Reconsidering Missouri's Warrant Suppression Standard.

• Author: Sanders, James

1. INTRODUCTION

   The search warrant is a foundational component of the American criminal justice process. Designed to limit and prevent overreach by police and other law enforcement entities, the framers of the Fourth Amendment of the United States Constitution sought to use warrants as a tool to control the scope and breadth of searches and seizures of private property. (1) The Fourth Amendment's warrant requirements are a vital check on the proactive and ever-growing (2) police efforts of state and federal authorities.

   Law enforcement at the federal, state, and local levels carry out thousands of search warrants every day across the United States. (3) Police or other law enforcement personnel submit a warrant application to a judge who then reviews the application to ensure it is supported by probable cause. (4) If a warrant application is defective, the reviewing judge may deny the application entirely or strike individual portions that lack probable cause. (5)

   Despite the best efforts of judges who oversee the criminal investigation process, not every warrant perfectly conforms to the parameters of the Constitution. Considering the massive scale on which the correctional system operates, (6) it is hardly surprising that errors--malicious or inadvertent--happen at every stage of the criminal justice process. This fact raises important policy questions about what should happen when a warrant contains statements unsupported by probable cause or extends a search beyond its permitted scope. These questions become particularly relevant when defective warrants are executed and lead to evidence vital to a prosecution.

   What should courts do when evidence is recovered under a partially invalid warrant? Typically, the solution is to apply the severance doctrine. (7) The severance doctrine permits a court to strike invalid parts of a warrant and illegally seized evidence while preserving the valid portions of the warrant and evidence seized pursuant to it. (8) In theory, severance places the prosecution and defendant in the positions they would have been in had the search warrant not been defective. While an imperfect solution, severance attempts to balance the conflicting policy goals of allowing the prosecution to use its otherwise legitimate evidence at trial while mitigating the harmful effects of the warrant on the defendant's case.

   Most federal and state courts approach severance decisions in a generally uniform manner under a test developed by the U.S. Court of Appeals for the Tenth Circuit in United States v. Sells. (9) The so-called "Sells test" consists of five steps:

   (1) Divide the warrant into categories of items;

   (2) Evaluate the constitutional validity of each category;

   (3) Distinguish the valid and invalid categories;

   (4) Determine whether the valid or invalid portions make up the greater part of the warrant; and

   (5) Sever the invalid portions of the warrant if severance is appropriate. (10)

   A circuit split has emerged over the application of the Sells test because some jurisdictions have removed the greater part requirement--step four of the test--from their analyses while others have not. (11) The greater part requirement calls for a quantitative and qualitative balancing of the warrant: Courts add up the number of valid versus invalid categories and then apply qualitative weight to each category to determine whether the invalid categories outweigh the valid categories. (12) If the invalid categories outweigh the valid categories, the entire warrant is deemed defective, and all evidence found during its execution must be suppressed. (13) However, if the valid categories outweigh the invalid categories, the court may sever the invalid categories and preserve the rest. (14)

   Jurisdictions that rejected the greater part requirement of the Sells test have observed that the test forces judges to divide a challenged warrant into subjective categories first and then assign subjective qualitative values to each category. (15) The subjectivity-on-subjectivity requirement of the Sells test elevates courts' qualitative analyses to outcome-determinative levels in warrant-suppression cases because judges can essentially "balance" a warrant any way that is necessary to reach a desired result. This framework unnecessarily introduces uncertainty into the warrant suppression process and can lead to wildly disparate outcomes depending on the judge or jurisdiction. State v. Douglass (16) was a case that should have been straightforward. A victim reported stolen property and told the police who she suspected of stealing the property. (17) The police searched the home of the defendants and recovered the stolen property. (18) Fortunately for the defendants, the story does not end here. The police made unnecessary and unforced errors by misstating probable cause on the warrant application form for the defendants' home, leading the defendants to successfully move to suppress all evidence recovered pursuant to the warrant. (19) Over a six-year period, this case was heard at all three levels of the Missouri courts and was unsuccessfully appealed to the Supreme Court of the United States. (20)

   Part II of this Note will explore the facts of State v. Douglass and briefly discuss the Supreme Court of Missouri's holding. Next, Part III will provide an overview of leading case law on the issue of partially defective warrants and their treatment by courts in various jurisdictions. Part III will then contextualize Douglass' transfer to the Supreme Court of Missouri by reviewing the case's procedural history, particularly the Missouri Court of Appeals for the Western District's six-to-five reversal of the circuit court's suppression of the warrant. Part IV will examine the Douglass majority opinion's analysis of the warrant involved in this case under the Sells test. A discussion of Chief Justice Zel M. Fischer's dissent, which was joined by Judge Paul C. Wilson, will follow.

   Part V will suggest that criminal defendants' rights and the policy goals of law enforcement would be most effectively preserved by adopting a modification of the Sells test that removes the greater part requirement's qualitative analysis may reduce uncertainty in the warrant suppression process. Additionally, Part V will suggest that the greater part requirement of the Sells test benefits neither prosecutors nor defendants because the open-ended subjectivity of the qualitative analysis test promotes a system where suppression motions can reach wildly disparate outcomes in favor of either side depending on which judge hears the motion. Finally, Part V will address the impact of Douglass on the future of tillable form search warrants and suggest some possible adjustments to police policies and officer training that may prevent the kind of problems that arose in Douglass from becoming an issue in the future. This Note's ultimate conclusion is that the greater part requirement of the Sells test should be eliminated from future courts' analyses.

2. FACTS AND HOLDING

   State v. Douglass involved the criminal prosecution of Jennifer Gaulter and Phillip Douglass by the State of Missouri. (21) Gaulter and Douglass were arrested and charged under Missouri's burglary (22) and felony stealing (23) statutes in connection with their break-in and property thefts of Melissa Garris' home. (24) Before trial, Gaulter and Douglass moved to suppress the contents of the search warrant that ultimately led to their arrests because the police misrepresented probable cause on the warrant application. (25) The circuit court granted the motion to suppress. (26) The Missouri Court of Appeals for the Western District reversed the circuit court (27) but was subsequently reversed by the Supreme Court of Missouri in favor of Gaulter and Douglass. (28) The State appealed to the Supreme Court of the United States, but the Court denied certiorari. (29)

   On August 21, 2013, Melissa Garris visited her acquaintances Jennifer Gaulter and Phillip Douglass in their room at the Argosy Casino Hotel and Spa in Kansas City, Missouri. (30) That evening, Garris had drinks with Gaulter and Douglass before going home early after Gaulter and Douglass attempted to pressure Garris into joining them in a sex act. (31) The following day, Gaulter texted Garris that Garris left her handbag and apartment keys behind in the hotel room. (32) Gaulter agreed to leave the handbag and keys with the hotel's front desk staff so Garris could collect them. (33) Later in the day, Gaulter texted Garris again, asking if she was at home or working. (34) Garris replied that she was at work. (35)

   When Garris arrived home from work around 6:10 p.m., she discovered her home in "disarray and several items of property missing." (36) Garris "immediately" called the Argosy Casino to inquire about the status of her handbag and keys and was told the handbag was present but her keys were not. (37) Garris sent text messages to Gaulter asking about the missing keys and break-in, but Gaulter did not respond. (38) Garris then reported the break-in to the police and estimated the value of the property stolen from her home at approximately $ 10,000. (39) Garris then traveled back to Argosy Casino to recover her handbag but was informed that someone else had already come to collect it. (40) She added the missing handbag and keys to her police report and identified Gaulter and Douglass as the probable thieves. (41)

   Detective Darold Estes of the Kansas City Police Department subsequently applied for a warrant to search Douglass and Gaulter's Blue Springs, Missouri, home. (42) Detective Estes submitted a corresponding affidavit to the circuit judge in which he stated there was probable cause to search the home and seize specific items believed to be Garris' stolen property. (43) The Kansas City Police Department used a warrant application form that included six "check boxes" denoting categories of items and people that Missouri law authorizes...