HOME INVASION in Missouri: A crime whose time has come

Jefferson City Criminal LawyerI’ve noticed that the phrase “home invasion” seems to turn up more and more in news reports. I did a search of some Missouri newspapers looking for the term “home invasion,” and–sure enough–“home invasion” seems to have arrived in Missouri. Before the year 2000, it was seldom used in Missouri news reports, referring mostly to crimes in other states. But now, Missouri “home invasions” are on the radio, TV and newspapers every day.

The media is in love with the term “home invasion.” It’s hot. It’s scary. The word “invasion” is always terrifying. I’m thinking viruses, or Nazis; or maybe even Martians.

Combining “invasion” with “home” is a natural. Somebody probably has a copyright on it. Law enforcement loves to use the phrase. When I was a prosecutor, I had police tell me that if I wouldn’t file a burglary charge, then “at least I could file it as a home invasion.”

From all the publicity, one might guess that the crime of home invasion was on the rise. Or perhaps the legislature has recently created a crime called “home invasion.” One could not be faulted for thinking that Missouri had a crime called “Home Invasion.” But one would be wrong.

In some states they have one crime called “Breaking and entering,” which refers to non-dwelling structures. Then they’ll have a second crime called “Home invasion,” which refers to breaking into dwellings. In Missouri, both of these crimes are covered by the crime of burglary.

The 2008 legislative session will soon be upon us and maybe we should consider punching up our old criminal code and drag it into the 21st century. “Home invasion” is splashy and sexy. “Burglary” sounds like something your parents would have done (or had done to them). So maybe this is the year Missouri gets home invasion onto the books.

And since I’m making a Christmas list, I’d like to put in a good word for the revival of Representative Jeff Roorda’s 2006 & 2007 legislation that would have made “Motorcycle Stunt Driving” a crime. You can read about it in this post.

Maybe I’m too old, but I think it would be pretty neat to get one on my driving record.

Come back with a warrant

Police to search for guns in homes

Sometimes I am critical of our Missouri legislature and law enforcement, but I am pleased to note that for truly deranged stuff, you need to go elsewhere. Happily, this recent headline comes from Massachusetts:

Police to search for guns in homes
City program depends on parental consent

“Boston police are launching a program that will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children’s bedrooms.”

Now if you are a Boston parent, I hope this goes into your “Why in the hell would I want to do that?” category.

If you think your kid has something illegal in his room, go in and find it yourself. For cry’n out loud!

Search Warrants in Missouri: Part Four. The automobile exception.

Motor vehicles are a huge exception to the warrant requirement, and–because of that fact–cars and trucks are treasured by police as rich sources of crime evidence.

People are seldom arrested for drug possession when they use it only at home or indoors.

Especially if they avoid carrying controlled substances around with them away from home.

But we like to get out. Have fun. See other folks.

In real life, people carry illegal drugs around in their pockets and in their cars. And that’s what keeps the police in the drug-war business.

If the police have probable cause to believe that contraband or evidence of a crime is in a motor vehicle they can search that car or truck in ANY PLACE such items could be found: consoles, briefcases, glove box, purse or trunk. It doesn’t matter if it’s locked or not. They can search for it and seize it without permission and without a warrant.

For example, a cop who smells marijuana at the open window of a car will probably have grounds to search it for marijuana and drug paraphernalia.

They can search the car immediately. Or they can impound the car and search it later. This is in addition to other allowed searches such as search incident to arrest, consensual and inventory searches.

Getting the evidence thrown out:

That’s my short, superficial review of search warrants and exceptions to the warrant requirement.

The key thing is that unless the police have a valid search warrant or can come under an exception, the search is unconstitutional. The importance to citizens is that evidence obtained in violation of the fourth amendment is not normally admissible in a criminal case.

One of the things a criminal attorney will do in any case is to determine if the evidence was illegally obtained. The attorney can challenge such evidence. If successful, the state’s case may be dismissed entirely.

This happens more often than people realize. Unfortunately, many defendants plead guilty to defective cases that should never have been filed to begin with. If you are charged, talk to a criminal defense attorney as soon as possible and definitely before you go to court.

Search Warrants in Missouri: Part Three. More exceptions.

And there are even more situations where the government can search without a warrant:

Emergency circumstances:

A police officer may legally enter a building without a warrant in an emergency situation in order to prevent serious injury or death or to prevent the destruction of property or evidence.

When I was prosecutor, the police called me one night to say that a man had confessed to killing his girlfriend. The police immediately went to the girlfriend’s house, entered without a warrant and discovered her body. They did a search of the whole house to be sure no one else was present. Then they called me.

What they had done was correct, but any evidence discovered in a more thorough search could have been kept out of the murder trial, if it later turned out that the killer also lived there (he did). The house was sealed off and we obtained a search warrant so they could process the whole crime scene.

Plain View:

If a police officer is in a place he is allowed to be, he can search for and seize evidence of a crime, if that evidence is plainly observable to his senses.

  • This means he can enter a car and grab a sawed-off shotgun sticking out from under the seat if he makes a lawful traffic stop and notices it through the car window.
  • If–during a “stop & frisk” pat down–the officer feels an object which he is certain is drug paraphernalia, he may reach into the pocket (a search) and take out the object (a seizure).
  • The same could apply to other senses (e.g.smell of marijuana).

An exception to this exception would be if the officer walked to the front door of a house and noticed a marijuana plant happily growing in the light from the front window. If it appears no one is home and no one is likely to remove or destroy the “plain view” evidence, the officer will need to get a search warrant to get inside.

Administrative Searches:

Another class of exceptions are where the purpose is not the discovery of evidence and not usually done by police. These administrative searches are conducted for health and safety reasons, and include such inspections as fire inspections, building inspections, inspections of regulated businesses, border searches and prison searches. A DWI checkpoint roadblock is another permissible seacrh/seizure. Local schools may also come under this exception.

Inventory Search:

The inventory search is another type of search, not based on probable cause, but with the purpose of safeguarding others’ property, and protecting the police from accusations of theft. The police may make a complete inventory of a person and their immediate belongings, including vehicles which the police have properly taken into custody.

Automobile Searches:

This exception is a big one–and worthy of a separate post. We’ll save it till next time.