 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 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:

9. 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

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.

10. 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 (Good idea to use standard form for Return & Inventory, and use carbon paper when filling it out at scene, so carbon copy can be left) (Note: Copies of the Application and Affidavits do not need to be left with suspect - only copy of the warrant, and a copy of the receipt/return & inventory).

11. A COPY OF THE RECEIPT (RETURN & INVENTORY) SHALL BE DELIVERED TO THE PROSECUTING ATTORNEY WITHIN 2 WORKING DAYS OF THE SEARCH. (NEW IN 1989 - 542.291.5)

12. After execution of the search warrant, the warrant with a return thereon, 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 search warrant, where D could not show he was prejudiced by its absence, and court ordered prosecution to file one within 10 days.

13. A search warrant shall be deemed invalid:

a. If it was not issued by a judge;

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;

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;

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

g. If it was not executed within the time prescribed by law. (i.e. 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). 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."

After getting the letter, the police corroborated it by: (1) Revenue showed Driver's 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 airplane from home here in Bloomingdale Illinois to West Palm Beach Florida for May 5 at 4:15 p.m.; (3) Officer watched Gates board the flight; (4) Agents in Florida saw him arrive and take a taxi to Holiday Inn, and took a room registered to Susan Gates; (5) Agents in Florida saw him leave at 7:00 the next morning with an unidentified female in a Mercury bearing Illinois plates checking to Gates.

SEARCH WARRANT WAS ISSUED FOR THEIR HOUSE AND AUTOMOBILE. OLD AGUILAR AND SPINELLI TWO-PRONG TEST WAS REJECTED AND TOTALITY OF CIRCUMSTANCES TEST REPLACES IT. (OLD TWO-PRONG TEST WAS THAT INFORMANT'S VERACITY AND BASIS OF KNOWLEDGE BOTH HAD TO BE SPECIFICALLY SHOWN AND SEPARATELY SATISFIED - USUALLY BY FACT THE INFORMANT HAD BEEN USED SUCCESSFULLY BEFORE AND HAD OPPORTUNITY TO SEE OR GET THE RELIABLE INFORMATION NOW BEING SUPPLIED.) HELD: This was sufficient probable cause even though 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 magistrate’s 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 facie showing, of criminal activity is the standard of probable cause."

State v. Gardner, 741 S.W. 2d 1 (Mo. banc. 1987). Defendant claims search warrant issued without probable cause. Test of Illinois v. Gates used. Probable cause was found, but court adds that even if no probable cause had been found, the Leon good faith test was met for the search by warrant of this "chop shop."

2. ANONYMOUS CALLS - TRY TO CORROBORATE AS MUCH AS POSSIBLE.

State v. Berry, 801 S.W.2d 64 (Mo. banc 1990). Anonymous phone call that caller had been in Melissa Berry's mobil home the day before as Berry was transferring marijuana from four or five large freezer bags into smaller plastic baggies. Caller describes exterior of mobile home and its location in detail. Officer verifies the details of the exterior describing (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). Court finds probable cause and issues search warrant. Not much corroboration, but caller had proclaimed personal knowledge. HELD: Although the call was anonymous, the caller had given details indicating personal knowledge. The exterior details had been corroborated, so there was a fair probability the details about the MJ being inside were also true. Evidence admissible. 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. Beatty, 770 S.W.2d 387 (Mo. App. S.D. 1989). Anonymous call to crime stopper hotline concerning robbery of a gas station. Caller suggested going to a restaurant and inquiring about a female who used to work there as being person who did robbery. Officer checked the description of the robber from reports and talked to the restaurant owner, who said it sounded like Sharon Beatty, who used to work there. MULES computer gave a similar description for her. Search warrant was obtained. HELD: This was sufficient corroboration for the anonymous tip. (Later turned out that the tip was from her psychiatrist.)

Angulo v. State, 727 S.W. 2d 276 (Tex. 1987) Anonymous telephone call on June 23, 1983, said that a red AMC Pacer car with License plate RUV662 contained narcotics; the car would contain 2 Cuban males, one of which was named Angulo; the car's gasoline cap was missing and a red rag was being used in its place; the destination of the car would be 7201 Spencer Highway, Casa Maria Apts, #54. The car was already in route, said the caller, who did not reveal the source of his information.

Corroboration: Officer saw the car, with two males, parked at the apts, directly in front of #54. Red rag was in place of gas cap. The two men were approached by others; officer made investigatory stop and found out one of men in car was named Angulo; Vehicle search produced 2000 methaqualone pills; Apt. 54 had been involved in surveillance before because of suspected narcotics activity, with what appeared to be "narcotics related traffic in and out of the apartment" on 25 occasions; information from a confidential informant had also been given that a resident of Apt. 54 was selling narcotics at an adjacent game room.

3. In DRUG CASES, be sure to show the time the drugs were seen. Search warrants are held invalid, and not saved by good faith, when they say drugs were seen, but don't say

when. If the source was anonymous, corroborate as much as possible. Maybe 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.

Dixon v. State, 511 So. 2d 1094 (Fla. 1987). Search warrant affidavit for drugs did not say when the illegal drugs had been seen on the premises, thus no probable cause.

4. STALENESS - If the probable cause is not recent, it may be no probable cause at all.

a. Informant's seeing stolen items in Defendant's 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 Marihuana 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 THIEF'S HOME, NOT BECAUSE STOLEN ITEMS SEEN THERE, BUT BECAUSE HE IS KNOWN TO HAVE COMMITTED THE THEFT AND THIS IS HIS ONLY HOME.

6. PROSPECTIVE PROBABLE CAUSE - Anticipatory search warrant for search of house and apartment contingent on consummation of drug deal with informant to take place that same day held constitutional. State v. Gutman, 670 P. 2d 1166 (Alaska 1983).

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 informer's 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).

State v. Stottlemyre, 752 S.W.2d 840 (Mo. App. W.D. 1988). D was racing motorcycle back and forth across dam at high speed; lost control; passenger went over rail and chest impaled by support post; head 30 feet from body; smell of alcohol on D's breath; D refuses to consent to blood test; trooper got search warrant. EVIDENCE OF CRIME.

CAPE PA OFFICE has standard forms to use in this situation with blanks to fill in so warrant may be obtained in minutes since time is of the essence.

NOTE: The 4th Amendment does NOT require a search warrant for blood alcohol tests, but the MISSOURI DWI statutes DO for DWI cases, but not for involuntary manslaughter cases. Bottom line: the safer practice is to get the search warrant even in the manslaughter cases.

Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Police took a 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 person's body.

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Physician took blood from an injured DWI suspect at request of officer over suspect's objection. HELD: No violation of 4th Amendment: (1) The extraction of blood did not offend the sense of justice; (2) Privilege against self-incrimination was not violated since it applies only to testimonial evidence; (3) The search & seizure was not unreasonable given the grounds for seeking, the measures used, and the delay that would have been necessary to get a warrant, which would have threatened the destruction of the evidence.

State v. Ikerman, 698 S.W.2d 902 (Mo. App. E.D. 1985). In traffic accident DWI-related case, police had obtained blood sample from Defendant at hospital without a search warrant and without his 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 person refuses, the officers cannot have blood drawn [for DWI prosecutions, but can for involuntary manslaughter prosecutions, see Todd below]. Motion to suppress upheld.

State v. Setter, 721 S.W.2d 11 (Mo. App. W.D. 1986). Involuntary manslaughter case where officer ordered medical staff at hospital to take a sample of suspect's 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 suspect's blood without his consent and without a warrant.

State v. Todd, 935 S.W.2d 55 (Mo. App. E.D. 1996). Defendant was convicted of two counts of involuntary manslaughter in connection with a DWI-fatality. Defendant had been taken to the hospital immediately after the crash. His blood was drawn for testing by hospital. The hospital's test showed blood alcohol of .11 which was introduced via a business records affidavit accompanying the laboratory report. The medical examiner, a doctor, testified as an expert witness as to the meaning of a .11 blood alcohol reading. Defendant claims the blood test results were not admissible 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.

9. SEARCH WARRANTS GENERALLY CANNOT ISSUE TO ALLOW SURGICAL INVASIONS OF A SUSPECT'S 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.

a. Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). Defendant was a suspect in an attempted armed robbery. The shop owner and the robber had exchanged fire. The robber seemed to have been hit in left side. Defendant was found 20 minutes later, suffering a gunshot wound to his left chest. He was IDed by victim and was charged. Prosecutor moved the Court for a court order directing Defendant to undergo surgery to remove the bullet, which was lodged under his collarbone. Medical testimony first indicated that the surgery would last about 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 that there would be risks of muscle, nerve, & tissue damage, as well as risk of infection. HELD: A compelled surgical intrusion into a suspect's body for evidence involves expectations of privacy of such a magnitude that the intrusion may be "unreasonable" under the 4th Amendment, even if it is very likely to produce evidence of a crime. The 4th Amendment test balances the individual's interest in privacy versus society's interest in obtaining the evidence. Factors include the magnitude of the intrusion, the risk to the suspect's safety, the extent of the intrusion upon the individual's dignity and privacy, the strength of the probable cause, and whether the state's need for the evidence is a compelling need. 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.

b. United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1976). Dentist was killed in his office with his own gun. Police arrested Sandra Toomer for the murder. She implicated Defendant, saying they had gone to the office to rob the dentist, a fight ensued, and she fled. She then heard several shots. When Defendant rejoined her, he said he'd been shot in his arm and leg, but had killed the dentist. Defendant was arrested and had bandages both places. X-rays showed bullets in both locations. Prosecutor got affidavit from doctor saying the operation on the arm (but not the leg) would merely be "minor surgery." PA sought a court order for removal of the bullet from the arm. Court approved it after an adversary hearing at which the competing interests were balanced.

c. State v. Overstreet, 551 S.W.2d 621 (Mo. 1977). Defendant was suspect in a robbery murder. The victim had managed to shoot the robber. Defendant was shortly afterward treated at the hospital for a gunshot 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 PA 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 adver-sarial 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 adversary hearing in which Defendant is represented by counsel and is given the opportunity to cross-examine and offer witnesses; (2) An opportunity for appellate review available prior to surgical removal; (3) The evidence sought to be surgically removed must be relevant; and (4) Surgical procedures should be a minor intrusion without risk of harm or injury to Defendant. Reversed for new trial without the bullet.

d. State v. Richards, 585 S.W.2d 505 (Mo. App. E.D. 1979). Defendant is suspect in murder of the City Marshall of Silex, MO. The marshall had been in gunfight with his murderer, pro-ducing another butt-shot Defendant. This bullet was lodged 4 inches under the skin of the right hip. The Overstreet test was applied at an adversary hearing. The trial court's order requiring the surgery was upheld on appeal.

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.

11. ENTRY TO EXECUTE WARRANT - - KNOCK REQUIREMENT BEFORE FORCED ENTRY (EXCEPTIONS)

a. 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 Defendant's home open. They entered before knocking and identifying themselves as police officers. Defendant claimed 4th Amendment requires officers to knock and announce in order for a search to be reasonable. Trial court

disagreed and denied motion to suppress. SUPREME COURT REVERSES, HOLDING: 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, a high risk of escape exists, or a high risk of destruction of evidence exists should be considered. Reversed and remanded for determination of reasonableness under facts of particular case. NOTE: In a footnote, the Supreme Court says they are not yet going to decide whether the exclusionary rule applies to knock and announce violations.

b. 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 Fourth 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, though, that this would not be a "rigid" rule and 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 Fourth 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 Defendant's door at 3:40 a.m., he opened it a crack, with the chain still on, saw at least one officer in uniform, then quickly slammed the door. The officers waited 2 or 3 seconds, then kicked and rammed 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."

Ricketts v. State, 981 S.W. 2d 657 (Mo. App. W.D. 1998). Police had search warrant for marijuana. Several officers went to porch of home. No testimony that they knocked. Instead, they said, "Police, search warrant" and within 8-10 seconds rammed or kicked in the door. Prosecuting Attorney does not make showing that this defendant or house was known in advance to be dangerous or defendant known to be armed or have a history of violence. HELD: Prosecution failed to show that exigent circumstances existed to show that knocking would be dangerous, futile or destructive to the purposes of the investigation. Thus, evidence is suppressed because of the failure to knock.

c. 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 & Announce statute is at 18 U.S.C. 3109.

d. 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."

e. Once you knock and announce, how long must you 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.

f. 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. Hamilton, 8 S.W. 3d 132 (Mo. App. S.D. 1999). Police executing search warrant in drug case know that defendant reportedly has 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 were small and could "easily be discarded through bathroom or kitchen fixtures." HELD: Reasonable for officers to enter without knocking and announcing.

State v. Parrish, 852 S.W.2d 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.

U.S. v. Garcia, 741 F.2d 363 (11th Cir. 1984). Failure to announce purpose held OK 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.

U.S. v. Manfredi, 722 F.2d 519 (9th Cir. 1983). Failure to make any announcement held OK where officers had been told that occupant possessed a gun and was "a violent person."

U.S. v Kane, 637 F.2d 974 (3rd Cir. 1981). Failure to make any announcement at all held OK where officers knew occupants were armed and were engaged in large-scale drug activity.

g. DAMAGES TO DEFENDANT’S PROPERTY.

U.S. v. Ramirez, 523 U.S. , 140 L.Ed. 2d 191, 118 S.Ct. ____ (1998). Police got no-knock warrant to look for a dangerous fugitive, believed to be at Defendant’s home. Police broke a window and stuck a gun through the window while executing the search warrant. Defendant thought his home was being burglarized and discharged his own gun to scare away the burglars. Although the fugitive was not found, the Defendant ended up being charged as a felon in possession of a firearm. 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.

12. SIGNIFICANCE OF PRIOR REFUSAL TO ISSUE WARRANT.

a. 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).

b. 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).

c. 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.

13. PARTICULARITY REQUIREMENT - PLACES TO BE

SEARCHED.

The places to be searched pursuant to a search warrant must be described with particularity in the warrant or an attached affidavit in order for the warrant to be constitutional. Particularity in this setting means that the description must be detailed enough to insure that the executing officers can reasonably ascertain and identify the place to be searched.

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 #, owner's name, and location, are all useful.

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, 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 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 D's residence for

marijuana allowed the officers to search the entire house, not just the living room where the MJ had been seen by the informant who gave the affidavit. State v. Hodges, 705 S.W.2d 585 (Mo. App. S.D. 1986).

14. PARTICULARITY REQUIREMENT - THINGS TO BE SEIZED.

The things to be seized pursuant to 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;

Tosh v. State, 736 P.2d 527 (Okl. Ct. Crim. App. 1987). "Marijuana, a controlled substance, together with other fruits, instrumentalities and evidence of the crime" - held sufficient.

b. 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 jewelry" is not specific enough.

People v. Murray, 143 Cal. Rptr. 502 (Cal. Ct. App. 1978). "Television sets, power tools, appliances, hand tools, home furniture, clothing, power drill press" 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.

U.S. v. Shoffner, 826 F.2d 619 (7th Cir. 1987). "Stolen motor vehicles, parts of stolen 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."

U.S. v. McClintock, 748 F.2d 1278 (9th Cir. 1984). "A thin belt, or any other type object that could have been used to inflict physical damage on a human body." Held constitutional under circumstances.

State v. Strickland, 609 S.W.2d 392 (Mo. 1980) Absence of shotgun shells' description in search warrant did not require their suppression where warrant authorized police to search D's residence for shotgun, diamond rings, and revolver; "green" shotgun shell casings had been found at scene of shooting but police did not know of existence of "green" shells at D's residence prior to discovering them during authorized search, and it was apparent to the police that they constituted evidence.

15. TIMELINESS OF EXECUTION.

A search warrant must be executed both within the jurisdiction's maximum time period (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."

WARNING: DON'T 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 informant's affidavit that he had seen methamphetamine in D's house "within the last 48 hours." Police waited 6 days to execute warrant, and D claimed it had become stale. HELD: Search valid. Test as to staleness is resolved by looking at all the 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 unreasonable even though statute provided 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."

People v. Hernandez, 118 Cal. Rptr. 53 (Cal. App. Ct. 1974). An 8 day delay held reasonable (10 day statutory max) where record supported continuing evidence of drug activity.

16. 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 magistrate and noted on the warrant.

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 10:00 p.m. and ending 6:00 to 7:00 a.m.

Execution of a search warrant only a few minutes after the beginning of nighttime may sometimes be treated as de minimis and, hence, lawful. Same situation if it began before nightfall and continued into the night.

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.

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.

NOTE: A VIOLATION OF THE NIGHTTIME SEARCH PROHIBITION IS NOT NECESSARILY CONSIDERED A CONSTITUTIONAL VIOLATION, AND EVIDENCE MIGHT NOT BE SUPPRESSED, ANYWAY. ONE HALF OF JURISDICTIONS APPLY THE EXCLUSIONARY RULE IN THIS SITUATION.

17. PERSONS ON PREMISES - DETENTION, SEARCH AND

ARREST.

"DETENTION" OF PERSONS ON OR NEAR SEARCH PREMISES.

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 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 that they are occupants of the premises.

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 officers are in control. Also, risk of damage to home is minimized if occupants' self-interest induces them to open locked containers so they don't get damaged.

In Summers one person was just 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 house they arrested him. Found more heroin in his pocket.

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 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: 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 non-occupants.

THE DETENTION SHOULD EMPLOY THE LEAST INTRUSIVE MEANS REASONABLY NECESSARY, BUT CAN INCLUDE USE OF HANDCUFFS IF REASONABLY NECESSARY FOR SAFETY OF OFFICERS.

U.S. v. Miller, 974 F.2d 953 (8th Cir. 1992). An investigative detention of a suspect at an airport included handcuffing her before probable cause had been 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."

FULL SEARCHES OF PERSONS ON OR NEAR SEARCH PREMISES -

An individual may be searched if he or she is specifically identified as a search target in the search warrant. The Supreme Court has made it clear that a warrant to search a place does not normally authorize a full search of each individual in that place.

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed 2d 238 (1979). "A warrant to search a place cannot normally be construed to authorize a search of each individual in that place." Search of bar patron simply because of presence at scene of search held improper. Search warrant had been issued to search the bar and the bartender for heroin for controlled substances. Defendant was simply a patron of the bar.

Doe v. City of Chicago, 580 F. Supp. 146 (1983). 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 they were on the premises. HELD: "A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. 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."

PRACTICE TIP: In drafting search warrants, 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.

NOTE: An individual who is lawfully detained on 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 arrest. Once lawfully arrested, the arrestee may then be searched incident to that arrest. Burkoff, 13.3 & 3.4.

SEARCHES OF PURSES OF VISITORS ON SEARCH PREMISES --

United States v. Johnson, 475 F.2d 977 (1973). Search warrant was being executed on the apartment of James Stewart for drugs. Officers entered the apartment and Stewart was climbing out window, and D, 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 Stewart's apartment, police had been advised that D 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 D and was thus not a search of her person. The dissent felt the search was not permissible because the purse was clearly the visitor's, not James Stewart's, and it would have been valid only if incident to her arrest.

United States v. Teller, 397 F.2d 494 (7th Cir. 1968). Search warrant being executed on premises of Sheldon Teller's house, plus arrest warrant for Teller. Object being searched for was money, the fruit of a crime. While the search was going on, D (Teller's wife) arrived in her car, parked 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: D's 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 D.

State v. Hodges, 705 S.W.2d 585 (Mo. App. S.D. 1986). Police were searching 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 visitor’s purse.

U.S. v. Giwa, 831 F.2d 538 (5th Cir. 1987). Officers executed search warrant on 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 officers refused, saying they would get it. He said it was in side pocket. Officer found 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 Aurya's 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. Giwa's bag could be searched on these facts.

BUT COMPARE: State v. Lambert, 710 P.2d 693 (Kan. 1985). Search warrant for apartment of Randy for cocaine. Three women in apartment at time of search -- one sick in bed, others sitting at kitchen table, with a serving tray containing MJ between them. All three women were arrested. D was one of the ones at the table. A purse on the kitchen table was searched. MJ and amphetamine found in it. HELD: D's person and purse could not be searched just because she was on the premises of Randy and there was no reason to believe this was Randy's purse. NOTE: The issue of whether this was a valid search incident to an arrest was not even discussed. Somebody goofed!

18. EXTENT OF SEARCH: SCOPE -

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.

b. NOTE: Vehicles not on premises may not be searched unless specifically described in warrant.

c. GENERAL RULE: "Any container situated

within residential premises with 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."

19. EXTENT OF SEARCH: INTENSITY - The intensity of

the search undertaken pursuant to a warrant is

strictly limited by the nature of the items sought under the warrant.

a. 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 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."

b. SEARCH AFTER OBJECT DESCRIBED IN WARRANT LOCATED - After the objects sought under a warrant have been located, the applicable intensity rules change.

U.S. v Gagnon, 635 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., 441 U.S. 238 (1979). "Officers executing search warrants on occasion must damage property in order to perform their duty."

State v. Sierra, 338 So.2d 609 (La. 1976). But, in executing a search warrant, to the extent possible, due respect should be given to the property of the occupants of the premises searched.

U.S. v. Ramirez, 523 U.S. ____, 140 L.Ed. 2d 191, 118 S.Ct. (1998). Police got no-knock warrant to look for a dangerous fugitive, believed to be at Defendant’s home. Police broke a window and stuck a gun through the window 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.

20. SEIZURE OF EVIDENCE - Evidentiary items, including papers and documents, that are specified in a search warrant or discovered in plain view during the execution of a search warrant lawfully may be seized, provided that 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, 110 S.Ct. 2301, 110 L. Ed. 2d 112 (1990). 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. "Inadvertent" discovery is not a factor to take into account in determining admissibility.

State v. Strickland, 609 S.W.2d 392 (Mo. 1980) Absence of shotgun shells' description in search warrant did not require their suppression where warrant authorized police to search D's residence for shotgun, diamond rings, and revolver; "green" shotgun shell casings had been found at scene of shooting but police did not know of existence of "green" shells at D's residence prior to discovering them during authorized search, and it was apparent to the police that they constituted evidence.

21. STRIP OR BODY CAVITY SEARCHES - Effective 1980, Missouri has a specific statute. 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 person's 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.

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 MJ. Officers executing warrant found the white male present with his wife and two teenage daughters and a young male friend of family. MJ found in pots on back porch. A female jail matron was summoned, and she had each female lift nightgown and lower 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 city to liability. They were unreasonable. No probable cause 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 detainee's constitutional rights when a strip search was conducted without belief that detainee possessed contraband or weapons and without circumstances warranting such search.

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 persons 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 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 copy of the report shall be furnished to the person searched.

22. EXCLUSIONARY RULE & GOOD FAITH EXCEPTION -

GENERAL RULE - If an officer executing a search warrant collects evidence based upon that warrant, that 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 prosecution's case-in-chief in a criminal trial (but only if) the law enforcement officers involved did not have an objectively reasonable belief in the warrant's 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 prosecution's 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 at 53. "Penalizing the officer for the [judge's] error, rather than his own, cannot logically contribute to the deterrence of 4th Amendment violations." Leon.

"Those who drafted the Fourth 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 Fourth Amendment was adopted." LaFave, at 27, quoting Justice Traynor.

GOOD FAITH EXCEPTION WHEN WARRANT WAS OBTAINED, BUT WAS LATER FOUND TO BE INVALID.

23. The court noted 4 exceptions:

(1) If the judge was misled by information in the affidavit, the officer either knowing it was false or recklessly disregarding its falsity;

(2) Where the judge wholly abandons his judicial role;

(3) 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; or

(4) Where the warrant itself could be so facially deficient that the officers cannot presume it valid.

(1) 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). Rape defendant claimed that officer's affidavit for search warrant contained false information. Supreme 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 -- 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 by Missouri Courts.

State v. Watson, 715/277 (Mo. App. 1986) Officers made mistakes in citing facts in affidavit as to description of car held not shown to be known false nor reckless disregard by the officer. Defendant must offer "substantial proof" of deliberate falsehood or reckless disregard.

(2) Where the judge wholly abandons his judicial role;

(3) 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; or

"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).

Dixon v. State, 511 So. 2d 1094 (Fla. 1987) Search warrant affidavit for drugs did not say when illegal drugs had been seen on the premises, thus, even good faith exception could not save it because it was so lacking in indicia of probable cause.

State v. Hammett, 784 S.W.2d 293 (Mo. App. E.D. 1989). Search Warrant affidavit 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 defendant's mother told her that there was going to be a "drug meeting" at D's 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 informant's wife, the unnamed person who talked to informant's wife, or defendant's mother. Although hearsay may be the basis of probable cause, there were so many levels of hearsay here, it didn't 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. Brown, 708 S.W. 2d 140 (Mo. banc 1986). Under totality of cir-cumstances there was probably no probable cause for issuance of search warrant, but even assuming arguendo there was no probable cause, good faith exception applies: Police officer was investigating a burglary of a hardware store that occurred in August. In November he sees lots of tools in D's 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; D says it is none of officer's business where he got them and to get out of house; officer took hardware store owner with him to execute search warrant and they only seized those items the victim could identify.

(4) Where the warrant itself could be so facially deficient that the officers cannot presume it valid.

State v. Cummings, 714 S.W.2d 1 (Mo. App. 1986). Search Warrant said to search 2nd house east of LaCompte Road, and police searched 3rd house; search warrant address was incorrect; officer was able to tell which house was 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 mistake, good faith exception applies.

24. 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.

TWO NARROW EXCEPTIONS:

Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). 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 officer's reliance on the consti-tutionality of a statute is objectively reasonable.

Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Officer pulled over Defendant for traffic violation. Routinely put name into computer in patrol car; discovered outstanding arrest warrant. Arrested Defendant and in a search incident to arrest found a bag of MJ in the car. Turned out that the warrant had been recalled but never removed from the computer due to 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.

25. WHO SEARCHES:

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 MSHP may request the PA 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 upon application by the applicant, 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).

26. Some practical tips for officers regarding conducting search.

PHOTOGRAPHS

a. Photograph every room before beginning search.

b. Photograph each item in place found before moving.

c. Photograph every room when you leave to show lack of damage.

DIAGRAM - Layout of house (will quickly forget) indicating where items were found.

LABELING - Easiest way - Separate bags by parts

of house, with each in bag separately numbered.

27. MOTIONS TO CLOSE SEARCH WARRANT FILE TO PUBLIC:

Although there is no Missouri statute addressing the issue, nor any Missouri appellate cases yet, cases in other jurisdictions set out the common law that the judge who issues a search warrant has the authority to issue an order that all or part of the search warrant file be sealed. This can keep the target criminal from reading the search warrant affidavit and finding out about the search warrant and your known facts prior to his arrest or prior to the search. Missouri prosecutors have successfully used a Motion For Sealing Search Warrant Affidavits. Some applicable cases: Baltimore Sun Company v. Goetz, 886 F.2d 60, 64-65 (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).

28. DO NOT LET PRESS ACCOMPANY POLICE INTO SOMEONE’S HOME FOR THE EXECUTION OF A SEARCH OR ARREST WARRANT.

Wilson v. Layne, — U.S. —, 143 L.Ed.2d 818, 119 S.Ct. 1692 (1999). In a unanimous decision, the Court holds that it violates the 4^th Amendment for police to allow a news reporter and photographer to accompany them into a suspect’s home for the execution of a warrant (in this case an arrest warrant). Police so doing can thus face the possibility of civil liability.

Parker v. Clark, 905 F.Supp. 638 and 910 F. Supp. 460 (E.D. Mo. 1995). Police officer who obtained a search warrant, made decision to execute it, and brought television station with him to film the inside of Defendant's home with permission of Defendant violated 4th Amendment and thus subjected the police officer 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) (Camera crew accompanied Health Inspector on search of restaurant for unsanitary conditions. Violated 4th Amendment. Although health inspector had right to enter, he did not have right to bring the TV station employees, who only had the same right of entry as the general public).

PART THREE - WARRANTLESS SEARCHES

I. AS STATED BEFORE, GENERAL RULE -- A WARRANTLESS SEARCH IS PRESUMPTIVELY UNREASONABLE, UNLESS THERE IS A RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT.

1. SEARCH INCIDENT TO ARREST

Oldest exception, talked about by Sir Matthew Hale in 1687, and not even new then, SEARCH INCIDENT TO LAWFUL ARREST. No such creature as a search incident to an unlawful arrest. Must be LAWFUL. May be misdemeanor or felony (or traffic offense if D is taken into custody). Problem comes with scope 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.

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. Search was done over Defendant’s 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 have obtained either a weapon or seized and 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 explains 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 officer’s 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 arrestee’s 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 arrestee’s 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).

Missouri's Arrest Statute: 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 has violated any ordinance over which such officer has jurisdiction."

Three classic rationales to allow searches incident to arrest:

Area of Muhammad Ali (who can float like a butterfly and sting like a bee) would be larger than immediate area of Whistler's invalid mother in rocking chair.

a. Includes body.

b. Includes area within his reach, lunge or gasp -- immediate control. "The Wingspan" of D.

c. Includes fingerprinting. State v. Blair, 691 S.W.2d 259 (Mo. 1985).

d. Includes clothing and fingernail scrapings. State v. Magnotti, 198 Conn. 209, 502 A.2d 404 (1985).

e. Includes gunshot residue. State v. Howell, 524 S.W.2d 11 (Mo. 1975); State v. Parsons,

513 S.W.2d 430 (Mo. 1974).

f. Includes bringing arrested Defendant to station after arrest for thorough search.

* Station search includes searching any

closed containers in Defendant's

possession, in accordance with

Department's established inventory

procedures. Illinois v. Lafayette,

462 U.S. 640, 103 S.Ct. 2605, 77 L.

Ed.2d 65 (1983).

* Includes going back to search more

closely at a later time 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 and 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 the 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."

g. Includes giving breathalyzer to arrestee.

U.S. v. Reid, 929 F.2d 990 (4th Cir. 1991).

h. Includes taking small hair sample from arrestee's head. U.S. v. Weir, 657 F.2d

1005 (8th Cir. 1981).

i. 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).

j. Includes taking dental impressions from

arrestee. Spence v. State, 795 S.W.2d 743

(Tex. Crim. App. 1990).

k. Includes putting hands under ultraviolet

lamp. U.S. v. Baron, 860 F.2d 911 (9th

Cir. 1988).

l. 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).

m. Includes automobile passenger compartment and

containers therein. "The Court has drawn a 'bright line' around the passenger compartment of an automobile, holding it may be searched incident to the arrest of a person in the automobile." (Plus containers therein.)

NOTE: The "Bright Line" rule for search incident to arrest of 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.

n. Includes protective sweep of house if defendant is in a house when arrested.

Protective sweep - In effecting a lawful arrest the law officers may also conduct a "protective sweep" of the premises to discover presence of other people (not evidence) who might be security risks. Sweep must be quick and cursory, but items observed under plain view doctrine during 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 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. One of the officers then proceeded to the basement to make a protective sweep to be sure there was no one else hiding there. While in the basement the officer saw in "plain view" a red running suit. The officer retrieved the running suit for evidence. HELD: Warrantless protective sweep of house in conjunction with arrest is permissible under Fourth Amendment if officer reasonably believes that area to be swept harbors individual posing danger to officer or others.

State v. Johnson, 957 S.W.2d 734 (Mo. banc 1997). Police were called to Defendant's home on a "severe sick case." They found his wife dead at the scene, beaten so severely it was impossible to tell if she'd been shot or died from the beating. Defendant was kicking walls, claiming that 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 be sure no one else was present. Various items were seen in plain view, including a bloody washcloth in a sink, blood and hair samples spotted in various places, and a dented pipe. HELD: The police had entered the home at first upon consent. Once the dead body was found, it was 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 of the items 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.

o. PRETEXTUAL ARRESTS --OKAY AS LONG AS SOME VIOLATION OCCURRED:

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 involve the pretextual arrest doctrine. MO now adopts the majority view that so long as an arrest is objectively valid, the officer's subjective intent in making the stop is irrelevant. For example, 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 D 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 D, "so long as the police do no more than they are objectively authorized and legally permitted to do" the officer's other motivations for pulling D over and making an arrest are irrelevant.

State v. Malaney, 871 S.W.2d 634 (Mo. App. S.D. 1994). Officer saw Defendant's 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, and 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 officer's motives or state of mind in wanting to search the car was irrelevant as long as the traffic offense really occurred. Weaving within the lane of traffic in which a vehicle is traveling provides a sufficient basis for an investigatory stop. A reasonable officer could have concluded in this case that the driver was drunk, asleep or for some reason inattentive. 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) for a similar result in an allegedly pretextual traffic stop case.

Whren v. U.S., 116 S.Ct. 690, 135 L.Ed 2d 89 (1996). Regardless of whether a 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 circum-stances could have stopped the car for the suspected traffic violation, the stop is legal. In this case, police officers had been in a "high drug area" of Washington D.C. and saw a Pathfinder truck with temporary plates and youthful occupants stopped at a stop sign, the driver looking down into lap of passenger. Sat there an unusually long time -- more than 20 seconds. Police car did a U-turn to go back for another look. The Pathfinder turned suddenly w/o signalling and sped off at an unreasonable speed. Police followed and caught up with Pathfinder when it stopped behind other traffic at a red light. Officer got out and went to driver's door and told driver to put car in park. He immediately saw 2 bags of crack cocaine in passenger Whren's hands.

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 truckbed. 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: Search 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 have in calling the Highway Patrol to respond are irrelevant. The length of the stop was thus okay and the consent to search was valid.

Knowles v. Iowa, 525 U.S. , 142 L.Ed. 2d 492, 119 S.Ct. 484 (1998). Defendant 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 further pat them down if reasonable suspicion exists that they might be armed and dangerous.

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 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. Tore open the seat and found whiskey under the upholstery, 68 bottles.

HELD: A person has a reasonable expectation of privacy in a car, but it is not as great as in a house, because of movable nature of car and danger it will move out of jurisdiction. SEARCH WARRANTS ARE NOT NORMALLY REQUIRED TO SEARCH A CAR SO LONG AS THE OFFICERS HAVE PROBABLE CAUSE TO BELIEVE IT CONTAINS CONTRABAND MATERIAL OR EVIDENCE SUBJECT TO SEIZURE.

THE CURRENT 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 of knowledge" of persons supplying hearsay 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).

SCOPE: UNDER AUTOMOBILE EXCEPTION, YOU MAY SEARCH THE ENTIRE CAR, INCLUDING THE TRUNK (ANYWHERE THE ITEM YOU ARE LOOKING FOR COULD HAVE BEEN HIDDEN).

Wyoming v. Houghton, 143 L.Ed 2d 408 (1999). A search of a car upon probable cause includes inspecting passenger’s belongings that are capable of concealing the object of the search.

Compare search incident to arrest (passenger compartment without probable cause to search) with probable cause search of car (arrest not necessarily involved, entire car may be searched with probable cause).

WITH PROBABLE CAUSE, YOU MAY SEARCH AT 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, 943 (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). Trooper pulled over a car for failure to signal a lane change. Defendant was a passenger in the car. 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 small bags of marijuana in a duffel bag and a gallon bag of marijuana in the driver's suitcase. The trooper arrested the driver and asked Defendant to drive the car to Headquarters for a more detailed search. At Headquarters, the Trooper found psilocybin mushrooms in a duffel bag bearing Defendant's name. The trial court had granted a motion to suppress as to the mushrooms in Defendant's 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 searching it. An officer may both search a vehicle on the spot where it was stopped and search it after it has been moved to the station.

EXAMPLE OF PROBABLE CAUSE IN DRUG CONTEXT:

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 near Joplin. Defendant driver came back to trooper’s car. Defendant was from California, 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 passenger’s sister, and that passenger worked near Defendant’s home. Defendant was nervous, figity. Passenger gave opposite answers to the questions. Officer asked for permission to search the car. Defendant said officer could search the car but not the suitcases because she didn’t want her underwear stretched out over the highway. Officer said he wouldn’t know if the car contained drugs unless he looked inside the luggage. Defendant said, "Are you going to search it, anyway?" He said he felt he had probable cause. She said, "I’m not going to tell you where it’s at." The search revealed 127 pounds of marijuana in the luggage. HELD: There was probable cause for a car search. The factors establishing probable cause were: (1) Fact that 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) Fact that the driver of the car was from California and passenger was from North Carolina as well as the fact that they were driving 2500 miles instead of flying; (4) D's suspicious conduct and movements, stories of driver and passenger did not match as to how they met, where they lived, jobs, etc., and nervousness on part of D while speaking to the trooper; (5) D's statement to trooper, "I'm not going to tell you where it's at!" after trooper told D he felt he had probable cause to search D's luggage and car for drugs.

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 defendant's 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:

(3) Protection of police from potential danger.

State did not assert these reasons to justify the search of the camper shell. Defendant has greater expectation of privacy in locked trunk or camper shell than in passenger compartment.

NOTE: 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 --

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 POLICE HAVE OBTAINED A SEARCH WARRANT.

U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977). The search of a locked footlocker at railroad station. Police may seize suitcase warrantlessly, but must get warrant to get inside suitcase. A person has a greater expectation of privacy in a suitcase.

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.

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 D leaving the home with a bag about the size of one of the packages that had been delivered. Acevedo placed the bag in the trunk of his car and drove off. He was shortly stopped by the officers, who immediately searched the trunk, finding the bag, 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.

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.

State v. Borotz, 654 S.W.2d 111 (Mo. App. 1983). Defendant left place where marijuana sales occurred and put attache case in 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.

U.S. v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). Three-day delay 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).

4. HOT PURSUIT -- EMERGENCY OR EXIGENT CIRCUMSTANCES EXCEPTION (1967)

"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.

(1991)

"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 accomodation of public and private interests that the Fourth Amendment requires." Id.

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

(1998)

THE UNITED STATES SUPREME COURT HAS OUTLINED THE EXIGENT CIRCUMSTANCES EXCEPTION AS FOLLOWS:

A warrantless intrusion into a home may be justified by:

(1) Hot pursuit of a fleeing felon; or

(2) Imminent destruction of evidence; or

(3) The need to prevent a suspect’s escape; or

(4) 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).

(1) HOT PURSUIT

Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed 2d 85 (1990). A gas station was robbed on 7/18/87 at 6:00 A.M. A lone gunman fatally shot the manager. An officer who heard the report suspected Joe Ecker and went to Ecker's home. He saw an Oldsmobile pull up. The car took evasive action and spun out of control and stopped. Two men got out and ran. Ecker was captured and identified as gunman. 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 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 Julie's mother and they lived at 2406 Fillmore. The police talked to Louanne's mother, Helen Niederholfer, who lived next door. Although Louanne & Julie were not home, Helen confirmed that a Rob Olson had been staying upstairs but was not then home. At 2:45 PM Helen called police and said Olson had returned. Police surrounded house. Police then called Julie and told her Olson should come out. He heard a male voice say, "Tell them I left." Julie said Rob had left. At 3:00 P.M. the police went in without seeking Julie's permission and with weapons drawn. Defendant was found hiding in closet.

HELD: Not enough exigent circumstances because no indication existed that Julie was in danger, and defendant, since surrounded, was going nowhere; police could have gotten warrant. Defendant was not suspected of being the murderer but only the driver; the murder weapon had already been recovered. CONFESSION SUPPRESSED.

HOT PURSUIT MUST USUALLY BE IMMEDIATE AND/OR CONTINUOUS:

Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Police entered Defendant's 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."

HOT PURSUIT BEGUN AT DOORWAY OF DEFENDANT'S HOUSE:

United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). Undercover officer arranged to buy heroin from McCafferty and waited outside while McCafferty went into Santana's house to obtain the drugs. After McCafferty's return and her delivery of heroin to the officer, he placed her under arrest. Other officers traveled the 2 blocks to the Santana residence. She was standing in her doorway. 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: Defendant's 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.

(2) DANGER TO POLICE OR OTHER PERSONS.

"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.

Emergencies Involving Danger to Persons

1. Dead body

State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978). Defendant’s mother-in-law was suspicious that Defendant might have done something to her daughter and grandchildren. Daughter and children had been missing several days. Defendant claims she went shopping in Columbia, but mother-in-law noticed her purse still at the house and called police. Police respond and detect odor of death. Without consent, they search the home and find bodies of Defendant’s wife and children in bedrooms. HELD: Exigent circumstances exception applies. "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."

2. Wounded person

Smith v. State, 789 S.W.2d 172 (Mo. App. E.D. 1990). Police who followed trail of blood into murder victim's home needed no warrant.

State v. Butler, 676 S.W.2d 809 (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. Medical emergency: police got call from victim that he had just been shot by his wife in his home. From outside, police could see him lying on the floor in his family room.

3. Prevent Injury or to Respond to Need for Help

State v. Orso, 789 S.W.2d 177 (Mo. App. E.D. 1990). Reasonable belief of medical emergency existed where Defendant's grandmother had been missing for 7 days, reported missing by other family members. Defendant lived with grandmother at her house and denied entry to police who arrived 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 never answered, and she had failed to keep her regular church visits. When Defendant came to door he claimed she was at his sister's house but that he did not know the address or phone number. He said he would go with them to the sister's house and to wait while he got his jacket. He closed the door. He came back and said he'd called his sister's house and his grandmother and sister were not home because they'd gone shopping. 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 necessary because of "there are numerous facts to support a reasonable belief that a medical emergency existed" or that "a need for help" existed.

State v. Tettamble, 720 S.W.2d 741 (Mo. App. E.D. 1986). Where officers knew that 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: Defendant's adult daughter came to police and said that 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 police went into the house, no criminal activity was in progress, no "need for help" existed, no reason 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, tried to wake him, checked him for injuries, and checked his pockets and found a syringe and some pills. HELD: Not unreasonable search. 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.

4. To some extent to prevent destruction of evidence or property damage.

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 doing the crime scene found probation paperwork pertaining to Defendant. A photograph was obtained and within 2 hours the victims had identified Defendant from a photo lineup. Search warrant procedures were begun for Defendant’s home, but no judge was available. At 10:20 p.m., 4 hours after the robbery, the officers went to Defendant’s 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 looking for him in a walk-in closet, police found a brand new suit, unhemmed, with the label of the store that had been robbed. HELD: Search valid under 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.

People v. Valencia, 237 Cal. Rptr. 128, 41 Cr.L. 2216 (Cal. 1987). When the location of a controlled drug buy involving an informer and marked money was suddenly moved from the informer's car to the seller's apartment where there might be several dangerous persons, at which time the deal was out of sight of observing police officers, exigent circumstances existed for 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.

State v. Wiley, 522 S.W.2d 281 (Mo. banc. 1975). Informant calling "tip" line provided police with information that suspects Wiley, Umfleet and Moore had drugs stored in the refrigerator of their apartment, that they were at the apartment now eating a meal, and that they were taking the drugs to Illinois when they finished the meal. The prosecutor and police started working on a search warrant but couldn't find a judge. In the meantime, some 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. 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: Not necessary to consider whether the search of Defendant's person exceeded a pat-down of non-suspect on 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). Defendant Murphy voluntarily appeared at 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 Defendant's finger. Suspecting it might be dried blood and knowing that evidence of strangulation if 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 an arrest.

Ray v. State, 304 Ark. 489, 803 S.W.2d 8894 (1991). Gunshot residue test of Defendant's hands without warrant on an arrestee 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."

State v. Varvil, 686 S.W.2d 507 (Mo. App. E.D. 1985). D was convicted of 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 D 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 D 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 does not apply.

** EMERGENCY CIRCUMSTANCES TO PROTECT

VICTIM’S PROPERTY FROM BURGLARY

Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987). Police properly entered a fraternity house in response to a radio call reporting burglary in progress, where a lone car parked in driveway and students were then on X-mas break. Officers found back door unlocked and went in and arrested two people inside, who turned out to be frat boys lawfully there. They filed civil suit, which they lost because the search was reasonable under exigent circumstances

Murdock v. Stout, 54 F.3d 1437 (9^th Cir. 1995). Neighbor reported a burglary in progress. Police arrive, saw rear door slightly open, heard ringing phone not being answered, saw lights and TV on. They entered without warrant. HELD: Entry was proper under exigent circumstances by the totality of the circumstances.

* NOTE: POLICE MAY ENTER PRIVATE PROPERTY FOR THE PURPOSE OF PROTECTING THE PROPERTY OF THE OWNER OR OCCUPANT OR SOME OTHER PERSON. ONE EXAMPLE IS WHERE THE POLICE REASONABLY BELIEVE THAT THE PREMISES HAVE BEEN OR ARE BEING BURGLARIZED. LaFave, Vol. III at 403.

SCOPE OF SEARCH UNDER EXIGENT CIRCUMSTANCES:

* 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 then open a suitcase found in the room. U.S. v. Goldstein, 456 F.2d 1006 (8th Cir. 1972).

* 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.

Exigent circumstances exception also allows firemen 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, the inspection can turn into a search that would require a warrant.

"The stop is a watered-down junior varsity arrest. The frisk is a watered-down junior varsity search." Hon. Charles Moylan.

STOP -- When an officer observes unusual conduct that leads him to reasonably believe that 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 recently said 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.

FRISK – If a reasonably prudent man in the officer's position would believe his safety or that of others was in danger, he may go a step further and pat down the exterior clothing of the person for weapons. Officer need not be absolutely certain D was armed; test is whether a reasonably prudent person in same circumstances would believe he was in danger. "Reasonable suspicion" & "articulable suspicion" is what is required, not probable cause.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 887 (1968). Officer Martin McFadden of Cleveland PD was patrolling in plain clothes in downtown at 2:30 P.M. on Halloween. He'd been police officer for 39 years. He saw two men he'd never seen before, standing on corner. They "didn't look right." He moved out of sight and watched. One of men left other, 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 second man did 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 store and he 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 Terry's clothing and found a loaded .38 in the upper breast pocket of Terry's overcoat. he ordered all three men into the store and found another gun on Chilton. HELD: THIS CASE ESTABLISHED THE STOP AND FRISK DOCTRINE -- TERRY'S CONVICTION FOR CCW WAS AFFIRMED.

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Narcotics officer watched D on street corner. Saw D engaged in a number of brief encounters with passing pedestrians, who seemed to be getting something from him. Officer felt D was selling drugs. Officer followed D into all-night chop-suey joint. Both were eating, D left, Officer followed him. D reached for pocket, D said, "I know what you're after, and reached into pocket. Officer reached into pocket, too, and they pulled out packet of heroin. Officer admitted that he had not suspected D had weapon, but knew the pocket was stash of drugs. Officer said he was not afraid of D at all. HELD: Only reason a warrantless frisk without probable cause is allowed is to protect officer's life, not to get evidence.

State v. Purnell, 621 S.W.2d 277 (Mo. 1981). Defendant looking into 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 Defendant "began to hurriedly walk away."

State v. Valentine, 584 S.W.2d 92 (Mo. 1979). Stop proper on Detective's observation that the car had passed by, turned and again passed the same cleaning establishment several times at the same time of evening during which earlier cleaning establishment robberies had occurred, and it was because of the robbery problem in the neighborhood that several police cars were on stakeout.

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 then put the suspect in a locked police car and drove a short distance while still determining his identity. No force used - only 10 minutes - only intrusion was asking questions.

FLEEING FROM POLICE CONSTITUTES REASONABLE SUSPICION FOR TERRY STOP.

Illinois v. Wardlow, U.S. (1/12/2000). 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 4^th Amendment violation. A person’s 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.

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 Defendant's 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.

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.

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: It did. "When multiple police officers are working together closely in order to effect an arrest or engage in an investigatory stop, the Fourth Amendment is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion."

SCOPE LIMITATION OF DETENTION -- CANNOT FINGERPRINT ON LESS THAN PROBABLE CAUSE.

SCOPE OF DETENTION – IF SUSPECT REFUSES TO GIVE NAME AND ADDRESS, THE DETENTION MAY INCLUDE A SEARCH FOR ID.

State v. Flynn, 92 Wis.2d 427, 285 N.W.2d 710 (1979). Police officer told to patrol area for suspects in just-completed burglary. Thirty minutes later he saw 2 men emerge from an alley -- one fit the description. The one who fit ID'ed himself, but the other refused to do so, even after officer explained the reason for the inquiry, but admitted he had ID in his pocket. Officer frisked for wallet, checked ID, found that "pick-up" order was out for Defendant. 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 Defendant's 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 to remain anonymous. LaFave, Volume IV at 304.

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.

Timing of Frisk -- 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.

Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Officer did Terry stop and did frisk before asking any questions at all. An informant known to Sgt. Connolly told him while he was alone on patrol duty in 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."

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 saw 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 that are 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.

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 State's position that the officer was entitled to conduct a limited Terry search during a traffic stop for what the officer believed to be erratic driving. The officer had seen handcuffs as he wrote the ticket. The officer's 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 nor worried about his safety when he searched the jacket in the back seat and found a gun in its pocket.

Turner v. U.S., 623 A.2d 1170 (1993). Where police officer had reasonable suspicion that a small hatchback car driven by D 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 D could have reached it by reclining the front seat.

State v. Duke, 924 S.W.2d 588 (Mo. App. S.D. 1996). Officer pulled over Defendant's car for Terry investigatory stop based upon reasonable suspicion that the car contained illegal drugs. After being stopped, Defendant consented to search of 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 Utley's 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 Defendant's car parked outside the drug house; (4) He recognized Defendant's truck as being Defendant's, a known drug dealer based upon information from other reliable informants; (5) He watched Defendant exit Utley's 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.

A POLICE OFFICER MAKING A TRAFFIC STOP MAY ORDER BOTH DRIVER AND PASSENGERS TO GET OUT OF CAR.

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Police stopped Defendant on a traffic violation, directed driver to step out of the car, which was a standard procedure in this situation. When driver got out, officer noticed a large bulge under his sports jacket. Thus, he frisked him and found a revolver. HELD: Frisk was reasonable.

Maryland v. Wilson, 519 U.S. _____, 137 L.Ed.2d 41, 117 S.Ct. 882 (1997). Officer pulled car over for speeding, noticing that car had no license plate, and had a torn piece of paper saying "Enterprise Rent-A-Car" dangling from its rear. During the pursuit, Officer noticed that car had three occupants -- driver plus two passengers. The passengers kept looking back at the officer and periodically ducking out of view. As the officer approached the car after stopping it, the driver alighted and met him halfway, trembling and nervous. The driver produced a valid driver's license. The Officer had him return to the car to retrieve the rental documents. Officer noticed that Defendant, the front seat passenger, was sweating and appeared nervous. 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.

Knowles v. Iowa, ____ U.S. ____ (12/8/98). Defendant 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 further pat them down if reasonable suspicion exists that they might be armed and dangerous.

ANONYMOUS TIP + INNOCENT DETAIL CORROBORATION = REASONABLE SUSPICION:

Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). 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 Dobey's 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 Dobey's 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. Conviction affirmed.

ANONYMOUS TIP + LITTLE OR NO CORROBORATION # REASONABLE SUSPICION:

Florida v. J.L., U.S. (2/29/2000). 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, 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.

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.

PULLING UP BEHIND A PARKED CAR AND TURNING ON FLASHING LIGHTS AND APPROACHING IT TO OFFER HELP IS NOT AN IMPROPER STOP.

TERRY STOP BASED UPON A "WANTED FLYER" OR RADIO DISPATCH:

United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Upholds a Terry stop on basis of a "wanted flyer" that Defendant was a suspect in a robbery. The lower 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 have acted in objective reliance on the flyer or bulletin; (2) The police who issued the flyer or bulletin possessed a reasonable suspicion justifying the stop; and (3) The stop that in fact occurred was not significantly more intrusive that would have been permitted the issuing department.

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 driver's license. Defendant did not have one so the Officer arrested him for failure to display a driver's license. On a search incident to arrest, the officer found a marijuana cigarette in Defendant's 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 than Officer Duncan's 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 just upon the facts he observed, either. Thus, the stop and all evidence obtained from it were properly subject to a motion to suppress.

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 hand in pocket. Officer made him show what was in his hand. It was a vial with cocaine residue. HELD: PA 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 Himmel's information. Remanded for further proceedings.

State v. Norfolk, 966 S.W.2d 364 (Mo. App. E.D. 1998). 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 listed on the "Hot Sheet" are reported stolen. 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.

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 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 on the premises. It was 90 minutes before the dog arrived. 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 officer's 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). 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 59,939 grams of MJ were found. HELD: The 10 minute detention based upon reasonable suspicion was not unreasonable under the 4th Amendment.

A category of Terry stop is the DRUG PROFILE STOP.

U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Defendant was stopped by DEA as he returned to Hawaii from trip to Miami. DEA found 1,063 grams of cocaine in his carry-on bags and he was arrested, after initial profile stop, followed by search warrant after drug-dog gave probable cause. He fit drug "profile" in that he paid for tickets with $2,100 in cash from roll that looked like $4,000; he wore jumpsuit and lots of jewelry; he and female carried 4 handbags onto plane but checked no luggage; name given ticket agent was not the same name as telephone number given; he stayed in Miami only 48 hours. Defendant pled guilty to possession of cocaine with intent to distribute; U.S. Sup. Ct. held these facts were enough for defendant to be questioned because they constituted "reasonable suspicion."

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.

* STOPS -- ROADBLOCKS -- BASED NOT UPON INDIVIDUALIZED SUSPICION, BUT PURSUANT TO A NEUTRAL PLAN

A. DRIVER'S LICENSE & REGISTRATION CHECKS.

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Whether a 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 individual's 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%; so long as a neutral selection criteria foreclosed a subterfuge being used.

United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). D 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 driver's 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. Nor was consent. The dog established probable cause, and the automobile exception to the warrant requirement applied.

B. DWI ROADBLOCKS/SOBRIETY 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 against the 4th Amendment interests of the individuals who are interfered with by being stopped. HELD: The balance of the State's 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). Missouri Highway Patrol established a roadway sobriety checkpoint. A sign warned "Sobriety Checkpoint Ahead." Flares were used to route approaching traffic. Parol 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 and ask to see a driver's 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 that 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 unless a "back up" occurred, in which case cars would be saved three to alleviate traffic congestion. 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).

C. DRUG ENFORCEMENT TRAFFIC CHECKPOINTS.

State v. Damask, 936 S.W.2d 565 (Mo. banc. 1996). Court holds that drug enforcement traffic checkpoints are constitutional if operated in a nondiscriminatory fashion as to the initial stop because the checkpoints effectively advance an important state interest with minimal intrusion to motorists. The case is actually a consolidation of two similar cases.

In Damask, Franklin County set up a drug enforcement checkpoint on I-44. They put up a sign that said "DRUG ENFORCEMENT CHECKPOINT 1 MILE AHEAD." One exit (242) was between the sign and the place where the checkpoint was supposed to be. Officers were actually set up at the end of Exit 242 to stop anyone who got off at the exit. No one except people who lived in the area would have reason to get off at 242. Once a car would get off, a uniformed officer would approach the car, inform the driver that it was a drug enforcement stop, check for valid driver's license and registration, and ask the motorist the reasons he exited there. If the motorist's responses did not arouse suspicions, he would be allowed to proceed. If reasonable suspicion were aroused, the officer would ask for permission to search the car and its contents. If permission were refused, a drug-sniffing dog would conduct an "olfactory" examination of the exterior of the car. If it would hit positive, the car would be searched upon probable cause. Most stops lasted less than two minutes. In Damask the drug dog alerted for drugs and the officers searched based upon the probable cause.

In Alvarez, a checkpoint was set up in Texas County on an Exit ramp connecting Highways 60 and 63. A sign had been put up indicating "DRUG CHECKPOINT AHEAD" but, like Damask, an exit ramp allowed people wanting to avoid the advertised checkpoint to take the exit toward 63. The real checkpoint awaited for people who took that exit ramp. A uniformed officer would approach the car when it stopped, explain the purpose of the checkpoint and ask the driver's destination, where he'd come from, and whether he saw the checkpoint sign. The officers allowed any driver who did not want to talk to officers to proceed. Only if the officer developed reasonable suspicion of criminal activity did the officers check driver's license, registration and insurance. If the officer developed reasonable suspicion, he would ask if the person had drugs in his possession. Most stops lasted no more than 60 seconds. Drug dogs were used to walk around a stopped vehicle as licenses were checked. In Alvarez the drug dog alerted for drugs and the officers searched both upon probable cause and upon consent.

The trial court and Court of Appeals had felt the checkpoints violated the Fourth Amendment and had sustained motions to suppress. The Missouri Supreme Court reversed.

Properly operated checkpoints are constitutional under the Fourth Amendment. Although such stops are seizures, the Fourth Amendment prohibits only unreasonable seizures. The test for reasonableness and constitutionality is a balancing test, balancing the public interest in preventing the criminal activity versus the individual's right to be free from arbitrary interference by law officers. The elements to weigh are: (1) The gravity of the State's interest served by the checkpoint; (2) The checkpoint's effectiveness in advancing the public interest; and (3) The degree to which the checkpoint interferes with or intrudes upon the motorists. The central concern in balancing these interests is to ensure that a person's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of law enforcement officers. In this case, the court found that both checkpoints were reasonably effective in advancing the State's interests and were planned in a way so as to increase the likelihood of discovering drug trafficking, while leaving a minimum amount of discretion to the officers doing the checkpoints, and involving a minimum about of intrusion upon legitimate traffic. Same result: State v. Parish, 937 S.W.2d 745 (Mo. App. S.D. 1997).

D. ILLEGAL ALIEN CHECKPOINTS.

U.S. v. Martinez-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 are not selected by the field officers, but by their superiors; every car is stopped, so no discretion in enforcement. HELD: Under a 4th Amendment reasonableness test, the minimal intrusion on the public is outweighed by the legitimate need and purpose and public interest involved. [In 1973 alone, 17,000 illegal aliens were apprehended at the San Clemente checkpoint.]

E. ROADBLOCKS FOR ESCAPE ROUTES PERTAINING

TO RECENT SERIOUS CRIME.

** 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

(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). Roadblock set up on only paved road leading away from place where large-scale smuggling operation was occurring. Authorities had intercepted a vessel on high seas, found it loaded with 400 bales of marijuana. Had it proceed 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 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 there 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.

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.

NOTE: Undoubtedly, there could be circumstances in which a roadblock would be set up so far distant 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).

6. PLAIN VIEW DOCTRINE -- (1971) Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

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:

Horton v. California, 495 U.S. 128, 110 S.Ct. 2301, 110 L.Ed. 2d 112 (1990). Robbery occurred. Defendant was a suspect because he matched the description. A search warrant was issued, but only listed and described the stolen property; police forgot to mention the machine gun and stun gun used by the robbers. Officers doing the search knew about them, though, and when they saw them 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 3^rd element necessary in the plain view analysis) is no longer a requirement for admissibility under plain view. See also: State v. Collins, 816 S.W.2d 257 (Mo. App. E.D. 1991)(Inadvertence in observing evidence which is seized is no longer a necessary precondition to plain view seizure).

Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed 2d 347 (1987). Police officer's movement of stereo equipment to obtain serial numbers during unrelated warrantless search of apartment, absent probable cause to believe equipment was stolen, held unreasonable search violating 4th Amendment.

Police had entered defendant's apartment under emergency exception to warrant requirement because just minutes before a gunshot was fired through the floor of defendant's apartment, striking man in apartment below. This was to search for the shooter, other possible victims, and weapons.

Police found three weapons and a mask. They noticed expensive stereo equipment that seemed out of place in the squalid apartment. The police officer moved the equipment to see its serial numbers. Used phone to call headquarters for check with National Crime Information Center to see if the numbers matched any stolen ones. Did match for 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 shooter; (3) This could have been seized under plain view if officer had probable cause it was stolen -held this does not amount to probable cause before the 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 driver's license checkpoint. The officer asked to see Defendant's driver's 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 officer's experience with drug cases, he recognized the balloons tied in such manner as being drug packaging and was justified under plain view in seizing them and arresting 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.

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 upon the basis of manager's photo ID, entered a motel room in an attempt to arrest a man for whom they held a warrant for escape. In an unsuccessful search for the man therein, they came upon two women's purses on the floor, which they searched for clues about the whereabouts of the man for whom they were looking. In the purse they found ID cards of the robbery victims. 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 Defendant's bedroom to arrest him but he was not present. Officer saw card case on floor containing Defendant's driver's license. Officer promptly picked it up and removed the license and checked it and the card case for any information that could lead to Defendant's 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.

ARRESTING OFFICER ACCOMPANIES ARRESTEE INSIDE HIS HOME AFTER ARREST AND NOTICES SOMETHING ILLEGAL IN PLAIN VIEW.

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. Officer asked for ID. 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: 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 officer's 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 D 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 wife's 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 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.

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 Prosecutor’s Introduction to Electronic Surveillance: Missouri’s Drug Wiretap Law, by John M. Morris.

2. FLASHLIGHTS

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.

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."

3. BINOCULARS & TELESCOPES – DEFENDANT IN PUBLIC

PLACE

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 Defendant’s 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. 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. Defendant’s 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 doing on in 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 ½ block away to observe drug dealing on street. HELD: Okay.

4. BINOCULARS & TELESCOPES – LOOKING INTO BUILDING

U.S. v. Whaley, 779 F.2d 585 (11^th 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.

U.S. v. Kim, 415 F. Supp. 1252 (D. Haw. 1976). FBI violated 4^th Amendment by using an 800 m.m. telescope with a 6 m.m. opening to observe activities within Defendant’s apartment. FBI were watching from a building 1/4 mile away, with equipment so powerful they could read the magazines in Defendant’s hands. "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 individual’s 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 people’s windows with special equipment not generally in use. The quest for evidence directed at Kim’s apartment is not exempted from 4^th Amendment regulation by the plain view doctrine . . . A plain view of Kim’s 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."

5. NIGHTSCOPES

U.S. v. Ward, 546 F.Supp. 300, aff’d in part & rev’d in part 703 F.2d 1058 (8^th Cir. 1982). Police used a nightscope to watch home of person suspected of growing marijuana in barn. They spot Defendant, a known drug dealer, arrive and go into the barn. The ID was made using the nightscope and provided information for search warrant. HELD: Use of nightscope was upheld to observe Defendant’s outdoor activities. Defendant has no expectation of privacy in his conduct out of doors, even when carried on after dark.

Commonwealth v. Williams, 494 Pa. 496, 431 A.2d 964 (1981). Police were stationed within 40 feet of Defendant’s 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 Defendant’s reasonable expectation of privacy.

6. PEN REGISTERS

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). 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 Defendant’s telephone. When he called er 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 victim’s 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.

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.

7. BEEPERS

A beeper is an electronic device that can be placed on something and then allow police to follow that item without maintaining visual surveillance.

U.S. v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). Police put beeper into a 5-gallon drum at a chemical company for a chemical used in manufacture of methamphetamine. The company agreed to sell that drum to Defendant if he came in. Co-Defendant Armstrong made the purchase and went to Co-Defendant Petchins house, where drum was transferred to Petchin’s 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 and 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. Karo, 468 U.S. 705, 1045 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Although it does not violate the 4^th 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 4^th Amendment violation to continue monitoring the beeper after it goes into the privacy of someone’s home. In Karo, DEA agents put a beeper into a container of either 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 person’s home. Ultimately they got a search warrant for the home. HELD: The initial placement of the beeper in the container did not violate the 4^th 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 someone’s home.

8. Cordless Telephone Transmissions

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 Defendant's 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 methamphetamine. HELD: (1) A cordless telephone communication is not a "wire communication" that would require a prosecutor to get a warrant under the Missouri "Wiretapping" statute; (2) Also, 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 neighbor and 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.

As long as one party to the conversation knows it is being recorded, it is legal. Defendant has simply misplaced his confidence in that particular person. MO 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 person’s knowledge or a search warrant. Illinois is one of those states.

On-Lee v. U.S., 343 U.S. 747 (1952). 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 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).

PLAIN VIEW: OFFICERS IN AIRSPACE LOOKING DOWN UPON DEFENDANT’S 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 say 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 reasonable expectation of privacy that his greenhouse was not subject to observation from that altitude.

Dow Chemical v. U.S., 476 U.S. 226, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). EPA was 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 navigable airspace. HELD: Although things seen could not have been seen with the naked eye, the aerial photos were taken with common technology generally available to the public from navigable airspace. No violation of 4^th Amendment.

"PLAIN FEEL" DOCTRINE

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 suspect's 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, though. 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 suspect's 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.

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 station, and accompanied the responding officer to the scene where they found Defendant (whom the juvenile officer recognized as the person he'd 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 Defendant's front pants pocket. The officer immediately thought that 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 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 or is about to commit a crime. Once a valid stop is made, police may pat a suspect's 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 suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's 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 officer's 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.

PLAIN "SNIFF"

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.

United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). D 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 driver's 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. Nor was consent. The dog established probable cause, and the automobile exception to the warrant requirement applied. See also State v. Damask, 936 S.W.2d 565 (Mo. banc 1996).

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. 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 another's 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 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).

NOTE: YOU MUST HAVE REASONABLE SUSPICION TO DETAIN WHILE AWAITING DRUG DOG.

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, which Defendant denied, 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 Fourth 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.

7. Consent as Exception.

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.

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?

1. 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 the evidence.

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. Blair, 638 S.W.2d 750 (Mo. banc 1982); and State v. Berry, 526 S.W.2d 92 (Mo. App. 1975). They include:

(2) The number of officers present; (Blair)

(3) The degree to which the officers emphasized their authority; (Blair)

(4) Whether weapons were displayed; (Blair)

(6) The acts and statements of the person consenting, (Blair) including his state of intoxication; (Berry)

(8) The length of the questioning; (Schneckloth)

NO SINGLE FACTOR WILL CONTROL THE FINDING OF VOLUNTARINESS; RATHER, THE COURT LOOKS AT THE TOTALITY OF THE CIRCUMSTANCES.

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed 2d 854 (1973). Defendant 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 Defendant had not realized he had the right to refuse consent. HELD: Supreme Court adopts the totality of circumstances test and finds that the consent was voluntary.

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.

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.

Florida v. Bostick, 115 L.Ed.2d 389 (1991). As a part of a routine drug interdiction effort, two police officers with badge and insignia 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.

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 day's growth of beard, and was carrying a large travel bag. Police officer identified himself and asked defendant questions about where he had been and where he was going. He looked at defendant's ticket. Another officer obtained defendant's 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 himself. Defendant agreed. The officer found a pound of marijuana inside the bag. About two minutes had passed from the time the officer 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 person's 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." BOTTOM LINE TO OFFICERS: BE SURE TO MAKE IT CLEAR TO THE PERSON GIVING CONSENT TO SEARCH THAT HE HAS THE RIGHT TO REFUSE.

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Police can be too intrusive in detaining a suspect, even when they have reasonable suspicion, thus rendering a consent involuntary. Officers approached Defendant at airport. He fit drug courier profile. They asked him to speak with them. He produced his ticket and driver’s 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 Defendant’s luggage, without Defendant’s consent, using Defendant’s ticket stub. Officers still had not given back Defendant’s driver’s 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.

SEARCH & SEIZURE -- AT CONCLUSION OF TRAFFIC STOP, OFFICER MAY ASK FOR CONSENT TO SEARCH -- 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.

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 Defendant's driver's 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).

A CONSENT OBTAINED AFTER A DETENTION NOT SUPPORTED BY REASONABLE SUSPICION IS FRUIT OF POISONOUS TREE AND IS NOT VOLUNTARY.

State v. Woolfolk, 3 S.W.3d 823 (Mo. App. W.D. 1999). Police pulled over defendant for improper rear light. After giving a warning, the officer noticed that defendant was nervous and had lied about not having any prior arrests (a radio check had confirmed defendant’s prior drug arrest). Officer asked for consent to search, which was denied. Officer said he would detain defendant and await a canine to search. Defendant then consented. Defendant does not contest the legality of the initial stop, but claims that his consent to search was not voluntary because his continued detention was illegal since not based upon reasonable suspicion. HELD: Defendant is correct. Although the 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 subject’s driver’s 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 checked the driver’s 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."

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. ______, 136 L.Ed.2d 347, 117 S.Ct. 417 (1996). Defendant was pulled over for speeding. Deputy Roger Newsome of the Montgomery County, Ohio, Sheriff's Department, went up to Defendant's car and asked for driver's 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 Defendant's license. 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. Deputy asked if he could search the car. Defendant consented. 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).

2. HAS THE SCOPE OF THE SEARCH BEEN EXCEEDED?

The scope of the search is determined by objective reasonableness: What would a reasonable person have understood from the exchange between the officer and the person?

AN OFFICER GIVEN CONSENT TO SEARCH A CAR MAY ALSO SEARCH CLOSED CONTAINERS IN THE CAR UNLESS THE SUBJECT HAD 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 included consent to search a closed bag on the floor. The officer does not need a separate consent to look inside closed containers. Jimino's car was stopped after a traffic violation. The officer told Jimino he believed drugs were in the car and asked for permission to search. Jimino agreed. Cocaine was found in a folded paper bag on the car's floorboard. HELD: If a suspect gives consent to search a vehicle, it included 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 Defendant's driver's 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. Defendant's 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. 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 your car?" D said, "No." Officer: "Any illegal guns or knives?" D said, "No." Officer: "Would you mind if I searched your car?" D 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 suspect's 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 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.

State v. Garza, 853 S.W.2d 462 (Mo. App. 1993). An officer pulled Defendant over for speeding. The officer asked if Defendant was carrying marijuana. He said he was not. After telling 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. The 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 seat. 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 more 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. Riddle, 843 S.W.2d 385 (Mo. App. 1992). An officer pulled Defendant over for following too closely and gave him a ticket. After returning Defendant's driver's 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 Defendant's consent." You could tell the Court of Appeals wanted to reverse the trial court's 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."

* U. S. v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971). Police indicated a desire to search Defendant's 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. I’m 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.

* United States v. Gleason, 25 F.3d 605 (8th Cir. 1994). Bank was robbed. Broadcast went out to look for a green pickup. 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 if it was 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 Defendant’s friendly demeanor and actions in assisting with the search rendered consent voluntary.

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.

On Lee v. U.S., 343 U.S. 747 (1952). No different result when informant wore a body wire to tape-record conversations in Defendant's home. The consent to enter the home was not rendered unlawful by the deception as to the purpose of the entry.

People v. Catania, 398 N.W.2d 343 (Mich. 1986), reversing 366 N.W.2d 38 (Mich. App. 1985). Young female officer got into Defendant's 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. Consent to enter held valid.

* FALSE STATEMENTS AS TO THE SCOPE, NATURE OR PURPOSE OF THE SEARCH MAY RENDER THE CONSENT INVALID.

CASES HOLDING CONSENT INVALID:

Gouled v. U.S., 255 U.S. 29841 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 Defendant’s 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 asked to "peek inside the vehicle" when he ended up doing a full search and finding a backpack under a seat containing a film canister of marijuana. Consent held invalid.

U.S. v. Bosse, 898 F.2d 113 (9th Cir. 1990). Officer claimed he was present to assist in a 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. Daugherty, 514 N.E.2d 228 (Ill. App. 1987). Police officer falsely told Defendant he was still investigating Defendant’s earlier complaint about being the victim of a theft offense, when he was really searching for marijuana. Consent held invalid.

People v. Jefferson, 43 A.D.2d 112, 350 N.Y.S. 2d 3 (1973). Police obtained entry to Defendant's apartment upon 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.

CASES HOLDING CONSENT VALID:

U.S. v. Turpin, 707 F.2d 332 (8th Cir. 1983). Defendant had killed his friend and then put the body in a car on railroad tracks to make it look like a train-car collision. Officers, already knowing it had been no accident, went to Defendant’s 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 Defendant's 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 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.

U.S. v. White, 706 F.2d 806 (7th Cir. 1983). Consent to search flight bag valid, where given to permit search for drugs, even though police were really looking for money and jewelry.

State v. Stevens, 367 N.W.2d 788 (Wis. 1985). Garbage collector was really acting as sheriff's agent, but this did not vitiate Defendant's consent for him to enter garage to pick up garbage. Consent valid. No different from undercover officer or confidential informant situation.

THREAT TO SEEK OR OBTAIN A SEARCH WARRANT IF CONSENT NOT GIVEN.

The Courts have experienced considerable difficulty in dealing with those cases in which police have obtained consent to search after threatening that if consent were not given they would 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 (2d 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."

* 8th Circuit holds that a threat 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).

* LaFave's 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).

ORAL CONSENT FOLLOWED BY A SUBSEQUENT REFUSAL TO PUT CONSENT INTO WRITING.

A "KNOCK & TALK" OF A PERSON'S 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. White, 755 S.W.2d 363 (Mo. App. 1988). The police were investigating a robbery in which a Zenith 158 computer had been stolen. A computer store was called by the Defendant seeking parts for that type of computer. The store relayed this to the police, who, not yet having probable cause, went to the address and knocked on the door. Defendant answered and let them in. They identified themselves as police officers, explained why they were there, and requested consent to search, which was granted by Defendant's mother, using a written consent to search form. HELD: Valid consent to search.

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 suspect's 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] court's conclusion that defendant's constitutional rights were violated 'in that the officers entered inside the house without a search warrant in an effort to circumvent the Fourth Amendment by searching the house without a search warrant.'" Search okay.

State v. Kriley, 976 S.W.2d 16 (Mo. App. W.D. 1998). Officers planned to do a "knock and talk" at Defendant’s 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 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.

A REQUEST FOR CONSENT IS NOT INTERROGATION AND DOES NOT REQUIRE MIRANDA WARNINGS, ESPECIALLY IF DEFENDANT IS NOT IN CUSTODY.

State v. Pena, 784 S.W.2d 883 (Mo. App. 1990). Defendant pulled over for speeding. Officer noticed white powder on dashboard, but did not say anything about it. Back in the patrol car, officer asked Defendant for consent to search, which was given. 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 a consent to search.

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.

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). 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 potential suspect in theft of red toolbox and new bed. Police went to his apartment and knocked. He said, "Come in." They noticed a new bed matching generic description of stolen one. Defendant was painting his apartment white. They asked him to voluntarily come to station. He agreed. At 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. Police officer asked for and received written consent to search the apartment and found a red toolbox recently painted while containing some of victim's tools. HELD: The consent was voluntarily given under totality of circumstances. Invocation of Fifth Amendment Miranda Warnings only applies to automatically exclude confessions. Not same test as 4th Amendment search and seizure.

U.S. v. Cherry, 794 F.2d 201 (5th Cir. 1986) 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 voluntary under the totality of the circumstances.

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.

3. AUTHORITY OR APPARENT AUTHORITY TO CONSENT.

CONSENT BY THIRD PERSONS HAS GENERALLY BEEN UPHELD BY THE COURTS 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 PARTY'S AUTHORITY OVER THE PARTICULAR AREA SEARCHED.

areas of control.

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: Girlfriend’s consent was sufficient because obtained from 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 co-tenant 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.

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). Defendant’s sister, with whom he resided, gave consent to search flat’s basement. Consent valid.

2. The joint user of a container may consent to its search.

3. A parent may consent to a search of a dependent child's room, although areas where the child has a particular expectation of privacy, such as a closed footlocker, may sometimes be treated otherwise. State v. Blair, 638 S.W. 2d 739 (Mo. 1982).

Vandenberg v. Superior Court, 8 Cal. App. 3d 1048, 87 Cal. Rptr. 876 (1970). Holds valid a father's consent to a police search of his 19-year-old son's room. Son had encouraged father: "Don’t let them look, they don’t 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 son's 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 father's authority and control over his children's moral training, health and personal hygiene."

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.

State v. Buckles, 495 F.2d 1377 (8th Cir. 1974). Defendant was overnight guest at home of Mrs. Utley. Police came with an arrest warrant for Mrs. Utley’s 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 wasn’t hers, so they could seize it. Stolen money orders were found in the jacket. HELD: Owner could give consent for search of home, including guest’s jacket, since she had use and control of the area where the jacket was found.

State v. Rollins, 882 S.W.2d 314 (Mo. App. 1994). Owner of home which Defendant was painting could consent to police officer's search of Defendant's duffel bag which was located in the basement; Defendant assumed risk that owner might permit inspection of her home.

State v. White, 755 S.W.2d 363 (Mo. App. 1988). Defendant is guest temporarily living with his friend. She is the one who signed the lease and lives there with 2 sons. She had authority to consent to a search of the apartment.

5. Ordinarily a guest may not consent to a search

of the host's premises. The result will depend upon the amount of authority the guest has been given.

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, but not for a search of areas into which the person consenting is not allowed, if any.

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 tenant's

apartment in spite of his authority under lease to enter to inspect or repair.

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 window. HELD: Invalid search.

People v. Sedrel, 540 N.E. 2d 792 (Il. 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 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.

10. Motel may permit search of room after departure

of guest. Abel v. U.S., 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

People v. Holmes, 536 N.E. 2d 1005 (Il. App. 1989). An 11-year old often left alone to babysit can consent to search.

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.

12. Child, minor or otherwise, driving parents'

car may consent to search.

13. A driver who has borrowed the car he is

driving.

14. The owner of the vehicle in which non-owner

passengers are riding over the objections of

the passenger, but this would not extend to

closed containers belonging to passenger.

15. Consent by one Co-Tenant will be Valid Even

After Refusal by Other Co-Tenant.

U.S. v. Morning, 64 F.3d 531 (9^th Cir. 1995). Officers got information from a Confidential Informant that a woman and a man named "Poncho" had a large quantity of marijuana at their residence. Two officers knocked at the front door and the woman, Morning, answered it. They told her they were conducting a drug investigation and would like permission to search the premises. She refused, saying they would have to get a warrant. They asked if anyone else lived there. She said Poncho did and she went and got him. They told Poncho their purpose in being there and asked for consent to search. Poncho not only consented, but told them where they could find the 226 pounds of marijuana. HELD: Defendant Morning argued that Poncho’s consent did not justify the search because it was obtained after she had already refused. Court rejected that claim. Held that Poncho and Morning were co-tenants who had common access and control over the premises. "Where people have joint access and control over property it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Morning’s refusal to consent did not mean that Poncho could not be asked for and could not give his consent. Individuals who refuse consent to search do not have a right to expect that those with whom they share the premises will likewise deny consent. They may "hope" they will, but those "fond hopes" are not protected by the Constitution.

16. Apparent Authority Doctrine -- Increasingly relied upon by lower courts in recent years in upholding 3rd party consent searches.

State v. Moore, 972 S.W. 2d 658 (Mo. App. S.D. 1998). Police obtained consent to search house from someone they had seen at the house before, whom they reasonably believed lived there.

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 -- D is arrested while in his car, and has no one with him to take his car home. Police may seize car, rather than leave it on side of road. Car is inventoried to protect owner and police (from claim they took or lost something).

Also could occur if 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. SHOULD ALSO SPECIFICALLY ADDRESS THE CLOSED CONTAINER ISSUE.

South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed 2d 1000 (1976). A car was impounded by police for parking violations, pursuant to standard Department policy. Police officer saw a watch on dashboard and other personal property in backseat. Using a standard inventory form and practices, the officer inventoried the car and found marijuana in the closed glove compartment. Defendant convicted of misdemeanor possession of marijuana. Inventory procedure approved. Inventory searches are reasonable because: (1) They protect the owner's 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 from potential danger.

Cady v. Dombrowski, 479 U.S. 367, 93 L.Ed 2d 739, 37 L.Ed 2d 706 (1973). Chicago police officer off duty in Wisconsin is arrested for DWI after a traffic accident. The Wisconsin police, by standard procedure, go to the place where his wrecked vehicle had been towed to inventory it for the police officer's service revolver, to protect public. They find bloody police trousers with defendant's name, Dombrowski, on them, bloody towels, and other bloody objects. A body is later found on defendant's brother's farm. Defendant is 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. Key is to have a routine policy that is followed in all seizures of cars. Police Department in Bertine would always seize cars of persons taken into custody from a vehicle. This was a DWI arrest. Drugs found in backpack and sealed containers.

Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed 2d 1 (1990). Police Department must have a set policy concerning opening of closed containers encountered in an inventory search in order for evidence discovered to be admissible. Highway patrolman had stopped defendant for speeding, smelled alcohol on defendant's breath and arrested him for DWI. Impounded car and inventoried car, including opening a locked suitcase in trunk, which contained marijuana. Conviction reversed since Highway Patrol had no policy governing searches of closed containers in inventory.

State v. Jones, 865 S.W.2d 658 (Mo. banc. 1993). Trooper stopped Defendant for headlight being out, noticed inspection sticker was expired and renewal stickers did not match, then discovered that the plates were expired and were in someone else's name. 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.

State v. Meza, 941 S.W.2d 779 (Mo. App. W.D. 1997). Police officer stopped Defendant for 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. Officer asked Defendant to sign the traffic ticket, but Defendant would not respond. 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. Fact that the officer also had an investigatory motive does not make the inventory search invalid.

INVENTORY OF DRUNK PERSON TAKEN INTO PROTECTIVE CUSTODY

State v. Friend, 711 S.W.2d 508 (Mo. banc. 1986). Inventory of Defendant’s person after he had been picked up on a 12-hour hold for being intoxicated in public under Section 67.315, RSMo. was valid and evidence admissible.

PURSES, SHOULDER-BAGS AND OTHER ITEMS COMING INTO POLICE CUSTODY MAY ALSO BE INVENTORIED PURSUANT TO ESTABLISHED DEPARTMENT POLICIES.

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 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.

U.S. v. Rabenberg, 766 F.2d 355 (8th Cir. 1985).

Suitcase was mistakenly picked up by a boy 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. Police officer seized the suitcase and inventoried it "so he might protect all persons concerned from claims of theft and from dangerous instru-mentalities." Drugs were also found. HELD: It was reasonable for police to do a full inventory on contents of a suitcase coming into their custody under these facts.

9. INEVITABLE DISCOVERY/INDEPENDENT SOURCE DOCTRINE

IF EVIDENCE IS FOUND AS A RESULT OF A VIOLATION OF A SUSPECT'S 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 DEFENDANT'S RIGHTS.

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed. 2d 377 (1984). Police found body of murdered girl pursuant to defendant's 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 location of body and evidence concerning it were admissible, even though confession was not.

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 that 4th Amendment does not require suppression of evidence observed in plain view during warrantless search of building, which was later seized pursuant to a later search warrant validly issued, if obtaining of warrant is wholly independent of prior search. FACTS: Agents had probable cause to believe defendant had marijuana in warehouse. Defendant left warehouse and agents searched it without warrant. Found 270 bales of marijuana. They leave and keep it under surveillance, while officers get a search warrant. Affidavit for search warrant mentions the facts showing the original probable cause, without mentioning the warrantless entry. HELD: Search pursuant to warrant was valid and evidence admissible. Sufficient proof that 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.

State v. Byrne, 595 S.W.2d 301 (Mo. App. E.D. 1980). Defendant robbed jewelry store and exchanged gunfire with police, then fled. Defendant ran to home of elderly lady and had her call ambulance. Police came to door and had lady come outside, confirmed that the suspect was inside, wounded and armed. Police went in and found him in the kitchen. Asked him where the gun was and he said it was under the cookie dish. HELD: Inevitable that the gun would have been found, anyway, even if Miranda violation had not occurred. NOTE: In light 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). Defendant was convicted of murder for beating her 5-year-old stepdaughter to death with a wooden stake. The stake was collected by police from Defendant's home after consent to search from a 3rd party. The 3rd party consent was probably invalid since it was from an adult son of Defendant who did not live with Defendant. HELD: 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 murder weapon and 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 have 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 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.

State v. Milliorn, 794 S.W.2d 181 (Mo. banc. 1990). The Missouri Supreme Court noted that the inevitable discovery rule could save the fruit of an improper search when a department has routine inventory procedures. The 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; (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 pick-up with camper shell for speeding. The driver did not have a valid license (Colorado suspended). The pick-up was owned by someone else. The license plate on the truck went to a different vehicle. Trooper arrested Defendant for driving without a license. A pat-down revealed an unmarked bottle with various controlled drugs. 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 for the search of the camper (since the judge did not believe the trooper about being able to smell the marijuana) and the State had 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.

FURTHER, THESE POLICIES SHOULD ALSO EXTEND TO

ANY CLOSED CONTAINERS FOUND IN SEIZED VEHICLES.

10. ADMINISTRATIVE INSPECTIONS & REGULATORY SEARCHES

2. Inspections of Businesses: "Closely Regulated Industries" exception:

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 RE SUBJECT TO INSPECTIONS OF THEIR BUSINESS RECORDS OR MATERIALS.

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.

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.

New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Holds that a 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.

3. Searches of Prisoners

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.

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), on remand, 744 F.2d 22 (4th Cir. 1984). 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 non-contraband property for purposes of harassment. The Supreme Court held that "the 4th Amendment has no applicability to a prison cell." 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 prisoner's 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."

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.

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. The Supreme Court expressed the view that no Fourth Amendment violation had occurred, saying: "[T]o say that a public jail is the equivalent of a man's 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 person's 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). Three men arrested and placed in police car, officer secretly turned on tape recorder and left to inventory their car; held, no reasonable expectation of privacy in jail, and same rule extends to situation where person confined in police vehicle.

BUT SEE: Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). "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.

NOTE: Even if eavesdropping on an inmate's 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 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 defendant's right to counsel).

4. School searches.

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 balancing test allows searches of them upon just reasonable suspicion.

New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). School authorities caught 14-year-old smoking in the bathroom in violation of school rules and took her to principal's office. She denied smoking. They searched her purse and found cigarettes, as well as MJ 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 which justified 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. ____, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). School district's policy authorizing random drug urinalysis testing of student athletes does not violate 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.

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 dean's 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 child's "diminished expectation of privacy" was "clearly outweighed" by the governmental interest.

11. SUPPRESSION HEARINGS

1. A person "aggrieved by an unlawful seizure" may file a motion to suppress the evidence. Section 542.296, RSMo. governs suppression hearings.

a. Motion must be in writing, with notice

to the prosecutor.

* 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).

* However, a motion can be filed just

before the jury is sworn for voir

dire.

b. Filed in the court in which there is a pending

criminal prosecution arising out of the

subject matter of the seizure.

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.

c. 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.

* 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).

* However, at the trial court's discretion

the court may entertain a motion to

suppress at any time during trial. Rule

24.05.

d. The motion to suppress may be based upon any

one of the following grounds:

1. That the search and seizure were

made without warrant and without

lawful authority;

2. 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;

3. That the property seized was not that

described in the warrant and that the

officer was not otherwise lawfully

privileged to seize the same;

4. That the warrant was illegally

executed by the officer;

5. 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.

e. 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.

1. 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 State's 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).

2. 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).

3. Although it is the state's burden to

show by preponderance of evidence that

a suppression motion should be over-

ruled, it is the Defendant's burden to

establish standing to challenge search

and seizure by showing his own 4th

Amendment rights were violated. State

v. Burkhardt, supra; State v. Baker, 632 S.W.2d 52 (Mo. App. 1982); State v. Childress, 828 S.W.2d 935 (Mo. App. 1992).

f. 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).

g. 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.

* 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 allegedly illegally obtained was really an appealable motion to suppress instead of an unappealable motion in limine).

h. 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).

i. Since a motion to suppress ruling is interlocutory, even if one judge has ruled that

j. When a motion to suppress is overruled, the

defendant must make specific objections to

admission of the 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).

k. 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).

l. When multiple officers are working together, the 4^th 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: It did. "When multiple police officers are working together closely in order to effect an arrest or engage in an investigatory stop, the Fourth Amendment is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion."

12. APPLICABILITY OF EXCLUSIONARY RULE:

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 (1998). Court refused to extend the exclusionary rule to bar illegally seized evidence at parole revocation hearing.

U.S. v. Frederickson, 581 F.2d 711 (8^th Cir. 1978). Holds tat the exclusionary rule does not apply to probation violation hearings and that evidence illegally seized is admissible at those hearings. Claims that the vast majority of jurisdictions, if not all of reported cases, view it this way.

U.S. v. Workman, 585 F.2d 1205 (4^th 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."

John Wesley Hall, Jr.

Search & Seizure, Section 5.61

Honeycutt v. Aetna Insurance Co., 510 F.2d 340 (7^th Cir. 1975). Evidence suppressed in criminal arson trial because illegally obtained was still admissible in the civil suit. Same result: Kassner v. Fremont Mut. Ins. Co., 47 Mich. App. 264, 209 N.W.2d 490 (1973).

Tirado v. C.I.R., 689 F.2d 307 (2^nd Cir. 1982). Narcotics agents violated the law in seizing some 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.

WHAT IF ONE OF THE PARTIES IN THE CIVIL SUIT IS THE SAME GOVERNMENTAL BODY THAT VIOLATED THE DEFENDANT’S RIGHTS IN THE FIRST PLACE?

FORFEITURE ACTION:

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 4^th Amendment so it was suppressed in the criminal trial, but 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 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.

ONE PARTY IS A GOVERNMENTAL BODY, BUT NOT THE SAME GOVERNMENTAL BODY THAT HAD VIOLATED THE LAW: 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 warrant for bookmaking paraphernalia at Defendant’s premises and collected various evidence of bookmaking, plus $4,940 in cash. Criminal charges were filed and a motion to suppress was sustained on grounds of invalidity of the search warrant. Criminal prosecution thus 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 driver’s license suspension and revocation cases. Thus, the fact that the officer did not have probable cause nor reasonable suspicion to stop the motorist’s vehicle is irrelevant in the administrative suspension case for driving with a blood alcohol level over .10.

4. GRAND JURY PROCEEDINGS

U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). 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 5^th. 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.

NOTE: Even though as a matter of Constitutional law it 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.

5. IMPEACHMENT OF DEFENDANT’S TESTIMONY

The use of suppressed evidence to impeach a Defendant’s testimony, as opposed to its use to prove the case against the Defendant in the State’s 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.

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 be cross-examined about that evidence, and 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.

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 Defendant’s suitcase. The motion to suppress the T-shirt was granted. The State was proceeding 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:

Q: And you heard accomplice say this

material was draped around his body?

A: Yes, I did.

Q: Did you ever engage in that kind of activity with [accomplice]?

A: No.

Q: In direct, you said you had nothing to do with the wrapping of any material under [accomplice’s] clothes?

A: I said I had nothing to do with [accomplice] in connection with this cocaine matter.

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, didn’t you have in your suitcase some size-40 medium T-shirts?

[Objection, which is overruled]

A. Not to my knowledge.

[Exhibit #9 handed to Defendant]

Q: Was this T-shirt in your luggage that day?

A: Not to my knowledge, no.

Prosecutor was then allowed to call the customs agent in rebuttal who had found that T-shirt with the missing pieces of cloth in Defendant’s 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 4^th Amendment. We hold that a Defendant’s statements made in response to proper cross-examination, reasonably suggested by the Defendant’s statements made in response to proper cross-examination, reasonably suggested by the Defendant’s direct examination, are subject to otherwise proper impeachment by the government, even by evidence improperly obtained that was inadmissible in the case-in-chief."

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 had 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 Defendant’s 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 Defendant’s 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.

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." Defendant’s lawyer then asked, "Have you ever had any narcotics in your possession?" 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.

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Defendant was charged 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 Defendant’s trial testimony. HELD: Every criminal Defendant is privileged to testify in his own defense, but that purpose 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 Defendant’s testimony to plan for any hidden impeachment evidence that the prosecution might have in store. A Defendant who wins a motion to suppress might be better off not taking the stand.

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 had been in a group of boys who were in a fight 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 mother’s 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 then 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 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.

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 bondsman’s 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 that 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 Defendant’s 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 gun with you?" Likewise for 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 4^th Amendment rights because he did not testify. Absent Defendant testifying, the suppressed evidence could not be used.

CONCLUSION

"Pieces are continually being added to the 4^th Amendment mosaic. . . . Somehow, the more I learned about the 4^th Amendment, the more there seemed to be that remained to be mastered."

Wayne R. LaFave

BOTTOM LINE FOR POLICE OFFICERS AND PROSECUTORS: ALWAYS GET A SEARCH WARRANT, UNLESS YOU ABSOLUTELY CAN'T. KNOW YOUR SEARCH WARRANT EXCEPTIONS BACKWARDS AND FORWARDS.