Case Law Update: 2011-2014 Cumulative Edition

Facts: Two bondsmen and sheriff’s deputies went to Defendant’s house because they thought another person, who had skipped bond and was a fugitive, was at the house. To prevent the person from possibly escaping, they surrounded the house. At the back of the house, deputy saw a marijuana plant in a bucket. Deputy then obtained a search warrant, and found drugs in a shed.

Holding: The narrow issue in this case is whether the deputy was performing a search of a constitutionally protected area when he found the marijuana plant. The protections of the 4^th Amendment extend to curtilage of a house. The State concedes the backyard was curtilage, but claims that when police come on to private property for a legitimate purpose and restrict their movements to places like walkways, driveways or porches (as they did here), then observations made from such vantage points are not covered by the 4^th Amendment. However, the trial court found that Defendant had a reasonable expectation of privacy in her backyard, and the appellate court defers to this finding. The State next argues that the drugs would have been inevitably discovered because the private bondsmen would have gone into the backyard, seen the marijuana plant, alerted the sheriffs and then a warrant would have been obtained. However, this is pure speculation. Order suppressing evidence is affirmed.
State v. Rouch, 2014 WL 7174236 (Mo. App. W.D. Dec. 16, 2014):

Even though Defendant made comments on Facebook or in person about wanting to shoot people or having a bomb, where all witnesses to the comment believed they were meant as jokes, search warrant to search Defendant’s home for firearms was invalid because (1) there was no probable cause to believe Defendant had committed a criminal offense or that his possession of firearms would be illegal, and (2) police misled the issuing judge by omitting from affidavit that Defendant’s remarks were intended as jokes; motion to suppress marijuana found in the home suppressed (there were no firearms found).

Facts: Defendant-college professor wrote a Facebook post that at “the beginning of the semester [,] I’m always optimistic [but] [b]y October, I’ll be wanting to get up to the top of the belltower with a high powered rifle – with a good scope, and probably a gatling gun as well.” Police interviewed Defendant and a co-worker, who both said the Facebook post was a sarcastic, flippant comment and joke. The next day, Defendant-college professor said at work that “[y]esterday they thought it was a gun. Today I’ve brought a bomb.” Police arrested Defendant. When questioned, Defendant said his remarks were meant as a sarcastic joke. Police again interviewed co-workers who all stated they thought the comments were flippant jokes. Nevertheless, police obtained a search warrant to search Defendant’s home for a “rifle with a scope, a gatling gun, or other firearms,” which were generically said to be “evidence of a criminal offense.” The search warrant affidavit reported that Defendant had meant the Facebook post as a joke, but did not say the bomb remark was a joke. The affidavit did not mention co-workers saying the remarks were jokes. Police executed the warrant and found no firearms. They did, however, find marijuana in the home. Defendant was charged with marijuana production and possession. He moved to suppress the marijuana.

Holding: The search violated the 4^th Amendment because there was no probable cause to believe that evidence of a crime would be found, and police misled the court by omitting significant information from the affidavit about the humorous nature of the remarks. The warrant was to search for firearms as “evidence of a criminal offense,” but neither the warrant nor the police affidavit state that it would be illegal for Defendant to possess firearms or that such items were otherwise contraband. Neither the complaint nor affidavit state, “nor does common sense indicate,” what criminal offense or offenses Defendant’s possession of a firearm would serve as evidence of him committing. The State claims the firearms would support an offense of terroristic threat, Sec. 574.115, or making a false bomb report, Sec. 575.090, or electronic harassment, Sec. 565.090, or assault. But based on the totality of the circumstances, Defendant’s possession of firearms inside his home would not have served as evidence that he intended for his comments to be taken seriously rather than in jest. Finally, the “good faith” exception to the exclusionary rule does not apply where the affidavit is so lacking in probable cause as to render official belief in its existence entirely unreasonable. That is the case here. Additionally, the police misled the issuing judge by omitting from the affidavit the context of Defendant’s statements as jokes, and that all the witnesses believed they were jokes. Suppression of evidence affirmed.
State v. Lucas, 2014 WL 5337374 (Mo. App. W.D. Oct. 21, 2014):

“Good faith” exception to exclusionary rule did not apply where police did not properly execute an (invalid) search warrant in that they seized numerous items not covered by the warrant, thus showing a flagrant disregard of the scope of the warrant .

Facts: A judge issued a search warrant to search for drugs and drug-related materials at a residence. The police who executed the warrant seized the drug-related items, but also seized numerous items not covered by the warrant, including BB guns and a homemade video. Defendant moved to suppress all items, including his statements as fruit of the poisonous tree. The trial court held that the warrant was invalid because the issuing judge “did not have a substantial basis for concluding that there was a fair probability that evidence related to [drugs] would be found on [Defendant’s] property,” and that the “good faith” exception to the exclusionary rule did not apply because the police acted in bad faith by seizing items not contemplated by the warrant. The State appealed only the “good faith” ruling.

Holding: Where evidence is seized pursuant to an invalid search warrant, the evidence may still be admitted if the police who conducted the search did so in “good faith” reliance on the warrant. However, use of the “good faith” exception to the exclusionary rule assumes that the search warrant was properly executed. The trial court found that the BB guns and homemade video that were seized were not contemplated in the search warrant, and were a bad faith effort by police to expand the search into a fishing expedition. The police seized about as many items not covered by the warrant as covered by the warrant, indicating a flagrant and widespread disregard for the scope of the warrant by the police. Thus, the “good faith” exception does not apply.
State v. Avent, 2014 WL 130418 (Mo. App. W.D. April 1, 2014):

Even though Officer testified that Defendant-Driver had glassy eyes, admitted to consuming beers, smelled of alcohol, failed a PBT test, and failed some sobriety tests, where there was also contrary evidence and trial court granted Defendant’s motion to suppress statements and evidence by finding there was no probable cause to arrest Defendant, the appellate court’s deferential standard of review requires that all credibility determinations and inferences be viewed in the light most favorable to the trial court’s ruling, and therefore, granting of motion to suppress is affirmed.

Facts: Defendant-Driver was stopped for speeding. Officer smelled alcohol, and had Defendant perform various field sobriety tests. Defendant passed the walk-and-turn test and one-leg-stand test, but failed the HGN test and PBT. Officer arrested Defendant, and read her Miranda warnings. Her BAC was ultimately tested and was greater than .08. Defendant filed a motion to suppress her statements and test results, on grounds that Officer had no probable cause to arrest her for DWI. The trial court granted the motion. The State appealed.

Holding: On appeal, the State cites evidence in the record that supports a finding of probable cause to arrest. However, this is contrary to the appellate standard of review, which allows the trial court to make credibility determinations and which views evidence and inferences in the light most favorable to the trial court’s ruling. Where the trial court makes no findings of fact, the trial court is presumed to have found all facts in accord with its ruling. The trial court will be deemed to have implicitly found contrary testimony not credible. Here, Defendant contested the State’s claim that she was intoxicated by cross-examining the Officer about favorable facts to her side of the case. The court was not required to find the Officer credible. Properly viewed in accord with the standard of review, although some facts showed intoxication, Officer observed several tests that did not indicate intoxication, Officer did not observe Defendant not have control of her vehicle (although she was speeding), Defendant complied with requests for identification and license, Defendant was not incoherent or confused or uncooperative, and her eyes weren’t impaired. The trial court weighed this evidence and determined there was no probable cause to believe Defendant was intoxicated. Judgment affirmed.
State v. Stoebe, 2013 WL 4520022 (Mo. App. W.D. August 27, 2013):

Even though Defendant-Driver, who was stopped for a dirty license plate, was “nervous” and consented to search of her purse after persistent questioning by Officer, the trial court did not clearly err in suppressing drugs found in the purse because the traffic stop was longer than necessary for its purpose, and Defendant’s consent to search was involuntary under the totality of circumstances.

Facts: Defendant-Driver was stopped for having a dirty license plate. Officer placed Defendant in his patrol car. Officer testified that based on his experience, he can tell if a person has illegal items in their vehicle based on their nervousness. Officer testified that Defendant’s neck was beating and she was nervous. He asked her multiple times for consent to search the car, but she kept evading the question or refusing. She ultimately consented to search of her purse, in which drugs were found. The trial court granted a motion to suppress on grounds that Officer prolonged the stop longer than necessary, that Defendant’s nervousness did not provide reasonable grounds to prolong the stop, and that even though Defendant ultimately consented to the search, her consent was involuntary in light of the illegal continued detention and other circumstances. The State appealed.

Holding: A traffic stop may only last for the time necessary to conduct a reasonable investigation of the traffic violation. Here, the trial court made a factual finding that Defendant’s consent to search, if secured from Defendant at all, was secured after the time necessary for Officer to conduct a reasonable investigation of the traffic violation. Although the State claims there is “no evidence” to support that conclusion, and the State is technically correct that it failed to present evidence of exactly when the consent was obtained, it was the State’s burden to establish that the search was conducted during a reasonable investigation of a traffic stop. The State failed to do that here. The State also argues that even if the stop was prolonged, the search was valid because Defendant consented. There is no bright line rule invalidating consensual searches after a traffic stop is completed. However, here the trial court found the consent was involuntary under the “totality of circumstances,” which was the proper legal standard. Defendant had been asked numerous times for consent, and had been kept in detention due to nervousness. Finally, although there was some evidence of other crimes (open alcohol containers) that might have been used to justify prolonging the stop, the State has not argued that evidence as grounds for upholding the search, so the appellate court will not consider it either.
State v. Lovelady, 2013 WL 600195 (Mo. App. W.D. Feb. 19, 2013):

Even though police stopped Defendant because he had a gun, where police discovered the gun was a toy, they did not have reasonable suspicion to detain Defendant further to check for outstanding warrants; thus, even though an outstanding warrant was subsequently found leading to a search of Defendant’s person and discovery of drugs, this evidence must be suppressed.

Facts: Defendant was riding a bike in circles in a “high crime” neighborhood at night, when he waved at passing police and said, “They went that way.” Police saw a gun sticking out of Defendant’s waistband, stopped him and handcuffed him. They seized the gun and discovered it was a toy. Subsequently, they checked for outstanding warrants for Defendant, discovered one, and arrested him. They then searched him and found cocaine. At his trial for possession of the cocaine, Defendant moved to suppress the evidence of the warrant and drugs.

Holding: There was reasonable suspicion of criminal activity to initially stop Defendant because he was riding a bike in circles at night in a “high crime” area and appeared to have a gun. However, there was not reasonable suspicion to continue to detain Defendant after the gun was discovered to be only a toy. The police did not testify to articulable facts supporting reasonable suspicion that were developed during the period of lawful detention, which would justify further detention. The officers’ reasonable suspicion was dispelled prior to their warrant check. After investigating the gun, the handcuffs should have been removed and Defendant allowed to leave, as he had requested to do. The subsequent evidence must be suppressed.
State v. Williams, No. WD73550 (Mo. App. W.D. 10/30/12):

Even though Officer claimed that drugs she found in Defendant’s car after a traffic stop arrest were found pursuant to an “inventory search,” where the search did not follow the police department’s guidelines for such a search, the search was merely a pretext for searching for general criminal activity and drugs had to be suppressed.

Facts: Officer stopped Defendant after he ran a stop sign. Officer arrested Defendant and then conducted an extensive search of the car (including inside the gas tank cap area), allegedly pursuant to an “inventory search.” She found a bottle containing drugs under the car’s leather gearshift tower. Defendant moved to suppress. The trial court denied suppression. He appealed.

Holding: The purpose of an “inventory search” is to protect an owner’s property, protect police from false claims of lost property, and protect police from danger. To be constitutionally valid, an “inventory search” must be conducted according to established police department procedures, and cannot be used as a ruse to search for general evidence of crime. Here, the stop of Defendant was valid, but the alleged “inventory search” was not. Officer violated the police department’s written polices for inventory searches in several ways. First, there was nothing in the policy that authorized looking under the leather gearshift tower, which was essentially a “hidden” compartment. A search of a hidden compartment is not authorized as an “inventory search” because such explorations are not consistent with the permissible rationale of “inventory searches.” Also, Officer searched inside the gas cap compartment. The trial court found this was irrelevant since the drugs weren’t found there, but this was relevant to show that this was not a bona fide “inventory search.” The department policy only authorizes listing items inside the car and trunk; it does not authorize searching a gas tank. The Officer also did things like feeling the inside of the car doors, which again is not consistent with an inventory search but is consistent with an impermissible general search for evidence of crime. Also, the video of the search shows that the Officer did not have a pen and did not take any notes while doing the “inventory search.” This is inconsistent with doing an actual inventory. The Officer also made the decision to tow the car only after finding the drugs; again, this is inconsistent with doing an “inventory search.” Drugs must be suppressed.
State v. Sachs, No. WD72821 (Mo. App. W.D. 4/24/12):

Even though State claimed “exigent circumstances” existed to justify search of a computer believed to contain child pornography because the computer might be unplugged later, a warrant should have been obtained because Officer admitted it was okay to unplug the computer and mere inconvenience to police did not justify failure to get a warrant.

Facts: Three Officers conducting child pornography investigation went to Defendant’s apartment, informed Defendant they were investigating child pornography and believed his computer could be involved in it, and asked to view the computer. Defendant said he had accidently downloaded child pornography before but deleted it. Defendant refused a request to examine his computer. Officer told Defendant he was going to apply for a search warrant. Defendant then said he would probably find child pornography on the computer. Officer then allowed Defendant to use the telephone. While Defendant was calling his parents, Officer clicked on icons on the computer and began to examine it. He saw files being uploaded and downloaded using LimeWire, many of which had names suggesting child pornography. Officer took pictures of these screens. Officer then unplugged computer and took it to Sheriff’s Office. The next day, a warrant was obtained and the computer searched. This search also located child pornography. Defendant moved to suppress all evidence on the computer.

Holding: When Officer began clicking on icons to view different items on the computer, this was a search. The generally accepted practice is for law enforcement to stop and seek an explicit warrant when they encounter a computer they believed should be searched. The State claims exigent circumstances existed because the computer’s RAM (random access memory) would disappear when the officer unplugged the computer. But the record here does not establish any pressing need to unplug the computer before obtaining a warrant. Three officers were present in the apartment to secure the scene. They could have stayed with the computer while obtaining a warrant. Getting a warrant was merely inconvenient. Moreover, the Officer here turned off the computer himself, so turning off the computer cannot justify exigent circumstances. However, a warrant was obtained later so evidence discovered after the warrant would have been inevitably discovered. The evidence prior to the warrant should have been suppressed, but not the evidence afterwards. Since the evidence afterwards is sufficient to convict, the failure to suppress was harmless here.
State v. Clampitt, No. WD73943 (Mo. App. W.D. 1/24/12):

Where prosecutor used investigative subpoenas to subpoena cell phone records of text messages of Defendant for a month after a vehicle crash in an attempt to find out if Defendant would make an incriminating statement about the crash, the text messages must be suppressed because Defendant had a reasonable expectation of privacy in his text messages and the prosecutor’s use of investigative subpoenas was an unlawful fishing expedition not limited in scope or relevant purpose.

Facts: Defendant was involved in a car accident. The State issued four investigative subpoenas to various cell phone providers for text messages of Defendant for 30 days after that, requesting all text messages. When one subpoena would expire, the State would issue another one. Defendant was ultimately charged with first degree involuntary manslaughter from the accident. He moved to suppress the text messages. The trial court suppressed them. The State appealed.

Holding: The State contends Defendant has no standing because he lacks any reasonable expectation of privacy in the text messages since they are accessible to a third-party (the cell phone company). Prior cases have held, however, that a person maintains a reasonable expectation of privacy in letters mailed in the mail, even though those letters are delivered through a third party. Similarly, prior cases have found a reasonable expectation of privacy in phone calls and emails, even though a phone company or email company could listen in on calls or read email. As text messaging becomes a substitute for more traditional forms of communication, it follows that society expects the content of text messages to receive the same 4^th Amendment protection as letters and phone calls. The State claims that even if there is an expectation of privacy, the use of investigate subpoenas overrides this. However, the 4^th Amendment applies to investigative subpoenas and requires that they be limited in scope, purpose and directive. Here, the subpoenas were not. The subpoenas were issued until such time as Defendant made incriminating remarks, i.e., that he was the driver of the car. If no evidence about this had yet come about, presumably the State would still be issuing subpoenas in the hopes of getting an incriminating admission. The subpoenas were nothing more than an improper fishing expedition. The State claims that the good faith exception to the exclusionary rule should apply here, but that rule applies to police conduct, not prosecutor misconduct, as here. The prosecutor was engaged in a fishing expedition to find evidence of incriminating statements. Moreover, the evidence here was suppressed under Sec. 542.296.1, not the exclusionary rule.
State v. Burns, No. WD73127 (Mo. App. W.D. 4/12/11):

Trial court’s pretrial ruling excluding certain hospital drug-test results was not appealable by the State because this was a ruling in limine based on violation of an evidentiary rule, not a ruling on a motion to suppress illegally seized evidence; but State may seek writ of prohibition.

Facts: Defendant was charged with DWI for driving under influence of drugs. The State indicated it would introduce hospital records of Defendant showing the presence of drugs in her blood or urine. Defendant filed a “Motion to Suppress or in the Alternative Motion in Limine.” The trial court believed that the evidence could only be admitted if certain state regulation and evidentiary foundations were followed, and so excluded the evidence before trial. The State appealed. Defendant contended the appeal had to be dismissed because the statute allowing a State’s appeal only covers illegally seized evidence, which is not at issue here.

Holding: Sec. 547.200.1(3) permits a State’s appeal of suppression of illegally seized evidence. Sec. 542.296.5 sets forth five grounds on which a motion to suppress can be based, each of which involves illegal searches and seizures. Courts read these two statutes together to allow State’s appeals only about illegally seized evidence. Here, the trial court’s ruling is really a pretrial grant of a motion in limine (despite that the motion was also called “motion to suppress”) and such a ruling is subject to change at trial. The grounds of the motion were not that the blood or urine was illegally seized, but that an evidentiary rule requires exclusion. Thus, the State is not statutorily authorized to appeal, and the appeal must be dismissed. However, the State may be able to seek a writ of prohibition as a remedy, but the appellate court expresses no opinion on the merits.

Editor’s note: The Western District issued an identical ruling in State v. Pfleiderer, No. WD73407 (Mo. App. W.D. 6/14/11), a DWI case where trial judge excluded evidence of blood test results taken by a hospital for treatment purposes without following the requirements of Chapter 577 pertaining to the collection of samples of blood for BAC analysis.


State v. Williams, No. WD72530 (Mo. App. W.D. 3/15/11):

Even though Officer testified that he stopped Defendant because his headlight was out, where trial court found that the police car video showed the light was on, there was no reasonable suspicion to stop the car and evidence of Defendant’s intoxication is suppressed.