Appeals Court hears area cases in visit to Cape

Tuesday morning, the Eastern District of the Missouri Court of Appeals met in Southeast Missouri State University's Glenn Auditorium, a practice meant to expose college students to the workings of the legal system. The Southeast students heard oral arguments in a case that, if not overturned, could become a search-and-seizure landmark, according to Cape Girardeau County Prosecuting Attorney Morley Swingle.

He referred to the decision last May 17 by Cape Girardeau County Circuit Judge John Heisserer granting a motion to suppress evidence in a drug case. If allowed to stand, Swingle contends Heisserer's ruling will render search warrants on suspected drug cases basically useless.

Earlier this year, investigators with the SEMO Drug Task Force took a search warrant to a house they had been watching for some time. The warrant authorized the investigators to search the premises for methamphetamine, marijuana, drug paraphernalia, money, addresses, telephone numbers, bank passbooks and other identification.

Two women -- the occupant and a female visitor -- were in the house. Investigators searched the purses of both women and found drugs in both. The visitor, Jill Marie Gibson, was charged with the class C felony of possession of a controlled substance. Her attorney, Malcolm Montgomery of Cape Girardeau, argued successfully that the investigator had no right to search her purse because she didn't live at the address on the search warrant.

On Montgomery's motion, Heisserer suppressed the evidence found in her purse.

Swingle appealed that ruling, arguing that if Gibson had been carrying the purse, search and seizure laws would have prevented investigators from searching it. The warrant did not authorize the search of any listed individuals but instead of the premises. But because Gibson had put her purse down on a kitchen table and left the room, it becomes part of the premises and is liable to searches like any other movable container, Swingle said.

"The trial judge made a mistake so important it could affect searches across the state of Missouri," Swingle said. "It could put the inmates in charge of the asylum."

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

"Why hasn't this come to us before?" Cohen asked.

It hasn't, Swingle said, because a1982 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. A dresser drawer would be such a container. Someone's back pocket wouldn't. A purse would, he said.

"The court said once you put the container down it becomes part of the property and can be searched," Swingle said.

Montgomery used the U.S. Constitution to support his stance that "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."

Because Gibson was not expected to be in the house when investigators arrived with their warrant, Montgomery said, her purse should not have been part of the search. He also cited a Georgia case where the appellate court of that state ruled: "Personal belongings brought by their owner on a visit to a friend's house retain their constitutional protection until their owner meaningfully abdicates control or responsibility. Appellant's placing her purse on the apartment floor did not amount to an abandonment, and she maintained her reasonable expectation of privacy."

Montgomery argued the trial judge was correct in using the test of relationship to make his decision. He claims the investigator knew the purse he was searching did not belong to the owner of the house he had the warrant for and for that reason should not have searched it. What if, Montgomery asked, a Girl Scout came to the door selling cookies? Would her cookies be liable to search if a warrant were to be served while she was there. Where is her expectation of privacy?

Swingle states that the best test is that of proximity. If a Girl Scout sets her box of cookies down and leaves the room, he said, then the suspect in the house to be searched has opportunity to plant something in the cookies implicating the Girl Scout. If the purse is on the premises, he said, once you put it down, "it's fair game."

Among the premises the judges will consider in their deliberations: "At what point," Judge Cohen asked, "do you measure proximity?"

It will be several weeks before the court notifies the lawyers of its decision.

"This would be a huge landmark case if the court goes against us," Swingle said.

Southeast students were invited to question the court during a recess between dockets, but no hands went up.

Teresa Lewis of Marble Hill observed the proceedings for a political science class she is taking. She said she found the session interesting -- especially a child custody case the court heard.

"I'll probably go to their Web site to see what the judges recommended," she said.

While they were in session the appellate judges heard the child custody case appeal, an appeal of a ruling on a dispute between a property owner and the real estate agent who sold her the property, and a motion for post-conviction relief from a defendant claiming his constitutional right to due process was violated.

lredeffer@semissourian.com

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