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Date: 03-29-2016

Case Style: State of Missouri vs. Phillip S. Douglass and Jennifer M. Gaulter

Case Number: WD78328 and WD78329

Judge: Karen King Mitchell


Plaintiff's Attorney: Chris Koster, Rachel Flaster

Defendant's Attorney: John R. Humphrey

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

Outcome: The trial court’s judgment suppressing the State’s evidence is reversed, and the matter is remanded for further proceedings consistent with this opinion.

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