STATE OF MISSOURI v. ROBERT ROTH (2026)

The State of Missouri appeals the Bates County Circuit Court's order sustaining Robert Roth's motion to suppress. In its first point on appeal, the State of Missouri claims the suppressed evidence was obtained from private conduct and law enforcement did not meaningfully interfere with any possessory right or infringe on any legitimate expectation of privacy. In its second point on appeal, the State of Missouri claims the suppressed evidence was independently obtained in good-faith reliance on valid search warrants. The order is affirmed.

Facts

In July 2019, Robert Roth was charged by information with the class B felony of possession of child pornography consisting of more than twenty still images of nude girls appearing to be less than eighteen years of age. In August 2022, an amended information was filed adding that Roth is a prior offender because he pleaded guilty in 2009 to the class B felony of child molestation in the first degree. The amended information contained the same count of possession of child pornography as the original information.

In August 2022, Roth filed a motion to suppress evidence. The motion sought to suppress evidence obtained from a cell phone obtained by the Adrian, Missouri Police Department from S.J. in July 2019 and from the search of a residence. The motion to suppress alleged the following facts: Officer D.A. (“Officer”) was contacted by S.J. on July 17, 2019 at the Adrian, Missouri Police Department. S.J. stated she had taken a cell phone from Roth without permission on July 15, 2019. S.J. went home, went through the phone, and found what she believed to be pictures of naked young girls. Officer stated in the probable cause statement, “I looked at [the] phone and saw several pictures of naked girls.” Officer described several of the images and contact information he observed on the phone. Officer then submitted an affidavit in support of search warrants for the cell phone and for Roth's residence. On July 19, 2019, search warrants were issued for the cell phone and the residence. The warrants were executed the same day, and additional child pornography was found.

The motion to suppress argued that Officer's initial warrantless search of the cell phone (when S.J. brought the phone to Officer at the police station) was the sole basis for the affidavit in support of the search warrants for the cell phone and the residence. The interactions between Officer and S.J. is cited in both affidavits as the only description of investigation. The application for the warrants for the phone and residence rely solely on the affidavits submitted by Officer. No independent investigation nor any prior history or statements of Roth is listed as an independent basis for the issuance of a search warrant. The motion to suppress claimed that the initial warrantless search by Officer and the subsequent search warrants were not supported by probable cause.

The hearing on the motion to suppress was held in August 2023. In July 2025, the trial court granted Roth's motion to suppress. It found in its order that the State failed to meet its burden of proof and that the search and seizure of the cell phone obtained from S.J. on July 17, 2019 was conducted without a warrant and that no exception allowing a warrantless search existed. Further, any and all evidence obtained by law enforcement as a result of the initial unconstitutional warrantless search and seizure of the cell phone is fruit of the poisonous tree and must be excluded. The trial court ordered that all evidence seized during the initial warrantless search of the cell phone and any and all subsequent or derivative searches are excluded.

This appeal follows.

Standard of Review

This court “will reverse a trial court's ruling on a motion to suppress only if it is clearly erroneous.” State v. West, 548 S.W.3d 406, 412 (Mo. App. W.D. 2018) (internal quotation marks omitted). “Clear error exists if, after reviewing the entire record, we are left with a definite and firm belief a mistake has been made.” Id. (internal quotation marks omitted). “A trial court's ruling on a motion to suppress must be supported by substantial evidence.” Id. (internal quotation marks omitted). “In determining whether the ruling is supported by substantial evidence, we must defer to the trial court's factual findings and credibility determinations and consider all evidence and reasonable inferences in the light most favorable to the trial court's ruling.” Id. (internal quotation marks omitted). “As such, we disregard all contrary evidence and inferences.” Id. “While we give deference to the trial court's findings of fact, we review all questions of law de novo.” Id. at 412-13. “Despite the deference we afford the trial court's order, the ultimate issue of whether the Fourth Amendment was violated is a question of law which [we] review[ ] de novo.” Id. at 413 (internal quotation marks omitted).

“[T]he State has the ultimate burden of showing that a motion to suppress should be overruled․” Id. (internal quotation marks omitted). “ ‘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.’ ” Id. (quoting § 542.296.6 ² ). “However, the proponent of a motion to suppress has the initial burden of proving that he is a person who is ‘aggrieved’ by an unlawful search and seizure pursuant to [s]ection 542.296.” Id. (internal quotation marks omitted). “The language of section 542.296.1, conferring standing to file a motion to suppress upon an ‘aggrieved’ person, is nothing more than codification of the standing requirements under the Fourth Amendment as set forth by the United States Supreme Court.” Id. (internal quotation marks omitted).

Point I

In its first point on appeal, the State argues the trial court erred in sustaining Roth's motion to suppress. The State claims that Officer did not conduct an unreasonable search or seizure of Roth's phone. It states that Roth's phone and its contents were obtained from S.J.’s private conduct. The State maintains that Officer did not meaningfully interfere with any possessory right or infringe upon any legitimate expectation of privacy in Roth's phone.

“The 4th amendment to the United States Constitution guarantees citizens the right to be free from ‘unreasonable searches and seizures.’ ” State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009). “Article I, section 15 of the Missouri Constitution provides the same guarantees against unreasonable search and seizures; thus, the same analysis applies to cases under the Missouri Constitution as under the United States Constitution.” Id. A warrant is generally required before searching a cell phone. Riley v. California, 573 U.S. 373, 401 (2014). “[T]he warrant requirement is an important working part of our machinery of government, not merely an inconvenience to be somehow weighed against the claims of police efficiency.” Id. (internal quotation marks omitted).

“The Fourth Amendment to the U.S. Constitution provides individuals the right to be free from unreasonable searches and seizures.” State v. Ingram, 662 S.W.3d 212, 227 (Mo. App. E.D. 2023). “The Fourth Amendment applies only to governmental action; it does not protect against intrusive conduct by private individuals or entities acting in a private capacity.” Id. “The Constitution does, however, constrain[ ] governmental action by whatever instruments or in whatever modes that action may be taken.” Id. (internal quotation marks omitted). “Additionally, [i]f a private party conducted an initial search independent of any agency relationship with the government, then law enforcement officers may, in turn, perform the same search as the private party without violating the Fourth Amendment as long as the search does not exceed[ ] the scope of the private search.” Id. (internal quotation marks omitted). “This is because the private search already frustrated the person's legitimate expectation of privacy; thus, an ensuing police intrusion that stays within the limits of the private search is not a search for Fourth Amendment purposes.” Id. at 227-28 (internal quotation marks omitted) (defendant's fourth amendment rights not violated where Yahoo searched the defendant's account, seized information concerning child pornography images, and reported the information to the National Center for Missing and Exploited Children which viewed the images, geolocated the account in Missouri, and reported the information to Missouri law enforcement).

Courts across the country have addressed situations similar to the one we face today: where a private party searches a defendant's electronic device and discovers illegal material, and then discloses and exhibits the information on the device to law enforcement prior to the issuance of a search warrant. While the analysis in these cases may differ somewhat, certain common features emerge. For example, under these cases, it may be critical whether the private party, or instead the law enforcement officer, chose the information shown to the officer, and directed the process by which the device's contents were examined. Further, it is important whether the law enforcement officer merely viewed materials which the private party had already examined, or instead whether the officer's warrantless examination of the device exceeded the bounds of the prior private search.

For example, in U.S. v. Hines, the defendant's girlfriend “used his password to unlock his cellphone, observed child pornography on that cellphone, and showed those images to a police officer at the police station.” 140 F.4th 105, 108 (2d Cir. 2025). The probable cause statement in the subsequent application to obtain a search warrant for the defendant's cellphone, laptop, and other electronic devices was based on the initial search of the defendant's phone by the police officer who was present with defendant's girlfriend. Id. The Second Circuit discussed the private search doctrine. Id. at 113 n.4. “The private search doctrine instructs that where a private party has already searched property belonging to another person, government authorities may repeat that search without a warrant so long as they do not exceed the scope of the private search.” Id. (internal quotation marks omitted).

The Second Circuit found that “[t]he private search doctrine is not implicated here because there was no relevant governmental search.” Id. “As discussed infra, it was [defendant's girlfriend] who searched through [the defendant's] phone both at her residence and at the police station.” Id. “[The police officer's] visual observation of the photos [defendant's girlfriend] was showing him did not amount to a ‘search’ within the meaning of the Fourth Amendment.” Id. The court cited United States v. Jones, 565 U.S. 400, 412, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (The Supreme Court has never “deviated from the understanding that mere visual observation does not constitute a search.”); Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“[W]e have held that visual observation is no ‘search’ at all.”).

In U.S. v. Phillips, the defendant's ex-fiancée searched his laptop while he was in a residential treatment program for alcoholism. 32 F.4th 865, 866 (9th Cir. 2022). The laptop was password protected but the ex-fiancée gained access by answering the defendant's security questions. Id. The ex-fiancée discovered child-pornography on the computer. Id. She took the computer to the sheriff's department and reported what she found. Id. A detective asked the ex-fiancee to show him only the images that she had already viewed when she looked at the computer by herself. Id. at 867. Only the ex-fiancee operated the computer while showing the detective the images. Id. The Ninth Circuit discussed the private search doctrine:

The Supreme Court has long held that it does not violate the Fourth Amendment for a law enforcement officer to accept and use evidence that a private party discovers pursuant to its own private search, even if that private search was unlawful. This rule is based on the principle that [t]he Fourth Amendment[’s ]protection against unlawful searches and seizures ․ applies to governmental action and was not intended to be a limitation upon other than governmental agencies. Moreover, [this does] not offend the more modern rationale of the Fourth Amendment exclusionary rule ․ [which] is most often explained on grounds of deterrence. Specifically, extension of the exclusionary rule to all private illegal searches for purposes of deterrence would be difficult to justify because the private searcher ․ is often motivated by reasons independent of a desire to secure criminal conviction and ․ seldom engages in searches upon a sufficiently regular basis to be affected by the exclusionary sanction.

Id. at 867-68 (internal citations and quotation marks omitted). The Ninth Circuit found that law enforcement did not learn anything when viewing the defendant's computer that the ex-fiancee had not previously learned during her private search. Id. at 871. The court affirmed the denial of the defendant's motion to suppress. Id. at 875.

In U.S. v. Rivera-Morales, the issue before the court was the application of “the private search doctrine in the evolving context of modern technology.” 961 F.3d 1, 5 (1st Cir. 2020).

At a granular level, it concerns a wife's search of a cellphone belonging to her husband (defendant-appellant Jean Carlos Rivera-Morales), leading to her discovery of a disturbing video. The wife then brought the cellphone to the authorities and directed their attention to the video. Her actions paved the way for the defendant's indictment on a charge of production of child pornography. After the district court denied the defendant's motion to suppress the video, a jury found him guilty as charged.

Id. (citation omitted). The First Circuit held that, because the defendant's wife “was not acting as a government agent when she accessed the video to show it to the desk officers, there is no plausible basis for concluding that those officers violated the Fourth Amendment.” Id. at 9.

Any other conclusion would contravene the settled principle that law enforcement officers are free to accept evidence voluntarily delivered to them by a private party — even evidence for which they would not have been able to search in the absence of a warrant — without crossing the line into forbidden Fourth Amendment territory.

Id. “To paraphrase the Supreme Court, when [defendant's wife] of her own accord produced [the video] for inspection, rather than simply describing [it], it was not incumbent on the police to stop her or avert their eyes.” Id.

“[T]he government does not conduct a search when it does no more than examine particular evidence that a private party has already inspected and made available to it, even if that evidence once engendered a reasonable expectation of privacy.” Id. at 10. “The legality of the government's actions in examining the evidence depends on the degree — if any — to which those actions exceed[ ] the scope of the private search.” Id. (internal quotation marks omitted). “In the classic case, the government does not perform a search if its examination of the evidence is coextensive with the scope of the antecedent private search and, viewed objectively, there is a virtual certainty that nothing else of significance could be revealed through its actions.” Id. (internal quotation marks omitted). “Conversely, when the government exceeds the scope of the private search, it conducts its own search, which requires independent Fourth Amendment justification.” Id. at 10-11.

The First Circuit found that law enforcement's search did not exceed the scope of the private search:

Crucially, it was [the wife] — not one of the officers — who accessed the video during both interviews. Because she was familiar with the cellphone and knew where the video was stored, there was no credible risk that she would open applications or files other than the video that she intended to play. What is more, she had no incentive to show the officers anything other than the video that was the focal point of the interviews. Viewed objectively, the manner in which the officers reexamined the video ensured that there was no more than a remote possibility that the intrusions into the defendant's cellphone would disclose any data stored there beyond what [the wife] already had seen and reported.

Id. at 11.

In U.S. v. Benoit, the defendant's girlfriend found child pornography on his computer. 713 F.3d 1, 7 (10th Cir. 2013). She called the police, and they responded to the home. Id. The girlfriend showed the police officer the child pornography on the computer. Id. Police subsequently obtained a search warrant. Id. The defendant's motion to suppress the evidence was denied, and the defendant appealed. Id. at 8.

The Tenth Circuit concluded that the girlfriend did not conduct a search under the Fourth Amendment because the Fourth Amendment only proscribes government action. Id. at 9. “However, in some cases a search by a private citizen may be transformed into a governmental search implicating the Fourth Amendment if the government coerces, dominates or directs the actions of a private person conducting the search or seizure.” Id. (internal quotation marks omitted). “[I]f a government agent is involved merely as a witness, the requisite government action implicating Fourth Amendment concerns is absent.” Id. (internal quotation marks omitted). “Police must, in some affirmative way ․ instigate, orchestrate, encourage or exceed the scope of the private search to trigger application of the Fourth Amendment.” Id. (internal quotation marks omitted).

The court discussed the secondary search that occurred when the girlfriend displayed a video after police arrived:

To the extent that [girlfriend] conducted a secondary search by displaying a video after [the police officer] arrived, that search cannot be characterized as governmental action because [the officer] did not affirmatively encourage, initiate or instigate the private action. [The officer] did not touch or handle the computer or any of its parts, and did not assist or encourage [girlfriend] as she opened the child pornography file. [The girlfriend] appears to have retained full control over Benoit's computer while [the officer] passively viewed a child pornography video shown to him. As [the officer] testified, he never direct[ed] [the girlfriend to do anything ․ [a]ll their actions were voluntary.

Id. at 10 (internal citation and quotation marks omitted).

In U.S. v. Bowers, the defendant's roommate and the roommate's boyfriend entered the defendant's bedroom without permission and discovered child pornography. 594 F.3d 522, 524 (6th Cir. 2010). Law enforcement was notified and arrived at the house. Id. While in a shared part of the house, law enforcement reviewed the albums containing the child pornography. Id. They obtained a search warrant and found additional evidence. Id. The defendant filed a motion to suppress which was denied because the court found that the album was discovered during a private search. Id. at 525. The Sixth Circuit affirmed this decision:

The agents’ subsequent viewing of what [the roommate and boyfriend] freely made available for [their] inspection did not violate the Fourth Amendment. Furthermore, based on [the roommate's] statements that the album contained child pornography, the agents were justified in opening the album to view the potentially incriminating evidence. In doing so, the agents learn[ed] nothing that had not previously been learned during the private search and infringed no legitimate expectation of privacy.

Id. at 526 (internal citations and quotation marks omitted).

In U.S. v. Starr, the defendant's wife provided police with photo albums, photo prints, and videotapes. 533 F.3d 985, 992 (8th Cir. 2008). She told police that the items contained child pornography. Id. On appeal, the defendant argued that “his Fourth Amendment rights were violated when [a detective] or other law enforcement officers examined the items brought by [defendant's wife] to the police station, without first obtaining a warrant.” Id. at 994. The defendant conceded “that private searches are not covered by the Fourth Amendment's protections but maintain[ed] that the officers needed a warrant before re-examining the materials provided by [defendant's wife].” Id. at 995. The Eight Circuit held that the defendant's constitutional rights had not been violated:

When the government re-examines materials following a private search, the government may intrude on an individual's privacy expectations without violating the Fourth Amendment, provided the government intrusion goes no further than the private search. ․ This is such a case. In her private search prior to contacting law enforcement, [defendant's wife] examined all of the evidence that she subsequently brought to police. When the police examined the evidence, the record indicates that the officers only viewed material that had already been viewed by [defendant's wife]. Because the officers’ search did not exceed the scope of [defendant's wife's] private search, we conclude that the officers did not unconstitutionally intrude on Starr's privacy interests. Accordingly, we reject Starr's argument that the government's examination of this material violated the Fourth Amendment.

Id. at 995 (internal citations and quotation marks omitted).

In U.S. v. Fall, the defendant's niece and her boyfriend opened the defendant's laptop and observed child pornography. 955 F.3d 363, 367 (4th Cir. 2020). The niece took the laptop to the police station. Id. The niece showed an officer some of the child pornography, and the niece was directed to take the computer to police headquarters. Id. There, the niece explained what she had seen on the computer. Id. A detective opened the laptop, observed icons on the desktop that could have been child pornography, and clicked on two of the thumbnails which were child pornography. Id. at 367-68. The police subsequently obtained a search warrant. Id. at 368. The defendant filed a motion to suppress, arguing that the subsequent search of his residence was the product of an improper search of the laptop. Id. at 369. The defendant argued that the police search of the laptop extended beyond the private search conducted by the niece and her boyfriend. Id. The trial court denied the motion to suppress. Id.

The Fourth Circuit discussed the private search doctrine:

And since the Fourth Amendment is not implicated by a private search, it is not violated when the police merely review the same information that was discovered during the private search. Thus, when a third party provides the police with evidence that she obtained in the course of her own search, the police need not stop her or avert their eyes.

․

While we have not addressed the private search doctrine in the context of electronic devices, our sister circuits have utilized varying approaches when confronted with this issue. The Eleventh and Sixth Circuits have held that there must be an exact one-to-one match between electronic files viewed by a private party and files later examined by police.

Even if the police's extension of the search is de minimis, it loses the protection of the private search exception. But, as the government points out, other circuits have allowed a more permissive application of the private search doctrine to electronic searches. The Seventh and Fifth Circuits have held that with respect to officers searching containers that were not examined by the private party, a more expansive officer search would not necessarily be problematic if the police knew with substantial certainty, based on the statements of the private searches, their replication of the private search, and their expertise, what they would find inside.

Id. at 370-71 (internal citations and quotation marks omitted). The Fourth Circuit concluded that it did not need to decide the issue, however, because the good faith exception to the exclusionary rule applied. Id. at 371.

In U.S. v. Lichtenberger, the defendant's girlfriend hacked into his laptop and discovered child pornography. 786 F.3d 478, 479 (6th Cir. 2015). She called the police and officers arrived at the home the girlfriend shared with the defendant. Id. at 479-80. The girlfriend told the officer what she had found. Id. at 480. The officer asked girlfriend if she could boot up the laptop and show him what she had discovered. Id. Once the laptop was booted back up, the officer asked girlfriend to show him the images. The girlfriend opened several folders and began clicking on random thumbnail images to show the officer. Id. The officer recognized the images as child pornography, and asked the girlfriend to shut the computer down. Id. at 480-81. Police obtained a search warrant. Id. The defendant filed a motion to suppress the laptop evidence which was granted by the trial court. Id.

After discussing the private search doctrine, the Sixth Circuit found that the police officer had less than virtual certainty regarding what he was going to see when the girlfriend showed the officer the results of her search:

The parties do not dispute that [girlfriend] acted solely as a private citizen when she searched Lichtenberger's laptop, that she invited [the officer] into a common area of the residence she and Lichtenberger shared (the kitchen), and that she then showed the officer a sample of what she had found. ․ We find that the scope of [the officer's] search of Lichtenberger's laptop exceeded that of [the girlfriend's] private search conducted earlier that day. This is, in large part, due to the extensive privacy interests at stake in a modern electronic device like a laptop and the particulars of how [the officer] conducted his search when he arrived at the residence.

Id. at 484-85. The court found that the record established that “the [girlfriend] was not at all sure whether she opened the same files with [the officer] as she had opened earlier that day.” Id. at 490. It suppressed the laptop evidence and the evidence obtained pursuant to the warrant issued on the basis of the laptop's contents. Id. at 491.

In this case, the State disavowed any duty to present evidence establishing the legality of Officer's warrantless examination of the phone's contents. As a result, we do not have a complete record concerning the similarity or difference between S.J.’s prior search of the phone and Officer's later warrantless examination. In addition, the record does not reflect whether Officer directed S.J. as she exhibited the phone's contents to him, or instead whether S.J. navigated the phone on her own. Because the State bore the burden of proof to establish the search's legality, the State must bear the consequences of the gaps in the evidence. Section 542.296 states in relevant part:

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. ․

․

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;

․

(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.

(Emphasis added). The following occurred at the suppression hearing in the current case:

Defense: To my knowledge as of this date, there have been no responses from the State of Missouri to that and nothing filed. I just -- I'm not sure if the State is acquiescing to that at this time. As we know, we know that when a grieved party files a motion to suppress a warrantless search and seizure, the burden is on the State to overcome the presumption.

․

Prosecution: Well, my response is, I have no obligation to file a responsive pleading. This hearing is to determine the validity of the search, and that's what we're going to do. I've never filed a response, to my knowledge, ever to a motion to suppress unless there's something weird or unusual about it.

[The State introduced the search warrant. Defense counsel objected that it was hearsay and the State needed to present witnesses.]

Prosecution: It exactly authenticates itself. When a search warrant is issued in a case, the Court -- the reviewing Court presumes it is valid, and it then becomes the Defendant's burden to overcome that.

․

That furthermore, Judge, once the State has shown that they were working pursuant to a warrant, the State has a much stronger argument for applying in good faith and reasonable exception to their duty, such that this Court should grant -- the Court find -- grant -- the Court should assume that that warrant is valid and accept it. Then the burden shifts to the Defendant to prove that it's not a valid search warrant.

That's exactly the type of scenario we want to operate under, Judge. Otherwise why would we get a search warrant. I mean, that's one of the very reasons you get a search warrant, is to pursue -- is to have the validity of the warrant being good when you move forward.

Defense: ․ So what [the prosecutor] is saying, is he's effectively talking about is a Frank hearing,3 which is the situation where, let's just say, some individuals, some officers are investigating, like, suspected criminal activity. They sat on a house or observed a defendant or, you know, undertook police investigation for some time. Based upon their findings, they would have generated an affidavit in support of a search warrant or requested a search warrant. Then, if that was -- if that was issued by a judicial officer, [the prosecutor] is correct, the presumption at that time would be that it is presumed valid and, hence, it's the duty of the Defense attorney to attack the validity of that warrant through attacking the affidavit in support of the search warrant or any other relevant information.

The issue here, Judge, is everything that's contained in the affidavit in support of the search warrant, the probable cause statement resulted from -- and I don't believe this is contested -- an unwarranted search and seizure of my client, Robert Roth's, phone. There's no doubt about that. If there is, the Court can look at the document the State just intended to put forth as there is no independent basis at all. This is uncontested. This was testified to at preliminary hearing, this was contested in deposition. There's no doubt about it.

․

Judge, everything in this case is derivative and falls through. I'm not say any of it was legitimate, based on the un-- the warrantless search and seizure of my client's phone that took place on 7-17-2019. The other search warrants were based solely on that. The officer will testify to that, I'm assuming, as he has in the past. There was no independent investigation. There was nothing else.

․

Prosecution: Because there is a warrant right in front of you that is presumed to be valid and it was done pursuant to the search warrant. He has to establish facts to show there was some search apart from that. It's his burden, not mine. That's the difference, Judge.

Defense: If the Court allows the State's logic to stand, this type of scenario can happen. The Court, police officers can search anything they want without a warrant any time they want in violation of all State laws, the constitution. Then they can put the items they found in an affidavit in support of a search warrant, file it, and then the State would come back and say, that is now per se valid, even though the Defense has articulated and referenced a very specific warrantless search that is the basis for the subsequent searches.

․

Prosecution: To – I'm not going to have a witness, Judge. I have a search warrant that I've introduced into evidence. If there's evidence to be adduced apart from that, it ain't going to come from me, because I'm going to rest once the warrant gets entered. My burden has been met, because there is a valid warrant that I've introduced into evidence. I will rest, and then the burden then shifts to someone that says that's not a valid search warrant, who then intends to attack and prove it's not valid.

The prosecutor was incorrect when he stated that he did not have a burden at the motion to suppress. As set forth in § 542.296.6, the State has the burden of showing by a preponderance of the evidence that the motion to suppress should be denied. “This includes both the burden of producing evidence and the risk of non-persuasion.” State v.

Humble, 474 S.W.3d 210, 215 (Mo. App. W.D. 2015) (internal quotation marks omitted). “[A]s we interpret § 542.296, Missouri places the burden on the prosecution as to all Fourth Amendment claims with respect to motions to suppress, whether a warrant was issued or not, except the burden to prove standing, which is on the defendant.” State v. Ramires, 152 S.W.3d 385, 396 (Mo. App. W.D. 2004) (emphasis added); see also, e.g., State v. Bales, 630 S.W.3d 754, 758 (Mo. banc 2021) (in case involving search conducted pursuant to warrant, stating that “[t]he state bears the risk of non-persuasion and the burden to prove by a preponderance of the evidence that the seizure of evidence was constitutionally proper. Section 542.296.6”); State v. Anderson, 629 S.W.3d 39, 43 (Mo. App. W.D. 2021) (similar).

Whatever presumption of validity may attach to duly issued search warrants, the prosecutor's arguments disregarded the fact that Roth was challenging the prior warrantless examination of his phone which led to the issuance of the search warrants. See Anderson, 629 S.W.3d at 44-45 (citing and quoting State v. Brown, 382 S.W.3d 147, 166-69 (Mo. App. W.D. 2012), and discussing in detail “the process that a circuit court must follow when a motion to suppress covers both an unwarranted search and a subsequently issued warrant based on the fruit of that search”).

The defense called Officer to testify at the hearing on the motion to suppress. Officer testified that S.J. came into the police station and stated she had a phone that belonged to Roth that had child pornography on it. She took the phone from Roth without permission. Officer testified that S.J. held the phone and used her finger to scroll through images of child pornography while Officer looked at the phone. After that, Officer took the phone from S.J. He opened the phone, looked at the contacts on the phone, and saw that the phone belonged to Roth. Officer did not take any further action except for applying for the search warrants. The probable cause for the search warrants was entirely premised on S.J. bringing the phone to the police station, S.J.’s statements to Officer, and what Officer observed. No other witness testified at the suppression hearing.⁴

The State, incorrectly, took the position at the hearing that it did not need to produce any evidence. Because of the State's stubborn insistence that it could rest on the contents of the search warrant alone, no evidence was presented at the suppression hearing regarding whether Officer directed S.J. in any way when she showed him the pictures on the phone. No evidence was presented at the suppression hearing regarding whether what S.J. showed Officer was the same as what she had previously discovered during her earlier private search. Moreover, and more significantly, Officer testified that he took the phone from S.J. He opened the phone, though no evidence was presented regarding how he did so. Officer then navigated to the contacts section and saw that Roth was listed as the owner. This suggests Officer exceeded the scope of S.J.’s earlier private search. There was no evidence regarding what navigating to the contacts section entailed.

The State had the burden to show that the evidence should not be suppressed. § 542.296.6. While we review questions of law de novo, West, 548 S.W.3d at 412-13, much of our analysis in this case is dependent on the facts of how Officer and S.J. examined the phone. We view all evidence and reasonable inferences in the light most favorable to the grant of the motion to suppress. Id. at 412. Under the standard of review, we reverse only if the trial court's decision was clearly erroneous. Id. In its order granting Roth's motion to suppress in the current case, the trial court made the following findings:

The Court ․ finds that the State has failed to meet its burden by a preponderance of the evidence that Defendant's Motion to Suppress should be denied. The Court further finds that the search and seizure of Defendant's [cellphone] obtained by the [police department] from [S.J.] ․ was conducted without a warrant and that no exceptions allowing a warrantless search existed.

In the context of this case, under this standard of review, where the State explicitly disavowed its burden, the evidence was not clear regarding essential details, and the evidence suggests that the police officer exceeded the scope of the private search in at least one aspect, the trial court's order was not clearly erroneous.

The point is denied.

Point II

In its second point on appeal, the State argues the trial court erred in sustaining Roth's motion to suppress. The State claims that the suppressed evidence was not unlawfully obtained. It maintains that the suppressed evidence was independently obtained in good-faith reliance on valid search warrants.

In its brief, the State discusses preservation of arguments for appeal. It claims that “[t]he State should not have a burden to ‘raise’ or otherwise preserve an ‘issue’ when it is the defendant's claim that is being litigated. The State's obligation is merely to present evidence that the suppression motion should be denied.”

In West, 548 S.W.3d at 412, the trial court granted the defendant's motion to suppress. This court discussed preservation of issues for appeal in that context. “On appeal, the appellant, not the respondent, has the burden of showing erroneous action on the part of the trial court.” Id. at 413 (internal quotation marks omitted). “To preserve an issue for review, the appellant is required to raise that issue with the trial court below to give it an opportunity to take remedial action.” Id. (internal quotation marks omitted) (emphasis in original). “We will not convict a trial court of error for reasons not presented to it and instead argued for the first time on appeal.” Id. “The purpose of this requirement is to eliminate error by allowing the trial court to rule intelligently and to avoid the delay, expense, and hardship of an appeal and retrial.” Id. (internal quotation marks omitted).

“[M]otions to suppress are unique in that they routinely involve multiple complicated constitutional issues where very different and sophisticated analysis is required for each type of alleged violation.” Id. at 414 (internal quotation marks omitted). “[T]he appellate preservation requirement, coupled with the trial court's freedom to reconsider its interlocutory ruling at any time before the challenged evidence is offered as evidence at trial minimizes the potential for the delay, expense, and hardship of an interlocutory appeal in the first instance.” Id. (internal quotation marks omitted). “Thus, the trial court should have before it full development of an adequate record so that it can make alternative findings that are conducive to the resolution of all claims and contentions in a single interlocutory appeal.” Id. (internal quotation marks omitted). “This conclusion is particularly appropriate as it is the State which bears the burden of proof and the risk of nonpersuasion that a motion to suppress should be overruled.” Id.; see also Bales, 630 S.W.3d at 762, 763 n.11 (in interlocutory appeal by State from order granting suppression motion, citing the general principle that “ ‘[i]ssues raised for the first time on appeal are not preserved for appellate review,’ ” and refusing to consider arguments for reversal which the State had not raised in the circuit court); State v. Stone, 430 S.W.3d 288 (Mo. App. S.D. 2014) (trial court granted motion to suppress; State's arguments not preserved where State failed to make them during suppression hearing).

The State argues that any Missouri case that imposes additional preservation requirements on the State with respect to interlocutory appeals of suppression orders “was wrongly decided.” We disagree. The State did not argue to the trial court that the suppressed evidence was independently obtained in good-faith reliance on valid search warrants.⁵ “We will not convict the trial court of error in granting a motion to suppress for reasons not presented to it.” West, 548 S.W.3d at 413. Accordingly, we deny the State's second point because it raises a claim of error that has not been preserved for appellate review. See id.

The point is denied.

Conclusion

The trial court's order sustaining Roth's motion to suppress is affirmed.

FOOTNOTES

2.   All statutory citations are to RSMo 2016 as supplemented unless otherwise stated.

3.   Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “The Supreme Court in Franks explained the procedure for allowing hearings to provide a limited way for a criminal defendant to challenge the veracity of a sworn statement submitted by police in support of a search warrant application.” State v. Turner, 471 S.W.3d 405, 411 n.4 (Mo. App. E.D. 2015).

4.   S.J. was deceased at the time of the suppression hearing. S.J. had been deposed by the defense prior to her death. Defense counsel argued at the suppression hearing that S.J. gave a slightly different version of events during her deposition. Defense counsel argued that deposition showed that Officer was the one that ultimately searched the phone before getting a search warrant. The State objected to the deposition testimony because the prosecutor could not cross-examine S.J. The deposition testimony was not entered into evidence.

5.   At the hearing on the motion to suppress, the prosecutor referenced the good faith exception one time, but only to support his argument that the search warrants were entitled to a presumption of validity. The State's proposed order to the court stated in a conclusory fashion that the good faith exception to the exclusionary rule applied, without developing any argument on the point. Neither of these isolated references presented the issue for the trial court's review or preserved the argument for appeal.

Anthony Rex Gabbert, Chief Judge

All concur.