State of Missouri v. Phillip Douglas and Jennifer M. Gaulter

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

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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.

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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.

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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.

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□ 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

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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.

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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

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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.

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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.

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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

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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.



* * *

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.