Court upholds ruling by former Cape judge

Friday, January 7, 2005

A Missouri appellate court has upheld a ruling by former judge John P. Heisserer limiting search and seizure procedures. Cape Girardeau County Prosecuting Attorney Morley Swingle, who appealed Heisserer's ruling from last year, said Thursday that he has not yet read the appellate court's order. But Swingle said he will pursue a further ruling.

"I definitely don't plan to let this stand as it is," he said.

The appellate court ruling is one that breaks new ground in search and seizure laws. In his petition to the appellate court, Swingle stated that "The trial judge made a mistake so important it could affect searches across the state of Missouri. It could put the inmates in charge of the asylum."

Swingle argued the case before three judges from the Missouri Court of Appeals Eastern District Oct. 26 when the judges held hearings at Southeast Missouri State University's Glenn Auditorium.

The case he was arguing involved a search warrant Cape Girardeau officers had executed at a house they had been watching for some time in connection with suspected drug activity. The police had a warrant that allowed them to search the premises. While they were searching, they also searched a purse belonging to Jill Marie Gibson, a visitor at the house. Investigators found drugs in her purse hidden behind her driver's license and in a purse belonging to another woman who lived at the residence.

During the original trial, Gibson's attorney, Malcolm Montgomery, argued that the investigator had no right to search her purse because she did not live at the address on the search warrant. Based on Montgomery's motion, Heisserer suppressed the evidence found in her purse. The state appealed.

Swingle claimed that the best test in deciding a search and seizure case is that of proximity. If a purse is on the premises, he said, once you put it down, "it's fair game."

Montgomery argued that Heisserer was correct when he used the test of relationship to make his decision. Because the purse did not belong to the owner of the house the warrant was issued for, it should not have been searched.

In making their decision, the appellate court had to determine, according to appellate Judge Patricia Cohen, "At what point do you measure proximity?"

A woman's privacy

In its order upholding Heisserer's original ruling, the appellate court said: "The court questions the underlying assumption that a woman has lesser expectation of privacy simply because she carries her personal documents in a purse rather than a wallet in her pocket as many men do."

Cohen also noted that Swingle's written petition cited no Missouri cases to support his claim.

In response to her comment, Swingle claimed that a 1982 U.S. Supreme Court decision ruled that law enforcement with a warrant could look into any container in a home where they reasonably believe what they're looking for could be hidden. Someone's back pocket would not be a container, he said, but a purse would.

Also at issue was how far a search can go with a warrant. Swingle said during his appeal that had Gibson been carrying the purse, search and seizure laws would have prevented investigators from searching it because the warrant authorized only searching the premises, not any listed individuals.

Montgomery countered during the appeal that because Gibson was not expected to be in the house when investigators arrived with their warrant, her purse should not have been part of the search. He quoted the U.S. Constitution to support his claim: "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."

Swingle said he has two courses of action.

"If it is a matter of laws, I will take it to the Supreme Court," Swingle said. "If it is a matter of facts, I will ask for a new suppression hearing in front of Judge Ben Lewis."

Lewis replaced Heisserer on the bench after defeating him in the November election.

Montgomery said he also would like to see the matter proceed.

"I think it would be good to have the Supreme Court make a final decision," Montgomery said. "I have every reason to believe the Supreme Court will affirm the decision."

lredeffer@semissourian.com

335-6611, extension 160

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