Monday, November 20, 2017

We've discovered four more grounds upon which our eviction was unlawful, bringing the total to 10 and making it perhaps the most screwed up eviction ever


(From haikudeck.com)
Has an eviction in U.S. history ever been as screwed up (and unlawful) as the one in Missouri that ended with cops shattering my wife's left arm -- and with bogus criminal charges filed against HER? I'm not sure it's possible for an eviction to match the level of incompetence and corruption present in our case.

That's because we recently discovered four more grounds upon which our September 2015 eviction was unlawful. Add those to the six unlawful grounds of which we already were aware (see here, here, and here), and that makes 10 ways to Sunday that our eviction was contrary to law. And that doesn't even count that Carol was brutalized during the eviction, and bogus charges were brought against her after it was over. (A list of the 10 grounds upon which our eviction was unlawful is embedded at the end of this post.)

Why does this matter? Because all of these unlawful grounds mean we were subjected to an unreasonable search and seizure, violating the Fourth Amendment to the U.S. Constitution. And, under a U.S. Supreme Court case styled Mapp v. Ohio, 367 U.S. 643 (1961), evidence gathered via an unconstitutional search and seizure must be suppressed. There isn't much evidence in Carol's case -- only the Probable Cause Statement concocted by Deputy Debi Wade -- but the Fourth Amendment violations mean the PC statement must be excluded. That leaves the prosecution with . . . nothing -- no evidence, no case, nada, zero, zilch.

How gross is all of this? We're talking about grounds upon which landlord Trent Cowherd and his lawyer (Craig Lowther) could not, by law, bring an eviction -- meaning deputies from the Greene County Sheriff's Office (GCSO) had no right to even be on our rented property, much less to break into our home and wreak havoc -- leading to almost all of our personal property being stolen by Cowherd's eviction crew (based on the word of a neighbor, who was an eyewitness). On hand to witness the whole thing was Sheriff Jim Arnott himself, standing there like "a slab of meet with mittens."

BTW, when I say "bogus charges," those aren't just the words of an angry husband who happens to be fond of the defendant -- enough to have been married to her for 28 years. Even the so-called "victim" in the "assault of a law enforcement officer"charge -- Officer Jeremy Lynn -- admits he "caused physical contact" with Carol, not the other way around. That's the fundamental element of the offense in Missouri, and Lynn's own words show that Carol, as a matter of Missouri law, is not guilty of the charge.

What about the four new grounds we've discovered regarding the unlawful eviction, making it even more unlawful than we already knew? Let's take a look at them:


(1) Where was the demand for rent?

Under RSMo 535.020, a landlord must make a demand for rent before seeking to "dispossess" a tenant via eviction:

Whenever any rent has become due and payable, and payment has been demanded by the landlord or the landlord's agent from the lessee or person occupying the premises, and payment thereof has not been made, the landlord or agent may file a statement, verified by affidavit, with any associate circuit judge in the county in which the property is situated, setting forth the terms on which such property was rented, and the amount of rent actually due to such landlord; that the rent has been demanded from the tenant, lessee or person occupying the premises, and that payment has not been made, and substantially describing the property rented or leased.

Did Cowherd demand rent from us? Nope, and that's because our rent was paid through July 2015. A Notice to Vacate, dated July 2, 2015, was attached to our door -- and it makes no mention of late rent or a demand for rent. Cowherd simply tells us to be out by the end of the month (July 31). It is lawful in Missouri for a landlord to tell a tenant to vacate -- but at least one month's notice must be given, and it wasn't in our case. Also, such a notice is not grounds for a rent-and-possession case, which is what Cowherd filed. To file a rent-and-possession case in Missouri, you must want the tenant to leave because rent is late. But Cowherd's own Notice to Vacate shows our rent wasn't late, and that wasn't the reason the landlord sought to dispossess us.


(2) Was the judgment, which granted possession to Cowherd, even final?

Under RSMo 81.05, a judgment does not become final until 30 days after its entry. How do we determine that? It's spelled out at this post:

a. Supreme Court Rule 74.01 states that "a judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed." The docket for our eviction case, Cowherd v. Shuler (Case No. 1531-AC04535) can be found at case.net, and it shows judgment was entered on August 31, 2015.

b. Supreme Court Rule 44.01 states that the first day of "an act, event, or default" is not to be included in computation of time, but the final day of the period is included." If you add 30 days to the date our judgment was entered (August 31, 2015), that means our judgment was not final until Oct. 1, 2015.

c. RSMo 534.350 states no execution may be levied until after the time for appeal has expired, which is 10 days. If you add 10 days to Oct. 1, that means our eviction could not be executed until Oct. 10, 2015.

So why did Cowherd and Lowther schedule our eviction for Sept. 9 -- 31 days too early, by law -- and why did the GCSO carry it out, contrary to Missouri law? The answer to that question is not clear, but the FAQ Web page for Anderson and Associates, a Kansas City law firm that represents landlords in both Missouri and Kansas makes it clear our eviction was butchered:

Any judgment, other than a default judgment, becomes final after 30 days. After a judgment becomes final, the writ of restitution can be issued to the Deputy Sheriff.

Even a landlord with ants in his pants must wait 30 days, until the judgment is final, to move forward with execution. That did not happen in our case -- not even close.


(3)  Did Cowherd give proper notice to vacate?

The Notice to Vacate attached to our door is dated July 2, telling us to exit the premises by July 31. That's odd when you consider that RSMo. 441.060 states that a tenancy can be terminated only by giving one month's notice, in writing. If you count from July 2 to July 31, you get 29 days -- and that is not one month.

To make matters even more glaring, item No. 15 in our rental agreement states "the 30-day notice must be given on the 1st of the month, to be vacated by the last day of the same month." Someone from Cowherd even underlined that in blue, as if to highlight its importance. So, why couldn't the landlord himself follow the rule that he made and highlighted?

How does failure to give 30 days notice on the first of the month affect a landlord? Our friends from Anderson and Associates spell it out:

To terminate a month-to-month tenancy, you must provide the tenant(s) with one month’s notice, calculated from a rent paying date. For example, if rent is due on the 1st day of each month, the Landlord must give notice on July 1st to terminate on July 31st. The Law Offices of Anderson and Associates will file your eviction on August 1st. If the Landlord gives notice on July 5th, he cannot terminate until August 31st.

By failing to give timely notice on July 1, Cowherd (by law) had to wait to give it another shot on August 1. He did not do that.


(4) What about the county seal?

A blank Missouri form for "Execution in Landlord's Action for Possession . . . " contains the following language in red:

Note: The seal of the Greene County Circuit Court MUST be affixed for this Execution to be valid.
Why is that language there? Probably to prevent landlords and/or lawyers from moving on their own to evict tenants without court approval. In other words, the language probably is there to keep landlords like Cowherd and lawyers like Lowther from doing exactly what they did in our case.

No such document that we received included the Greene County seal, indicating we were kicked to the curb via an extrajudicial and unlawful action.

Again, why does all of this matter? Let's turn to Mapp v. Ohio, which might be one of the 25 most important U.S. Supreme Court decisions of the past 60 years. The appellant (Mapp) was convicted in state court of "having under her control certain lewd and lascivious books, pictures, and photographs," contrary to Ohio law. How did police become aware of this material? Well, the process wasn't pretty -- and it certainly was not constitutional. Here are the key facts in Mapp, and they sound a lot like our experience in Greene County, MO:

On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance, but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened . . .  and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiancĂ© of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" in resisting their official rescue of the "warrant" from her person.

What happened next? From the Mapp opinion:

Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

At the trial, no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, "There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home" . . . . The Ohio Supreme Court believed a "reasonable argument" could be made that the conviction should be reversed "because the methods' employed to obtain the [evidence] . . . were such as to 'offend "a sense of justice,"'" but the court found determinative the fact that the evidence had not been taken "from defendant's person by the use of brutal or offensive physical force against defendant." . . .

Did the U.S. Supreme Court let stand the fallout from such brown-shirt policing? Absolutely not. It found that evidence produced in an unreasonable search and seizure -- in a prosecution in a State court, for a State crime -- must not be admitted. The high court found that constitutional protections that had only applied in federal court now applied in state-court actions. From a concurring opinion by Justice Douglas:

We held in Wolf v. Colorado, 338 U. S. 25, that the Fourth Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as they chose. That position had the necessary votes to carry the day. But, with all respect, it was not the voice of reason or principle.

As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused, "his right to be secure against such searches and seizures is of no value, and . . . might as well be stricken from the Constitution." 232 U.S. at 393.

When we allowed States to give constitutional sanction to the "shabby business" of unlawful entry into a home . . . , we did indeed rob the Fourth Amendment of much meaningful force. . . .

Without judicial action making the exclusionary rule applicable to the States, Wolf v. Colorado, in practical effect, reduced the guarantee against unreasonable searches and seizures to "a dead letter" . . .


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