542.296. Motion to suppress, grounds for. - Missouri Statutes

Motion to suppress, grounds for.

542.296. 1. A person aggrieved by an unlawful seizure madeby an officer and against whom there is a pending criminalproceeding growing out of the subject matter of the seizure mayfile a motion to suppress the use in evidence of the property ormatter seized. For the purposes of this section, a pendingcriminal proceeding shall mean any criminal investigation beingconducted with the intention of using the seized subject matterin seeking an indictment or information or when an informationhas been issued or an indictment returned.

2. The motion to suppress shall be in writing. It shall befiled with the court in which there is pending against the movingparty a criminal proceeding growing out of the subject matter ofthe seizure.

3. The motion shall be made before the commencement of thetrial of the moving party on the charge arising out of theseizure unless he was unaware of the grounds or had noopportunity to do so before the trial. In that event the motionmay be made during the trial. However, the trial judge may inhis discretion entertain a motion any time during trial.

4. Notice shall be given to the prosecuting attorney of thedate, time, place and nature of the hearing.

5. The motion to suppress may be based upon any one or moreof the following grounds:

(1) That the search and seizure were made without warrantand without lawful authority;

(2) That the warrant was improper upon its face or wasillegally issued, including the issuance of a warrant withoutproper showing of probable cause;

(3) That the property seized was not that described in thewarrant and that the officer was not otherwise lawfullyprivileged to seize the same;

(4) That the warrant was illegally executed by the officer;

(5) That in any other manner the search and seizure violatedthe rights of the movant under section 15 of article I of theConstitution of Missouri, or the fourth and fourteenth amendmentsof the Constitution of the United States.

6. The judge shall receive evidence on any issue of factnecessary to the decision of the motion. The burden of goingforward with the evidence and the risk of nonpersuasion shall beupon the state to show by a preponderance of the evidence thatthe motion to suppress should be overruled.

7. If the motion is sustained, the judge shall order theproperty or matter delivered to the moving party, unless itsretention is authorized or required by section 542.301, or by anyother law of this state.

(L. 1974 S.B. 366 § 8)