DocketNumber: No. SC 95719
Citation Numbers: 544 S.W.3d 182
Judges: Breckenridge, Fischer
Filed Date: 2/13/2018
Status: Precedential
Modified Date: 1/21/2022
The state appeals from the circuit court's order sustaining the defendants' motions to suppress all evidence seized pursuant to a warrant authorizing search of a residence for stolen items. The state admits an officer submitted a prepared search warrant form, which was then executed by a circuit judge, authorizing a search for any deceased human fetus or corpse despite the fact the officer knew no probable cause existed for such provision. The state contends that, regardless of the lack of probable cause, the circuit court should have applied the severance doctrine to redact any invalid portion of the warrant and suppress only the evidence seized pursuant to the invalid portion.
When portions of a search warrant fail to satisfy the Fourth Amendment warrant requirements, the severance doctrine can be applied to redact the invalid portions of the warrant and permit evidence seized pursuant to the valid portions of the warrant to be admitted into evidence. The severance doctrine requires examination of all provisions in the search warrant and *187determination of the constitutional validity of each provision.
When examined in its entirety, the invalid portions of the search warrant in this case so contaminate the whole warrant that they cannot be redacted pursuant to the severance doctrine. In addition to the corpse clause, another provision of the warrant lacks probable cause in that there are no facts in the search warrant application or affidavit establishing the likelihood that any individuals with outstanding arrest warrants would be found on the premises. Four other provisions of the warrant are so lacking in particularity that they permit search of the residence for evidence of any crime or offense. The complete lack of probable cause and particularity in the invalid portions of the warrant created a general warrant authorizing a broad and invasive search of the residence. The severance doctrine cannot be used to save a general warrant. Accordingly, the circuit court properly applied the exclusionary rule to suppress all evidence seized. The circuit court's order is affirmed.
Factual and Procedural Background
In 2013, M.G. met Jennifer Gaulter and Phillip Douglass at the Argosy Casino, Hotel & Spa. The group went to Mr. Douglass and Ms. Gaulter's hotel room for drinks, but M.G. left after she felt pressured to have sex with the couple. M.G. called her boyfriend, who picked her up and took her back to her apartment.
The next morning, M.G. locked her apartment and went to work. While at work, she received a text message from Ms. Gaulter informing her she had left her handbag with her keys in the hotel room. M.G. agreed that Ms. Gaulter should leave the handbag at the hotel's front desk so M.G. could pick up the handbag after work. She later received another text from Ms. Gaulter inquiring whether she was at home or working. M.G. replied she was still at work and would call Ms. Gaulter after work.
When M.G. returned home around 6:10 p.m., she found her apartment in disarray and several items of property missing. There were no signs of forced entry. She immediately called the hotel to check if her handbag and keys were still there. The hotel staff informed her the handbag was there. At M.G.'s request, the hotel staff looked in the handbag for her keys but did not find them. M.G. sent a text message to Ms. Gaulter about the missing keys and the theft. Ms. Gaulter did not respond. Around 7:30 p.m., M.G. reported the theft to the police. She estimated approximately $10,000 worth of her belongings had been stolen.
When M.G. arrived at the hotel to pick up her handbag, a hotel staff member told her someone had already picked up the bag. Police investigated and found Mr. Douglass and Ms. Gaulter's home address in Blue Springs. M.G. identified the couple from photographs the police found on the Internet.
Subsequent to this investigation, Detective Darold Estes, a 20-year veteran of the Kansas City police department, applied for a search warrant. His affidavit stated that, based on the above facts, there was probable cause to search Mr. Douglass and Ms. Gaulter's residence and to seize specific items believed to have been stolen.
Along with his application and affidavit, Detective Estes submitted a prepared form for the search warrant to be executed by the judge. On the search warrant form, Detective Estes checked a box stating, *188based on information provided in the affidavit, there was probable cause to search and seize any "[d]eceased human fetus or corpse, or part thereof." The warrant then went on to list several items believed to be stolen from M.G.
The Kansas City police department conducted a search of the residence that evening.
Mr. Douglass and Ms. Gaulter each filed a motion to suppress asserting the search warrant was invalid because the police did not have probable cause to search for a deceased human fetus or corpse, or part thereof.
Following the hearing, the state submitted additional suggestions in opposition to the motions to suppress arguing the good-faith exception to the exclusionary rule applied because the error was caused by the judge's failure to correct the prepared warrant form. The state further contended the good-faith exception applied because the officers conducting the search reasonably relied on the constitutional validity of the warrant and did not expand the search beyond a search for the stolen items.
The circuit court sustained the motions to suppress, finding the good-faith exception to the exclusionary rule did not apply because Detective Estes intentionally checked the corpse clause box and thereby knowingly gave a false statement to the circuit court. The circuit court further concluded the warrant was invalid because it allowed officers to knowingly bypass the particularity requirement by checking boxes to search for items for which no probable cause existed, thereby rendering it, in essence, a general search warrant. The circuit court held the exclusionary rule was appropriate to deter intentional police misconduct and ordered the suppression of all evidence seized. Pursuant to section *189547.200.1(3),
Standard of Review
Any ruling "on a motion to suppress must be supported by substantial evidence." State v. Johnson ,
The Severance Doctrine
The Fourth Amendment of the United States Constitution ensures against "unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Article I, section 15 of the Missouri Constitution provides coextensive protection against unreasonable searches and seizures. See Johnson ,
Missouri's General Assembly recognized these constitutional protections and enacted a statute providing a search warrant is invalid "[i]f it was issued without probable cause." Section 542.276.10(3), RSMo Supp. 2013. Likewise, a search warrant is invalid "[i]f it does not describe the person, place, or thing to be searched or the property, article, material, substance, or person to be seized with sufficient certainty." Section 542.276.10(5), RSMo Supp. 2013.
The circuit court concluded the warrant was invalid and suppressed all evidence seized because the warrant lacked probable cause and particularity in that Detective Estes intentionally checked the corpse clause of the search warrant form he prepared for the judge even though he knew the facts in his affidavit did not establish probable cause that a corpse or deceased fetus would be found. The state concedes there was no probable cause to search for and seize a deceased fetus, corpse, or part thereof. Nevertheless, it asserts the circuit court erred by suppressing all evidence seized because the invalid portion of the warrant-the corpse clause-could be redacted pursuant to the "severance doctrine" and all items were seized under the valid portions of the warrant.
Generally, "all evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in state court." State v. Grayson ,
Under the severance doctrine, any invalid portions of a search warrant are "redacted" or "severed" from the valid portions so long as the invalid portions can be meaningfully severed from the valid portions and have not created an impermissible general warrant. United States v. Christine ,
But the severance doctrine is not appropriate in every case.
In applying the severance doctrine, the warrant must be considered in its entirety and the constitutional validity of each portion determined.
Based on information provided in a verified application/affidavit, the Court finds probable cause to warrant a search for and/or seizure of the following:
• Property, article, material or substance that constitutes evidence of the commission of a crime;
• Property that has been stolen or acquired in any manner declared an offense;
• Property for which possession is an offense under the laws of this state;
• Any person for whom a valid felony arrest warrant is outstanding;
• Deceased human fetus or corpse, or part thereof;
• Other (Specify-See Missouri Revised Statute Section 542.271 )[.]
Of the six categories listed, Detective Estes checked the first five boxes.
The warrant also described the "person, place or thing to be searched" as Mr. *191Douglass and Ms. Gaulter's street address and described the physical appearance of the residence. The warrant then stated:
The property, article, material, substance or person to be searched for and seized is described as follows:
Coach purse that is silver with C's on it, a Coach purse with purple beading, Prada purse black in color, large Louis Vuitton bag
Toshiba Satellite laptop limited edition silver with black swirls on it Vintage/costume jewelry several items had MG engraved on them Coach, Lv, Hermes, Bestie Sunglasses
Passport and Social Security card ( [M.G.] )
Social Security Card/Birth Certificate in son's name ( [N.L.] )
Various bottles of perfume make up brushes and Clinique and Mary Kay make up sets
Keys not belonging to property or vehicle at scene
Any property readily and easily identifiable as stolen
Step One: Divide the Warrant into Categories of Items
The first step of the Sells test requires the warrant be divided into "individual phrases, clauses, paragraphs, or categories of items" in a "commonsense and realistic fashion, rather than a hypertechnical manner."
Here, the warrant should be divided into 13 categories:
(1) property, article, material or substance that constitutes evidence of the commission of a crime;
(2) property that has been stolen or acquired in any manner declared an offense;
(3) property for which possession is an offense under the laws of this state;
(4) any person for whom a valid felony arrest warrant is outstanding;
(5) deceased human fetus or corpse, or part thereof;
(6) Coach, Prada, and Louis Vuitton bags;
(7) Toshiba laptop;
(8) vintage/costume jewelry, some with MG engraved;
(9) Coach, Lv, Hermes, Bestie sunglasses;
(10) passport, social security cards, and birth certificates for M.G. and her son;
(11) perfume and makeup sets;
(12) keys not belonging to property or vehicles at the scene; and
(13) any property readily and easily identifiable as stolen.9
Step Two: Evaluate the Constitutional Validity of Each Category
Once the warrant is divided, the reviewing court "evaluate[s] the constitutionality of each individual part to determine whether some portion of the warrant satisfies the probable cause and particularity requirements of the Fourth Amendment."
The first three categories of the warrant expressly permitted the search for and seizure of: (1) "[p]roperty, article, material or substance that constitutes evidence of the commission of a crime"; (2) "[p]roperty that has been stolen or acquired in any manner declared an offense"; and (3) "[p]roperty for which possession is an offense under the laws of this state." (Emphasis added). Such language essentially mirrors subdivisions (1), (2) and (4) of section 542.271.1,
"[T]he fourth amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." Sells ,
The state suggests categories 1 through 3 described M.G.'s stolen property in general terms and then that property was more specifically described in categories 6 through 13. But the warrant authorizes a search for and seizure of property broadly described in categories 1 through 3 that is not limited by referencing any particular criminal offense and certainly not limited by reference to M.G. or her stolen property.
In Sells , the Tenth Circuit found a category of a warrant providing for "any other related fruits, instrumentalities and evidence *193of the crime" was sufficiently particular.
Unlike the category in Sells , categories 1 through 3 do not include any language that would relate them to the sufficiently particular portions of the warrant listing M.G.'s stolen property items, nor is there anything in the first three categories that limits the search to items related to the alleged theft of M.G.'s property by Mr. Douglass and Ms. Gaulter. By failing to relate these categories to the theft of M.G.'s property, the warrant permitted officers to search for any property, article, material, or substance that might constitute evidence of any crime or offense. Such categories are overly broad and, therefore, lack the particularity required under the Fourth Amendment.
The next category provides for the seizure of "[a]ny person for whom a valid felony arrest warrant is outstanding." But a review of the warrant application and supporting affidavit establishes no probable cause exists for this provision. Probable cause exists if, "given all the circumstances set forth in the affidavit[,] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Neher ,
There are no facts in the warrant application and supporting affidavit to establish probable cause that any individual with an outstanding felony arrest warrant would be found at Mr. Douglass and Ms. Gaulter's residence. Without such facts, the application and affidavit do not establish a fair probability that any individual with an outstanding felony warrant would be found on the premises. Category 4, therefore, is invalid because it is not supported by probable cause.
Likewise, category 5, the corpse clause, lacks probable cause. There are no facts in the search warrant application or supporting affidavit establishing a fair probability that a deceased human fetus, *194corpse, or part thereof would be found in the residence. Category 5, therefore, is also invalid for lack of probable cause.
In contrast, categories 6 through 12 list specific items believed to have been stolen from M.G.'s apartment. Given the facts and circumstances stated in the affidavit accompanying the warrant, there was a fair probability such items would be found at Mr. Douglass and Ms. Gaulter's residence. Additionally, the warrant provides distinguishing characteristics for each item. It follows that those categories satisfy the probable cause and particularity requirements for Fourth Amendment purposes.
Finally, category 13 permits the search for and seizure of "any property readily and easily identifiable as stolen." While there was probable cause to believe property stolen from M.G. would be found at Mr. Douglass and Ms. Gaulter's residence, broad, catch-all provisions like category 13 fail to meet the Fourth Amendment's particularity requirement. As explained in United States v. LeBron ,
In LeBron , the Eighth Circuit concluded language authorizing a search of a residence for "other property, description unknown, for which there exists probable cause to believe it to be stolen" lacked the particularity required under the Fourth Amendment.
Similarly, category 13 provides no guidelines for the officers as to what items might be easily or readily identifiable as stolen. Instead, it is merely conclusory language that lacks any specificity and is not limited to offenses related to M.G.'s property. Even under the Tenth Circuit's more liberal holding in Sells , there is nothing in category 13 that limits the catch-all nature of the category by relating it "back to the previously enumerated provisions of the warrant."
Step Three: Distinguish the Valid and Invalid Categories
The third step of the Sells test requires determination of whether the valid portions of the warrant are distinguishable from the invalid portions.
The valid portions of the warrant-categories 6 through 12-are not linked to the language in other categories and retain their significance when isolated from the rest of the warrant. The valid portions of the warrant, therefore, are distinguishable from the invalid portions.
Step Four: Determine Whether the Valid or Invalid Portions Make up the Greater Part of the Warrant
Under the fourth step, it must be determined whether the valid portions *195make up the greater part of the warrant.
In determining whether the valid portions make up the greater part of the warrant, courts consider "the number of valid versus invalid provisions."
Here, the valid portions of the warrant-categories 6 through 12-are numerically greater than the invalid portions-categories 1 through 5 and 13. But consideration of the practical effect of the invalid portions of the warrant reveals them to be so broad and invasive that they contaminate the whole warrant.
The lack of probable cause and particularity in the invalid portions of the warrant turned it into the very thing the particularity requirement was created to prevent-a general warrant. Coolidge v. New Hampshire ,
In sum, it is not just the corpse clause that invalidates this warrant. Rather, it is the multiple invalid portions of the warrant-specifically categories 1 through 5 and 13-that so contaminate the warrant as to render it a general warrant. The severance doctrine cannot be used to save a general warrant and is, therefore, inappropriate in this case. Sells ,
The state suggests no harm resulted from the broad parameters of the search warrant because the items contained in the valid portions, such as keys and identification, allowed for an extensive search of Mr. Douglass and Ms. Gaulter's residence and the items seized were those for which probable cause existed. But such argument has no relevance under the severance doctrine. Rather, it is just the opposite. The severance doctrine-which, again, the state requested be applied-rejects any notion that the extent of the actual search or the number of items seized somehow remedies otherwise invalid portions of a warrant.
The dissenting opinion, likewise, reasons Fourth Amendment jurisprudence would authorize the suppression of only evidence that was actually seized in reliance on the corpse clause. It concludes checking the corpse clause created merely the potential for a Fourth Amendment violation and the Supreme Court has "never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment." United States v. Karo ,
The dissenting opinion reasons total suppression is inappropriate because the corpse clause was the only invalid portion of the warrant and could be redacted pursuant to the severance doctrine. In reaching its conclusion, the dissenting opinion divides the warrant into five categories, one of which is the corpse clause, and reasons the other four checked categories do not violate the particularity requirement because the warrant form tracked the language in section 542.271 and the sentence preceding the categories expressly referenced the application for the search warrant.
First, the sentence in the search warrant preceding the list of broad, generic categories states: "Based on information provided in a verified application/affidavit." That statement merely notes the judge has considered the information in the application/affidavit. It does not incorporate the application/affidavit or say it is attached.
Next, the language of the broad, generic categories does not merely "track" the language in section 542.271 ; it essentially repeats it verbatim. Such categories can hardly be said to be sufficiently particularized to the search and seizure at hand when they simply mirror the language of a statute intended to enumerate the broad, generic categories for which a search warrant may be issued. While the dissenting opinion states invalidating these categories would call into question the constitutional validity of section 542.271, it does nothing of the sort. It is merely a recognition that, under the facts and circumstances of this case, such broad, generic categories without *197specification as to the crime or items to be seized do not satisfy the particularity requirement.
Furthermore, to the extent the dissenting opinion relies on the search warrant application to cure the lack of the particularity, it overlooks an important detail. As the Supreme Court explains, most courts have held a warrant may be construed "with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting documentation accompanies the warrant." Groh v. Ramirez ,
Additionally, there is no evidence in the record that the application was attached to or otherwise accompanied the search warrant when the search warrant was served. It follows the search warrant application cannot cure the warrant's particularity deficiencies in this case.
The dissenting opinion further attempts to validate the first five broad, generic categories by reasoning accompaniment of the search warrant application is irrelevant because the most important thing for purposes of the particularity analysis is that *198the search warrant included the same list of detailed items included in the search warrant application.
The Exclusionary Rule Was Appropriately Applied
In its second point, the state asserts the circuit court erred in suppressing all evidence seized because application of the exclusionary rule was unwarranted in that Detective Estes' purported misconduct in checking a box on the warrant was not the type of serious misconduct that should be deterred by the exclusion of otherwise lawfully seized evidence. Because this Court finds the search warrant to be a general warrant that violates the Fourth Amendment, it is not necessary for this Court to consider the legal effect or impact of Detective Estes' misconduct.
Again, generally "all evidence obtained by searches and seizures in violation of the Constitution ... is inadmissible in state court." Grayson ,
Conclusion
The circuit court did not err in refusing to apply the severance doctrine. The invalid portions of the warrant predominate the valid portions such that they contaminated the whole warrant and turned it into a general warrant. The severance doctrine cannot be used to save a general warrant. The circuit court, therefore, properly suppressed all evidence seized. The circuit court's order is affirmed.
Draper, Russell and Stith, JJ., concur;
Fischer, C.J., dissents in separate opinion filed;
Wilson, J., concurs in opinion of Fischer, C.J. Powell, J., not participating.
The facts are taken from the search warrant affidavit and application and the probable cause statement attached to the arrest warrant.
Blue Springs police conducted a knock and announce on Mr. Douglass and Ms. Gaulter's residence. Blue Springs police then secured the residence before releasing it to the Kansas City police department.
Unless otherwise noted, all statutory citations are to RSMo 2000.
In light of this Court's decision in State v. Bazell ,
In their motions to suppress, Mr. Douglass and Ms. Gaulter also asserted the search warrant was invalid because the police failed to leave a return receipt for the search warrant at the residence as ordered by the circuit court. They withdrew this claim prior to the suppression hearing after the state submitted the return receipt for the search. They further asserted the warrant was improperly executed because the Kansas City police department did not have statutory authority to execute a warrant for a residence located in Blue Springs. Such issue, however, need not be addressed given the Court's disposition of the appeal.
Section 547.200.1(3) provides: "An appeal may be taken by the state through the prosecuting or circuit attorney from any order or judgment the substantive effect of which results in ... [s]uppressing evidence[.]"
Various courts have also interchangeably referred to this doctrine as the "severability doctrine" and the "redaction doctrine."
Mr. Douglass and Ms. Gaulter assert the severance doctrine cannot be applied in this case because Detective Estes acted in bad faith by intentionally checking the corpse clause despite knowing no probable cause existed for this provision. Although no court has so expressly held, several courts have suggested the severance doctrine is not applicable when an officer acts in bad faith in obtaining a search warrant. See United States v. Pitts ,
The dissenting opinion divides the warrant into only five categories-those set out as 1 through 5 above.
Section 542.271 provides:
1. A warrant may be issued to search for and seize, or photograph, copy or record any of the following:
(1) Property, article, material, or substance that constitutes evidence of the commission of a criminal offense; or
(2) Property which has been stolen or acquired in any other manner declared an offense by chapters 569 and 570; or
(3) Property owned by any person furnishing public communications services to the general public subject to the regulations of the public service commission if such person has failed to remove the property within a reasonable time after receipt of a written notice from a peace officer stating that such property is being used as an instrumentality in the commission of an offense; or
(4) Property for which possession is an offense under the law of this state; or
(5) Property for which seizure is authorized or directed by any statute of this state; or
(6) Property which has been used by the owner or used with his acquiescence or consent as a raw material or as an instrument to manufacture or produce any thing for which possession is an offense under the laws of this state.
The dissenting opinion suggests this Court should pay deference to the fact that, at the suppression hearing, counsel arguing on behalf of Mr. Douglass and Ms. Gaulter "conceded" probable cause existed for the outstanding arrest warrant provision. First, counsel actually stated: "I can understand that there may have been probable cause to believe that either of the listed subjects may have had warrants outstanding for them." (Emphasis added). Second, whether probable cause exists is a question of law that is reviewed de novo and cannot be conceded by a party. State v. Hosier ,
The statement in Karo that the Supreme Court has "never held that the potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment" cannot be read as a holding that the search of an individual's residence with a general search warrant is only a potential invasion of privacy.
The dissenting opinion contends this Court's recognition that most courts have required the affidavit or application to accompany the search warrant to cure a warrant's lack of particularity is inconsistent with Supreme Court precedent. In doing so, the dissenting opinion points out that the Supreme Court in Groh did not expressly adopt a rule requiring incorporation and accompaniment of the affidavit or search warrant application; instead, the Supreme Court stated it "need not further explore the matter of incorporation" because "the warrant did not incorporate other documents by reference, nor did either the affidavit or the application ... accompany the warrant."
But unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search) , there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit.
Groh ,
In reasoning the accompaniment of the warrant application is of no consequence and the particularity analysis turns on the inclusion in the search warrant of the particularized items from the application, the dissenting opinion takes language from several opinions out of context. First, the dissenting opinion quotes Groh for the proposition that the particularity requirement of the Fourth Amendment may be satisfied regardless of whether the warrant application is attached to the search warrant if "the particular items described in the affidavit are also set forth in the warrant itself[.]"
Because the invalid portions of the search warrant predominate, it is unnecessary to reach the fifth step of the Sells test-severing the valid portions from the invalid portions and suppressing evidence accordingly.