Missouri Highway patrol’s stop and search was illegal – again

A new case out of the Missouri Court of Appeals, State v. Ross is another in a series of Highway Patrol cases where the defendant was charged with drug possession after an illegal detention and search of his car. The surprise is not that patrol officers have done this, but that there are prosecutors who–to this very day–still prosecute such cases.

The Defendant, Ross, was driving a rental car and got stopped for speeding. The patrolman pulled him over, put Ross in his patrol car, wrote Ross a warning ticket and told him he was free to go. At that point the legal traffic stop was officially over.

As Ross walked back his car, the officer got out of his car and called out to Ross. Ross and the officer talked a bit. Ross agreed to answer some more questions, mostly related to Ross’s opinions about drug use. Finally, the officer asked if he could search the car. Ross said no, not unless his passenger agreed.

The officer asked the passenger for permission to search the car. He refused. The officer called for the drug dog. An hour after the traffic stop began, the dog arrived and sniffed out marijuana in the trunk.

Ross was arrested, along with his passenger. The prosecutor filed the charge, a defense motion to suppress was heard and the evidence was thrown out by the court because the continued detention of the defendant was illegal. That trial court decision was upheld by the Missouri Court of Appeals on June 3, 2008.

By now, I expect police and prosecutors have figured this out:

When an officer makes a legal traffic stop, finishes the stop, and releases a person–and if they have no further grounds on which to detain them–then THEY MUST LET THEM GO.

They cannot keep a person any longer under the pretense of having a chat between friends, not unless the driver clearly understands he is free to leave and feels no compulsion to stay and answer questions. Such would seldom be the case when one party is an unarmed citizen and the other is a uniformed & armed police officer who has pulled the citizen over by threat of force.

Obviously, this rule is violated even more when the police press even harder and ask to search and are refused. And then they detain the driver or the car while they wait for a drug dog. There can be no excuse for this. None.

The Prosecutors fought this case for over four years before they finally lost. (That’s assuming they dismiss the case now that their evidence has been tossed out for good. As of this writing, they still have not dismissed the case, per casenet in Franklin County #04AB-CR00090).

I hope this is the end of this sort of thing. Better a few miscreants escape punishment than the rest of us live under tyrants. It’s called liberty.

I’m stopped for a DWI. Do I blow into the breathalyzer?

Let’s pretend it’s a clear starry Saturday morning, 1:00 a.m and the cop lights me up and pulls me over. He says I crossed the centerline. I did?

He asks for license and insurance and smells what he will describe in his report as an “odor of intoxicants” emanating from me.

It’s all downhill from there: the one-legged stand test, the walk-and-turn, the gaze test. Then come the handcuffs and a ride in the back seat to the sheriff’s office, where the cop reads some stuff from some form. He says:

  • “You are under arrest for driving while intoxicated.”
  • “To determine the alcohol content of your blood, I am requesting you submit to a chemical test of your breath (or maybe blood). If you refuse to take the test, your driver license will immediately be revoked for one year.”
  • “Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

So . . . should I blow?

If I say NO, I lose my license for a year.

If I say YES, I provide additional evidence to be used against me in court.

There are some other things I should think about:

A first offense DWI may result in a 30/90 day license suspension, but a repeat offense (or one involving injury or death) will likely cause a license revocation of a year or more. Considering that the punishment for anything more serious than a first offense DWI is probably jail or prison, and a year or more revocation, I might feel there is not much to lose by refusing the breathe test. So I think to myself . . .

  • Now if I just had a beer or two, I might want to blow if am confident that my blood level is below .080%. It would prove me innocent.
  • But in a close case it could be just enough for the state to make the case against me.
  • If I am really drunk, however, it probably doesn’t much matter whether I blow or not. They’ve got me good and nothing will change it. Most prosecutors will just argue that I was so drunk that I knew the breath test would convict me. They would be right and the jury would probably agree with them.

Now there is one thing the police won’t tell me: the law gives me twenty minutes in which to try to contact an attorney. At the end of the twenty minutes, I must take the breath test or lose my license for the year.

So with that additional 20 minutes I can try to get some advice. If I can’t reach a lawyer, I still have 20 more minutes to think about taking the test. Of course, after a few beers, my thinking is not as good as it could be, but on the bright side, 20 minutes is long enough to lower my blood alcohol from .084% to .079%. That might help.

One final thing to consider is that–if I refuse to blow–the police may to wake up a prosecutor and a judge to get a search warrant, so they get the blood sample anyway. Or they just take the blood without consent or a warrant and hope it holds up in court. If that happens I am triple screwed.

  1. I refused to blow, so I lose my license for a year,
  2. I look guiltier because I tried to hide my alcohol level; and
  3. They got the blood alcohol evidence anyway. (Sure didn’t see that one coming, Ouch!)

As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Sometimes you won’t know until it’s too late.

If you can reach an attorney during your twenty minutes (good luck on that), he or she can help you decide. Don’t rely on this post because it is too short to address all the issues involved. If you want to call me, my number is in the book. Or just avoid the whole thing and have somebody else drive you home.

PS: Some folks will try anything:

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.

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.

The police want to talk to me. Should I talk to them?

Most of us want to talk. Some of us mistakenly think we have nothing to hide. Others think they are so smart they can talk their way out of trouble. Nine times out of ten, they are wrong. There is a saying among prosecutors and police: “We only catch the dumb ones.” It’s basically an admission that if the defendant hadn’t confessed, they’d have no case.

Even where is no confession, telling lies (and getting caught) can provide just enough extra proof needed to make the conviction stick.

By now you realize that I don’t think it’s wise to talk to police about your case, but if you LISTEN CLOSELY to the police, they will tell you the same thing.

An earlier post covered the requirement for police to read a person in custody their Miranda warnings before questioning them. Often–out of an abundance of caution–the police will read those warnings even when they do not have to.

Most law enforcement officers carry the card shown below in their pocket and read directly from it. If this happens to you, YOU SHOULD LISTEN: This may be the best advice a police officer will ever give you.

Notice the question at the very end of the warning card.

  • It says: “Do you wish to talk to us now?”
  • The answer to that question should be: “No, I want to talk to a lawyer.”

This is perfectly OK.  See WARNING NUMBER 1, above.

The reason you should not answer any questions is noted in WARNING NUMBER 2, which reads: “Anything you say can and will be used against you in a court of law.” (Did I say this was good advice or what? Could this get any clearer?)

Until you have a chance to talk to your lawyer, do not answer questions (or say anything to anyone) about your case.

“Whizzinator” makes passing drug test a felony

IconicA companion statute to Missouri’s forgery statute is section 570.100: “Possession of a forging instrumentality” which makes it a crime to possess anything for the purpose of committing forgery. Like forgery itself, possession of a forging instrumentality is a class C felony.There was once a search warrant issued to search a residence and during the search the police turned up a gadget called the “Whizzinator” in the suspect’s dresser drawer.

The “Whizzinator” is worn inside the trousers and is constructed so as to be able to deliver a drug-free urine sample at body temperature. It’s claim to fame, however, is that The “Whizzinator” can fill a specimen jar under the watchful eye of a probation officer without the deception being discovered.

TestThe Whizzinator comes in a rainbow of colors: White, Tan, Brown, Black and Latino. I’m not kidding.

You just load up with certified, drug-free, re-hydrated, simulated urine, activate the included heater pack and strap this baby on.

You are ready for the drug test.

So Back to the story . . . This fellow who had his house searched was already was on probation and required to take regular drug tests. He made the mistake keeping the Whizzinator at home, in the original package which—of course—had his name and address on the outside. That was all it took. He was charged with the possession of a forging instrumentality.

Possession was not an issue, so his attorney attempted to defend her client by asserting that he did not intend to use it for a forgery; i.e that the Whizzinator had other uses. This seemed unlikely, but after scouring the Whizzinator website, she found an obscure testimonial left by one satisfied customer:

I used the Whizzinator at work and it saved my job, and then later that night, I used it on my wife and it saved my marriage.”

That was good for a laugh, but not much else. And being quite guilty of other, unrelated charges, and on his way back to prison, the poor guy pled guilty for concurrent time. Too bad. It would have been an interesting trial.