Municipal Warrants In Missouri

by Paul Martin

Are These Things Really Legal?

In 2004, I wrote an article in The Missouri Municipal Review arguing that cities could authorize their municipal courts to issue search warrants for code enforcement purposes.1 I concluded that charter cities had such authority by virtue of their constitutional status, i.e., having all the authority of the state legislature that was not otherwise limited or denied by law. As to statutory cities, I argued that warrant authority was an implied, if not a necessary and indispensable, part of the city’s express statutory authority to enforce property code violations.

But in the wake of the Missouri Supreme Court reforms following the Michael Brown shooting in Ferguson, that analysis, relying on the charter or the implied/essential authority of statutory cities, appears to have been misplaced. With the adoption of new rules governing municipal court operations, it seems plain that municipal courts, while created by and operating under the aegis of cities, are independent bodies that answer exclusively to the Missouri Supreme Court. As such, municipal courts would appear to have inherent authority to issue search warrants, provided the authority is exercised in accordance with governing law. The Missouri Constitution, Missouri Supreme Court Rules and Missouri statutes bear out this conclusion.

The Municipal Court’s Judicial Independence

Article V, Section 23 of the Missouri Constitution provides that “[e]ach [judicial] circuit may have such municipal judges as provided by law …” Article V, Section 27(2)(d) that is the product of an overhaul of the Missouri court system effective in 1979, further provides:

The jurisdiction of municipal courts shall be transferred to the circuit court of the circuit in which such municipality or major geographical area thereof shall be located and, such courts shall become divisions of the circuit court. The Missouri Constitution thus permits the creation of municipal courts that are “provided by law” and further acknowledges that such courts are subject to, and divisions of, the court of the circuit in which they are located.

While Rule 37 of the Missouri Supreme Court has long provided the procedures by which municipal courts operate, recent amendments have reinforced and clarified the Supreme Court’s plenary authority over municipal courts. This perspective changes the calculus for examining the legality of municipal court search warrants.

Specifically, Rule 37.01, amended effective May 1, 2019, now provides that “Rule 37 governs the procedure in all courts of this state having original jurisdiction of ordinance violations.” Rule 37.04, as amended effective July 1, 2017, grants the presiding judge of the circuit court “general administrative authority over the judges and court personnel of all divisions of the circuit court hearing and determining ordinance violations within the circuit.” The same rule mandates that municipal courts “shall operate in substantial compliance with” the minimum operating standards prescribed in Appendix A to the rule. And the court’s new Operating Rule 1, effective July 1, 2019, asserts plenary authority over each municipal court’s case management automation system. The obvious conclusion is that municipal courts, while created and funded by cities, are constitutional creatures of the judiciary rather than their sponsoring cities.

So, in light of the perspective that municipal courts are legally independent from their cities, we must look to the authority of the court, rather than the city, in assessing the legality of municipal search warrants. Again, we turn to Rule 37 of the Supreme Court Rules.

The Municipal Court’s Inherent Warrant Authority

Perhaps surprisingly, Rule 37 does not address search warrants, even though Rules 37.45 and 37.46 address arrest warrants. Yet we are not left without all guidance, as Rule 37.08 provides that “[i]f no procedure is specifically provided by this Rule 37, the court shall be governed by Rules 19 to 36, inclusive, to the extent not inconsistent with this Rule 37.” Rules 19 to 36 govern criminal procedure in Missouri courts, so it is plain that the Supreme Court is directing municipal

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courts to apply those rules in the absence of a specific Rule 37 procedure.

Rule 34.01of the Missouri Rules of Criminal Procedure addresses search warrants in the criminal courts. It provides simply: “The provisions of Chapter 542 RSMo shall govern procedure in search and seizures.” Chapter 542, and more specifically, Sections 542.261 through 542.291, define “search warrants” and establishes the procedures for warrant application, issuance and execution.

Admittedly, Chapter 542 pertains to “criminal offenses,”see, e.g., Section 542.266.2 RSMo, “A search warrant may be issued ... by any judge of a court having original jurisdiction of criminal offenses . . . .” But because the prosecution of a municipal ordinance “resembl[es] a criminal action in its effects and consequences,” criminal procedural rules and standards generally apply to municipal court proceedings. See City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo. App. 1990); see also City of Kansas City v. Heather, 273 S.W.3d 592, 595 (Mo. App. 2009). It thus makes sense that the Missouri Supreme Court would utilize the criminal rules of procedure to allow the use of search warrants in municipal court.

Indeed, Chapter 479 RSMo that presumptively consists of the “law” establishing municipal courts as authorized by Article V of the Missouri Constitution, contemplates the authority of municipal judges to issue warrants. While Chapter 479 is silent as to warrant procedure, Section 479.100 RSMo provides:

All warrants issued by a municipal judge ... shall be directed to the city marshal, chief of police, or any other police officer of the municipality [and] shall be executed by the marshal, chief of police, [or] police officer ...

Section 479.100 is not limited to arrest warrants, and it seems absurd to suggest that a municipal court has the authority to order someone’s arrest,and so deprive that person of his or her liberty, but lacks the authority to order a search of the person’s property. Read in conjunction with Chapter 542, Section 479.100 implicitly acknowledges search

warrant authority as extending to municipal courts.

Moreover, the use of a search warrant may well be essential to the exercise of a city’s basic authority to ensure the health, safety and welfare of its citizens. By statute, cities may enter private property for inspection, code enforcement and nuisance abatement purposes,2 but this statutory authority does not overcome the property owner’s constitutional rights to privacy and to be free from unlawful searches. What if the property owner stands on these rights and refuses entry? The answer to overcoming this constitutional hurdle is the search warrant, by which an independent judge determines that there is probable cause to believe that an ordinance violation may exist. The court then makes the determination as to whether the property owner’s rights must give way to the public’s interests.

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Conclusion

The use of search warrants by municipal courts serves the interests of both the public and the property owner, and it is consistent with laws of the state and the rules of the Missouri Supreme Court. All this is to say that the authority to issue search warrants for the purpose of ordinance enforcement is inherent in every municipal court. While the cities I have represented have adopted ordinances tracking the requirements of Chapter 542, and while this practice serves transparency, municipal utility, and the due process rights of the search target, an ordinance does not appear to be necessary to apply for a municipal search warrant. But it is still recommended to establish both a specific process and the constitutional guard rails for executing that process.

Paul Martin has represented local governments, including cities, counties, fire districts, and other special districts, in the St. Louis metropolitan area for the past 35 years. He is a frequent litigator, writer, and speaker on local government matters. He can be contacted at his new firm, Kistner, Hamilton, Elam, & Martin LLC, at 1406 N. Broadway, St. Louis, MO 63102, at paul@law-fort.com, or at 314.805.8800. End Notes: 1Municipal Search Warrants in Missouri, Missouri Municipal Review (October-November, 2004). 2For references to specific statutes, see the 2004 article.