Mimesis Law
21 September 2019

In Missouri, Officers Can Ignore Supreme Court Rulings “In Good Faith”

Jan. 26, 2016 (Mimesis Law) — The Supreme Court of Missouri has ruled that police may use evidence at trial that was illegally obtained in 2012 because officers relied “in good faith” on wrong Missouri court opinions. There’s only one problem. The United States Supreme Court ruled such evidence inadmissible in 2009 in a case called Arizona v. Gant.

Way back then, the United States Supreme Court ruled that when you arrest someone and put them in the back of your squad car, you don’t then get to search their car and all their stuff. You don’t get to do this even if you’d like to speculate that the arrestee will kick out the back door, run to their vehicle, snap off the handcuffs, grab a weapon and do you harm.

Good rule. Simple, too. But the Missouri Court of Appeals repeatedly got it wrong, allowing officers to search bags, backpacks, purses and other personal property even if there was no way for the arrestee to get to them, and even after the Supreme Court made its second Gant ruling, giving officers who messed up before 2009 a good faith free pass.

So the Missouri Supreme Court gets this case. Four St. Louis police officers get sent to neighborhood due to reports of increased gang activity. A man parks across the street from the four officers, and with no prompting, says, “[W]hat the fuck you looking at, bitch?” while spitting and grabbing his crotch.

Incensed at this bit of interpretive dance, the four officers immediately moved to make an arrest, claiming that a group of nearby children had been offended. The officers said that this conduct violated St. Louis’ disturbing the peace ordinance, which basically bundles up all the First Amendment exceptions into a paragraph with a bunch of random words and leaves the rest to officer discretion.

When the officers tell the man he’s under arrest, he starts walking away, holding a white plastic grocery bag. In Missouri, this is a crime even if the arrest is unlawful. The officer rips the bag from the man’s hands and it falls to the ground, breaking, as the man is handcuffed.

Once the man is taken into the squad car, the officer then goes back for the bag, looks inside it, and finds a tan powder, which later turns out to be heroin.

The issue is that, while officers are legally allowed to search things that are inseparable from you at the time of arrest (like your clothes or stuff in your pockets), or stuff that’s within your wingspan that you might use to hurt them, they aren’t allowed to go back to where they arrested you, looking for stuff that they maybe could have grabbed.

Once you’re in handcuffs and locked up in a squad car, all the safety issues that make the limited sweep around you permissible are gone.

And so the Missouri Supreme Court proceeds to do a very careful analysis, showing why the search was illegal, and how the Missouri Court of Appeals might have reached the wrong conclusion. Then, somehow, it reaches this conclusion:

At the time of Officer Burgdorf’s search, there was court of appeals precedent authorizing officers to search an arrestee’s personal effects as a search incident to arrest, even if such items were not within the arrestee’s immediate control. Although such searches should no longer be deemed lawful, the exclusionary rule will not apply to this case.

In other words, because the Court of Appeals screwed up, the police officer’s unlawful search was made in good faith.

So there’s three major problems with this good faith argument. First, it makes it harder to get evidence suppressed than to sue an officer for a constitutional violation, but the Supreme Court has ruled that things should work in exactly the opposite way.

[Mistakes of law analaysis] is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation.

Second, it assumes that police officers are spending their off time poring through cases to see what sorts of searches they can and can’t perform. But police officers are not legal scholars. They learn what they can do from conversations with judges and prosecutors and the outcomes of hearings, not from reading the back pages of dimly remembered decisions for precedent on point.

Third, it kind of kicks the crap out of the whole “Constitution is the supreme law of the land thing.” A court of appeals devoted to limiting the exclusionary rule can simply issue a lot of bad decisions. Then, even if those decisions are clearly contradicted by Supreme Court precedent, the evidence can’t be suppressed.

Thus, bizarrely, outcome oriented decisions become self-perpetuating. A bunch of clearly wrong opinions making a search okay then justify a bunch more opinions saying that the wrongful search was not the result of bad faith.

The court was obviously reaching for a particular result. And maybe the defendant here isn’t terribly sympathetic. But as Justice Scalia said in Michigan v. Bryant:

For all I know, [The Defendant] has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

Then again, who cares what Scalia has to say? In Missouri, you can ignore him in good faith.

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