A double-murder trial for a Lee’s Summit lawyer accused in the grisly, late-night attack of her millionaire father and his girlfriend has been postponed because of questions about how law enforcement acquired her cellphone records.
Jury selection was set to begin next Monday in Laclede County Circuit Court in Lebanon, Mo., for the trial of Susan Van Note, who prosecutors also say forged a document to have her father removed from life support after he was taken to a hospital.
Court documents suggest prosecutors planned to use cellphone data to put Van Note in the vicinity of the murders.
But in what could be a major blow to the state’s case, the judge in the case ordered the postponement after a new defense motion challenged the admissibility of cellular evidence.
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Investigators did not get a warrant. Instead, they used a subpoena, which unlike a warrant does not require probable cause.
Sean O’Brien, a professor at the University of Missouri-Kansas City School of Law, says prosecutors may have lost key evidence.
“Police cannot use a subpoena to circumvent the Fourth Amendment,” O’Brien said Thursday, referring to the constitutional protection against unreasonable search and seizure.
O’Brien added that prosecutors can’t fix the problem by getting a warrant now. It’s the old “fruit of the poisonous tree” argument: They can’t get it now because they already know what’s there.
Prosecutors and defense attorneys did not respond to requests for comment Thursday.
Van Note, 48, is accused of attacking William Van Note and Sharon Dickson at her father’s three-story home at the Lake of the Ozarks late on Oct. 2, 2010.
Dickson, 59, died at the scene. William Van Note, 67, died four days later at a hospital in Columbia.
Prosecutors say Susan Van Note killed the couple because she wanted to get her hands on her father’s money. She was executor of his will, but it named Dickson as the prime beneficiary.
The probable cause statement used by authorities to charge Van Note clearly says a subpoena was used to obtain information from AT&T Wireless. The data showed that her cellphone pinged a transmission tower seven miles from her father’s home in Sunrise Beach, Mo. The call was made five minutes after her father called 911, court documents say.
Susan Van Note’s mother, Barbara Van Note, told investigators that her daughter was home in Lee’s Summit with her when the shootings occurred. Lee’s Summit is 119 miles, two hours or so, from Sunrise Beach.
The new defense motion, filed Monday, cites a U.S. Court of Appeals decision on Aug. 5 in Virginia that said authorities must obtain a warrant to gather cellphone location data from a cellular provider.
Tom Bath, Van Note’s lead attorney, cited the Virginia ruling and then argued that the subpoenas in the Van Note case allowed law enforcement to “peer into the day-to-day activities of Ms. Van Note” anytime she carried her phone.
“Ms. Van Note held an expectation that merely carrying this tool of modern society would not expose her to the prying eye of the government into private affairs,” he wrote.
In light of the “unconstitutional search,” he argued, all evidence recovered must be suppressed.
One difference in the Virginia case, in which two men were convicted of armed robbery, is that the defendants had already been tried and the appeals court chose not to void the convictions because the government “acted in good faith.”
In June, an earlier attempt to try Van Note ended before it started. The judge declared a mistrial before the jury was even seated because potential jury members allegedly discussed the case during a lunch break.