Search Warrants in Missouri: Part Two. The exceptions.

In the last post, I covered the general procedure used to obtain and execute a search warrant. The basic rule is that warrantless searches–conducted by an agent of the government–are unreasonable, (and therefore unconstitutional).

Keep in mind that searches by family members, landlords, or other non-governmental persons are not usually covered under the fourth amendment.

Also, there is no right to complain about a search that violates somebody else’s privacy rights. A passenger in a car or a dinner guest in a home may have no right to complain about about a search of the that vehicle or home.

This rule against warrantless searches will always apply unless the case comes within a recognized exception. Here is a quick and dirty rundown of those exceptions:

Consent:

A warrantless search and seizure may always be conducted when the police have obtained a voluntary consent to search. Consent may be given by any person who reasonably appears to have authority to give permission to search. You may give consent to search your pockets, your car, your house. Why you would do that is a mystery, but if the consent is truly voluntary, the search is legal. But you can always say “no.” The trouble may come in when your wife, roommate or parent gives permission while you are out. Ouch!

A search after arrest:

After a lawful arrest, the police may search the arrested person and the area nearby (within a few feet). This would include any accessible place in the passenger compartment of the car the arrested person was riding in before the arrest. NEW: Arizona v. Gant changes this. READ HERE. If the arrest takes place indoors, and other people may be around, police may make a quick sweep to determine if anyone is present who could help the defendant escape or pose a threat to the safety of the officers

Stop & Frisk:

If an individual is stopped upon a reasonable suspicion that he is involved in criminal activity (but not ARRESTED), a brief “frisk” or “pat-down” for weapons may be made if there is some reason to believe the person is armed and dangerous.

Next time I’ll cover more exceptions allowing warrantless searches. We’ll cover.

  • Emergency circumstances
  • Plain View Searches
  • Administrative Searches
  • Inventory Searches
  • Automobile Searches

 

Search Warrants in Missouri: How it’s done. Part One

The most important thing the U.S. Constitution does is to place limits on governmental power. Despite our government’s failure to respect many of those limits, some are still taken seriously. The fourth amendment is one of those limits:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

The bottom line is that no government agent may enter your home and search your stuff without a search warrant. As with everything, there are exceptions to this rule, but I’ll get into those in a later post.

Typically, police will obtain information that evidence of a crime will be found in a private place (home, office, etc.) They take that information to the prosecuting attorney and ask for a search warrant.

An application for the search warrant and a copy of the warrant are drafted. Click here for a blank application, warrant and list of the items seized (called the “return”).

The warrant must set forth the same three things that the fourth amendment demands:

  1. Names of the things to be searched for and seized.
  2. The exact place to be searched.
  3. Sufficient facts to show there is probable cause to believe that the things being looked for will be found at the place specified.

The person (usually the police officer) must swear under oath that he believes these facts to be true. The prosecutor must sign the application. Then the application and search warrant are presented to a judge for signature. Notice that it normally takes three independent persons to agree before a valid search warrant can be issued.

If the warrant is for a home, the police will round up a half-dozen law enforcement officers (or more) and come to the home. Usually, this is done quickly, but the warrant may be good for up to ten days. Unless there are special or urgent circumstances, the police must execute the search warrant during daylight hours and must knock and announce their presence before entering. They may use force, if necessary.

If the police feel threatened, they may handcuff anyone they find inside and may also pat them down for weapons. They may or may not have probable cause to search those persons present.

There is no reason for persons present to AGREE to the search of the home, pockets, purses or whatever, but they must not resist the search. The best thing to do is be polite and say nothing. Say nothing.

When the search is over, the police will leave a copy of the “Return” listing the items seized. This “Return” must be sent to the judge who signed the warrant.

The police may decide they have probable cause to make arrests. This should never be resisted in any way. That simply results in additional charges.

The best thing to do is be polite and say nothing about the search and the items seized. Even giving a home address may provide the evidence necessary to make a criminal charge. In America, one does not have to give evidence against himself.

Keep in mind that a search warrant may be challenged. It may be defective. It may be too old. It may not cover the items seized. The time to question it, however, is not when it is served. It can be challenged later by a criminal defense attorney.

That’s the short version. Next time we’ll go over some important exceptions to the general rule that there can be no searches without a warrant.

Stop me before I break more laws I’ve never heard of, AGAIN!

When I was in law school I wondered at the complexity of the law and was amazed that I had not run afoul of its prohibitions more often in the past. I imagined myself fortunate to to have avoided trouble and felt relieved that I was “safe” because now I knew the law and could avoid its pitfalls. Stupid me.

A lawyer can hold just so much law in his or her head, so what really happens is that he is constantly learning how he broke the law and didn’t even know it. The rest of you are breaking it all the time, too, but you never realize it until you get caught.

TombstoneI was researching the disposal of animals (some guy had dumped a load of carcases in a ditch) when I was horrified to realize I’d recently committed the crime of burying our family cat (which had died, of course) in my back yard, complete with a paint-lettered tombstone. It turns out you can’t bury your dead cat (or hamster or even a goldfish) unless it is 50 feet from the property line and 300 feet from the neighbors house. Section 269.020, RSMo. That’s a little tough to do in my neighborhood.

And I may be breaking other laws without knowing it. Did you know that you’ll pay a $100 fine if you allow any musk thistle to go to seed on your property? Section 263.190, RSMo.

Musk Thistle I’ve got a little wooded section at the back of my yard. I don’t go down there much, but even if I did, I don’t know what a musk thistle looks like. [FLASH UPDATE: I googled the musk thistle and that’s one in the picture]

Have you moved since you renewed your driver’s license? If the Department of Revenue drew your name from a hat and sent you a letter last summer demanding that you prove you have insurance, you may have missed that letter. Sp you didn’t respond. By now, of course, your license is suspended. If you get caught driving, you will be arrested, handcuffed like the criminal that you are, and taken to the county jail. The punishment is 48 hours to a year in jail and a year-long revocation of your license. The law can be tough.

Of course sometimes the law pretends to be tougher than it is.

How often do we hear that law enforcement is going to “crack down” on drivers not wearing their seat belts? They make it sound as if they will be watching for you and pulling you over if you don’t wear your seatbelt. It’s all bogus, as they well know. They can’t pull you over and ticket you for it in Missouri unless you commit some other traffic offense. Every year, the highway patrol spends the whole spring trying to get the mandatory seat belt law passed and then spends the rest of the year pretending that they succeeded.

If you’ve been told to fear “wildlife checkpoints” on public highways during deer season, it’s just more propaganda. Law enforcement cannot (without reasonable suspicion) pull you over to check if you have an illegal deer in the back.It makes you want to laugh and cry. They cleverly make you think you are a lawbreaker to get you to do what you don’t have to do. Meanwhile, you are probably committing five other offenses you’ve never heard of.

It won’t be long now before the legislature is back in the saddle, ready to amuse and alarm us with dubious proposals against openly selling baking soda, motorcycle stunt driving and other horrors. I will keep you posted when the time comes.

 

The Missouri human cloning ban and the criminal law.

A few commentators have noted the bizarre ballot summary created by Missouri Secretary of State Robin Carnahan. To put an amendment onto the ballot, amendment proponents drafted the amendment itself and filed it with the Secretary of State whose duty is to write a fair summary of the initiative to be placed on the signature petitions and on the ballot. Section 116.334, RSMo requires the statement to be “in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.”

Both the amendment and Carnahan’s summary are short.

Here is the amendment itself:

  1. It shall be unlawful to clone or attempt to clone a human being as that term is defined in subsection 2 of this section. Researchers may conduct stem cell research to discover cures for disease and develop stem cell therapies and cures, provided that the research complies with the limitations of this section and the limitations of Section 38(d). The prohibition of this section shall be in addition to the prohibitions of Section 38(d).
  2. For all purposes within this article, “Clone or attempt to clone a human being” means create or attempt to create a human embryo at any stage, which shall include the one-cell stage onward, by any means other than fertilization of a human egg by a human sperm.
  3. No taxpayer dollars shall be expended: 1) to clone or attempt to clone a human being; or 2) to research or experiment using a human embryo, or any part of a human embryo, derived from cloning or attempting to clone a human being.

Carnahan’s summary (to appear on the ballot):

Shall the Missouri Constitution be amended to repeal the current ban on human cloning or attempted cloning and to limit Missouri patients’ access to stem cell research, therapies and cures approved by voters in November 2006 by:

  • redefining the ban on human cloning or attempted cloning to criminalize and impose civil penalties for some existing research, therapies and cures; and
  • prohibiting hospitals or other institutions from using public funds to conduct such research?

Here are two articles that zero in on Carnahan’s disingenuous characterization of the initiative as a “repeal” of the current “ban” on human cloning, when (in plain english) this amendment would clearly broaden a ban on the implantation of cloned embyros to include a ban on the actual cloning of human embyros:

Fuzzy wording skews debate over research on stem cells by Bill McClellan

Missouri Cloning Language Corruption Continues

Criminal liabilty:

The secretary of state’s summary incorrectly states that the amendment would criminalize certain research, i.e. make it a punishable crime. It is true that Amendment 2 from last year did create criminal penalties for implantation of a human cloned embryo in a woman, but there is no criminal provision in this new initiative.

To ban something (or as here, make it “unlawful”) does not “criminalize” that activity. Under this initiative, human cloning is not “criminalized.” The initiative leaves it to the legislature to make human cloning a crime when, and if, it chooses.