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 sei