Date: 02-16-2018

Case Style:

Case Number: SC95719

Judge: Zel M. Fisher

Court: Supreme Court of Missouri on appeal from the Circuit Court, Jackson County

Plaintiff's Attorney: Saun Mackelprang

Defendant's Attorney: Clayton Gillette and John R. Humphrey

Description: 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.
Opinion issued February 13, 2018
2
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.
3
Factual and Procedural Background1
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.
1 The facts are taken from the search warrant affidavit and application and the probable
cause statement attached to the arrest warrant.
4
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
2 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.
5
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
3 Unless otherwise noted, all statutory citations are to RSMo 2000.
4 In light of this Court’s decision in State v. Bazell, 497 S.W.3d 263, 266-67 (Mo. banc
2016), the felony stealing offenses charged against Mr. Douglass and Ms. Gaulter would
be misdemeanor offenses.
5 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.
6
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
6 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[.]”
7
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
8
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.
7 Various courts have also interchangeably referred to this doctrine as the “severability
doctrine” and the “redaction doctrine.”
9
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;
8 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,
173 F.3d 677, 681 n.5 (8th Cir. 1999); United States v. Fitzgerald, 724 F.2d 633, 637 (8th
Cir. 1983); United States v. Freeman, 685 F.2d 942, 952 (5th Cir. 1982). Other courts
have warned the severance doctrine should not be applied if the “overall tenor of the
warrant or search smacks of . . . an abuse of the prospective availability of redaction,”
Christine, 687 F.2d at 759, or if officers “flagrant[ly] disregard the terms or grossly
exceed the scope of the search warrant.” Sells, 463 F.3d at 1162 (alteration in original)
(internal quotation omitted). But this Court need not decide whether Detective Estes’
misconduct prohibits application of the severance doctrine because, as explained herein,
the severance doctrine cannot be used to cure the warrant’s deficiencies in this case.
10
□ 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
11
omitted). “[T]he proper division of any particular warrant must be determined on a caseby-
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
9 The dissenting opinion divides the warrant into only five categories – those set out as 1
through 5 above.
12
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 to examine the search warrant in its entirety.
At the state’s request, the constitutional validity of each portion of the warrant must be
examined by this Court.
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 542.271.1,10 which enumerates the broad, generic categories
10 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
13
for which a search warrant may be issued. Such categories place no limitations on the
search and are devoid of any reference to the crimes related to M.G. No specificity as to
the crime or property is provided in these first three categories.
“[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, 463 F.3d
at 1154 (internal quotation omitted). The particularity “requirement is met if the
warrant’s description enables the searcher to reasonably ascertain and identify the items
to be seized.” State v. Tolen, 304 S.W.3d 229, 232 (Mo. App. 2009). The broad, general
statutory language of the first three categories does not include any distinguishing
characteristics of the goods to be seized or provide any guidance to law enforcement as
to the identity of the items to be seized. The first three categories, therefore, lack any
particularity for purposes of the Fourth Amendment.
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.
14
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 of the crime” was sufficiently particular.
463 F.3d at 1157 (emphasis added). The Tenth Circuit acknowledged the category “ha[d]
some characteristics of both a valid warrant provision and one that is too broad.” Id.
Nevertheless, the Tenth Circuit reasoned that, despite the catch-all nature of the provision
referring only to “the crime,” the category was valid because “the entire clause is limited
by the word ‘related,’ which refers back to the previously enumerated provisions of the
warrant.” Id. Therefore, because the category expressly stated it related back to the
previous provisions, the Tenth Circuit concluded the category was sufficiently particular
to constitute a valid portion of the warrant. Id. at 1157-58.
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
15
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, 213 S.W.3d 44, 49 (Mo. banc 2007) (internal quotation omitted). In
reviewing “whether probable cause exists, the appellate court may not look beyond the
four corners of the warrant application and the supporting affidavits.” Id.
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.11
11 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, 454 S.W.3d 883,
891 (Mo. banc 2015). Again, in determining “whether probable cause exists, the
appellate court may not look beyond the four corners of the warrant application and the
16
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, corpse, 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, 729 F.2d 533 (8th Cir. 1984), such
a provision gives officers a general search authorization by failing to limit the search in
any fashion to the crime at issue.
In LeBron, the Eighth Circuit concluded language authorizing a search of a
residence for “other property, description unknown, for which there exists probable cause
supporting affidavits.” Neher, 213 S.W.3d at 49. Looking strictly at the warrant
application and supporting affidavit, there is nothing that supports a finding of a fair
probability that any individual with an outstanding felony arrest warrant would be found
at Mr. Douglass and Ms. Gaulter’s residence.
17
to believe it to be stolen” lacked the particularity required under the Fourth Amendment.
Id. at 536-37. The Eighth Circuit acknowledged, “when it is impossible to describe the
fruits of a crime, approval has been given to a description of a generic class of items.” Id.
at 536. Nevertheless, the Eighth Circuit reasoned the portion of the warrant allowing for
the search of property believed to be stolen “is not descriptive at all” but rather “is simply
conclusory language” that provides no guidelines to the officers executing the search
warrant. Id. at 537. It further concluded such direction was a “general authorization” that
“provide[d] no protection against subjecting a person’s lawfully held property to a general
search and seizure.” Id.
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.” 463 F.3d at 1157. Category 13, therefore, is also
invalid for failing to satisfy the particularity requirement.
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. Id. at 1158. If “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
18
isolated from [the] rest of the warrant, then the valid portions may be severed from the
warrant.” Id.
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 make up
the greater part of the warrant. Id. “Total suppression may still be required even where
a part of the warrant is valid (and distinguishable) if the invalid portions so predominate
the warrant that the warrant in essence authorizes a general exploratory rummaging in a
person’s belongings.” Id. (internal quotation omitted). If the invalid portions
predominate such as to create a general warrant, “application of the severance doctrine
would defeat rather than effectuate the protections of the Fourth Amendment and the
purpose of the exclusionary rule.” Id.
In determining whether the valid portions make up the greater part of the warrant,
courts consider “the number of valid versus invalid provisions.” Id. at 1159. But a mere
counting of the provisions is insufficient; rather, courts must also consider “the practical
effect of those parts.” Id. at 1160. Though there may be numerically fewer invalid
portions of the warrant, those invalid portions “may be so broad and invasive that they
contaminate the whole warrant.” Id. Courts, therefore, must “employ a holistic test that
19
examines the qualitative as well as the quantitative aspects of the valid portions of the
warrant relative to the invalid portions to determine whether the valid portions make up
the greater part of the warrant.” Id. at 1160 (internal quotation omitted).
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, 403 U.S. 443, 467 (1971). A general
warrant permits “a general, exploratory rummaging in a person’s belongings.” Id. By
mirroring the language of section 542.271 – the statute enumerating the broad, general
categories for which a search warrant can issue without any limitations – categories 1
through 5 effectively gave officers unfettered discretion to search the entire residence and
seize any property they believed constituted evidence of the commission of any crime.
The warrant, therefore, authorized a broad and invasive search of Mr. Douglass and
Ms. Gaulter’s residence despite the specificity of the items contained in the valid portions
of the warrant.
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
20
cannot be used to save a general warrant and is, therefore, inappropriate in this case. Sells,
463 F.3d at 1158.
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. Id. at 1159. The severance doctrine focuses exclusively on the
search warrant itself, not what items were actually seized pursuant to it. Id. Therefore,
the fact that the only items seized were those stolen from M.G. has no bearing on whether
severance is appropriate in this case.
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, 468 U.S. 705, 712 (1984).12 But there is no question
12 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
21
that an invasion of privacy occurred in this case because there was, in fact, a search of
Mr. Douglass and Ms. Gaulter’s residence. And although that search was made pursuant
to a warrant, by the state’s own admission, that warrant violated the Fourth Amendment
because at least one provision was not supported by probable cause. It follows that the
question in this case is not whether a Fourth Amendment violation occurred – it did.
Rather, the issue is what is the appropriate remedy for that Fourth Amendment violation.
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.
a general search warrant is only a potential invasion of privacy. 468 U.S. at 712. The
context of the statement in Karo was that there was only a potential invasion of the
defendant’s privacy by the transfer to the defendant of a can containing an unmonitored
beeper. Id. at 712-13. The Supreme Court found such installation and transfer of the
beeper did not constitute a search in violation of the Fourth Amendment. Id. at 713. The
Supreme Court went on to hold, however, that the monitoring of the beeper by law
enforcement officials without a search warrant, when the beeper was inside the
defendant’s residence, violated the defendant’s Fourth Amendment rights. Id. at 714-18.
22
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 specification 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, 540 U.S. 551, 557-58 (2004) (emphasis added). The requirement that the
application or affidavit accompany the warrant is not a perfunctory. “The presence of a
search warrant serves a high function, and that high function is not necessarily vindicated
when some other document, somewhere, says something about the objects of the search,
but the contents of that document are neither known to the person whose home is being
searched nor available for her inspection.” Id. at 557 (internal citation omitted).
Requiring a warrant to describe items with particularity “also assures the individual
whose property is searched or seized of the lawful authority of the executing officer, his
23
need to search, and the limits of his power to search.” Id. at 561 (internal quotation
omitted).
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.13
13 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.” 540 U.S. at 558. The fact the Supreme
Court did not definitively decide the issue in Groh, however, does not negate that the
majority of jurisdictions addressing the issue of incorporation require the accompaniment
of the affidavit or application before the affidavit or application can overcome the
warrant’s particularity deficiencies. But see United States v. Hurwitz, 459 F.3d 463, 471
(4th Cir. 2006); Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco &
Firearms, 452 F.3d 433, 439 (6th Cir. 2006). Moreover, Groh is not inconsistent with
the incorporation/accompanying approach. In fact, in rejecting the state’s argument that
no Fourth Amendment violation occurred because the scope of the search did not exceed
the limits set forth in the application, the Supreme Court stated:
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, 540 U.S. at 560 (emphasis added). Even one of the sources relied on by the
dissenting opinion goes as far as to say “it is clear that the [Supreme] Court in Groh has
accepted and adopted the incorporation/accompanying approach, without specifically
saying so, as the discussion of whether there was a valid with-warrant search is abruptly
ended because there was neither incorporation nor accompaniment.” 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 4.6(a) (5th ed. 2012).
24
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 the
search warrant included the same list of detailed items included in the search warrant
application.14 Again, this Court does not take issue with the particularity of the detailed
14 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[.]” 540 U.S. at 560. But
such statement was made in the context of explaining “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),” then there is no way to ensure the
magistrate found probable cause for every item in the affidavit. Id. (emphasis added).
The statement in Groh, therefore, simply sets forth the general principle that the items to
be seized must be set forward in the warrant with particularity or at least by incorporation
and accompaniment of the affidavit or application. The dissenting opinion further relies
on Bartholomew v. Pennsylvania, 221 F.3d 425, 429-30 (3d Cir. 2000), for the proposition
that there is no Fourth Amendment violation when “the list of items to be seized . . .
appear[s] on the face of the warrant.” But Bartholomew addressed whether a sealed
affidavit must accompany the search warrant to cure the warrant’s particularity
deficiencies, and the Third Circuit held “where the list of items to be seized does not
appear on the face of the warrant, sealing that list, even though it is ‘incorporated’ in the
warrant, would violate the Fourth Amendment.” Id. at 430 (emphasis added).
Bartholomew, therefore, is consistent with the requirement that the affidavit or application
accompany the search warrant before incorporation can cure any particularity deficiencies
in the warrant. Finally, the dissenting opinion quotes extensively from United States v.
Hamilton, 591 F.3d 1017, 1027-28 (8th Cir. 2010). But much like Groh, the Hamilton
court never reached the incorporation/accompanying issue because it concluded “even if
the warrant failed to meet the particularity requirement of the Warrant Clause,” the
exclusionary rule should not be applied under the good-faith exception. Id. at 1027.
Accordingly, the cases relied on by the dissenting opinion do not support the conclusion
that it is of no consequence to a particularity analysis whether the search warrant
application accompanied the search warrant.
25
items listed in categories 6 through 12. But those categories do not cure the lack of
particularity in the first five categories and category 13. Accordingly, severance is not
appropriate in this case.15
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, 336 S.W.3d at 146
(alteration in the original) (internal quotation omitted). And “the only remedy for a
general warrant is to suppress all evidence obtained thereby.” United States v. Yusuf, 461
F.3d 374, 393 n.19 (3d Cir. 2006). Accordingly, the circuit court did not err in applying
the exclusionary rule.
15 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. 463 F.3d at 1161.
26
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.
___________________________________
PATRICIA BRECKENRIDGE, JUDGE
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.
SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, )
)
Appellant, )
)
v. ) No. SC95719
)
PHILLIP DOUGLASS, )
)
Respondent, )
)
and )
)
JENNIFER M. GAULTER, )
)
Respondent. )
DISSENTING OPINION
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;
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 [M.G.] engraved on them; Coach, Lv, Hermes,
Bestie Sunglasses; Passport and Social Security card [belonging to M.G.];
Social Security Card/Birth Certificate [belonging to M.G.'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.
These items were expressly listed in both the "AFFIDAVIT/APPLICATION FOR
SEARCH WARRANT" (hereinafter, "application for the search warrant"), and the
2
"Search Warrant" itself. Nothing in the application for the search warrant referenced a
"Deceased human fetus or corpse, or part thereof[.]" The search warrant listed five
specific categories, with a box next to each category to check if there was probable cause
to search for the category. These five categories are found on every form search warrant.
Such forms track the language contained in § 542.271, RSMo 2000. Importantly,
preceding the five categories was an express reference to the application for the search
warrant, which 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[.]" (Emphasis added). Then, the five specific categories were
listed as follows:
□ 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[.]
The boxes next to all five categories were checked, and the search warrant was
signed by the issuing judge. The fifth box should not have been checked because there
was no information in the application for the search warrant to support a probable cause
3
finding for that category.1 That then begs the question of whether the circuit court erred
in suppressing all evidence seized when there was probable cause to search for most, but
not all, of the categories described in the search warrant.
Whether a search is "permissible and whether the exclusionary rule applies to the
evidence seized" are questions of law that are reviewed de novo. State v. Johnson, 354
S.W.3d 627, 632 (Mo. banc 2011).
"Whether the exclusionary sanction is appropriately imposed in a particular
case . . . 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." United States v.
Leon, 468 U.S. 897, 906 (1984) (internal quotation marks omitted). To be sure,
[o]nly the former question is currently before us, and it must be resolved by
weighing the costs and benefits of preventing the use in the prosecution's
case in chief of inherently trustworthy tangible evidence obtained in
reliance on a search warrant issued by a detached and neutral magistrate
that ultimately is found to be [partially] defective.
Id. at 906–07.2
The Supreme Court of the United States 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). And, "[n]ot every
1 It remains unclear why the issuing judge struck through part of the search warrant he did not
think was justified by the application for the search warrant but did not strike through the corpse
category. See Ex. A ("AFFIDAVIT/APPLICATION FOR SEARCH WARRANT"); Ex. B
("SEARCH WARRANT").
2 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).
4
Fourth Amendment violation results in exclusion of the evidence obtained pursuant to a
defective search warrant." United States v. Hamilton, 591 F.3d 1017, 1027 (8th Cir.
2010). Indeed, "[f]rom a policy perspective[,] a rule requiring blanket invalidation of
overbroad warrants would seem ill advised." United States v. Riggs, 690 F.2d 298, 301
(1st Cir. 1982). A search warrant passes constitutional muster if there is: (1) probable
cause to believe that the place to be searched will contain evidence of a crime; and
(2) sufficient particularity of the description of the place to be searched and the items to
be seized. U.S. Const. amend. IV; Mo. Const. art. I, sec. 15. It is undisputed the "corpse
category" on the search warrant lacked probable cause. On the other hand, however, it is
also undisputed probable cause did exist to support a search for the other categories
identified in the search warrant. The items for those categories were further described in
the search warrant 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 [M.G.] engraved on them; Coach, Lv, Hermes,
Bestie Sunglasses; Passport and Social Security card [belonging to M.G.];
Social Security Card/Birth Certificate [belonging to M.G.'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.
It is also undisputed the description of these items satisfied the particularity requirement.3
Therefore, only part of the search warrant—rather than all of it—was invalid.4 When
3 The principal opinion, however, concludes the last item—"Any property readily and easily
identifiable as stolen"—does not satisfy the particularity requirement of the Fourth Amendment
because it is "merely conclusory language that lacks any specificity and is not limited to the
offenses related to M.G.'s property" and because nothing in this item "limits the catch-all nature
5
that is the case, a circuit court faced with a motion to suppress must consider the
severability doctrine.5
Under this 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]).
Sells, 463 F.3d at 1150 (internal quotation marks omitted). Courts "apply a multiple-step
analysis to determine whether severability is applicable." Id. at 1151. First, the search
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
of the category by relating it back to the previously enumerated provisions of the warrant." Slip
op. at 17 (internal quotation marks omitted). But what the principal opinion overlooks is the fact
that this item came immediately after all of the specific items that were allegedly taken from
M.G. Moreover, as discussed infra, under particularity analysis, the application for the search
warrant was a part of the search warrant so the items "identifiable as stolen" were those in
relation to the investigation of items allegedly taken from M.G.
4 It is important to emphasize this appeal does not involve evidence seized pursuant to the search
warrant's corpse category. Instead, this appeal concerns the suppression of evidence seized
under the lawful authority of the other, valid categories of the search warrant.
5 Indeed, "the 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).
"[This] practice . . . 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 (emphasis added). Federal circuit courts synonymously refer
to the doctrine as "severability," "severance," "redaction," or "partial suppression." United States
v. Sells, 463 F.3d 1148, 1151 n.1 (10th Cir. 2006) (listing cases).
6
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 may 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. Ultimately,
[i]f the valid portions make up "the greater part of the warrant," then we
sever those portions, suppress the evidence seized pursuant to the portions
that fail to meet the Fourth Amendment's warrant requirement, and admit
all evidence seized pursuant to the valid portions or lawfully seized during
execution of the valid portions.
Id.
The search warrant in this case can be easily divided into the following categories
of evidence: (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;"6 and
(5) "Deceased human fetus or corpse, or part thereof[.]"
6 The principal opinion asserts this category lacked probable cause. A probable cause
determination "should be paid great deference by reviewing courts." Illinois v. Gates, 462 U.S.
213, 236 (1983) (internal quotation marks omitted). But at the suppression hearing the
defendants' counsel conceded there was probable cause for this category:
7
Next, each part of the search warrant is examined for both probable cause and
particularity. There has been no challenge to either the probable cause or particularity
aspects of the specific items that fall within categories 1 through 4, but the principal
opinion suggests otherwise.
The other four checked categories, which are found on every form search warrant,
do not violate the particularity requirement of the Fourth Amendment because the search
warrant expressly referred back to the application for the search warrant, a fair reading of
which indicates the investigation arose from M.G.'s reporting of property allegedly taken
from her residence.7 The form search warrant at issue tracked the language contained in
§ 542.271. Moreover, the preceding sentence to these five categories expressly
referenced the specific items listed in the application for the search warrant. The express
reference provided, "Based on information provided in a verified
application/affidavit, the Court finds probable cause to warrant a search for and/or
[T]he fact that the check box is available on a form for human remains is
somewhat frightening. There was no probable cause to believe that there had
been any dead bodies or parts thereof at their house.
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. I'm sure the
officers did their due diligence and did a background check, records check before
they went to execute this, and that would justify perhaps the other check boxes
on the search warrant.
(Emphasis added).
7 "It is universally recognized that the particularity requirement must be applied with a practical
margin of flexibility, depending on the type of property to be seized, and that a description of
property will be acceptable if it is as specific as the circumstances and nature of activity
under investigation permit." United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982)
(emphasis added). "The particularity requirement ensures that a search is confined in scope to
particularly described evidence relating to a specific crime for which there is demonstrated
probable cause." Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) (emphasis added).
8
seizure of the following[.]" (Emphasis added). The application for the search warrant
provided the description for the categories along with the description on the face of the
search warrant.
The Fourth Amendment does not "prohibit[] a warrant from cross-referencing
other documents." Groh v. Ramirez, 540 U.S. 551, 557 (2004). Indeed, "sufficient
particularity to validate a warrant inadquately [sic] limited upon its face may be supplied
by the attachment or incorporation by reference of the application for the warrant and the
supporting affidavits." State v. Holland, 781 S.W.2d 808, 814 (Mo. App. 1989). Even
the Tenth Circuit in Sells noted the affidavit there could not remedy the "warrant's lack of
particularity because it was neither incorporated by express reference in the warrant
nor attached to the warrant." 463 F.3d at 1157 n.6 (emphasis added).
With these considerations in mind, if the search warrant and its supporting
document—the application for the search warrant—are viewed in a "commonsens[ical,
consistent,] and realistic fashion[,]" United States v. Ventresca, 380 U.S. 102, 108 (1965),
the search warrant's express reference to the application for the search warrant
demonstrates that the nature of the warrant was not general at all. See Doe v. Groody,
361 F.3d 232, 248 (3d Cir. 2004) (Alito, J., dissenting) ("[T]he appropriateness of 'words
of incorporation' is to be judged by the 'commonsense and realistic' standard that is
generally to be used in interpreting warrants.").
To invalidate these four checked categories for lack of particularity would be to
completely eliminate form warrants in general. This form search warrant tracked the
language of § 542.271. Indeed, to invalidate these categories on that basis would be to
9
call into question the constitutional validity of § 542.271, which this Court prefers to
avoid completely. See, e.g., State v. Wade, 421 S.W.3d 429, 432 (Mo. banc 2013)
("Statutes are presumed constitutional and will be found unconstitutional only if they
clearly contravene a constitutional provision."). It is difficult to imagine what a
compliant search warrant even looks like under the principal opinion's view.
The principal opinion's view is also inconsistent with Supreme Court precedent.
The Supreme Court in Groh explained that the particularity requirement of the Fourth
Amendment may be satisfied if "the particular items described in the affidavit are also set
forth in the warrant itself[.]" 540 U.S. at 560. "What doomed the warrant in Groh was
not the existence of a supporting affidavit that particularly described the items to be
seized, but the failure of the warrant to cross-reference the affidavit at all." Baranski v.
Fifteen Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 439
(6th Cir. 2006) (en banc). See also 2 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 4.6(a) (5th ed. 2012) (noting that Groh "covers . . . only" the
situation in which the search warrant "'did not describe the items to be seized at all'")
(quoting Groh, 540 U.S. at 558).
The preceding sentence to the five categories on the face of the search warrant
adequately cross-references the application for the search warrant because "the particular
items described in the [application for the search warrant] are also set forth in the warrant
itself[.]" Groh, 540 U.S. at 560. See also Bartholomew v. Pennsylvania, 221 F.3d 425,
429–30 (3d Cir. 2000) (suggesting there is no Fourth Amendment violation when "the list
of items to be seized . . . appear[s] on the face of the warrant").
10
Furthermore, to the extent the principal opinion "reads Groh as establishing a
definitive two-part rule for validating a warrant by incorporation of a separate
document[,]" Groh "establishes no such rule. Instead, Groh simply acknowledges the
approach generally followed by the Courts of Appeals. Because neither requirement was
satisfied in Groh, the Supreme Court declined to further consider the question of
incorporation by reference." United States v. Hurwitz, 459 F.3d 463, 471 (4th Cir. 2006).
See also Groh, 540 U.S. at 558 ("But in this case the warrant did not incorporate other
documents by reference, nor did either the affidavit or the application (which had been
placed under seal) accompany the warrant. Hence, we need not further explore the matter
of incorporation.").
What is most important in this case for purposes of particularity analysis is that the
face of the search warrant had, verbatim, the same list of detailed items the application
for the search warrant provided. The fact that the record does not definitively indicate the
application for the search warrant was either physically attached to the search warrant8 or
accompanied the search warrant at the time of the search, is of no consequence. Indeed,
there is "nothing in the Constitution requiring that an officer possess or exhibit, at the
time of the search, documents incorporated into a warrant as an additional safeguard for
the particularity requirement." Hurwitz, 459 F.3d at 472–73. "The salient point is that
Groh did not establish a one-size-fits-all requirement that affidavits must accompany all
searches to prevent a lawfully authorized search from becoming a warrantless one."
8 Notably, both the application for the search warrant and the search warrant were signed and
dated August 29, 2013, at 3:04 P.M. Compare Ex. A, with Ex. B.
11
Baranski, 452 F.3d at 444. See also Hamilton, 591 F.3d at 1027 ("If the warrant in this
case referred to the attached affidavit for the explicit purpose of delineating the items
to be seized . . . we would be inclined to follow the reasoning of the Sixth Circuit in
Baranski and conclude that an affidavit incorporated into a warrant need not
accompany the warrant to the search for purposes of meeting the particularity
requirement of the Warrant Clause.") (emphasis added).
In any event, I reject the principal opinion's
reliance on Groh. The warrant in this case included a clear incorporation of
the [application for the search warrant], which itself included an explicit list
of items to be seized. The issuing judge signed both the warrant and the
[application for the search warrant], demonstrating both that the circuit
judge approved the search with reference to the affidavit and that the judge
had the opportunity to limit the scope of the search.
Id. at 1028. It was also "objectively reasonable for an officer with [Detective Estes]'s
knowledge and involvement in the warrant application process to rely on the warrant as
incorporating the list of items to be seized from the [application for the search warrant],"
even if the principal opinion concludes the "magic words" of incorporation were less than
clear. Id. at 1029.
Accordingly, that leaves the validity of category 5, the corpse category. As noted
above, there is no probable cause supporting category 5. Because most of the categories
are supported by both probable cause and particularity, the next question is whether the
valid portions—categories 1 through 4—are sufficiently distinguishable from the invalid
portion—category 5.
12
Virtually all categories and items are clearly related to the theft crimes the
defendants were accused of committing and eventually charged with. Likewise, the
corpse category is clearly unrelated to any of the crimes the defendants allegedly
committed. Nor have the defendants been charged with any homicide offense. "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 search warrant such that
the warrant is, in essence, a general warrant, then severance is inapplicable. A general
warrant is one that authorizes "a general, exploratory rummaging in a person's
belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). A search 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." Christine, 687 F.2d at 753.
In conducting this analysis, courts focus "on the warrant itself rather than upon an
analysis of the items actually seized during the search." Sells, 463 F.3d at 1159.
"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. (internal quotation marks
omitted). "However, merely counting parts, without any evaluation of the practical effect
13
of those parts, is an improperly 'hypertechnical' interpretation of the search authorized by
the warrant." Id. at 1160; see also Gates, 462 U.S. at 236. "A warrant's invalid portions,
though numerically fewer than the valid portions, may be so broad and invasive that they
contaminate the whole warrant." Sells, 463 F.3d at 1160. "Common sense indicates that
we must also evaluate the relative scope and invasiveness of the valid and invalid parts of
the warrant." Id.
Here, both quantitative and qualitative assessments of the search warrant indicate
that, when viewed, in toto, the valid portions make up the greater part of the search
warrant and the corpse category was a de minimis aspect of the search 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 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 search warrant authorized a rather broad search in
light of the nature of the items listed (e.g., jewelry, keys, identification). Though
14
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 category neither constituted the greater part of the search warrant
nor transformed the warrant into a general one. At most, its inclusion in the search
warrant was de minimis compared to the valid portions of the warrant. See, e.g., Sells,
463 F.3d at 1160–61. The valid portions make up the greater part of the search warrant.
Id. at 1160.
This analysis demonstrates the circuit court misapplied the law and should have
severed the valid portions of the search warrant from the sole invalid portion—i.e., the
corpse category—and not suppressed evidence seized pursuant to the valid portions.9
"[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 other
items as well." United States v. Cook, 657 F.2d 730, 735 (5th Cir. 1981) (internal
quotation marks omitted).
9 "The proponent of [a] motion [to suppress evidence] has the burden of establishing that his
constitutional rights were violated by the challenged search or seizure[.]" State v. Burkhardt,
795 S.W.2d 399, 404 (Mo. banc 1990). "At a motion to suppress hearing, the State bears the
burden of proving that the seizure was constitutionally proper." State v. Pike, 162 S.W.3d 464,
472 (Mo. banc 2005). Here, because the search was pursuant to a warrant, the defendants bore
the burden of proving the search warrant invalid. And, they met their burden with respect to the
corpse category. They failed, however, to demonstrate that the entire search warrant was invalid.
Had the circuit court properly severed the search warrant, the defendants might have argued
evidence was seized pursuant to the invalid portion of the search 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 search warrant. However, because the circuit
court erroneously found the search warrant invalid in its entirety, no such argument was made.
Indeed, it is undisputed that none of the evidence sought to be suppressed had been seized under
the invalid portion of the search warrant.
15
The general tenor of the circuit court's order suppressing all of the evidence from
the search, and the crux of the defendants' argument on appeal, is that Detective Estes's
alleged misconduct in presenting the issuing judge with a proposed search warrant—
authorizing a search warrant with the corpse category even though there was no probable
cause to support it—required invalidation of the entire warrant. There are two problems
with this determination: (1) the severance or redaction cases are not concerned with the
officer's motivation in procuring the search warrant; and (2) invalidation of the entire
search warrant under these circumstances would be inconsistent with well-established
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 search
warrant and accompanying affidavit—in this case, the application for the search
warrant—to discern whether the search 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 search warrant and affidavit); see also LaFave, supra,
§ 3.7(d) ("If severability is proper . . . 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.").
16
Despite some courts using the terms "pretext" and "bad faith," in describing when
severance is inapplicable,10 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 search 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 warrant. See id. 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).
10 See, e.g., United States v. Fitzgerald, 724 F.2d 633, 636–37 (8th Cir. 1983) (en banc)
("[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."); Cook, 657 F.2d at 735 n.6 (noting the absence of pretext to negate
application of the severance doctrine).
17
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.
First, magistrates must exercise vigilance to detect pretext and bad faith on
the part of law enforcement officials. Second, courts should rigorously
apply the exclusionary rule to evidence seized pursuant to the invalid
portions of the warrant. Third, items not described in the sufficiently
particular portions of the warrant will not be admissible unless it appears
that (a) the police found the item in a place where one would reasonably
have expected them to look in the process of searching for the objects
described in the sufficiently particular portions of the warrant, (b) the police
found the item before they found all the objects described in the sufficiently
particular portions of the warrant (that is, before their lawful authority to
search expired), and (c) the other requirements of the plain view rule—
inadvertent discovery and probable cause to associate the item with
criminal activity—are met.
Fitzgerald, 724 F.2d at 637. In short, the courts have not been concerned with why the
invalid portions might have been included because, simply put, if the invalid portions
rendered the search 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 search warrant.11 In Franks v. Delaware, 438 U.S. 154, 155–56 (1978), the
Supreme Court addressed the remedy for officer misconduct in the procurement of a
search warrant, either through intentional misrepresentation or intentional omissions in
11 To reiterate, Detective Estes made no misrepresentation in his sworn application for the
search warrant. Indeed, that document had no reference at all to the corpse category.
18
the supporting affidavit. But even when 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[.]" Franks, 438
U.S. at 171–72. In other words, upon a finding that the affiant officer lied to the warrantissuing
judge, the remedy the court must apply is to redact the misrepresentation and then
reevaluate whether the search warrant is still supported by probable cause.
Similarly, if officers engage in misconduct when executing a search warrant by
exceeding its lawful scope, the remedy is not wholesale suppression of all evidence
seized.12 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 (footnote omitted). In other words, courts exclude only that
evidence seized as a result of misconduct and not any evidence seized under lawful
authority.
In my view, wholesale suppression is not the appropriate remedy in this case when
there was not a single misrepresentation made on the application for the search warrant—
but rather, an inappropriate box checked on the proposed search warrant—when such a
12 Nothing in the record suggests the officers exceeded the scope of the authorized search.
19
remedy has been rejected when addressing intentional misrepresentations in the
supporting application for the search warrant, or a search that intentionally exceeds the
lawful scope of the warrant. See Lynskey, supra, at 837 ("[E]ven if the court were to find
that the officer recklessly or intentionally included falsehoods in the affidavit, 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 Detective Estes' conduct—in presenting the issuing judge with a
proposed search warrant with the corpse category checked even though it lacked probable
cause—was excusable or justifiable. To be sure, there is no "law enforcement
convenience" exception to the warrant requirement, and the issuing judge should have
stricken the corpse category just like he did for the "no knock" category. 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 good reason to check a box on a
proposed search warrant when the applicant knows there is no probable cause to support
that category. And, in doing so, law enforcement gains nothing because even if the
search warrant is severed, any evidence seized pursuant to the invalid portion of the
warrant will be suppressed.
In my view, Fourth Amendment jurisprudence would only authorize suppressing
evidence that was actually seized in reliance on the corpse category. Unless the officers
conducting the search actually relied on the invalid portion of the search warrant in doing
so, the search warrant—in the absence of redaction—created merely the potential for a
20
Fourth Amendment violation.13 To reiterate, the Supreme Court has "never held that
potential, as opposed to actual, invasions of privacy constitute searches for purposes of
the Fourth Amendment." Karo, 468 U.S. at 712.
"If at the time of 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 search 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 search 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.
Suppression of only evidence obtained pursuant to the invalid portion of the search
warrant would not offend the Fourth Amendment. See United States v. Calandra, 414
U.S. 338, 347 (1974) ("[E]vidence obtained in violation of the Fourth Amendment
cannot be used in a criminal proceeding against the victim of the illegal search and
seizure.") (emphasis added). Yet, in this case, it is difficult to imagine what evidence, if
13 The "facial invalidity of [a search] warrant" is a separate question from the "manner in which
the officers conducted the search." Baranski, 452 F.3d at 443. See also Hamilton, 591 F.3d at
1025 ("Whether a warrant is properly issued, however, is a separate question from whether it is
reasonably executed, which is governed by the Reasonableness Clause of the Fourth
Amendment[.]"); United States v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001) (noting the
reasonableness of the execution of a warrant "is an entirely different matter than the question of
whether the warrant itself is valid"). "To say that a warrant satisfies the Warrant Clause upon
issuance, however, by no means establishes that a search satisfies the Reasonableness Clause
upon execution[.]" Baranski, 452 F.3d at 445.
21
any, the State could use against the defendants if the circuit court had overruled the
motions to suppress when no evidence was obtained pursuant to the invalid portion of the
search warrant.
Furthermore, if the evidence seized in reliance on the valid portions of the search
warrant is not suppressed, all parties will receive a fair trial.
Fairness can be assured by placing the State and the accused in the same
positions they would have been in had the impermissible conduct not taken
place. . . . [T]here is no rational basis to keep that evidence from the jury in
order to ensure the fairness of the trial proceedings. In that situation, the
State has gained no advantage at trial and the defendant has suffered no
prejudice. Indeed, suppression of the evidence would operate to undermine
the adversary system by putting the State in a worse position than it would
have occupied without any police misconduct.
Nix v. Williams, 467 U.S. 431, 447 (1984).
In conclusion, the overall tenor of the circuit court's judgment suggests total
suppression was its first impulse, not its last resort. Cf. Hudson v. Michigan, 547 U.S.
586, 591 (2006). Total suppression should be limited to situations in which "its remedial
objectives are thought most efficaciously served." Calandra, 414 U.S. at 348. Indeed,
Real deterrent value is a necessary condition for exclusion, but it is not a
sufficient one. The analysis must also account for the substantial social
costs generated by the rule. Exclusion exacts a heavy toll on both the
judicial system and society at large. It almost always requires courts to
ignore reliable, trustworthy evidence bearing on guilt or innocence. And its
bottom-line effect, in many cases, is to suppress the truth and set the
criminal loose in the community without punishment. Our cases hold that
society must swallow this bitter pill when necessary, but only as a last
resort. For exclusion to be appropriate, the deterrence benefits of
suppression must outweigh its heavy costs.
Davis v. United States, 564 U.S. 229, 237 (2011) (internal citations and quotation marks
omitted). The principal opinion would have M.G. (and her son) swallow the bitter pill of
22
total suppression even though checking the box on the corpse category on the search
warrant was de minimis.

* * *

Outcome: Because the warrant issued was not a general warrant and no evidence whatsoever
was discovered or seized based on the corpse category, the circuit court misapplied the law in suppressing all evidence seized, and its order should be reversed.

Plaintiff's Experts:

Defendant's Experts:

Comments: