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State v. Douglass

Supreme Court of Missouri, En Banc

February 13, 2018

STATE OF MISSOURI, Appellant,
v.
PHILLIP DOUGLASS, Respondent, and JENNIFER M. GAULTER, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Robert M. Schieber, Judge

          Patricia Breckenridge, Judge

         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 determination 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[1]

         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, based 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.[2] No one was home. The police seized a laptop and laptop case, a red purse containing various small items, a Coach purse, and a bracelet. M.G. confirmed all the property seized from the residence had been stolen from her apartment. Mr. Douglass and Ms. Gaulter were arrested and subsequently charged by indictment with burglary in the second degree, section 569.170, [3] and felony stealing, section 570.030, RSMo Supp. 2013.[4]

         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.[5] At a consolidated suppression hearing on the motions, Detective Estes testified he checked the corpse clause because, if a corpse was found during the search, he would be required to obtain a "piggyback warrant" - by checking the box, he was just saving the police from having to stop the search to obtain an additional search warrant if a corpse was found. On cross-examination, Detective Estes admitted there was no probable cause a human corpse would be found during the search.

         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 547.200.1(3), [6] the state appealed the circuit court's order. This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, sec. 10.

         Standard of Review

         Any ruling "on a motion to suppress must be supported by substantial evidence." State v. Johnson, 354 S.W.3d 627, 631 (Mo. banc 2011). This Court reviews the facts and reasonable inferences therefrom favorably to the circuit court's ruling and disregards contrary evidence and inferences. Id. at 631-32. Whether a search is "permissible and whether the exclusionary rule applies to the evidence seized" are questions of law reviewed de novo. Id. at 632. This Court is "primarily concerned with the correctness of the trial court's result, not the route the trial court took to reach that result, and the trial court's judgment must be affirmed if cognizable under any theory, regardless of whether the trial court's reasoning is wrong or insufficient." State ex rel. Greitens v. Am. Tobacco Co., 509 S.W.3d 726, 736 (Mo. banc 2017) (internal quotation omitted).

         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, 354 S.W.3d at 630.

         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, 336 S.W.3d 138, 146 (Mo. banc 2011) (alteration in original) (internal quotation omitted). Suppression, therefore, is the ordinary remedy for searches conducted in violation of the Fourth Amendment. Id. at 146-47; United States v. Sells, 463 F.3d 1148, 1154 (10th Cir. 2006). To avoid the harsh realities of suppressing evidence under the exclusionary rule, however, most federal and state courts have adopted the "severance doctrine."[7] See United States v. Riggs, 690 F.2d 298, 300-01 (1st Cir. 1982); see also Sells, 463 F.3d at 1155 (noting that "every federal court to consider the issue has adopted the doctrine of severance").

         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, 687 F.2d 749, 754 (3d Cir. 1982). Evidence seized pursuant to the valid portions of the search warrant may then be admissible at trial. Id.

          But the severance doctrine is not appropriate in every case.[8] Sells, 463 F.3d at 1155. Severance is appropriate under the doctrine only "if the valid portions of the warrant [are] sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant." Id. (alteration in original) (internal quotation omitted). In Sells, the Tenth Circuit established a five-step test for determining whether to sever invalid portions of a search warrant that has since been followed by the majority of jurisdictions. Id. at 1151. Applying this five-step test, it becomes apparent that severance is not appropriate under the fact and circumstances of this case.

         In applying the severance doctrine, the warrant must be considered in its entirety and the constitutional validity of each portion determined. Id. The search warrant, in its entirety, provided:

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. Douglass 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." Id. at 1155-56 (internal quotation omitted). "[T]he proper division of any particular warrant must be determined on a case-by-case basis." Id. at 1156.

         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." Id. at 1151. Mr. Douglass' and Ms. Gaulter's motions to suppress did not challenge the probable cause or particularity aspects of categories 1 through 4. But it is irrelevant whether Mr. Douglass and Ms. Gaulter expressly contested the constitutional validity of such categories. The state is requesting application of the severance doctrine. And application of the severance doctrine requires this Court ...


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