March 29, 2016
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Robert M. Schieber, Judge
Before: Alok Ahuja, Chief Judge, Victor C. Howard, Thomas H. Newton, Lisa White Hardwick, James Edward Welsh, Mark D. Pfeiffer, Karen King Mitchell, Cynthia L. Martin, Gary D. Witt, and Anthony Rex Gabbert, Judges, and Joseph M. Ellis, Senior Judge 1
The State brings two interlocutory appeals, challenging the trial court's grant of Respondents Phillip S. Douglass and Jennifer M. Gaulter's Motions to Suppress physical
1 Judge Ellis retired as an active member of the court on March 1, 2016, after oral argument in this case. He has been assigned by the Chief Justice to participate in this decision as Senior Judge.
2 evidence relating to charges of one count of second-degree burglary and one count of stealing that were brought against each of them. The physical evidence was acquired after the execution of a search warrant to search Douglass and Gaulter's home. Because the two appeals involve the same questions of law based on the same factual background, the cases have been consolidated. In its first point, the State argues that the trial court erred in granting Respondents' Motions to Suppress because the search warrant was not unreasonable under the Fourth Amendment and article I, section 15, of the Missouri Constitution, and any invalid portion should have been redacted in that the search warrant could have been readily severed into parts and all parts were supported by probable cause except for one "minor" clause of the warrant. In its second point, the State argues that the trial court erred in suppressing all evidence seized because the application of the exclusionary rule was not warranted in that the detective's misconduct in preparing the warrant application was not the type of serious misconduct that should be deterred by the exclusion. Because the State's first point is dispositive, we do not reach the second point. We reverse the trial court's order of suppression and remand the matter for further proceedings consistent with this opinion. Background The material facts are not disputed. Following a search pursuant to a warrant for Douglass and Gaulter's home in Jackson County, Missouri, Respondents were charged with one count of second-degree burglary under § 569.170, 2 and one count of stealing of property valued between $500 and $25,000, under § 570.030.3(1). Douglass's and Gaulter's charges stem from allegations that they stole numerous items from Melissa Garris and are based on the following information set out in the warrant application:
2 All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.
3 On August 29, 2013, Detective Darold Estes, a twenty-year veteran of the Kansas City Police Department with fourteen years in the property crimes section, applied for the search warrant at issue in this case. In his application for a warrant, Detective Estes sought to search for and seize the following items: Coach Purse that is silver with C's on it, a Coach purse with purple beading, black Prada purse, larger Louis Vuitton bag;
Toshiba Satellite laptop limited edition silver with black swirls on it;
Vintage/costume jewelry, several engraved with MG;
Coach, Lv, Hermes, Bestie Sunglasses;
Passport and Social Security card for Garris;
Social Security card and birth certificate for Garris's son;
Various bottles of perfume, make-up brushes, and Clinique and Mary Kay make-up sets;
Keys not belonging to property or vehicle at scene; and
Any property readily and easily identifiable as stolen.
Detective Estes's affidavit in support of his application for the warrant stated that Garris had gone to Argosy Hotel room number 426 in Riverside to meet a friend, later identified as Gaulter, on August 21, 2013. Garris went to the room with Gaulter and Douglass. The three had drinks, but Gaulter felt she was being pressured into a three-way sex act and called her boyfriend, who picked her up. The next day, Garris received a text from Gaulter saying that Garris had left a handbag in the hotel room and that Gaulter would leave it for her at the front desk. Garris said she would pick up the bag after she finished work. Garris received another text from Gaulter asking whether she was at home or at work. Garris replied that she was still at work and would call her when she got off of work. When she returned to her home, Gaulter observed that her apartment
4 had been broken into and approximately $10,000 worth of belongings, listed above, had been stolen. The door to the apartment had no damage. Garris called the Argosy Hotel and asked whether her bag, which contained her house keys, was still at the front desk. The hotel desk clerk informed her that her bag was still there. Garris asked staff at the hotel to look inside her bag for her keys, and she was told the keys were not in the bag. Garris began texting Gaulter about the theft and the missing keys, and Gaulter stopped replying. Garris reported the incident to the police. She then drove to the hotel to retrieve her bag, but the hotel staff told her that the bag had been picked up. The police matched the phone number Garris had texted to a Blue Springs, Missouri address, and tax records supported that Douglass and Gaulter lived at the address. Garris identified the two from photographs. Garris told police that Douglass and Gaulter had possession of her keys, and no one else had access or permission to enter and remove her property. Hotel staff confirmed to Detective Estes that room number 426 had been rented to Douglass and Gaulter and that a bag had been left at the front desk for Garris. Based on the affidavit and application, the warrant judge issued a search warrant authorizing a search of Douglass and Gaulter's residence. The search warrant described the items to be searched for and seized, listing the items Detective Estes described in the affidavit. The search warrant also listed five types of property, with a box next to each type of property to check if there was probable cause to search for the items. The five categories of property listed were: 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;
5 Any person for whom a valid felony arrest warrant is outstanding; Deceased human fetus or corpse, or part thereof. The boxes next to all five types of property were checked. Douglass and Gaulter both moved to suppress all the evidence seized under the authority of the warrant because there was no probable cause to search for "Deceased human fetus or corpse, or any part thereof." 3
In its written response to the motions to suppress, the State argued that the box in question may have been checked because of a mere typographical error. At a consolidated hearing for both cases on the motions to suppress, 4 the State asked Detective Estes why the box was checked, and his answer indicated that the box was checked intentionally: A. Basically if we come across any of that during our investigation, you would require a piggyback warrant if you came across that to investigate it and kind of have to stop. Basically since it's there and we're already in there, if we came across it that tells the Judge that if we do come across it, we are going to initiate an action on this.
Q. Are those things that if you come across it during the execution of a search warrant that you would investigate it anyway?
A. That's correct.
Q. And if they aren't marked on the search warrant that you are in the home for, you would then have to go out and get an additional search warrant?
A. That's correct. You would have to stop then and get a piggyback warrant to go back and cover that option.
Q. And so is that done for the purpose of if you run across those items, which are items that would require you to take action on anyway, that you can continue to do so instead of stopping the search and having to get an additional search warrant?
3 Douglass and Gaulter also listed as additional bases for suppression that no receipt was left by law enforcement at the property searched and that the warrant was executed in violation of § 542.286 because Kansas City police officers executed the warrant in Blue Springs without the statutory authority to act. The trial court's Order suppressing the evidence did not address these arguments and they have not been raised on appeal. 4 Douglass and Gaulter share the same defense counsel.
6
A. That's correct.
Q. Was that signed by Judge Powell?
A. Yes, it was.
Q. And on that search warrant, did Judge Powell make other corrections to the search warrant?
A. Yes, he did.
Q. But he did not make a correction to that?
A. That's correct. . . .
Later, the following exchange occurred with defense counsel: Q. Did you have any probable cause to believe that there would be a human corpse present at the location you guys went to search?
A. The probable cause was that what we were looking for were listed items. The actual human corpse is just an option on there that covers, like I said earlier, if we came across it, then we would actually investigate that.
Q. Did you have any reason to believe you might come across a dead body or any parts thereof?
A. No.
The trial court granted both Douglass's and Gaulter's motions to suppress, ruling the entire search warrant invalid. The trial court noted that Detective Estes acknowledged that he intentionally checked a box identifying that probable cause existed to search for a "deceased human fetus or corpse, or part thereof," knowing that to be a false statement, and that he "disingenuously failed to call the [issuing] Court's attention to the fact that he had checked that box." The trial court further found that the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), did not apply because Detective Estes could not reasonably be found to have been acting on an objective good-faith belief that the warrant was valid since it was his
7 own intentional action that rendered the warrant invalid. "In fact," the trial court wrote, "this is exactly the type of situation that the exclusionary rule was designed to deter: intentional police misconduct, malfeasance or negligence." 5 Additionally, the trial court determined that "it would be a miscarriage of justice to permit an officer to knowingly bypass the particularity requirement of a warrant by checking boxes that allow officers to search for items where no probable cause exists, thus, in essence rendering the search warrant a general search warrant, simply because it is an inconvenience to the officer to follow the U.S. Constitution, the Missouri Constitution and the laws of the state of Missouri." Accordingly, the trial court suppressed all of the evidence seized as a result of the execution of the warrant. The State brings this interlocutory appeal. 6
Standard of Review "Where a trial court has granted a defendant's motion to suppress, we review the trial court's decision on appeal under an abuse of discretion standard. Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Avent, 432 S.W.3d 249, 252 (Mo. App. W.D. 2014) (internal quotations omitted). "'Review is limited to determining whether the decision is supported by substantial evidence.'" Id. (quoting State v. Stover, 388 S.W.3d 138, 149 (Mo. banc 2012)). "In making that determination, '[t]he facts and reasonable inferences from such facts are considered favorably to the trial court's ruling and contrary evidence and inferences are disregarded.'" Id. (quoting State v. Norfolk, 366 S.W.3d 528, 531 (Mo. banc 2012)). This court defers to the circuit court's factual findings and credibility determinations. Id. In doing so, we recognize that the circuit court may believe all, some, or
5 On appeal, the State does not argue that the good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897 (1984) is applicable, but only that the trial court should have redacted the offending portion of the warrant and the exclusionary rule in this case would be too harsh to apply. 6 "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: . . . (3) Suppressing evidence . . . ." § 547.200.1(3).
8 none of any of the testimony presented, regardless of whether it is contradicted. Id. "'The weight of the evidence and the credibility of the witnesses are for the trial court's determination.'" Id. (quoting State v. Kovach, 839 S.W.2d 303, 307 (Mo. App. S.D. 1992)). "Nonetheless, this court must consider the ruling in light of the proper application of the precepts of the Fourth Amendment. The ultimate issue of whether the Fourth Amendment was violated is a question of law which this court reviews de novo." State v. Stoebe, 406 S.W.3d 509, 515 (Mo. App. W.D. 2013) (quoting State v. Shaon, 145 S.W.3d 499, 504 (Mo. App. W.D. 2004)). Further, whether the exclusionary rule should be applied is also a question of law to be reviewed de novo. State v. Lucas, 452 S.W.3d 641, 642 (Mo. App. W.D. 2014) (citing State v. Ellis, 355 S.W.3d 522, 523 (Mo. App. E.D. 2011)). "While provisions of our state constitution may be interpreted to provide more expansive protections than comparable federal constitutional provisions, analysis of a section of the federal constitution is strongly persuasive in construing the like section of our state constitution." State v. Johnson, 354 S.W.3d 627, 632 (Mo. banc 2011) (citing Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006)). Our Supreme Court "has interpreted the protections of article I, section 15 of the Missouri Constitution to be coextensive with the protections guaranteed by the Fourth Amendment of the United States Constitution because both provisions provide the same guarantees against unreasonable searches and seizures." Id. (citing State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009)). Analysis A. The Trial Court's Judgment In suppressing all of the evidence seized under the warrant, the trial court determined that Detective Estes's act of intentionally checking a box, suggesting that probable cause existed to
9 search for a "deceased human fetus or corpse, or part thereof" (the corpse provision), "knowing that to be a false statement," rendered the entire warrant invalid under Leon. The trial court further determined that the warrant, itself, failed to satisfy the particularity requirement of both the federal and the state constitutions, as well as § 542.276(4). The trial court stated: It would be a miscarriage of justice to permit an officer to knowingly bypass the particularity requirement of a warrant by checking boxes that allow officers to search for items where no probable cause exists, thus, in essence, rendering the search warrant a general search warrant, simply because it is an inconvenience to the officer to follow the U.S. Constitution, the Missouri Constitution and the laws in the state of Missouri.
To begin, the trial court erred in relying on Leon to declare the warrant invalid as a result of the inclusion of the corpse provision, because Leon does not address the validity of warrants. In Leon, the Court accepted the invalidity of the underlying warrant, and the sole issue for review was the appropriate remedy for the search conducted pursuant to that invalid warrant. 7 Leon, 468 U.S. at 906-07. Here, however, the only issue put forth in the suppression motion was the validity of the warrant authorizing the search. Specifically, Douglass and Gaulter argued that the warrant was invalid in its entirety because Detective Estes checked the box next to the corpse clause, even though there was no probable cause to believe that a "human fetus or corpse, or part thereof," would be found at their home. Leon simply did not address the question of the validity of a warrant only partially supported by probable cause. Id. Accordingly, Leon was irrelevant to the question put to the trial court, the validity of the warrant, and did not require that the warrant
7 "Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is 'an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.'" Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)). "Only the former question is currently before us . . . ." Id.
10 in this case be invalidated in its entirety. 8 See, e.g., United States v. Vasquez, 654 F.3d 880, 885 (9th Cir. 2011) ("Because the warrant was valid, we need not consider whether the officers acted in good faith in relying on it."); United States v. Washington, 797 F.2d 1461, 1473 (9th Cir. 1986) (applying severance doctrine despite rejecting application of Leon as a basis for upholding the entire search); United States v. Nader, 621 F. Supp. 1076, 1085 (D.D.C. 1985) (same). We are left with the question of whether the trial court erred in suppressing all evidence seized when there was probable cause to search for some, but not all, of the items described in the warrant and where the officer preparing the warrant application intentionally included items for which he knew probable cause was lacking. B. The Severance Doctrine "'From a policy perspective a rule requiring blanket invalidation of overbroad warrants would seem ill advised.'" State v. Horsey, 676 S.W.2d 847, 853 (Mo. App. S.D. 1984) (quoting United States v. Riggs, 690 F.2d 298, 301 (1st Cir. 1982)). There are two constitutional requirements for a valid warrant: (1) probable cause to believe that the place to be searched will contain contraband or evidence of a crime; and (2) particularity of the description of the place to be searched and items to be seized. U.S. Const. amend. IV; Mo. Const. art. I, § 15.
8 Had the issue below been whether the officers could, in good faith, rely on the corpse provision of the warrant, then Leon would have applied. And we would have agreed with the trial court's conclusion that Leon could not save the search, given that Leon precludes officers from relying on "warrant[s] based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part)). But, even "[i]f a court finds a clause to be 'so lacking of indicia of probable cause' that an officer could not reasonably rely on its validity, the clause should be stricken and the remaining portions upheld, provided that the warrant as a whole is not unsupported by probable cause." Rosemarie A. Lynskey, A Middle Ground Approach to the Exclusionary Remedy: Reconciling the Redaction Doctrine with United States v. Leon, 41 Vand. L. Rev. 811, 836 (1988).
11 There is no dispute that probable cause to support the corpse provision was lacking. 9 On the other hand, however, there is also no dispute that probable cause did exist to support a search for the other items identified in the warrant. Those items were described as: Coach Purse that is silver with C's on it, a Coach purse with purple beading, Prada purse black in color, larger 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 (Melissa Garris)
Social Security Card/Birth Certificate in son's name (Nikoli Lipp)
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
And it is not disputed that the description of these items satisfied the particularity requirement. Thus, only part of the warrant—rather than the whole—was unconstitutional and therefore invalid. 10 When that is the case, a trial court faced with a motion to suppress must consider the severability doctrine. 11
9 To this end, the trial court's determination that the warrant failed the particularity requirement is somewhat perplexing. The lack of probable cause was obvious from the documents presented to the issuing judge, and the officer did nothing to attempt to conceal the obvious lack of probable cause to search for corpses from the issuing judge. 10 It is important to emphasize that this appeal does not involve evidence seized pursuant to the warrant's corpse clause. Instead, this appeal concerns the suppression of evidence seized under the authority of the other, valid provisions of the warrant. 11 "[T]he interests safeguarded by the Fourth Amendment have been adequately served by the suppression of only that evidence seized by overreaching the warrant's [lawful] authorization." United States v. Christine, 687 F.2d 749, 757 (3d Cir. 1982) (emphasis added). "[T]he practice of redaction is fully consistent with the Fourth Amendment and should be utilized to salvage partially invalid warrants." Id. at 750-51. "The cost of suppressing all the evidence seized, including that seized pursuant to the valid portions of the warrant, is so great that the lesser benefits accruing to the interests served by the Fourth Amendment cannot justify complete suppression." Id. at 758.
12 "Under the severability doctrine, '[t]he infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant, but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized—on plain view grounds, for example—during . . . execution [of the valid portions]).'" United States v. Sells, 463 F.3d 1148, 1150 (10th Cir. 2006) (quoting United States v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993)). Courts "apply a multiple-step analysis to determine whether severability is applicable." Id. at 1151. "First, . . . the warrant [is divided] in a commonsense, practical manner into individual clauses, portions, paragraphs, or categories." Id. Then, "the constitutionality of each individual part [is evaluated] to determine whether some portion of the warrant satisfies the probable cause and particularity requirements of the Fourth Amendment." Id. "If no part of the warrant particularly describes items to be seized for which there is probable cause, then severance does not apply, and all items seized by such a warrant should be suppressed." Id. "If, however, at least a part of the warrant is sufficiently particularized and supported by probable cause, then [a court must] determine whether . . . the valid portions are distinguishable from the invalid portions." Id. "If the parts [can] be meaningfully severed, then [a court must] look to the warrant on its face to determine whether the valid portions make up 'the greater part of the warrant,' by examining both the quantitative and qualitative aspects of the valid portions relative to the invalid portion." Id. (quoting United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993)). "If the valid portions make up 'the greater part of the warrant,' then . . . those portions [are severed], [and] . . . the evidence seized pursuant to the portions that fail to meet the Fourth Amendment's warrant requirement [are suppressed], [but] . . . all evidence seized
13 pursuant to the valid portions or lawfully seized during execution of the valid portions [is admitted]." Id. Here, the warrant can be easily divided into the following categories of evidence: (1) bags and purses; (2) Toshiba laptop; (3) costume jewelry; (4) sunglasses; (5) identification for Melissa Garris; (6) identification for Garris's son; (7) perfume and makeup related items; (8) keys unrelated to the scene; (9) any other property readily and easily identifiable as stolen; and (10) deceased human fetus or corpse, or part thereof. Next, each part is examined for both probable cause and particularity. There has been no challenge to either the probable cause or particularity aspects of items (1)-(9). As noted above, however, there is no probable cause supporting item (10) (the corpse provision). Because at least some of the categories are supported by both probable cause and particularity, the next question is whether the valid portions (items (1)-(9)) are sufficiently distinguishable from the invalid portion (the corpse provision). The vast majority of items are clearly related to the theft crimes the defendants were accused of committing. Likewise, the corpse provision is clearly unrelated to any of the crimes the defendants allegedly committed. "Where, as here, each of the categories of items to be seized describes distinct subject matter in language not linked to language of other categories, and each valid category retains its significance when isolated from rest of the warrant, then the valid portions may be severed from the warrant." Sells, 463 F.3d at 1158. Accordingly, the valid portions are easily distinguishable from the lone invalid portion. The next question is whether the valid portions make up the greater part of the warrant. If the invalid portions make up the greater part of the warrant such that the warrant is, in essence, a general warrant, then severance is inapplicable. "A general warrant is a warrant that authorizes 'a general exploratory rummaging in a person's belongings.'" United States v. Christine, 687
14 F.2d 749, 752 (3d Cir. 1982) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). A warrant "cannot be invalidated as a general warrant [if] it does not vest the executing officers with unbridled discretion to conduct an exploratory rummaging . . . in search of criminal evidence." Id. at 753. In conducting the "greater part of the warrant" analysis, we "focus[] on the warrant itself rather than upon an analysis of the items actually seized during the search." 12 Sells, 463 F.3d at
- "Certainly, the number of valid versus invalid provisions is one element in the analysis of
which portion makes up the 'greater part of the warrant.'" Id. "However, merely counting parts, without any evaluation of the practical effect of those parts, is an improperly hypertechnical interpretation of the search authorized by the warrant." Id. at 1160 (internal quotations omitted). "A warrant's invalid portions, though numerically fewer than the valid portions, may be so broad and invasive that they contaminate the whole warrant." Id. "Common sense indicates that we must also evaluate the relative scope and invasiveness of the valid and invalid parts of the warrant." 13 Id. Here, both a quantitative and a qualitative assessment of the warrant indicate that, when viewed in toto, the valid portions made up the greater part of the warrant and that the corpse provision was a minor aspect of the warrant. In conducting the qualitative assessment, the court must assess the relative importance on the face of the warrant of the valid and invalid provisions, weigh the body of evidence that could have been seized pursuant to the invalid portions of the warrant against the body of evidence that could properly have been seized pursuant to the clauses that were sufficiently particularized, and consider such other factors as it deems appropriate in reaching
12 "This is not to say that a search that grossly exceeds the scope of the warrant may not be suppressed in its entirety, but that is a separate inquiry . . . ." United States v. Sells, 463 F.3d 1148, 1159 (10th Cir. 2006). Here, Douglass and Gaulter have not claimed that the search exceeded the scope of the warrant. 13 Consistent with the analysis described above, even before Sells, Missouri courts held that wholesale suppression was justified only "[i]f the overall tenor of the warrant or search smacks of a general warrant or an abuse of the prospective availability of redaction." State v. Horsey, 676 S.W.2d 847, 853 (Mo. App. S.D. 1984) (quoting Christine, 687 F.2d at 759).
15 a conclusion as to whether the valid portions comprise more than an insignificant or tangential part of the warrant.
United States v. Galpin, 720 F.3d 436, 450 (2d Cir. 2013). Moreover, Where a warrant authorizes the search of a residence, the physical dimensions of the evidence sought will naturally impose limitations on where an officer may pry: an officer could not properly look for a stolen flat-screen television by rummaging through the suspect's medicine cabinet, nor search for false tax documents by viewing the suspect's home video collection.
Id. at 447. Here, the valid portions of the warrant authorized a rather broad search in light of the nature of the items listed (jewelry, keys, identification). Though certainly parts of a corpse might be small, a search for small parts of a corpse is unlikely to be broader than a search for small personal items like jewelry, keys, or identification. Accordingly, the corpse provision neither constituted the greater part of the warrant nor transformed the warrant into a general one. In light of these conclusions, the trial court should have severed the valid portions of the warrant from the invalid portion (i.e., the corpse provision) and admitted evidence seized pursuant to the valid portion. 14 "'[I]t would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search for
14 When a criminal defendant files a motion to suppress, he "has the burden of establishing that his constitutional rights were violated by the challenged search or seizure; however[,] the burden is on the State to justify a warrantless search and to demonstrate that such falls within an exception to the warrant requirement . . . ." State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990) (internal citation omitted). But "[o]n a motion to suppress evidence seized under a warrant[,] the burden of proof is upon the defendant." State v. Stevenson, 589 S.W.2d 44, 47 (Mo. App. E.D. 1979). Here, because the search was pursuant to a warrant, Douglass and Gaulter bore the burden of proving the warrant invalid. And they met their burden with respect to the corpse provision. They failed, however, to demonstrate that the entire warrant was invalid. Had the court properly severed the warrant, Douglass and Gaulter might have argued that evidence was seized pursuant to the invalid portion of the warrant, in which case the State would have borne the burden of demonstrating that the evidence sought to be admitted was seized pursuant to only the valid portion of the warrant. However, because the trial court erroneously found the warrant invalid in its entirety, no such argument was made. And, at oral argument, Douglass and Gaulter appeared to concede that none of the evidence sought to be suppressed had been seized under the invalid portion of the warrant.
16 other items as well.'" United States v. Cook, 657 F.2d 730, 735 (5th Cir. 1981) (quoting 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.6(f) (1978)). C. Officer Misconduct The general tenor of the court's judgment, and the crux of Douglass and Gaulter's argument on appeal, is that Detective Estes's misconduct in including the corpse provision, knowing that there was no probable cause to support it, required invalidation of the entire warrant. There are two problems with this determination: (1) the severance/redaction cases are not concerned with the officer's motivation in procuring the warrant; and (2) invalidation of the entire warrant under these circumstances would be inconsistent with our approaches to dealing with officer misconduct in other warrant cases. To begin, none of the severability doctrine cases discuss what role, if any, officer misconduct plays in the analysis. Instead, the courts have examined only the warrant and accompanying affidavit to discern whether the warrant met the constitutional requirements of probable cause and particularity or whether it appeared to be a general warrant. See, e.g., Sells, 463 F.3d at 1159 ("The 'greater part of the warrant' analysis focuses on the warrant itself rather than upon an analysis of the items actually seized during the search."); Christine, 687 F.2d at 759-60 (noting that redaction was available to the court based solely upon a review of the warrant and affidavit); see also 2 LaFave, Search and Seizure, § 3.7(d) (4th ed. 2004) ("If severability is proper (there may be instances in which it is not), it would seem the rule would be more sensible if expressed not in terms of what was seized, but rather in terms of what search and seizure would have been permissible if the warrant had only named those items as to which probable cause was established.").
17 Despite some courts using the terms "pretext" and "bad faith," in describing when severance is inapplicable, 15 the courts were doing nothing more than employing the "greater part of the warrant" analysis. "[A]lthough articulated in varying forms, every court to adopt the severance doctrine has further limited its application to prohibit severance from saving a warrant that has been rendered a general warrant by nature of its invalid portions despite containing some valid portion." Sells, 463 F.3d at 1158. In deciding whether to apply the severance doctrine, courts are generally not concerned with why parts of a warrant are invalid, only if they are. And to the extent that officer misconduct is relevant at all in the severance doctrine cases, the issue is subsumed within the "greater part of the warrant" analysis; if the invalid portions make up a "greater part of the warrant," resulting in a broader search than would otherwise have been authorized, the severability doctrine is inapplicable because the warrant has then been transformed into a prohibited general one. See Sells, 463 F.3d at 1159 (characterizing language from Aday v. Superior Court, 362 P.2d 47, 52 (Cal. 1961), wherein the California supreme court "recognize[d] the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirements of particularity" and condemned "[s]uch an abuse of the warrant procedure," as an articulation of the "greater part of the warrant" analysis). While the severance doctrine presents the danger that: [t]he police might be tempted to frame warrants in general terms, adding a few specific clauses in the hope that under the protection of those clauses they could engage in general rummaging through the premises and then contend that any incriminating evidence they recovered was found in plain view during the search for the particularly-described items, . . . careful administration of the rule will afford full protection to individual rights.
15 See, e.g., United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983) ("[A]bsent a showing of pretext or bad faith on the part of the police or the prosecution, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution."); United States v. Cook, 657 F.2d 730, 735 n.6 (5th Cir. 1981) (noting the absence of pretext to negate application of the severance doctrine).
18 United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983). In short, the courts have not been concerned with why the invalid portions might have been included because, simply put, if invalid provisions rendered the warrant, as a whole, a general warrant, the entire warrant will be deemed invalid, and the severance doctrine will be inapplicable. The second problem with wholesale suppression in this context is that it would be inconsistent with other case law dealing with officer misconduct in either procuring or executing a warrant. In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United States Supreme Court addressed the remedy for officer misconduct in the procurement of a warrant, either through intentional misrepresentation or intentional omissions in the supporting affidavit. But, even where an officer intentionally makes factual misrepresentations to the warrant-issuing judge, the remedy is not automatic, wholesale suppression. Rather, a court must "set to one side" the "material that is the subject of the alleged falsity or reckless disregard," and determine whether "there remains sufficient content in the warrant affidavit to support a finding of probable cause." Id. at 171-72. In other words, upon a finding that the affiant officer lied to the warrant-issuing judge, the remedy the court must apply is to redact the misrepresentation and then reevaluate whether the warrant is still supported by probable cause. Similarly, if officers engage in misconduct when executing a warrant by exceeding its lawful scope, the remedy is not wholesale suppression of all evidence seized. Rather, when law enforcement officers, acting pursuant to a valid warrant, seize an article whose seizure was not authorized and which does not fall within an exception to the warrant requirement[,] . . . [w]ithout exception[,] federal appellate courts have held that only that evidence which was seized illegally must be suppressed; the evidence seized pursuant to the warrant has always been admitted.
Christine, 687 F.2d at 757. In other words, courts exclude only that evidence seized as a result of misconduct and not any evidence seized under lawful authority.
19 We see no reason why wholesale suppression is the appropriate remedy for a misrepresentation on the face of the warrant application (here, the checking of a box identifying items to be searched for, for which there was not probable cause set out in the affidavit) when such a remedy has been rejected when addressing intentional misrepresentations in the supporting affidavit, or a search that intentionally exceeds the lawful scope of the warrant. See Rosemarie A. Lynskey, A Middle Ground Approach to the Exclusionary Remedy: Reconciling the Redaction Doctrine with United States v. Leon, 41 Vand. L. Rev. 811, 837 (1988) ("redaction still would be appropriate to excise only those clauses authorized pursuant to the misinformation, provided that the warrant generally is based on truth."). This is not to say that Detective Estes's conduct here was excusable or justifiable. 16 To be sure, there is no "law enforcement convenience" exception to the warrant requirement, and to the extent checking boxes that are unsupported by probable cause is a routine practice in Detective Estes's jurisdiction, it must be discontinued. Indeed, "[t]he Fourth Amendment dictates that a magistrate may not issue a warrant authorizing a search and seizure which exceeds the ambit of the probable cause showing made to him." Christine, 687 F.2d at 753. In short, there is simply no justification for including items in a warrant application when the applicant knows there is no probable cause to support them. And, in doing so, law enforcement not only gains nothing (because, even if the warrant is severed, any evidence seized pursuant to the invalid portion of the warrant will be suppressed) but also risks the possibility that inclusion of such items could transform the warrant into a prohibited general warrant, resulting in suppression
16 As mentioned earlier, Detective Estes testified that the purpose of checking the corpse provision box was essentially for the convenience of avoiding the need to halt the search and obtain a second "piggyback" warrant in the event that they came across any "[d]eceased human fetus or corpse, or part thereof," during their authorized search for stolen items.
20 of all evidence seized under it. We strongly advise law enforcement officers not to engage in this practice. In light of the trial court's errors, its order of suppression must be reversed and the matter remanded for further proceedings. The circuit court was authorized to suppress only evidence that was actually seized in reliance on the corpse provision. And unless the officers conducting the search actually relied on the invalid portion of the warrant in doing so, the warrant—in the absence of redaction—created merely the potential for a Fourth Amendment violation. 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, 468 U.S. 705, 712 (1984). "If[,] at the time of the seizure, the executing officers were not intruding upon the individual's expectation of privacy more than was necessary to execute the valid portion of the warrant, the Fourth Amendment does not require suppression" of evidence obtained in reliance on the valid portions of the warrant. People v. Brown, 749 N.E.2d 170, 176 (N.Y. 2001). Because only actual invasions of privacy constitute a Fourth Amendment violation, if the officers' search was limited to only those items identified in the warrant that were supported by probable cause—and the officers did not rely upon the authority granted by the improperly checked box—then the defendants' privacy was not invaded and no Fourth Amendment violation occurred. Accordingly, on remand, the court must determine whether any evidence was seized in reliance on the invalid portions of the warrant.
21 Conclusion The trial court's judgment suppressing the State's evidence is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Karen King Mitchell, Judge
Alok Ahuja, Chief Judge, and Victor C. Howard, Lisa White Hardwick, James Edward Welsh, and Cynthia L. Martin, Judges, concur.
Gary D. Witt, Judge, dissents in separate opinion in which Thomas H. Newton and Anthony Rex Gabbert, Judges, and Joseph M. Ellis, Senior Judge, concur.
Mark D. Pfeiffer, Judge, dissents in separate opinion in which Thomas H. Newton, Judge, and Joseph M. Ellis, Senior Judge, concur.
STATE OF MISSOURI,
Appellant,
v.
PHILLIP DOUGLASS,
Respondent,
JENNIFER M. GAULTER,
Respondent. ) ) ) ) ) ) ) ) ) ) ) ) )
WD78328 Consolidated with WD78329