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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CRIMINAL PROCEDURE
Chapter : Chapter 542 Proceedings to Preserve the Peace--Searches and Seizures
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The term "magistrate", as used in this chapter, shall mean those
officers authorized by section 542.020, to issue process to preserve the
peace, unless from the context of the law it appears that the term refers
to magistrates created by section 18 of article V of the constitution in
effect on and prior to January 1, 1979, in which event the term shall
mean an associate circuit judge or division of the circuit court presided
over by an associate circuit judge. (1949 H.B. 2138 § 542.01, A.L. 1978
H.B. 1634)
Effective 1-2-79
The following officers shall have power and jurisdiction to
cause to be kept all laws made for the preservation of the public peace,
to issue process for the apprehension of persons charged with criminal
offenses, and hold them to bail; require persons to give security to keep
the peace, and to execute the powers and duties herein conferred in
relation thereto: The judges of the supreme court throughout the state;
judges of the court of appeals and circuit judges within their respective
districts and circuits; associate circuit judges within their respective
counties; municipal judges within the limits of their respective
municipalities; provided that nothing herein contained shall be so
construed as to authorize municipal judges to exercise jurisdiction in
prosecutions under the laws of this state, other than those instituted
under sections 542.020 to 542.140 for surety to keep the peace. (RSMo
1939 § 3791, A.L. 1945 p. 839, A.L. 1947 V. I p. 261, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 3401; 1919 § 3746; 1909 § 4954
Effective 1-2-79
CROSS REFERENCE: Warrants issued by an associate circuit judge need not
be sealed, RSMo 544.030
Whenever complaint shall be made in writing, and upon oath, to
any such associate circuit judge, that any person has threatened or is
about to commit any offense against the person or property of another,
specifying the offense and person complained against, it shall be the
duty of the associate circuit judge to issue a warrant, under his hand,
reciting the complaint, and commanding the officer to whom it is directed
forthwith to apprehend the person so complained of, and bring him before
such associate circuit judge. (RSMo 1939 § 3792)
Prior revisions: 1929 § 3402; 1919 § 3747; 1909 § 4955
Upon such person being brought before such associate circuit
judge, the associate circuit judge shall summon all witnesses which
either party may require, and cause the matters charged in the complaint
to be inquired into by a jury of six competent citizens. If the jury find
that there is good reason to fear the commission of the offense charged,
then they shall render a verdict of guilty against the defendant, and the
associate circuit judge thereupon shall require the defendant to enter
into a recognizance in such sum, not exceeding one thousand dollars, as
he shall direct, with one or more sufficient sureties, conditioned that
the defendant will keep the peace toward the people of the state, and
particularly toward the complainant, for such time as shall be specified
in said recognizance, which shall be not less than three months nor more
than one year from the date thereof; and the defendant shall be liable
for costs as in other cases of conviction. (RSMo 1939 § 3793, A. 1949
H.B. 2138)
Prior revisions: 1929 § 3403; 1919 § 3748; 1909 § 4956
CROSS REFERENCE: Recognizance taken in open court to be entered on
minutes, other recognizances, RSMo 544.050
If such recognizance be given, the party complained of shall be
discharged; but if he fail or refuse to find surety it shall be the duty
of the associate circuit judge to commit him to prison until he find the
same, specifying in the warrant the cause of commitment and the sum in
which security was required. (RSMo 1939 § 3794)
Prior revisions: 1929 § 3404; 1919 § 3749; 1909 § 4957
Any person committed for not finding surety of the peace, as
above provided, may be discharged by any associate circuit judge
authorized to bind to the peace, within the county, upon giving such
security as was originally required of such person; provided, that after
thirty days' actual imprisonment, the defendant may be released upon his
own recognizance, if unable to find security. (RSMo 1939 § 3795)
Prior revisions: 1929 § 3405; 1919 § 3750; 1909 § 4958
Every recognizance to keep the peace, taken by any associate
circuit judge pursuant to the foregoing provisions, or pursuant to any
other statute, shall be transmitted by such associate circuit judge to
the clerk of the proper court of the county, on or before the first day
of the term of such court next to be holden after taking the same. (RSMo
1939 § 3796)
Prior revisions: 1929 § 3406; 1919 § 3751; 1909 § 4959
No recognizance to keep the peace shall be deemed to be broken
unless the principal in such recognizance be convicted of some offense
amounting, in judgment of law, to a breach of such recognizance. (RSMo
1939 § 3798)
Prior revisions: 1929 § 3408; 1919 § 3753; 1909 § 4961
Whenever evidence of such conviction shall be produced to the
court in which the recognizance is filed or taken, it shall be the duty
of the court to order such recognizance to be prosecuted, and the
prosecuting attorney shall proceed thereon accordingly. (RSMo 1939 § 3799)
Prior revisions: 1929 § 3409; 1919 § 3754; 1909 § 4962
In the action on such recognizance the offense stated in the
record of conviction may be assigned as a breach, and such record shall
be conclusive evidence of the matters therein stated. (RSMo 1939 § 3800)
Prior revisions: 1929 § 3410; 1919 § 3755; 1909 § 4963
Any person convicted under the provisions of sections 542.020 to
542.140 may take an appeal from the judgment of the associate circuit
judge to the court having jurisdiction of the appeal, if he shall, on the
day of the rendition of the verdict, file an affidavit, stating that he
verily believes himself aggrieved by the verdict and judgment, and shall
also enter into a recognizance, to be approved by the associate circuit
judge, in a sum not to exceed one thousand dollars, with sufficient
sureties, conditioned that he will, during the pendency of the appeal,
keep the peace toward the people of this state, and particularly toward
the complainant, and that he will appear to answer the charges against
him at the next term of court having jurisdiction thereof. (RSMo 1939 §
3801)
Prior revisions: 1929 § 3411; 1919 § 3756; 1909 § 4964
When any person shall have taken an appeal, under the provisions
of sections 542.020 to 542.140, and fails to appear, the court shall
forfeit his recognizance, and order it to be prosecuted, unless
reasonable excuse for the default be shown. (RSMo 1939 § 3803)
Prior revisions: 1929 § 3413; 1919 § 3758; 1909 § 4966
If the judgment of the associate circuit judge shall be
affirmed, or if, upon a trial in the court to which the appeal is taken,
the defendant shall be convicted, the court shall require a new
recognizance in a sum not exceeding one thousand dollars, for such time
as shall appear necessary, not exceeding one year, and render judgment
against the defendant for all costs in the case. (RSMo 1939 § 3802)
Prior revisions: 1929 § 3412; 1919 § 3757; 1909 § 4965
Every person who, in the presence of any associate circuit judge
above specified, or of any court of record, shall make an affray, or
threaten to kill or beat another, or to commit any offense against his
person or property, and all persons who, in the presence of such court or
associate circuit judge, shall contend with hot and angry words, may be
ordered by such associate circuit judge or court, without any other proof
or trial, to give such security as above specified, and in case of
failure or refusal so to do, he may be committed in like manner as above
specified. (RSMo 1939 § 3797)
Prior revisions: 1929 § 3407; 1919 § 3752; 1909 § 4960
If the persons assembled, as indicated herein, shall fail to
disperse without unnecessary delay, the following associate circuit
judges shall each, in the order in which they are herein named, have
power and authority to require the aid of a sufficient number of persons
in arms or otherwise, and to proceed as they may deem expedient, and to
repress and disperse such riotous assemblage and arrest offenders. That
is to say, the duty of requiring the aid of such force and directing its
employment shall devolve, in the first instance, on the mayor of the town
or city in which such assemblage occurs, and if he be not present or be
unable to act, then on the judge of any court of record, the sheriff, the
marshal, or the coroner. In case of the absence of any of the officers
mentioned in this section, the officers named after him herein shall have
all the power and authority which such absentee would have had if
present. (L. 1978 H.B. 1634)
Effective 1-2-79
*This section previously repealed, 1977, but reinstated by this act.
No sheriff of a county, mayor of a city or other private person
authorized by law to appoint special deputies, marshals or policemen in
this state to preserve the public peace and quell public disturbances
shall appoint as special deputies, marshals or policemen any person who
is not a resident of this state and who has not been a resident of this
state for at least three years prior to his appointment. (RSMo 1939 §
4622, A.L. 1955 p. 515)
Prior revisions: 1929 § 4233; 1919 § 3480; 1909 § 4695
CROSS REFERENCE: Bona fide citizens only may be deputized, RSMo 57.117,
85.005
As used in sections 542.261 to 542.296 and section 542.301, the
term "peace officer" means a police officer, member of the highway patrol
or water patrol to the extent otherwise permitted by law to conduct
searches, sheriff or deputy sheriff. (L. 1974 S.B. 366 § 1, A.L. 2004
S.B. 920)
1. A search warrant is a written order of a court commanding the
search of a person, place, or thing and the seizure, or photographing or
copying, of property found thereon or therein.
2. A search warrant may be issued by an appellate judge or by any judge
of a court having original jurisdiction of criminal offenses within the
territorial jurisdiction where the person, place, or movable or immovable
thing to be searched is located at the time of the making of the
application. (L. 1974 S.B. 366 § 2)
(1985) Circuit judge of St. Louis City had no authority to issue a search
warrant for an automobile in Greene County and warrant thus issued was
invalid despite the "good faith" of the officer conducting the search.
State v. Berkwit (Mo. App.E.D.), 689 S.W.2d 763.
1. A warrant may be issued to search for and seize, or
photograph, copy or record any of the following:
(1) Property, article, material, or substance that constitutes evidence
of the commission of a criminal offense; or
(2) Property which has been stolen or acquired in any other manner
declared an offense by chapters 569 and 570, RSMo; or
(3) Property owned by any person furnishing public communications
services to the general public subject to the regulations of the public
service commission if such person has failed to remove the property
within a reasonable time after receipt of a written notice from a peace
officer stating that such property is being used as an instrumentality in
the commission of an offense; or
(4) Property for which possession is an offense under the law of this
state; or
(5) Property for which seizure is authorized or directed by any statute
of this state; or
(6) Property which has been used by the owner or used with his
acquiescence or consent as a raw material or as an instrument to
manufacture or produce any thing for which possession is an offense under
the laws of this state.
2. A warrant may be issued to search for and rescue a kidnapped person.
3. A warrant may be issued to search for any person for whom a valid
felony arrest warrant is outstanding.
4. A warrant may be issued to search for and seize any deceased human
fetus or corpse, or part thereof.
5. The provisions of sections 542.261 to 542.296 and section 542.301
shall prevail over any rules and regulations promulgated by any state
governmental agency, commission or board, to the contrary
notwithstanding. (L. 1974 S.B. 366 § 3, A.L. 1980 H.B. 1528 Revision,
A.L. 1983 S.B. 24)
1. Any peace officer or prosecuting attorney may make
application under section 542.271 for the issuance of a search warrant.
2. The application shall:
(1) Be in writing;
(2) State the time and date of the making of the application;
(3) Identify the property, article, material, substance or person which
is to be searched for and seized, in sufficient detail and particularity
that the officer executing the warrant can readily ascertain it;
(4) Identify the person, place, or thing which is to be searched, in
sufficient detail and particularity that the officer executing the
warrant can readily ascertain whom or what he or she is to search;
(5) State facts sufficient to show probable cause for the issuance of a
search warrant;
(6) Be verified by the oath or affirmation of the applicant;
(7) Be filed in the proper court;
(8) Be signed by the prosecuting attorney of the county where the search
is to take place, or his or her designated assistant.
3. The application may be supplemented by a written affidavit verified by
oath or affirmation. Such affidavit shall be considered in determining
whether there is probable cause for the issuance of a search warrant and
in filling out any deficiencies in the description of the person, place,
or thing to be searched or of the property, article, material, substance,
or person to be seized. Oral testimony shall not be considered. The
application may be submitted by facsimile or other electronic means.
4. The judge shall determine whether sufficient facts have been stated to
justify the issuance of a search warrant. If it appears from the
application and any supporting affidavit that there is probable cause to
believe that property, article, material, substance, or person subject to
seizure is on the person or at the place or in the thing described, a
search warrant shall immediately be issued. The warrant shall be issued
in the form of an original and two copies.
5. The application and any supporting affidavit and a copy of the warrant
shall be retained in the records of the court from which the warrant was
issued.
6. The search warrant shall:
(1) Be in writing and in the name of the state of Missouri;
(2) Be directed to any peace officer in the state;
(3) State the time and date the warrant is issued;
(4) Identify the property, article, material, substance or person which
is to be searched for and seized, in sufficient detail and particularity
that the officer executing the warrant can readily ascertain it;
(5) Identify the person, place, or thing which is to be searched, in
sufficient detail and particularity that the officer executing the
warrant can readily ascertain whom or what he or she is to search;
(6) Command that the described person, place, or thing be searched and
that any of the described property, article, material, substance, or
person found thereon or therein be seized or photographed or copied and
within ten days after filing of the application, any photographs or
copies of the items may be filed with the issuing court;
(7) Be signed by the judge, with his or her title of office indicated.
7. A search warrant issued under this section may be executed only by a
peace officer. The warrant shall be executed by conducting the search and
seizure commanded. The search warrant issued under this section may be
issued by facsimile or other electronic means.
8. A search warrant shall be executed as soon as practicable and shall
expire if it is not executed and the return made within ten days after
the date of the making of the application.
9. After execution of the search warrant, the warrant with a return
thereon, signed by the officer making the search, shall be delivered to
the judge who issued the warrant. The return shall show the date and
manner of execution, what was seized, and the name of the possessor and
of the owner, when he or she is not the same person, if known. The return
shall be accompanied by a copy of the itemized receipt required by
subsection 6 of section 542.291. The judge or clerk shall, upon request,
deliver a copy of such receipt to the person from whose possession the
property was taken and to the applicant for the warrant.
10. A search warrant shall be deemed invalid:
(1) If it was not issued by a judge; or
(2) If it was issued without a written application having been filed and
verified; or
(3) If it was issued without probable cause; or
(4) If it was not issued in the proper county; or
(5) If it does not describe the person, place, or thing to be searched or
the property, article, material, substance, or person to be seized with
sufficient certainty; or
(6) If it is not signed by the judge who issued it; or
(7) If it was not executed within the time prescribed by subsection 8 of
this section. (L. 1974 S.B. 366 § 4, A.L. 1983 S.B. 24, A.L. 1989 S.B.
215 & 58, A.L. 2004 S.B. 1211, A.L. 2005 H.B. 353)
(1977) A writing denominated an "affidavit for search warrant" was
sufficient to meet the requirement for a written request for a search
warrant. State v. Clark (A.), 552 S.W.2d 256.
1. Any police officer, sheriff or deputy sheriff may make
application for the issuance of a search warrant to search for and seize:
(1) Obscene matter being held or displayed for sale, exhibition,
distribution, or circulation to the public;
(2) Matter that is pornographic for minors being held or displayed for
sale, exhibition, distribution, or circulation to minors;
(3) Property which has been used by the owner, or used with his consent,
as a raw material or as an instrument to publish or produce such matter
as described in subdivisions (1) and (2) of this subsection.
2. A warrant to search for and seize the matters and property described
in subsection 1 of this section as evidence in a criminal proceeding
pursuant to chapter 573, RSMo, may be issued by a judge of the circuit
court in the county or judicial district in which the alleged matter or
property is located. Except as provided in this section, the issuance of
a warrant to search for and seize obscene matter shall be governed by the
provisions of section 542.276. Notwithstanding subsection 3 of section
542.276, oral testimony may be considered.
3. The application and the warrant, if issued, shall designate precisely
by title, or otherwise, each item to be searched for and seized.
4. No warrant shall be issued to search for and seize any item unless the
judge determines there is probable cause to believe that such item is
obscene as defined in section 573.010, RSMo, and is being displayed,
sold, exhibited, distributed, or circulated to the public or is
pornographic for minors as defined in section 573.010, RSMo, and is being
displayed, sold, exhibited, distributed or circulated to minors.
5. If the item to be seized is a book, magazine, paper, or pamphlet or an
item that may be photographed, a copy or photograph of the allegedly
obscene item may be annexed to the application.
6. If the item to be seized is a motion picture film or video cassette,
written affidavits verified by oath or affirmation of law enforcement
officers and city or county prosecutors may supplement the application.
7. An officer in making his application for a warrant may rely on past
viewings of a motion picture film or video cassette that is the same as
the motion picture film or video cassette to be seized if the film or
video cassette to be seized can be identified as the same as or a copy
of, the prior viewed film or video cassette by the title of the film or
video cassette or the package or label on or surrounding the film or
video cassette or some other manner.
8. If the purpose of applying for a warrant is to search for and seize
obscene material for other than evidentiary purposes, the judge shall
hold an adversary hearing to determine whether such matter is obscene
before issuing a warrant. Not less than twenty-four hours before such
hearing, written notice of the date, time, place and nature of the
hearing, including a description of the matter sought, shall be
personally served upon the dealer, exhibitor, displayer or his agent. No
warrant shall be issued without the dealer, distributor, or displayer
being given a reasonable opportunity to appear in opposition to the
issuance. If the material to be seized is the same as or another copy of
matter that has already been determined to be obscene in a criminal
proceeding against the dealer, exhibitor, displayer or his agent, the
determination of obscenity in the criminal proceeding shall constitute
clear and convincing evidence that the matter to be seized pursuant to
this subsection is obscene. Except when the dealer, exhibitor, or
displayer consents to a longer period, or by his actions or pleadings,
willfully prevents the prompt resolution of the hearing, a decision shall
be rendered no later than ten days from the date of the commencement of
the hearing. After service of notice of the hearing, or subpoena, or the
execution of a search warrant, intentional alteration, destruction, or
removal of any matter, or duplicate of matter, described in the notice
shall be punished as contempt of court. (L. 1974 S.B. 366 § 5, A.L. 1987
H.B. 113, et al.)
Effective 7-15-87
(1998) Statute not constitutionally required to provide a one-copy
limitation. B.A.P., Inc. v. McCulloch, 994 F.Supp. 1131 (E.D. Mo.).
(1999) Section is not unconstitutional for vagueness in failing to
distinguish between mass seizures and limited evidentiary seizures.
B.A.P., Inc. v. McCulloch, 170 F.3d 804 (8th Cir.).
1. A warrant to search a person or any movable thing may be
executed in any part of the state where the person or thing is found if,
subsequent to the filing of the application, the person or thing moves or
is taken out of the territorial jurisdiction of the judge issuing the
warrant.
2. All other search warrants shall be executed within the territorial
jurisdiction of the court out of which the warrant issued and within the
territorial jurisdiction of the officer executing the warrant. (L. 1974
S.B. 366 § 6)
1. The search shall be conducted in a reasonable manner. The
search may be made at night if making it during the daytime is not
practicable.
2. An officer making a search pursuant to an invalid warrant, the
invalidity of which is not apparent on its face, may use such force as he
would be justified in using if the warrant were valid.
3. The officer may summon as many persons as he deems necessary to assist
him in executing the warrant. Such persons shall not be held liable as a
result of the illegality of the search and seizure.
4. If any property is seized, the officer shall give to the person from
whose possession it is taken, if he is present, a copy of the warrant and
an itemized receipt of the property taken. If no person is present, the
officer shall leave the copy and the receipt at the site of the search.
5. A copy of the itemized receipt of any property taken shall be
delivered to the office of the prosecuting attorney in the county where
the property was taken within two working days of the search. (L. 1974
S.B. 366 § 7, A.L. 1989 S.B. 215 & 58)
1. A person aggrieved by an unlawful seizure made by an officer
and against whom there is a pending criminal proceeding growing out of
the subject matter of the seizure may file a motion to suppress the use
in evidence of the property or matter seized. For the purposes of this
section, a pending criminal proceeding shall mean any criminal
investigation being conducted with the intention of using the seized
subject matter in seeking an indictment or information or when an
information has been issued or an indictment returned.
2. The motion to suppress shall be in writing. It shall be filed with the
court in which there is pending against the moving party a criminal
proceeding growing out of the subject matter of the seizure.
3. The motion shall be made before the commencement of the trial of the
moving party on the charge arising out of the seizure unless he was
unaware of the grounds or had no opportunity to do so before the trial.
In that event the motion may be made during the trial. However, the trial
judge may in his discretion entertain a motion any time during trial.
4. Notice shall be given to the prosecuting attorney of the date, time,
place and nature of the hearing.
5. The motion to suppress may be based upon any one or more of the
following grounds:
(1) That the search and seizure were made without warrant and without
lawful authority;
(2) That the warrant was improper upon its face or was illegally issued,
including the issuance of a warrant without proper showing of probable
cause;
(3) That the property seized was not that described in the warrant and
that the officer was not otherwise lawfully privileged to seize the same;
(4) That the warrant was illegally executed by the officer;
(5) That in any other manner the search and seizure violated the rights
of the movant under section 15 of article I of the Constitution of
Missouri, or the fourth and fourteenth amendments of the Constitution of
the United States.
6. The judge shall receive evidence on any issue of fact necessary to the
decision of the motion. The burden of going forward with the evidence and
the risk of nonpersuasion shall be upon the state to show by a
preponderance of the evidence that the motion to suppress should be
overruled.
7. If the motion is sustained, the judge shall order the property or
matter delivered to the moving party, unless its retention is authorized
or required by section 542.301, or by any other law of this state. (L.
1974 S.B. 366 § 8)
Any associate circuit judge who shall commit any person charged
with an offense to jail, or by whom any vagrant or disorderly person
shall be committed, shall cause such person to be searched, for the
purpose of discovering any money or property he may have, and if any be
found, the same shall be taken into possession by the sheriff, and
applied to the support of such person while in confinement, and to the
payment of any costs which may be adjudged against him on account of the
offense for which he is charged. (RSMo 1939 § 4163)
Prior revisions: 1929 § 3773; 1919 § 4119; 1909 § 5324
CROSS REFERENCE: State highway patrol may take weapons from person
arrested, RSMo 43.200
1. Property which comes into the custody of an officer or of a
court as the result of any seizure and which has not been forfeited
pursuant to any other provisions of law or returned to the claimant shall
be disposed of as follows:
(1) Stolen property, or property acquired in any other manner declared an
offense by chapters 569 and 570, RSMo, but not including any of the
property referred to in subdivision (2) of this subsection, shall be
delivered by order of court upon claim having been made and established,
to the person who is entitled to possession:
(a) The claim shall be made by written motion filed with the court with
which a motion to suppress has been, or may be, filed. The claim shall be
barred if not made within one year from the date of the seizure;
(b) Upon the filing of such motion, the judge shall order notice to be
given to all persons interested in the property, including other
claimants and the person from whose possession the property was seized,
of the time, place and nature of the hearing to be held on the motion.
The notice shall be given in a manner reasonably calculated to reach the
attention of all interested persons. Notice may be given to unknown
persons and to persons whose address is unknown by publication in a
newspaper of general circulation in the county. No property shall be
delivered to any claimant unless all interested persons have been given a
reasonable opportunity to appear and to be heard;
(c) After a hearing, the judge shall order the property delivered to the
person or persons entitled to possession, if any. The judge may direct
that delivery of property required as evidence in a criminal proceeding
shall be postponed until the need no longer exists;
(d) A law enforcement officer having custody of seized property may, at
any time that seized property has ceased to be useful as evidence,
request that the prosecuting attorney of the county in which property was
seized file a motion with the court of such county for the disposition of
the seized property. If the prosecuting attorney does not file such
motion within sixty days of the request by the law enforcement officer
having custody of the seized property, then such officer may request that
the attorney general file a written motion with the circuit court of the
county or judicial district in which the seizure occurred. Upon filing of
the motion, the court shall issue an order directing the disposition of
the property. Such disposition may, if the property is not claimed within
one year from the date of the seizure or if no one establishes a right to
it, and the seized property has ceased to be useful as evidence, include
a public sale of the property. Pursuant to a motion properly filed and
granted under this section, the proceeds of any sale, less necessary
expenses of preservation and sale, shall be paid into the county treasury
for the use of the county. If the property is not salable, the judge may
order its destruction. Notwithstanding any other provision of law, if no
claim is filed within one year of the seizure and no motion pursuant to
this section is filed within six months thereafter, and the seized
property has ceased to be useful as evidence, the property shall be
deemed abandoned, converted to cash and shall be turned over immediately
to the treasurer pursuant to section 447.543, RSMo;
(e) If the property is a living animal or is perishable, the judge may,
at any time, order it sold at public sale. The proceeds shall be held in
lieu of the property. A written description of the property sold shall be
filed with the judge making the order of sale so that the claimant may
identify the property. If the proceeds are not claimed within the time
limited for the claim of the property, the proceeds shall be paid into
the county treasury. If the property is not salable, the judge may order
its destruction.
(2) Weapons, tools, devices, and substances other than motor vehicles,
aircraft or watercraft, used by the owner or with the owner's consent as
a means for committing felonies other than the offense of possessing
burglary tools in violation of section 569.180, RSMo, and property, the
possession of which is an offense under the laws of this state or which
has been used by the owner, or used with the owner's acquiescence or
consent, as a raw material or as an instrument to manufacture or produce
anything the possession of which is an offense under the laws of this
state, or which any statute authorizes or directs to be seized, other
than lawfully possessed weapons seized by an officer incident to an
arrest, shall be forfeited to the state of Missouri.
2. The officer who has custody of the property shall inform the
prosecuting attorney of the fact of seizure and of the nature of the
property. The prosecuting attorney shall thereupon file a written motion
with the court with which the motion to suppress has been, or may be,
filed praying for an order directing the forfeiture of the property. If
the prosecuting attorney of a county in which property is seized fails to
file a motion with the court for the disposition of the seized property
within sixty days of the request by a law enforcement officer, the
officer having custody of the seized property may request the attorney
general to file a written motion with the circuit court of the county or
judicial district in which the seizure occurred. Upon filing of the
motion, the court shall issue an order directing the disposition of the
property. The signed motion shall be returned to the requesting agency. A
motion may also be filed by any person claiming the right to possession
of the property praying that the court declare the property not subject
to forfeiture and order it delivered to the moving party.
3. Upon the filing of a motion either by the prosecuting attorney or by a
claimant, the judge shall order notice to be given to all persons
interested in the property, including the person out of whose possession
the property was seized and any lienors, of the time, place and nature of
the hearing to be held on the motion. The notice shall be given in a
manner reasonably calculated to reach the attention of all interested
persons. Notice may be given to unknown persons and to persons of unknown
address by publication in a newspaper of general circulation in the
county. Every interested person shall be given a reasonable opportunity
to appear and to be heard as to the nature of the person's claim to the
property and upon the issue of whether or not it is subject to forfeiture.
4. If the evidence is clear and convincing that the property in issue is
in fact of a kind subject to forfeiture under this subsection, the judge
shall declare it forfeited and order its destruction or sale. The judge
shall direct that the destruction or sale of property needed as evidence
in a criminal proceeding shall be postponed until this need no longer
exists.
5. If the forfeited property can be put to a lawful use, it may be
ordered sold after any alterations which are necessary to adapt it to a
lawful use have been made. If there is a holder of a bona fide lien
against property which has been used as a means for committing an offense
or which has been used as a raw material or as an instrument to
manufacture or produce anything which is an offense to possess, who
establishes that the use was without the lienholder's acquiescence or
consent, the proceeds, less necessary expenses of preservation and sale,
shall be paid to the lienholder to the amount of the lienholder's lien.
The remaining amount shall be paid into the county treasury.
6. If the property is perishable the judge may order it sold at a public
sale or destroyed, as may be appropriate, prior to a hearing. The
proceeds of a sale, less necessary expenses of preservation and sale,
shall be held in lieu of the property.
7. When a warrant has been issued to search for and seize allegedly
obscene matter for forfeiture to the state, after an adversary hearing,
the judge, upon return of the warrant with the matter seized, shall give
notice of the fact to the prosecuting attorney of the county in which the
matter was seized and the dealer, exhibitor or displayer and shall
conduct further adversary proceedings to determine whether the matter is
subject to forfeiture. If the evidence is clear and convincing that the
matter is obscene as defined by law and it was being held or displayed
for sale, exhibition, distribution or circulation to the public, the
judge shall declare it to be obscene and forfeited to the state and order
its destruction or other disposition; except that, no forfeiture shall be
declared without the dealer, distributor or displayer being given a
reasonable opportunity to appear in opposition and without the judge
having thoroughly examined each item. If the material to be seized is the
same as or another copy of matter that has already been determined to be
obscene in a criminal proceeding against the dealer, exhibitor, displayer
or such person's agent, the determination of obscenity in the criminal
proceeding shall constitute clear and convincing evidence that the matter
to be forfeited pursuant to this subsection is obscene. Except when the
dealer, exhibitor or displayer consents to a longer period, or by such
person's actions or pleadings willfully prevents the prompt resolution of
the hearing, judgment shall be rendered within ten days of the return of
the warrant. If the matter is not found to be obscene or is not found to
have been held or displayed for sale, exhibition or distribution to the
public, or a judgment is not entered within the time provided for, the
matter shall be restored forthwith to the dealer, exhibitor or displayer.
8. If an appeal is taken by the dealer, exhibitor or displayer from an
adverse judgment, the case should be assigned for hearing at the earliest
practicable date and expedited in every way. Destruction or disposition
of a matter declared forfeited shall be postponed until the judgment has
become final by exhaustion of appeal, or by expiration of the time for
appeal, and until the matter is no longer needed as evidence in a
criminal proceeding.
9. A determination of obscenity, pursuant to this subsection, shall not
be admissible in any criminal proceeding against any person or
corporation for sale or possession of obscene matter; except that dealer,
distributor or displayer from which the obscene matter was seized for
forfeiture to the state.
10. When allegedly obscene matter or pornographic material for minors has
been seized under a search warrant issued pursuant to subsection 2 of
section 542.281 and the matter is no longer needed as evidence in a
criminal proceeding the prosecuting attorney of the county in which the
matter was seized may file a written motion with the circuit court of the
county or judicial district in which the seizure occurred praying for an
order directing the forfeiture of the matter. Upon filing of the motion,
the court shall set a date for a hearing. Written notice of date, time,
place and nature of the hearing shall be personally served upon the
owner, dealer, exhibitor, displayer or such person's agent. Such notice
shall be served no less than five days before the hearing.
11. If the evidence is clear and convincing that the matter is obscene as
defined by law, and that the obscene material was being held or displayed
for sale, exhibition, distribution or circulation to the public or that
the matter is pornographic for minors and that the pornographic material
was being held or displayed for sale, exhibition, distribution or
circulation to minors, the judge shall declare it to be obscene or
pornographic for minors and forfeited to the state and order its
destruction or other disposition. A determination that the matter is
obscene in a criminal proceeding as well as a determination that such
obscene material was held or displayed for sale, exhibition, distribution
or circulation to the public or a determination that the matter is
pornographic for minors in a criminal proceeding as well as a
determination that such pornographic material was held or displayed for
sale, exhibition, distribution or circulation to minors shall be clear
and convincing evidence that such material should be forfeited to the
state; except that, no forfeiture shall be declared without the dealer,
distributor or displayer being given a reasonable opportunity to appear
in opposition and without a judge having thoroughly examined each item. A
dealer, distributor or displayer shall have had reasonable opportunity to
appear in opposition if the matter the prosecutor seeks to destroy is the
same matter that formed the basis of a criminal proceeding against the
dealer, distributor or displayer where the dealer, distributor or
displayer has been charged and found guilty of holding or displaying for
sale, exhibiting, distributing or circulating obscene material to the
public or pornographic material for minors to minors. If the matter is
not found to be obscene, or if obscene material is not found to have been
held or displayed for sale, exhibition, distribution or circulation to
the public, or if the matter is not found to be pornographic for minors
or if pornographic material is not found to have been held or displayed
for sale, exhibition, distribution or circulation to minors, the matter
shall be restored forthwith to the dealer, exhibitor or displayer.
12. If an appeal is taken by the dealer, exhibitor or displayer from an
adverse judgment, the case shall be assigned for hearing at the earliest
practicable date and expedited in every way. Destruction or disposition
of matter declared forfeited shall be postponed until the judgment has
become final by exhaustion of appeal, or by expiration of the time for
appeal, and until the matter is no longer needed as evidence in a
criminal proceeding.
13. A determination of obscenity shall not be admissible in any criminal
proceeding against any person or corporation for sale or possession of
obscene matter.
14. An appeal by any party shall be allowed from the judgment of the
court as in other civil actions.
15. All other property still in the custody of an officer or of a court
as the result of any seizure and which has not been forfeited pursuant to
this section or any other provision of law after three years following
the seizure and which has ceased to be useful as evidence shall be deemed
abandoned, converted to cash and shall be turned over immediately to the
treasurer pursuant to section 447.543, RSMo.
16. In fiscal year 2003, the commissioner of administration shall
estimate the amount of any additional state revenue received pursuant to
this section and section 447.532, RSMo, shall transfer an equivalent
amount of general revenue to the schools of the future fund created in
section 163.005, RSMo. (L. 1974 S.B. 366 § 9, A.L. 1980 H.B. 1528
Revision, A.L. 1987 H.B. 113, et al., A.L. 1998 H.B. 931, A.L. 2002 S.B.
1248)
Effective 6-19-02
(2002) Currency is not a tool or device as used in subsection 2 of
section. State v. One Hundred Fifty-Two Thousand, Seven Hundred Sixty and
00/100 Dollars ($152,760.00) in United States Currency, 87 S.W.3d 374
(Mo.App. S.D.).
As used in sections 542.400 to 542.422, the following words and
phrases mean:
(1) "Aggrieved person", a person who was a party to any intercepted wire
communication or a person against whom the interception was directed;
(2) "Communication common carrier", an individual or corporation
undertaking to transport messages for compensation;
(3) "Contents", when used with respect to any wire communication,
includes any information concerning the identity of the parties, the
substance, purport, or meaning of that communication;
(4) "Court of competent jurisdiction", any circuit court having general
criminal jurisdiction within the territorial jurisdiction where the
communication is to be intercepted including any circuit judge specially
assigned by the supreme court of Missouri pursuant to section 542.404;
(5) "Electronic, mechanical, or other device", any device or apparatus
which can be used to intercept a wire communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any
component thereof, owned by the user or furnished to the subscriber or
user by a communications common carrier in the ordinary course of its
business and being used by the subscriber or user in the ordinary course
of its business or being used by a communications common carrier in the
ordinary course of its business or by an investigative office or law
enforcement officer in the ordinary course of his duties; or
(b) A hearing aid or similar device being used to correct subnormal
hearing to not better than normal;
(6) "Intercept", the aural acquisition of the contents of any wire
communication through the use of any electronic or mechanical device,
including but not limited to interception by one spouse of another spouse;
(7) "Investigative officer" or "law enforcement officer or agency", any
officer or agency of this state or a political subdivision of this state,
who is empowered by law to conduct investigations of or to make arrests
for offenses enumerated in sections 542.400 to 542.422, and any attorney
authorized by law to prosecute or participate in the prosecution of such
offenses;
(8) "Oral communication", any communication uttered by a person
exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation;
(9) "Person", any employee, or agent of this state or political
subdivision of this state, and any individual, partnership, association,
joint stock company, trust, or corporation;
(10) "Prosecuting attorney", the elected prosecuting attorney of the
county or the circuit attorney of any city not contained within a county;
(11) "State", the* state of Missouri and political subdivisions of the
state;
(12) "Wire communication", any communication made in whole or in part
through the use of facilities for the transmission of communications by
the aid of wire, cable, or other like connection between the point of
origin and the point of reception including the use of such connection in
a switching station furnished or operated by any person engaged as a
common carrier in providing or operating such facilities for the
transmission of local, state or interstate communications. (L. 1989 H.B.
277, et al. § 1, A.L. 2002 S.B. 712)
*Word "the" does not appear in original rolls.
(1993) Where city officials recorded conversation of inmate and police
officers in public jail, officers could not justifiably have an
expectation of privacy, and tape recording of conversation is not wire
communication for purposes of Missouri's wiretapping law. Angel v.
Williams, 12 F.3d 786 (8th Cir.).
(1998) Communications between a cellular phone and a regular wire phone
are wire communications within the purview of the wiretap law. Lee v.
Lee, 967 S.W.2d 82 (Mo.App. W.D.).
1. Except as otherwise specifically provided in sections 542.400
to 542.422, a person is guilty of a class D felony and upon conviction
shall be punished as provided by law, if such person:
(1) Knowingly intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any wire communication;
(2) Knowingly uses, endeavors to use, or procures any other person to use
or endeavor to use any electronic, mechanical, or other device to
intercept any oral communication when such device transmits
communications by radio or interferes with the transmission of such
communication; provided, however, that nothing in sections 542.400 to
542.422 shall be construed to prohibit the use by law enforcement
officers of body microphones and transmitters in undercover
investigations for the acquisition of evidence and the protection of law
enforcement officers and others working under their direction in such
investigations;
(3) Knowingly discloses, or endeavors to disclose, to any other person
the contents of any wire communication, when he knows or has reason to
know that the information was obtained through the interception of a wire
communication in violation of this subsection; or
(4) Knowingly uses, or endeavors to use, the contents of any wire
communication, when he knows or has reason to know that the information
was obtained through the interception of a wire communication in
violation of this subsection.
2. It is not unlawful under the provisions of sections 542.400 to 542.422:
(1) For an operator of a switchboard, or an officer, employee, or agent
of any communication common carrier, whose facilities are used in the
transmission of a wire communication, to intercept, disclose, or use that
communication in the normal course of his employment while engaged in any
activity which is a necessary incident to the rendition of his service or
to the protection of the rights or property of the carrier of such
communication, however, communication common carriers shall not utilize
service observing or random monitoring except for mechanical or service
quality control checks;
(2) For a person acting under law to intercept a wire or oral
communication, where such person is a party to the communication or where
one of the parties to the communication has given prior consent to such
interception;
(3) For a person not acting under law to intercept a wire communication
where such person is a party to the communication or where one of the
parties to the communication has given prior consent to such interception
unless such communication is intercepted for the purpose of committing
any criminal or tortious act. (L. 1989 H.B. 277, et al. § 2, A.L. 2002
S.B. 712)
(1998) Communications between a cellular phone and a regular wire phone
are wire communications within the purview of the wiretap law. Lee v.
Lee, 967 S.W.2d 82 (Mo.App. W.D.).
1. The elected prosecuting attorney of the county with the
written authorization of the attorney general of the state of Missouri
may make application for an order authorizing the interception of a wire
communication. The supreme court of Missouri, upon notice that the
attorney general of the state of Missouri has authorized application for
an interception of a wire communication, shall appoint a circuit court
from a circuit other than the circuit where the application originates to
approve or deny the application and to issue any necessary orders. Such
court may grant, in conformity with sections 542.400 to 542.422, an order
authorizing the interception of wire communications by the law
enforcement agency having responsibility for the investigation of the
offense if there is probable cause to believe that the interception may
provide evidence of a felony which involves the manufacture or
distribution of a controlled substance, as the term is defined by section
195.016, RSMo, or the felony of murder, arson, or kidnapping, or a
terrorist threat as defined in section 574.115, RSMo, or any conspiracy
to commit any of the foregoing.
2. Any order entered pursuant to the provisions of sections 542.400 to
542.422 shall require live monitoring by appropriate law enforcement
personnel of the interception of any wire communication. (L. 1989 H.B.
277, et al. § 3, A.L. 2002 S.B. 712)
1. Any investigative officer or law enforcement officer who, by
any means authorized by sections 542.400 to 542.422, has lawfully
obtained knowledge of the contents of any wire communication, or evidence
derived therefrom, may disclose such contents to another investigative
officer or law enforcement officer to the extent that such disclosure is
necessary to the proper performance of the official duties of the officer
making or receiving the disclosure for investigative purposes only.
2. Any investigative officer or law enforcement officer who, by any means
authorized by sections 542.400 to 542.422, has lawfully obtained
knowledge of the contents of any wire or oral communication, or evidence
derived therefrom, may use such contents to the extent such use is
necessary to the proper performance of his official duties.
3. Any person who has received, by any means authorized by sections
542.400 to 542.422, any information concerning a wire communication, or
evidence derived therefrom, intercepted in accordance with the provisions
of sections 542.400 to 542.422 shall disclose the contents of that
communication or such derivative evidence while giving testimony under
oath or affirmation in any criminal proceeding, including deposition in
any court or in any grand jury proceeding, subject to the rules of
evidence.
4. No otherwise privileged wire communication intercepted in accordance
with, or in violation of, the provisions of sections 542.400 to 542.422
shall lose its privileged character and shall be suppressed upon motion.
(L. 1989 H.B. 277, et al. § 4, A.L. 2002 S.B. 712)
1. Each application for an order authorizing or approving the
interception of a wire communication shall be made in writing and shall
be submitted to the attorney general for his review and approval. If the
attorney general approves the application, he shall join such
application, which shall be submitted upon oath or affirmation to a court
of competent jurisdiction and shall state the applicant's authority to
make such application. Each application shall include the following
information:
(1) The identity of the prosecuting attorney making the application
together with the identities of the law enforcement agency or agencies
that are to conduct the interception;
(2) A full and complete statement of the facts and circumstances relied
upon by the applicant to justify his belief that an order should be
issued, including:
(a) Details as to the particular offense that has been, is being, or is
about to be committed;
(b) A particular description of the nature and location of the facilities
from which or the place where the communication is to be intercepted;
(c) A particular description of the type of communications sought to be
intercepted; and
(d) The identity of the person and employment, if known, committing the
offense and whose communications are to be intercepted;
(e) That the application is sought solely for detection of the crimes
enumerated in section 542.404;
(3) A full and complete statement as to whether other investigative
procedures have been tried and failed, or why they reasonably appear to
be unlikely to succeed if tried, or to be too dangerous;
(4) A statement of the period of time for which the interception is
required to be maintained. If the nature of the investigation is such
that the authorization for the interception should not automatically
terminate when the described type of communication has been first
obtained, a particular description of facts establishing probable cause
to believe that additional communications of the same type will occur
thereafter;
(5) A full and complete statement of the facts concerning all previous
applications known or available to the individual authorizing and making
the application, made to any court for authorization to intercept, or for
approval of interceptions of, wire communications involving any of the
same persons, facilities or places specified in the application, and the
action taken by the court on each such application;
(6) Where the application is for the extension of an order, a statement
setting forth the results thus far obtained from the interception, or an
explanation of the failure to obtain such results; and
(7) A statement that adequate resources are available to perform the
interception and the estimated number of persons required to accomplish
the interception.
2. The court may require the applicant to furnish additional testimony or
documentary evidence in support of the application.
3. Upon such application the court may enter an ex parte order, as
requested or as modified, authorizing or approving interception of wire
communications within the territorial jurisdiction of the court, if the
court determines on the basis of the facts submitted by the applicant
that:
(1) Probable cause exists to believe that an individual is committing,
has committed, or is about to commit a particular offense enumerated in
section 542.404;
(2) Probable cause exists to believe that particular communications
concerning that offense will be obtained through such interception;
(3) Normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too
dangerous; and
(4) Probable cause exists to believe that the facilities from which, or
the place where, the wire communications are to be intercepted are being
used, or are about to be used, in connection with the commission of such
offense, or are leased to, listed in the name of, or commonly used by
such person.
4. Each order authorizing or approving the interception of any wire
communication shall specify:
(1) The identity of the person and employment, if known, whose
communications are to be intercepted;
(2) The nature and location of the communication facilities as to which,
or the place where, authority to intercept is granted including whether
the interception involves a cellular or other wireless device;
(3) A particular description of the type of communication sought to be
intercepted, and a statement of the particular offense to which it
relates;
(4) The identity of the agency authorized to intercept the
communications, and of the person authorizing the application;
(5) The period of time during which such interception is authorized,
including a statement as to whether or not the interception shall
automatically terminate when the described communication has been first
obtained.
5. No order entered under this section may authorize or approve the
interception of any wire communication for any period longer than is
necessary to achieve the objective of the authorization, nor in any event
longer than thirty days. Extensions of an order may be granted, but only
upon application for an extension made in accordance with subsection 1 of
this section and the court making the findings required by subsection 3
of this section. The period of extension shall be no longer than the
court deems necessary to achieve the purposes for which it was granted
and in no event longer than thirty days. Every order and extension
thereof shall contain a provision that the authorization to intercept
shall be executed as soon as practicable, shall be conducted in such a
way as to minimize the interception of communications not otherwise
subject to interception under sections 542.400 to 542.422, and shall
terminate upon attainment of the authorized objective, or in any event in
thirty days.
6. Whenever an order authorizing interception is entered pursuant to the
provisions of sections 542.400 to 542.422, the order may require reports
to be made to the court who issued the order showing what progress has
been made toward achievement of the authorized objective and the need for
continued interception. Such reports shall be made at such intervals as
the court may require, but in no case longer than thirty days.
7. Notwithstanding any other provisions of sections 542.400 to 542.422,
any law enforcement officer with the approval of the prosecuting attorney
may request an order of an appropriate court whenever reasonable grounds
therefor exist to have a pen register placed in effect, which pen
register will only determine the phone number to which the call is placed.
8. Notwithstanding any other provision of law to the contrary,
communication common carriers, and their officers, employees and agents,
may provide information, facilities or technical assistance to persons
authorized by law to intercept wire communications, if the communication
common carrier, its officers, employees or agents have been provided with
a court order directing such assistance signed by the authorizing court.
The court order shall set forth the period of time during which the
provision of the information, facilities or technical assistance is
authorized and specifying the information, facilities, or technical
assistance required. No cause of action shall lie in any court against
any communication common carrier, its officers, employees, and agents for
providing information, facilities or assistance in accordance with the
terms of an order under this subsection. Any communication common carrier
furnishing such facilities or technical assistance shall be compensated
therefor by the prosecuting attorney at the prevailing rates. (L. 1989
H.B. 277, et al. § 5, A.L. 2002 S.B. 712)
1. The contents of any wire communication intercepted by any
means authorized by sections 542.400 to 542.422 shall be recorded on tape
or wire or other comparable device. The recording of the contents of any
wire or oral communication as required by this section shall be done in
such way as will protect the recording from editing or other alterations.
Immediately upon the expiration of the period of the order, or extensions
thereof, such recordings shall be made available to the court issuing
such order and shall be sealed under its directions. Custody of the
recordings shall be wherever the court orders. The recordings shall not
be destroyed except upon an order of the issuing court and in any event
shall be kept for ten years. Duplicate recordings shall be made for use
for disclosure pursuant to the provisions of subsections 1 and 2 of
section 542.406 for investigations and discovery in accordance with
applicable supreme court rules. The presence of the seal provided for by
subsection 2 of this section, or a satisfactory explanation for the
absence thereof, shall be a prerequisite for the use or disclosure of the
contents of any wire communication or evidence derived therefrom under
the provisions of subsection 3 of section 542.406.
2. Applications made and orders granted under sections 542.400 to 542.422
shall be sealed by the court. Custody of the applications and orders
shall be wherever the court directs. Such applications and orders shall
be disclosed only upon a showing of good cause before a court of
competent jurisdiction and shall not be destroyed except on order of the
issuing or denying court, and in any event shall be kept for ten years.
3. Any violation of the provisions of this section shall be punishable as
a class A misdemeanor.
4. Within a reasonable time but not later than ninety days after the
filing of an application for an order of approval under the provisions of
sections 542.400 to 542.422 or the termination of the period of an order
or extensions thereof, whichever is later, the issuing or denying court
shall cause to be served, on the persons named in the order or the
application, and such other parties to intercepted communications an
inventory which shall include notice of:
(1) The fact of the entry of the order or the application;
(2) The date of the entry and the period of authorized, approved
interception;
(3) The fact that during the period oral communications were or were not
intercepted; and
(4) The nature of said conversations.
The court, upon the filing of a motion, shall make available to such
person or his counsel for inspection and copying such intercepted
communications, applications and orders. (L. 1989 H.B. 277, et al. § 6,
A.L. 2002 S.B. 712)
1. The contents of any intercepted wire communications or
evidence derived therefrom shall not be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in federal or state
court nor in any administrative proceeding unless each party, in
compliance with supreme court rules relating to discovery in criminal
cases, hearings and proceedings, has been furnished with a copy of the
court order and accompanying application under which the interception was
authorized or approved and a transcript of any intercepted wire
communication or evidence derived therefrom.
2. If the defense in its request designates material or information not
in the possession or control of the state, but which is, in fact, in the
possession or control of other governmental personnel, the state shall
use diligence and make good faith efforts to cause such materials to be
made available to the defendant's counsel, and if the state's efforts are
unsuccessful and such material or other governmental personnel are
subject to the jurisdiction of the court, the court, upon request, shall
issue suitable subpoenas or orders to cause such material or information
to be made available to the state for disclosure to the defense. (L. 1989
H.B. 277, et al. § 7, A.L. 2002 S.B. 712)
1. Any aggrieved person in any trial, hearing, or proceeding in
or before any court, department, officer, agency, regulatory body, or
other authority of the United States, the state, or a political
subdivision thereof, may move to suppress the contents of any intercepted
wire communication, or evidence derived therefrom, on the grounds that:
(1) The communication was unlawfully intercepted;
(2) The order of authorization or approval under which it was intercepted
is insufficient on its face;
(3) The interception was not made in conformity with the order of
authorization or approval; or
(4) The communication was intercepted in violation of the provisions of
the Constitution of the United States or the state of Missouri or in
violation of a state statute.
Such motion shall be made before the trial, hearing, or proceeding unless
there was no reasonable opportunity to make such motion or the person was
not aware of the existence of grounds for the motion. If the motion is
granted, the contents of the intercepted wire communication, or evidence
derived therefrom or the contents of any communication intercepted as a
result of any extension of the original order authorizing or approving
the interception of wire communication, and any evidence derived
therefrom, shall be treated as having been obtained in violation of
sections 542.400 to 542.422.
2. In addition to any other right to appeal, the state shall have the
right to appeal from an order granting a motion to suppress made under
subsection 1 of this section if the prosecuting attorney shall certify to
the court or other official granting such motion that the appeal be taken
within thirty days after the date the order was entered and shall be
diligently prosecuted. (L. 1989 H.B. 277, et al. § 8, A.L. 2002 S.B. 712)
1. Within thirty days after the expiration of an order or each
extension thereof entered pursuant to the provisions of section 542.408,
the issuing court shall report to the state courts administrator:
(1) The fact that an order or extension was applied for;
(2) The kind of order or extension applied for;
(3) The fact that the order or extension was granted as applied for, was
modified, or was denied;
(4) The period of interceptions authorized by the order, and the number
and duration of any extensions of the order;
(5) The offense specified in the order or application, or extension of an
order;
(6) The identity of the applying investigative officer or law enforcement
officer and agency making the application and the person authorizing the
application; and
(7) The nature of the facilities from which or the place where
communications were to be intercepted.
2. In January of each year, the principal prosecuting attorney for any
political subdivision of the state shall report to the state courts
administrator:
(1) The information required by subdivisions (1) through (7) of
subsection 1 of this section with respect to each application for an
order or extension made during the preceding calendar year;
(2) A general description of the interceptions made under such order or
extension, including:
(a) The approximate nature and frequency of incriminating communications
intercepted;
(b) The approximate nature and frequency of other communications
intercepted;
(c) The approximate number of persons whose communications were
intercepted; and
(d) The approximate nature, amount, and cost of the manpower and other
resources used in the interceptions;
(3) The number of arrests resulting from interceptions made under such
order or extension, and the offenses for which arrests were made;
(4) The number of trials resulting from such interceptions;
(5) The number of motions to suppress made with respect to such
interceptions, and the number granted or denied;
(6) The number of convictions resulting from such interceptions and the
offenses for which the convictions were obtained and a general assessment
of the importance of the interceptions; and
(7) The information required by subdivisions (2) through (6) of this
subsection with respect to orders or extensions obtained in the preceding
calendar year.
3. In April of each year the state courts administrator shall transmit to
the Missouri general assembly a full and complete report concerning the
number of applications for orders authorizing or approving the
interception of wire communications and the number of orders and
extensions granted or denied during the preceding calendar year. Such
report shall include a summary and analysis of the data required to be
filed with the state courts administrator by subsections 1 and 2 of this
section. The state courts administrator may promulgate rules and
regulations dealing with the content and form of the reports required to
be filed by subsections 1 and 2 of this section. (L. 1989 H.B. 277, et
al. § 9, A.L. 2002 S.B. 712)
1. The contents of any wire communication or evidence derived
therefrom shall not be received in evidence or otherwise disclosed in any
civil or administrative proceeding, except in civil actions brought
pursuant to this section.
2. Any person whose wire communication is intercepted, disclosed, or used
in violation of sections 542.400 to 542.422 shall:
(1) Have a civil cause of action against any person who intercepts,
discloses, or uses, or procures any other person to intercept, disclose,
or use such communications; and
(2) Be entitled to recover from any such person:
(a) Actual damages, but not less than liquidated damages computed at the
rate of one hundred dollars a day for each day of violation or ten
thousand dollars whichever is greater;
(b) Punitive damages on a showing of a willful or intentional violation
of sections 542.400 to 542.422; and
(c) A reasonable attorney's fee and other litigation costs reasonably
incurred.
3. A good faith reliance on a court order or on the provisions of section
542.408 shall constitute a prima facie defense to any civil or criminal
action brought under sections 542.400 to 542.422.
4. Nothing contained in this section shall limit any cause of action
available prior to August 28, 1989. (L. 1989 H.B. 277, et al. § 10, A.L.
2002 S.B. 712)
(1998) Communications between a cellular phone and a regular wire phone
are wire communications within the purview of the wiretap law. Lee v.
Lee, 967 S.W.2d 82 (Mo.App. W.D.).
(1999) Section applies only to exclude evidence obtained pursuant to an
authorized wiretap. Phillips v. American Motorist Insurance Co., 996
S.W.2d 584 (Mo.App.W.D.).
Whenever any wire communication has been intercepted, no part of
the contents of such communication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United States, a
state, or a political subdivision thereof if the disclosure of that
information would be in violation of sections 542.400 to 542.422. (L.
1989 H.B. 277, et al. § 11, A.L. 2002 S.B. 712)
(1998) Communications between a cellular phone and a regular wire phone
are wire communications within the purview of the wiretap law. Lee v.
Lee, 967 S.W.2d 82 (Mo.App. W.D.).
Whenever it shall appear that any person is engaged or is about
to engage in any act which constitutes or will constitute a felony
violation of sections 542.400 to 542.422, the attorney general may
initiate a civil action in a circuit court to enjoin such violation. The
court shall proceed as soon as practicable to the hearing and
determination of such an action, and may, at any time before final
determination, enter such a restraining order or prohibition, or take
such other action, as is warranted to prevent a continuing and
substantial injury to the state or to any person or class of persons for
whose protection the action is brought. A proceeding under this section
is governed by the rules of civil procedure except that, if an indictment
has been returned against the respondent, discovery is governed by the
rules of criminal procedure. (L. 1989 H.B. 277, et al. § 12, A.L. 2002
S.B. 712)
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