State v. Douglass, WD78328

• Court: Missouri Court of Appeals
• Writing for the Court: Karen King Mitchell, Judge
• Parties: STATE OF MISSOURI, Appellant, v. PHILLIP DOUGLASS, Respondent, and JENNIFER M. GAULTER, Respondent.
• Docket Number: WD78328,C/w WD78329
• Decision Date: 29 March 2016

STATE OF MISSOURI, Appellant,
v.
PHILLIP DOUGLASS, Respondent,
and JENNIFER M. GAULTER, Respondent.

WD78328
C/w WD78329

MISSOURI COURT OF APPEALS WESTERN DISTRICT en banc

March 29, 2016

Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Robert M. Schieber, Judge

Before: Alok Ahuja, Chief Judge, Victor C. Howard, Thomas H. Newton, Lisa White Hardwick, James Edward Welsh, Mark D. Pfeiffer, Karen King Mitchell, Cynthia L. Martin, Gary D. Witt, and Anthony Rex Gabbert, Judges, and Joseph M. Ellis, Senior Judge¹

The State brings two interlocutory appeals, challenging the trial court's grant of Respondents Phillip S. Douglass and Jennifer M. Gaulter's Motions to Suppress physical

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evidence relating to charges of one count of second-degree burglary and one count of stealing that were brought against each of them. The physical evidence was acquired after the execution of a search warrant to search Douglass and Gaulter's home. Because the two appeals involve the same questions of law based on the same factual background, the cases have been consolidated.

In its first point, the State argues that the trial court erred in granting Respondents' Motions to Suppress because the search warrant was not unreasonable under the Fourth Amendment and article I, section 15, of the Missouri Constitution, and any invalid portion should have been redacted in that the search warrant could have been readily severed into parts and all parts were supported by probable cause except for one "minor" clause of the warrant. In its second point, the State argues that the trial court erred in suppressing all evidence seized because the application of the exclusionary rule was not warranted in that the detective's misconduct in preparing the warrant application was not the type of serious misconduct that should be deterred by the exclusion. Because the State's first point is dispositive, we do not reach the second point. We reverse the trial court's order of suppression and remand the matter for further proceedings consistent with this opinion.

Background

The material facts are not disputed. Following a search pursuant to a warrant for Douglass and Gaulter's home in Jackson County, Missouri, Respondents were charged with one count of second-degree burglary under § 569.170,² and one count of stealing of property valued between $500 and $25,000, under § 570.030.3(1). Douglass's and Gaulter's charges stem from allegations that they stole numerous items from Melissa Garris and are based on the following information set out in the warrant application:

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On August 29, 2013, Detective Darold Estes, a twenty-year veteran of the Kansas City Police Department with fourteen years in the property crimes section, applied for the search warrant at issue in this case. In his application for a warrant, 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, black Prada purse, larger Louis Vuitton bag;

• Toshiba Satellite laptop limited edition silver with black swirls on it;

• Vintage/costume jewelry, several engraved with MG;

• Coach, Lv, Hermes, Bestie Sunglasses;

• Passport and Social Security card for Garris;

• Social Security card and birth certificate for Garris'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.

Detective Estes's affidavit in support of his application for the warrant stated that Garris had gone to Argosy Hotel room number 426 in Riverside to meet a friend, later identified as Gaulter, on August 21, 2013. Garris went to the room with Gaulter and Douglass. The three had drinks, but Gaulter felt she was being pressured into a three-way sex act and called her boyfriend, who picked her up.

The next day, Garris received a text from Gaulter saying that Garris had left a handbag in the hotel room and that Gaulter would leave it for her at the front desk. Garris said she would pick up the bag after she finished work. Garris received another text from Gaulter asking whether she was at home or at work. Garris replied that she was still at work and would call her when she got off of work. When she returned to her home, Gaulter observed that her apartment

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had been broken into and approximately $10,000 worth of belongings, listed above, had been stolen. The door to the apartment had no damage. Garris called the Argosy Hotel and asked whether her bag, which contained her house keys, was still at the front desk. The hotel desk clerk informed her that her bag was still there. Garris asked staff at the hotel to look inside her bag for her keys, and she was told the keys were not in the bag. Garris began texting Gaulter about the theft and the missing keys, and Gaulter stopped replying.

Garris reported the incident to the police. She then drove to the hotel to retrieve her bag, but the hotel staff told her that the bag had been picked up. The police matched the phone number Garris had texted to a Blue Springs, Missouri address, and tax records supported that Douglass and Gaulter lived at the address. Garris identified the two from photographs. Garris told police that Douglass and Gaulter had possession of her keys, and no one else had access or permission to enter and remove her property. Hotel staff confirmed to Detective Estes that room number 426 had been rented to Douglass and Gaulter and that a bag had been left at the front desk for Garris.

Based on the affidavit and application, the warrant judge issued a search warrant authorizing a search of Douglass and Gaulter's residence. The search warrant described the items to be searched for and seized, listing the items Detective Estes described in the affidavit. The search warrant also listed five types of property, with a box next to each type of property to check if there was probable cause to search for the items. The five categories of property listed were:

• 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;

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• 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 types of property were checked.

Douglass and Gaulter both moved to suppress all the evidence seized under the authority of the warrant because there was no probable cause to search for "Deceased human fetus or corpse, or any part thereof."³

In its written response to the motions to suppress, the State argued that the box in question may have been checked because of a mere typographical error. At a consolidated hearing for both cases on the motions to suppress,⁴ the State asked Detective Estes why the box was checked, and his answer indicated that the box was checked intentionally:

A. Basically if we come across any of that during our investigation, you would require a piggyback warrant if you came across that to investigate it and kind of have to stop. Basically since it's there and we're already in there, if we came across it that tells the Judge that if we do come across it, we are going to initiate an action on this.

Q. Are those things that if you come across it during the execution of a search warrant that you would investigate it anyway?

A. That's correct.

Q. And if they aren't marked on the search warrant that you are in the home for, you would then have to go out and get an additional search warrant?

A. That's correct. You would have to stop then and get a piggyback warrant to go back and cover that option.

Q. And so is that done for the purpose of if you run across those items, which are items that would require you to take action on anyway, that you can continue to do so instead of stopping the search and having to get an additional search warrant?

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A. That's correct.

Q. Was that signed by Judge Powell?

A. Yes, it was.

Q. And on that search warrant, did Judge Powell make other corrections to the search warrant?

A. Yes, he did.

Q. But he did not make a correction to that?

A. That's correct. . . .

Later, the following exchange occurred with defense counsel:

Q. Did you have any probable cause to believe that there would be a human corpse present at the location you guys went to search?

A. The probable cause was that what we were looking for were listed items. The actual human corpse is just an option on there that covers, like I said earlier, if we came across it, then we would actually investigate that.

Q. Did you have any reason to believe you might come across a dead body or any parts thereof?

A. No.

The trial court granted both Douglass's and Gaulter's motions to suppress, ruling the entire search warrant invalid. The trial court noted that Detective Estes acknowledged that he intentionally checked a box identifying that probable cause existed to search for a "deceased human fetus or corpse, or part thereof," knowing that to be a false statement, and that he "disingenuously failed to call the [issuing] Court's attention to the fact that he had checked that box." The trial court further found that the good-faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), did not apply because Detective Estes could not reasonably be found to have been acting on an objective good-faith belief that the warrant was valid since it was his

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own intentional action that rendered the warrant invalid. "In fact," the trial court wrote, "this is exactly the type of situation that the exclusionary rule was designed to deter: intentional police misconduct, malfeasance or negligence."⁵ Additionally, the trial court determined that "it would be a miscarriage of justice to permit an officer to knowingly bypass the particularity requirement of a warrant by checking boxes that allow...