Reconsidering Missouri's Warrant Suppression Standard

By Sanders, James | Missouri Law Review, Spring 2019 | Go to article overview

Reconsidering Missouri's Warrant Suppression Standard


Sanders, James, Missouri Law Review


I. 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. …

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