severance doctrine in Missouri

2020See, e.g., Hueller, 289 S.W. at 341 (declaring only the offending portion of the appropriation bill “unconstitutional and void”) (emphasis added).

2020See, e.g., Hueller, 289 S.W. at 341 (declaring only the offending portion of the appropriation bill “unconstitutional and void”) (emphasis added).

2020See State v. Hardy, 497 S.W.3d 836, 838 (Mo. App. S.D. 2016) (“Where one part of the description of the [person] to be searched is inaccurate, but the description has other parts which identify the [person] to be searched with particularity, searches pursuant to such warrants have been routinely upheld.”); see Douglass, 544 S.W.3d at 190 (applying the severance doctrine to allow invalid portions of a search warrant to be “redacted” or “severed” from the valid portions so long as the invalid portions can be meaningfully severed from the valid portions and have not created an impermissible gener

2019Finally, in Point V, Demark complains that the trial court erred in overruling his objections to Detective Cates’s testimony about his training and experience because the State did 5 “Under the severance doctrine, any invalid portions of a search warrant are ‘redacted’ or ‘severed’ from the valid portions so long as the invalid portions can be meaningfully severed from the valid portions and have not created an impermissible general warrant.” State v. Douglass, 544 S.W.3d 182, 190 (Mo. banc 2018).

2018See, e.g. , United States v. Fitzgerald , 724 F.2d 633 , 636-37 (8th Cir. 1983) (en banc) ("[A]bsent a showing of pretext or bad faith on the part of the police or the prosecution, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution."); Cook , 657 F.2d at 735 n.6 (noting the absence of pretext to negate application of the severance doctrine).

2016While the severance doctrine presents the danger that: [t]he police might be tempted to frame warrants in general terms, adding a few specific clauses in the hope that under the protection of those clauses they could engage in general rummaging through the premises and then contend that any incriminating evidence they recovered was found in plain view during the search for the particularly-described items, . . . careful administration of the rule will afford full protection to individual rights. 15 See, e.g., United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983) (“[A]bsent a showin

2018To avoid the harsh realities of suppressing evidence under the exclusionary rule, however, most federal and state *190 courts have adopted the "severance doctrine." 7 See United States v. Riggs , 690 F.2d 298 , 300-01 (1st Cir. 1982) ; see also Sells , 463 F.3d at 1155 (noting that "every federal court to consider the issue has adopted the doctrine of severance").

2018But the severance doctrine is not appropriate in every case. 8 Sells , 463 F.3d at 1155 .

2018See, e.g. , United States v. Fitzgerald , 724 F.2d 633 , 636-37 (8th Cir. 1983) (en banc) ("[A]bsent a showing of pretext or bad faith on the part of the police or the prosecution, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution."); Cook , 657 F.2d at 735 n.6 (noting the absence of pretext to negate application of the severance doctrine).

2016While the severance doctrine presents the danger that: [t]he police might be tempted to frame warrants in general terms, adding a few specific clauses in the hope that under the protection of those clauses they could engage in general rummaging through the premises and then contend that any incriminating evidence they recovered was found in plain view during the search for the particularly-described items, . . . careful administration of the rule will afford full protection to individual rights. 15 See, e.g., United States v. Fitzgerald, 724 F.2d 633, 636-37 (8th Cir. 1983) (“[A]bsent a showin

2018See United States v. Pitts , 173 F.3d 677 , 681 n.5 (8th Cir. 1999) ; United States v. Fitzgerald , 724 F.2d 633 , 637 (8th Cir. 1983) ; United States v. Freeman , 685 F.2d 942 , 952 (5th Cir. 1982).

2016See Horsey, 676 S.W.2d at 853 ("[i]f the overall tenor of the warrant or search smacks of a general warrant or an abuse of the prospective availability of redaction, then the entire search and seizure may be treated as a single illegality" (emphasis added); see Fitzgerald, 724 F.2d at 636-37 (holding that absent a showing of pretext or bad faith on the part of the police or prosecution, the invalidity of part of a search warrant does not require suppression of all the evidence seized during its execution); see also Cook, 657 F.2d at 735 n.6 (adopting severance and specifying this case was not

2020See State v. Hardy, 497 S.W.3d 836, 838 (Mo. App. S.D. 2016) (“Where one part of the description of the [person] to be searched is inaccurate, but the description has other parts which identify the [person] to be searched with particularity, searches pursuant to such warrants have been routinely upheld.”); see Douglass, 544 S.W.3d at 190 (applying the severance doctrine to allow invalid portions of a search warrant to be “redacted” or “severed” from the valid portions so long as the invalid portions can be meaningfully severed from the valid portions and have not created an impermissible gener

2018See United States v. Pitts , 173 F.3d 677 , 681 n.5 (8th Cir. 1999) ; United States v. Fitzgerald , 724 F.2d 633 , 637 (8th Cir. 1983) ; United States v. Freeman , 685 F.2d 942 , 952 (5th Cir. 1982).

2016In State v. Horsey, the Southern District of this Court also adopted the severance doctrine and is to date the only application of the doctrine in Missouri. 676 S.W.2d 847 (Mo. App. S.D. 1984).

2016See Horsey, 676 S.W.2d at 853 ("[i]f the overall tenor of the warrant or search smacks of a general warrant or an abuse of the prospective availability of redaction, then the entire search and seizure may be treated as a single illegality" (emphasis added); see Fitzgerald, 724 F.2d at 636-37 (holding that absent a showing of pretext or bad faith on the part of the police or prosecution, the invalidity of part of a search warrant does not require suppression of all the evidence seized during its execution); see also Cook, 657 F.2d at 735 n.6 (adopting severance and specifying this case was not

2016See e.g., United States v. Galpin, 720 F.3d 436, 448 (2d Cir. 2013).4 To apply the severance doctrine, the court must first decide whether a warrant is severable.

2016"When a warrant is severable, the portion of the warrant that is 'constitutionally infirm ...— usually for lack of particularity or probable cause—is separated from the remainder and evidence seized pursuant to that portion is suppressed; evidence seized under the valid portion may be 4 This doctrine has been referred to both as the "severability doctrine", "the severance doctrine" and the "redaction doctrine", but the terms are interchangeable. 5 admitted.'" Galpin, 720 F.3d at 448 (citing United States v. George, 975 F.2d 72, 79 (2d Cir. 1992)).

2016"When a warrant is severable, the portion of the warrant that is 'constitutionally infirm ...— usually for lack of particularity or probable cause—is separated from the remainder and evidence seized pursuant to that portion is suppressed; evidence seized under the valid portion may be 4 This doctrine has been referred to both as the "severability doctrine", "the severance doctrine" and the "redaction doctrine", but the terms are interchangeable. 5 admitted.'" Galpin, 720 F.3d at 448 (citing United States v. George, 975 F.2d 72, 79 (2d Cir. 1992)).

2016Id. (citing 2 WAYNE R.

2016A warrant is severable where "the valid portions of the warrant [are] sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant." United States v. Sells, 463 F.3d 1148, 1155 (10th Cir. 2006) (quoting United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993)).

2016See Sells, 463 F.3d at 1159 (characterizing language from Aday v. Superior Court, 362 P.2d 47, 52 (Cal. 1961), wherein the California supreme court “recognize[d] the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirements of particularity” and condemned “[s]uch an abuse of the warrant procedure,” as an articulation of the “greater part of the warrant” analysis).

2011See also State v. Olinghouse, 605 S.W.2d 58, 63 (Mo. banc 1980) (noting unconstitutionality would nullify amendment); Williams Lumber & Manufacturing Co. v. Ginsburg, 347 Mo. 119 , 146 S.W.2d 604, 605 (1940) (holding that if a new statutory section is unconstitutional, the repealing clause is likewise invalid, and the old section remains in force). [9] It has been persuasively articulated that the judicially created doctrine of severance from the Hammerschmidt decision was a bad concept and in fact does damage to the legislative process and the doctrine of separation of powers.

2011See also State v. Olinghouse, 605 S.W.2d 58, 63 (Mo. banc 1980) (noting unconstitutionality would nullify amendment); Williams Lumber & Manufacturing Co. v. Ginsburg, 347 Mo. 119 , 146 S.W.2d 604, 605 (1940) (holding that if a new statutory section is unconstitutional, the repealing clause is likewise invalid, and the old section remains in force). [9] It has been persuasively articulated that the judicially created doctrine of severance from the Hammerschmidt decision was a bad concept and in fact does damage to the legislative process and the doctrine of separation of powers.

2011See also State v. Olinghouse, 605 S.W.2d 58, 63 (Mo. banc 1980) (noting unconstitutionality would nullify amendment); Williams Lumber & Manufacturing Co. v. Ginsburg, 347 Mo. 119 , 146 S.W.2d 604, 605 (1940) (holding that if a new statutory section is unconstitutional, the repealing clause is likewise invalid, and the old section remains in force). [9] It has been persuasively articulated that the judicially created doctrine of severance from the Hammerschmidt decision was a bad concept and in fact does damage to the legislative process and the doctrine of separation of powers.

2007See Hinkeldey, 470 S.W.2d at 501 ; Gerson v. Diamond Shamrock Carp., 710 S.W.2d 368, 369-70 (Mo.App.1986).

2007See Hinkeldey, 470 S.W.2d at 501 ; Gerson v. Diamond Shamrock Carp., 710 S.W.2d 368, 369-70 (Mo.App.1986).