Silly sheriff—professors do marijuana, not school shootings

|The Volokh Conspiracy |

From State v. Roach Rauch Rouch (Mo. Ct. App. Dec. 16, 2014) (just noted on Westlaw Bulletin yesterday) (some paragraph breaks added in the various block quotes):

On September 3, 2013, Northwest Missouri State University Police Chief Clarence Green, Jr. was interviewed over the telephone by a student reporter for a story for the Northwest Missourian newspaper. During the course of that interview, the reporter claimed that a faculty member had indicated in a Facebook post that he would climb up in the bell tower on campus and shoot students. Chief Green asked the reporter for the name of the faculty member and a copy of the reporter's screenshot printout of the Facebook post but the reporter refused to provide them. The following day, Chief Green applied for and received a warrant to search the office and file storage area of the Northwest Missourian for evidence related to the Facebook post.

Upon executing that warrant, Chief Green seized a printout of a Facebook post by Rouch, who was a professor in the communications department, which stated:

But, yes. That's the beginning of the semester. I'm always optimistic. By October, I'll be wanting to get up to the top of the bell tower with a high powered rifle—with a good scope, and probably a gatling gun as well.

Chief Green then contacted and questioned Rouch about the Facebook post. Rouch admitted making the post and stated that it was a sarcastic, flippant comment meant as a humorous response to statements made by a colleague.

[Footnote: Rouch signed a written statement providing: "Last Wednesday, I responded to a comment by Jody Stauch on facebook [sic]. The essence of Jody's comment was that she kind of felt it was pointless when people ask her how the semester was going when it was only the third day.

"My response, which I thought was humorous, was along the lines of I was always okay the first week; that is was [sic] toward the end of October that I felt like going up in the belltower [sic] with a high powered rifle and scope and a Gatling gun. I was trying to be humorous—just saying it was always the middle of the semester when I was the most stressed, like every other faculty.

"Jody joked back something like 'attention NSA, I do not know this man.' I gave it a thumbs up.

"An hour later, I looked, and Jody had about 7 thumbs up on her comment. There were none on mine. So I wrote another comment. 'Uh, I hope everyone knows I was just kidding.' Nobody responded to that. So I wrote one final one, 'Uh, I guess not.' About five minutes after that a [sic] deleted all three of my comments."]

When asked if he owned any weapons, Rouch said that he had a pellet gun at home. When interviewed, the colleague to whom Rouch had made the statement indicated that she thought Rouch's statement was in bad taste but that it was meant as a joke.

The following day, an administrator called Chief Green and told him that a professor, Dr. Walker, had heard Rouch say something about bringing a bomb on campus. When questioned by Chief Green, Dr. Walker said he had overheard Rouch make a comment like: "Yesterday they thought it was a gun. Today I've brought a bomb."

Chief Green had Rouch taken into custody. When questioned, Rouch admitted making the comments, which he again maintained were flippant and meant as a sarcastic joke. After questioning Rouch, Chief Green placed Rouch under a 24-hour investigative hold for making terroristic threats.

The campus building Rouch had been in was searched for a bomb but none was found. All of Rouch's co-workers and colleagues that were interviewed by Chief Green about Rouch's comments indicated their belief that the comments were made flippantly and meant to be jokes.

After interviewing Rouch and his colleagues, Chief Green contacted the prosecuting attorney to seek a warrant to search Rouch's home for firearms. The Complaint for Search Warrant, filed by the county prosecuting attorney, asked for a warrant to search Rouch's home for "a rifle with a scope, a gatling gun, or other firearms capable of lethal use," which were generically said to be "evidence of a criminal offense." Similarly, in the affidavit in support of the warrant complaint, Chief Green asked the court to issue a warrant to search Rouch's home for "a rifle with a scope, a gatling gun, or other firearms capable of lethal use."

The warrant was issued, the house was searched, and no firearms were found in the house. But the officers did find "in plain view marijuana, cultivated marijuana plants, planting materials, and drug paraphernalia," and Rouch was charged with felony growing and possession of marijuana. Here's the Missouri Court of Appeals' analysis, concluding that the search violated the Fourth Amendment:

Neither the warrant complaint nor Chief Green's affidavit indicate that it would be illegal for Rouch to have [the weapons] in his possession or that such items were otherwise contraband. Further, neither the complaint nor affidavit state, nor does common sense indicate, what criminal offense or offenses Rouch's possession of a firearm would serve as evidence of him committing.

The State argues that any firearms recovered from the home would have been evidence that Rouch committed the crime of making a terroristic threat under § 574.115, making a false bomb report in violation of § 575.090, harassment by using an electronic communication to frighten another in violation of § 565.090, or assault in violation of § 565.050, 565.060, and 565.090. The State baldly maintains that Rouch's possession of a firearm in his house would have been evidence that he intended for people to feel threatened by his Facebook post and verbal statement about a bomb and thereby aided in proving the intent element of those offenses.

Contrary to the State's assertions, however, based upon the totality of the circumstances, Rouch's possession of a firearm inside his home simply would not have served as evidence that he intended for either of his comments to be taken seriously rather than in jest. As the warrant complaint and affidavit do not reflect that the items to be searched for and seized were contraband or evidence of a crime, the trial court did not err in quashing the warrant.

[Footnote: Having reached this conclusion, we need not determine whether the affidavit sufficiently demonstrated that there was fair probability that "a rifle with a scope, a gatling gun, or other firearms capable of lethal use" would be found in Rouch's home, though that proposition would seem rather dubious.]

The Court also rejected the State's argument, under the so-called "good faith exception" to the exclusionary rule, that the evidence gathered under a valid warrant shouldn't be excluded, even if the warrant shouldn't have been issued:

As noted [above], it is readily apparent on the face of the warrant and affidavit that the items subject to the warrant were not contraband or evidence of a crime. The clear reason for which the warrant was sought was to assess Rouch's capability to commit a violent crime in the future. Indeed, Chief Green acknowledged as much at the hearing. [Footnote: Chief Green testified about his department's threat assessment procedures and stated that, even though he personally thought the statements were likely meant as jokes, he could not take the chance of being wrong and that it was better to be safe than sorry and to assess whether Rouch posed a threat.]

The trial court did not err in finding that the warrant was so lacking in indicia of probable cause as to render the officers' belief in its existence entirely unreasonable and that the good faith exception to the exclusionary rule, therefore, did not apply. [Footnote: Having reached this conclusion, we need not address whether Chief Green's omission of context and witness statements from the affidavit constituted a Franks violation that would negate the good faith exception to the exclusionary rule.]