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Yup.
Posted on: July 28, 2017 at 19:52:55 CT
MizzouTigerz MU
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The fact that there is a legal issue with prosecution, it was still felony possession. Because of a failure to obtain a warrant does not minimize the wrong.
HOLDER|SUSAN|SLUSHER ATTORNEYS
IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI
STATE OF MISSOURI, )
Plaintiff, )
)
v ) Case No. 17BA-CR01928
)
NATHANIE A. HOWARD, )
Defendant. )
MOTION TO SUPPRESS – VEHICLE SEARCH WITHOUT PROBABLE CAUSE
COMES NOW Defendant, by and through undersigned counsel, and pursuant
to the Fourth Amendment to the United States Constitution, Article I, section 15 of the
Missouri Constitution, §542.296 RSMo., and Missouri Supreme Court Rules 37.52 and
24.05, and respectfully requests that the Court enter an Order preventing the State
from introducing evidence seized in violation of Mr.Howard’s rights. In support,
undersigned counsel states as follows:
1. A party can file a motion to suppress in an Associate Circuit Court.
§542.296(2) RSMo. The state carries the burden to prove that a warrantless search was conducted lawfully. State v. Childress, 828 S.W.2d 935 (Mo.App. 1992).
2. On June 14, 2017, a University of Missouri Police Department officer stopped and detained Mr. Howard’s vehicle for displaying expired temporary registration tags.
3. The officer reported that he smelled the odor of marijuana emanating from the vehicle and that he asked Mr. Howard about the odor. Mr. Howard responded that the smell was from his breath as he had smoked approximately thirty minutes before the encounter.
4. Mr. Howard was the only person in the vehicle.
5. The officer did not observe in plain sight any evidence of crimes.
6. Another University of Missouri police officer arrived at the scene to assist.
7. Officers searched Mr. Howard’s body and located no weapons or evidence of crimes. They placed him in handcuffs and detained him in the back of a patrol car.
8. Mr. Howard did not consent to a search of his person, the vehicle he was operating at the time, or any of the contents of the vehicle.
9. Officers did not determine ownership of the vehicle.
10. Officers conducted testing on Mr. Howard to determine whether he was impaired in any way that could affect his ability to operate a vehicle, and no such
evidence was discovered.
11. Officers did not obtain a court issued search warrant to search the vehicle or its contents.
12. Mr. Howard had a legitimate expectation of privacy in the vehicle and its contents.
13. Officers reported that they conducted a “probable cause” search of the vehicle and its contents. One officer searched the car’s interior while the other officer simultaneously searched the truck. Each officer searched contents they encountered, including closed bags.
14. Officers reported that marijuana was located in a bag found in an interior console of the vehicle. Also, they located an alleged controlled substance in a
closed bag that was in another closed bag in the trunk.
15. The right of citizens to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution
(enforceable against the states through the Due Process
Amendment) and Article I, section 15 of the Missouri Constitution. Warrantless searches and seizures have been held to be per se unreasonable unless such search
and seizure fits into a well-established exception. State v. Martin, 79 S.W.3d 912, 916
(Mo. App. E.D. 2002).
16. Defendant contends that the facts support the granting of this motion to suppress on the following grounds:
a. The search and seizure were done without warrant or lawful authority in that probable cause did not exist for the officer to conduct a search the interior console and contents of the vehicle;
b. The search and seizure were done without warrant or lawful authority in that probable cause did not exist for the officer to conduct a search of the trunk and its contents.
17. Courts have recognized an exception to the search warrant requirement when law enforcement officers smelled marijuana during a traffic stop.
State v. Fuente, 871 S.W.2d 438, 441 (Mo. Banc 1994). State v. Lee, 498 S.W.3d 442
(Mo.App. W.D. 2016), a case controlling on this Circuit, has raised questions about the extent of searches that can be conducted based on the smell of marijuana. In Lee, an officer smelled the odor of raw marijuana coming from a vehicle’s interior after a traffic stop. The sole occupant of the vehicle explained that another person had used a vaporizer to ingest marijuana recently in the car. Id. The driver consented to the search of the vehicle’s interior and nothing was found. Id. The officer continued to smell marijuana in the driver’s presence after he had been removed from the car, and a search of his person was conducted and became the subject of the Fourth Amendment litigation. Id. One issue the Court in Lee analyzed was whether the search of his person was justified by probable cause.
18. The Lee court held that that the smell of marijuana did not establish probable cause for the search of the driver’s person after the traffic stop. Id. The
defense recognizes that in Lee, and in other cases, courts have drawn a distinction between the search of automobiles and a person – more privacy protections have been recognized for the person than for the automobile. The strong language the Lee court issued concerning evidence of the smell of marijuana can’t be ignored though; Lee explained, “[N]othing about having a single occupant of a vehicle where the smell of marijuana is present justifies an exception to the Fourth Amendment and allows a complete search of his person.” Id. The court said that if the officer should have obtained a warrant if he wanted to search the driver for drugs based on the smell of marijuana. Id. The court questioned whether Missouri has ever followed what is commonly referred to as the “plain smell doctrine.” Id.
19. Mr. Howard was handcuffed and detained in the back of a patrol vehicle solely based on the smell of marijuana. He was cooperative and provided an
explanation for the smell of marijuana, just like the driver in Lee did. The Lee driver was patted down, and that was found to be a constitutional violation; Mr. Howard was cuffed and detained while two officers extensively searched the vehicle, including the
truck and bags-within-bags in the trunk. What is the constitutional difference? The defense argues that there is no difference, particularly concerning the search of the trunk’s contents. If the officers in Lee should have obtained a warrant for the search of his person, then why should officers be allowed to conduct an invasive search of Mr. trunk’s contents while Mr. Howard was detained?
WHEREFORE, Defendant respectfully requests that the Court enter an Order preventing the State from introducing evidence of the vehicle search. A failure to grant
this motion will violate Defendant’s rights as guaranteed by the Fourth Amendment to the United States Constitution and Article I, section 15 of the Missouri Constitution.
The fact that there is a legal issue with prosecution, it was still felony possession. Because of a failure to obtain a warrant does not minimize the wrong.
HOLDER|SUSAN|SLUSHER ATTORNEYS
IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI
STATE OF MISSOURI, )
Plaintiff, )
)
v ) Case No. 17BA-CR01928
)
NATHANIE A. HOWARD, )
Defendant. )
MOTION TO SUPPRESS – VEHICLE SEARCH WITHOUT PROBABLE CAUSE
COMES NOW Defendant, by and through undersigned counsel, and pursuant
to the Fourth Amendment to the United States Constitution, Article I, section 15 of the
Missouri Constitution, §542.296 RSMo., and Missouri Supreme Court Rules 37.52 and
24.05, and respectfully requests that the Court enter an Order preventing the State
from introducing evidence seized in violation of Mr.Howard’s rights. In support,
undersigned counsel states as follows:
1. A party can file a motion to suppress in an Associate Circuit Court.
§542.296(2) RSMo. The state carries the burden to prove that a warrantless search was conducted lawfully. State v. Childress, 828 S.W.2d 935 (Mo.App. 1992).
2. On June 14, 2017, a University of Missouri Police Department officer stopped and detained Mr. Howard’s vehicle for displaying expired temporary registration tags.
3. The officer reported that he smelled the odor of marijuana emanating from the vehicle and that he asked Mr. Howard about the odor. Mr. Howard responded that the smell was from his breath as he had smoked approximately thirty minutes before the encounter.
4. Mr. Howard was the only person in the vehicle.
5. The officer did not observe in plain sight any evidence of crimes.
6. Another University of Missouri police officer arrived at the scene to assist.
7. Officers searched Mr. Howard’s body and located no weapons or evidence of crimes. They placed him in handcuffs and detained him in the back of a patrol car.
8. Mr. Howard did not consent to a search of his person, the vehicle he was operating at the time, or any of the contents of the vehicle.
9. Officers did not determine ownership of the vehicle.
10. Officers conducted testing on Mr. Howard to determine whether he was impaired in any way that could affect his ability to operate a vehicle, and no such
evidence was discovered.
11. Officers did not obtain a court issued search warrant to search the vehicle or its contents.
12. Mr. Howard had a legitimate expectation of privacy in the vehicle and its contents.
13. Officers reported that they conducted a “probable cause” search of the vehicle and its contents. One officer searched the car’s interior while the other officer simultaneously searched the truck. Each officer searched contents they encountered, including closed bags.
14. Officers reported that marijuana was located in a bag found in an interior console of the vehicle. Also, they located an alleged controlled substance in a
closed bag that was in another closed bag in the trunk.
15. The right of citizens to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution
(enforceable against the states through the Due Process
Amendment) and Article I, section 15 of the Missouri Constitution. Warrantless searches and seizures have been held to be per se unreasonable unless such search
and seizure fits into a well-established exception. State v. Martin, 79 S.W.3d 912, 916
(Mo. App. E.D. 2002).
16. Defendant contends that the facts support the granting of this motion to suppress on the following grounds:
a. The search and seizure were done without warrant or lawful authority in that probable cause did not exist for the officer to conduct a search the interior console and contents of the vehicle;
b. The search and seizure were done without warrant or lawful authority in that probable cause did not exist for the officer to conduct a search of the trunk and its contents.
17. Courts have recognized an exception to the search warrant requirement when law enforcement officers smelled marijuana during a traffic stop.
State v. Fuente, 871 S.W.2d 438, 441 (Mo. Banc 1994). State v. Lee, 498 S.W.3d 442
(Mo.App. W.D. 2016), a case controlling on this Circuit, has raised questions about the extent of searches that can be conducted based on the smell of marijuana. In Lee, an officer smelled the odor of raw marijuana coming from a vehicle’s interior after a traffic stop. The sole occupant of the vehicle explained that another person had used a vaporizer to ingest marijuana recently in the car. Id. The driver consented to the search of the vehicle’s interior and nothing was found. Id. The officer continued to smell marijuana in the driver’s presence after he had been removed from the car, and a search of his person was conducted and became the subject of the Fourth Amendment litigation. Id. One issue the Court in Lee analyzed was whether the search of his person was justified by probable cause.
18. The Lee court held that that the smell of marijuana did not establish probable cause for the search of the driver’s person after the traffic stop. Id. The
defense recognizes that in Lee, and in other cases, courts have drawn a distinction between the search of automobiles and a person – more privacy protections have been recognized for the person than for the automobile. The strong language the Lee court issued concerning evidence of the smell of marijuana can’t be ignored though; Lee explained, “[N]othing about having a single occupant of a vehicle where the smell of marijuana is present justifies an exception to the Fourth Amendment and allows a complete search of his person.” Id. The court said that if the officer should have obtained a warrant if he wanted to search the driver for drugs based on the smell of marijuana. Id. The court questioned whether Missouri has ever followed what is commonly referred to as the “plain smell doctrine.” Id.
19. Mr. Howard was handcuffed and detained in the back of a patrol vehicle solely based on the smell of marijuana. He was cooperative and provided an
explanation for the smell of marijuana, just like the driver in Lee did. The Lee driver was patted down, and that was found to be a constitutional violation; Mr. Howard was cuffed and detained while two officers extensively searched the vehicle, including the
truck and bags-within-bags in the trunk. What is the constitutional difference? The defense argues that there is no difference, particularly concerning the search of the trunk’s contents. If the officers in Lee should have obtained a warrant for the search of his person, then why should officers be allowed to conduct an invasive search of Mr. trunk’s contents while Mr. Howard was detained?
WHEREFORE, Defendant respectfully requests that the Court enter an Order preventing the State from introducing evidence of the vehicle search. A failure to grant
this motion will violate Defendant’s rights as guaranteed by the Fourth Amendment to the United States Constitution and Article I, section 15 of the Missouri Constitution.
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Yup. - MizzouTigerz MU - 7/28 19:52:55
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