Chapter 542 Proceedings to Preserve the Peace - Searches and Seizures

542.281 - Obscene matter, search warrant, procedure for obtaining — application for warrant, content — adversary hearing required, when — alteration of material after notice of hearing or execution of warrant prohibited.

Steven Groce, Attorney Advertisement

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 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 and is being displayed, sold, exhibited, distributed, or circulated to the public or is pornographic for minors as defined in section 573.010, 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.).

542.266 - Search warrant defined — who may issue.

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.

542.291 - Search, when conducted — receipt for property taken.

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)

542.276 - Who may apply for search warrant — contents of application, affidavit — where filed, hearing — contents of warrant — who may execute, return, when and how made — warrant deemed invalid, when.

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.A search and any subsequent searches of the contents of any property, article, material, or substance seized and removed from the location of the execution of any search warrant during its execution may be conducted at any time during or after the execution of the warrant, subject to the continued existence of probable cause to search the property, article, material, or substance seized and removed.A search and any subsequent searches of the property, article, material, or substance seized and removed may be conducted after the time for delivering the warrant, return, and receipt to the issuing judge has expired.A supplemental return and receipt shall be delivered to the issuing judge upon final completion of any search which concludes after the expiration of time for delivering the original return and receipt.

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.

11.The application or execution of a search warrant shall not be deemed invalid for the sole reason that the application or execution of the warrant relies upon electronic signatures of the peace officer or prosecutor seeking the warrant or judge issuing the warrant.

(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, A.L. 2008 S.B. 932, A.L. 2010 H.B. 1695, et al.)

542.416 - Reports to state courts administrator required, when, contents, who must report — state courts administrator to report to general assembly, when — rules and regulations.

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)

542.412 - Contents may be used as evidence, when — disclosure of additional evidence to defendant.

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)

542.406 - Disclosure of contents — privileged communications.

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)

542.402 - Penalty for illegal wiretapping, permitted activities.

1.Except as otherwise specifically provided in sections 542.400 to 542.422, a person is guilty of a class E 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, A.L. 2014 S.B. 491)

Effective 1-01-17

(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.).

542.422 - Injunctions of felony violations of sections 542.400 to 542.424, procedure.

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)

542.190 - Special deputies and policemen to be residents of state.

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, 57.117, 85.005

542.090 - Recognizance to be prosecuted, when.

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

542.080 - Recognizance, when broken.

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

542.296 - Motion to suppress, grounds for.

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)

542.271 - Warrant may issue to search and seize, certain persons and items, or to copy, photograph or record.

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; 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)

542.420 - Evidence obtained in violation of law may not be used.

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.).

542.020 - Certain officers to preserve peace, issue process.

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 1-02-79

CROSS REFERENCE:

Warrants issued by an associate circuit judge need not be sealed, 544.030

542.120 - Recognizance forfeited on failure to prosecute appeal.

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

542.130 - Proceedings on appeal.

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

542.030 - Warrant may issue, when.

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

542.286 - Warrant to be executed within territorial jurisdiction, exception.

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)

542.261 - Peace officer defined.

As used in sections 542.261 to 542.296 and section 542.301, the term "peace officer" means a police officer or* member of the highway 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, A.L. 2010 H.B. 1868)

*Word "or" does not appear in original rolls.

542.410 - Recording of contents, required, how, custody of, duplication, destruction of — applications and orders sealed by court, disclosure, when, destruction of — penalty — notice to persons named in order, when, right to inspect and copy contents.

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)

542.110 - Appeal granted, when.

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

542.010 - Magistrate defined.

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 1-02-79

542.414 - Suppression of contents, grounds — right of state to appeal suppression motion, when.

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)

542.418 - Use of contents of wiretap in civil action, limitations on — illegal wiretap, cause of action, damages, attorney fees and costs — good faith reliance on court order a prima facie defense.

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.).

542.408 - Application, contents — ex parte order issued, when, contents, extensions granted, when — reports, court may require, when — pen registers, who may request — communication, common carriers may provide aid, immunity from suit, compensation.

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)

542.400 - Definitions.

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.).

542.300 - Prisoners may be searched.

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, 43.200

542.404 - Application for an order — authorization by attorney general — approval by judge, probable cause required.

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, or the felony of murder, arson, or kidnapping, or a terrorist threat as defined in section 574.115, 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)

542.100 - Offense stated in record is evidence of breach.

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

542.050 - Recognizance — penalty for failure to give.

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

542.301 - Disposition of unclaimed seized property — forfeiture to the state, when — allegedly obscene matter, how treated — appeal authorized.

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, 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;

(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, computers, computer equipment, computer software, computer hardware, cellular telephones, or other devices capable of accessing the internet, 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, 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, produce, or distribute, or be used as a means of storage of 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.In the case of computers, computer equipment, computer software, computer hardware, cellular telephones, or other devices capable of accessing the internet, or other devices used in the acquisition, possession, or distribution of child pornography or obscene material, the law enforcement agency in possession of such items may, upon court order, retain possession of such property and convert such property to the use of the law enforcement agency for use in criminal investigations.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.

(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, A.L. 2012 S.B. 628, A.L. 2014 H.B. 1298 Revision)

542.040 - Proceedings before associate circuit judge — jury — verdict — recognizance — costs.

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, 544.050

542.140 - Affray in presence of associate circuit judge.

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

542.060 - Parties committed, how discharged.

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

542.170 - What officers may require aid of persons to disperse rioters.

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 1-02-79

542.070 - Recognizance, where deposited.

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

542.425 - Criminal investigations, site of criminal conduct undetermined, attorney general may subpoena witnesses and documents.

In the course of a criminal investigation under chapter 566 or 573, when the venue of the alleged criminal conduct cannot be readily determined without further investigation, the attorney general may request the prosecuting attorney of Cole County to request a circuit or associate circuit judge of Cole County to issue a subpoena to any witness who may have information for the purpose of oral examination under oath or to require access to data or the production of books, papers, records, or other material of evidentiary nature at the office of the attorney general.If, upon review of the evidence produced pursuant to the subpoenas, it appears that a violation of chapter 566 or 573 may have been committed, the attorney general shall provide the evidence produced pursuant to subpoena to an appropriate county prosecuting attorney or circuit attorney having venue over the criminal offense.