In this Chapter, unless the context requires a different definition,
the following shall apply:
To instruct, communicate with, store data in, retrieve or
extract data from, or otherwise make any use of any resources of,
a computer, computer system, or computer network.
Any person who develops exposed photographic film into negatives,
slides or prints, or who makes prints from negatives or slides, for
compensation. The term commercial film and photographic print processor
shall include all employees of such persons but shall not include
a person who develops film or makes prints for a public agency.
The box that houses the central processing unit (CPU), along
with any internal storage devices, such as internal hard drives, and
internal communication devices, such as internal modems capable of
sending or receiving electronic mail or fax cards, along with any
other hardware stored or housed internally. Thus, "computer" refers
to hardware, software and data contained in the main unit. Printers,
external modems attached by cable to the main unit, monitors, and
other external attachments will be referred to collectively as "peripherals"
and discussed individually when appropriate. When the computer and
all peripherals are referred to as a package, the term "computer system"
is used. "Information" refers to all the information on a computer
system, including both software applications and data.
Computers, terminals, data storage devices, and all other
computer hardware associated with a computer system or network.
All equipment which can collect, analyze, create, display,
convert, store, conceal or transmit electronic, magnetic, optical
or similar computer impulses or data. "Hardware" includes, but is
not limited to, any data processing devices, such as central processing
units, memory typewriters and self-contained laptop or notebook computers;
internal and peripheral storage devices, transistor-like binary devices
and other memory storage devices, such as floppy disks, removable
disks, compact disks, digital video disks, magnetic tape, hard drive,
optical disks and digital memory; local area networks, such as two
(2) or more computers connected together to a central computer server
via cable or modem; peripheral input or output devices, such as keyboards,
printers, scanners, plotters, video display monitors and optical readers;
and related communication devices, such as modems, cables and connections,
recording equipment, RAM or ROM units, acoustic couplers, automatic
dialers, speed dialers, programmable telephone dialing or signaling
devices and electronic tone-generating devices; as well as any devices,
mechanisms or parts that can be used to restrict access to computer
hardware, such as physical keys and locks.
Two (2) or more interconnected computers or computer systems.
A set of instructions, statements, or related data that directs
or is intended to direct a computer to perform certain functions.
Digital information which can be interpreted by a computer
and any of its related components to direct the way they work. Software
is stored in electronic, magnetic, optical or other digital form.
The term commonly includes programs to run operating systems and applications,
such as word processing, graphic, or spreadsheet programs, utilities,
compilers, interpreters and communications programs.
A set of related, connected or unconnected, computer equipment,
data, or software.
Written, recorded, printed or electronically stored material
which explains or illustrates how to configure or use computer hardware,
software or other related items.
A person is in confinement when such person is held in a place
of confinement pursuant to arrest or order of a court and remains
in confinement until:
A person is not in confinement if:
The person is on probation or parole, temporary or otherwise;
or
The person is under sentence to serve a term of confinement
which is not continuous, or is serving a sentence under a work-release
program, and in either such case is not being held in a place of confinement
or is not being held under guard by a person having the legal power
and duty to transport the person to or from a place of confinement.
Consent or lack of consent may be expressed or implied. Assent
does not constitute consent if:
It is given by a person who lacks the mental capacity to authorize
the conduct charged to constitute the offense and such mental incapacity
is manifest or known to the actor; or
It is given by a person who by reason of youth, mental disease
or defect, intoxication, a drug-induced state, or any other reason
is manifestly unable or known by the actor to be unable to make a
reasonable judgment as to the nature or harmfulness of the conduct
charged to constitute the offense; or
It is induced by force, duress or deception.
A drug, substance, or immediate precursor in Schedules I
through V as defined in Chapter 195, RSMo.
Failure to be aware of a substantial and unjustifiable risk
that circumstances exist or a result will follow, and such failure
constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation.
A person is in custody when he/she has been arrested but
has not been delivered to a place of confinement.
When used in relation to a computer system or network, means
any alteration, deletion, or destruction of any part of the computer
system or network.
The felonies of arson in the first degree, assault in the
first degree, attempted rape in the first degree if physical injury
results, attempted forcible rape if physical injury results, attempted
sodomy in the first degree if physical injury results, attempted forcible
sodomy if physical injury results, rape in the first degree, forcible
rape, sodomy in the first degree, forcible sodomy, assault in the
second degree if the victim of such assault is a special victim as
defined in Subdivision (14) of Section 565.002, RSMo., kidnapping
in the first degree, kidnapping, murder in the second degree, assault
of a Law Enforcement Officer in the first degree, domestic assault
in the first degree, elder abuse in the first degree, robbery in the
first degree, statutory rape in the first degree when the victim is
a child less than twelve (12) years of age at the time of the commission
of the act giving rise to the offense, statutory sodomy in the first
degree when the victim is a child less than twelve (12) years of age
at the time of the commission of the act giving rise to the offense,
child molestation in the first or second degree, abuse of a child
if the child dies as a result of injuries sustained from conduct chargeable
under Section 568.060, RSMo., child kidnapping, parental kidnapping
committed by detaining or concealing the whereabouts of the child
for not less than one hundred twenty (120) days under Section 565.153,
RSMo., and an "intoxication-related traffic offense" or "intoxication-related
boating offense" if the person is found to be an "habitual offender"
or "habitual boating offender" as such terms are defined in Section
577.001, RSMo.
Any instrument, article or substance which, under the circumstances
in which it is used, is readily capable of causing death or other
serious physical injury.
A representation of information, facts, knowledge, concepts,
or instructions prepared in a formalized or other manner and intended
for use in a computer or computer network. Data may be in any form
including, but not limited to, printouts, microfiche, magnetic storage
media, punched cards and as may be stored in the memory of a computer.
Any firearm, loaded or unloaded, or any weapon from which
a shot, readily capable of producing death or serious physical injury,
may be discharged; or a switchblade knife, dagger, billy club, blackjack
or metal knuckles.
A camera that records images in a format which enables the
images to be downloaded into a computer.
A mental, physical, or developmental impairment that substantially
limits one (1) or more major life activities or the ability to provide
adequately for one's care or protection, whether the impairment is
congenital or acquired by accident, injury or disease, where such
impairment is verified by medical findings.
A person sixty (60) years of age or older.
An offense so designated or an offense for which persons
found guilty thereof may be sentenced to death or imprisonment for
a term of more than one (1) year.
Either:
A temporary or permanent physical or mental condition in
which a person is unconscious, unable to appraise the nature of his/her
conduct, or unable to communicate unwillingness to an act.
A violation defined by this Code or by any other Statute
of this state if it is so designated or if no sentence other than
a fine, or fine and forfeiture or other civil penalty, is authorized
upon conviction.
When used with respect to conduct or attendant circumstances,
means a person is aware of the nature of his or her conduct or that
those circumstances exist; or
When used with respect to a result of conduct, means a person
is aware that his or her conduct is practically certain to cause that
result.
Any public servant having both the power and duty to make
arrests for violations of the laws of this State, and Federal Law
Enforcement Officers authorized to carry firearms and to make arrests
for violations of the laws of the United States.
An offense so designated or an offense for which persons
found guilty thereof may be sentenced to imprisonment for a term of
which the maximum is one (1) year or less.
Property that any entity, including but not limited to any
natural person, corporation, limited liability company, partnership,
association, governmental subdivision or instrumentality, other than
the actor, has a possessory or proprietary interest therein, except
that property shall not be deemed property of another who has only
a security interest therein, even if legal title is in the creditor
pursuant to a conditional sales contract or other security arrangement.
Any felony, ordinance violation, misdemeanor or infraction.
Slight impairment of any function of the body or temporary
loss of use of any part of the body.
Any building or facility and the grounds thereof wherein
a court is legally authorized to order that a person charged with
or convicted of a crime be held.
Having actual or constructive possession of an object with
knowledge of its presence. A person has actual possession if such
person has the object on his/her person or within easy reach and convenient
control. A person has constructive possession if such person has the
power and the intention at a given time to exercise dominion or control
over the object either directly or through another person or persons.
Possession may also be sole or joint. If one (1) person alone has
possession of an object, possession is sole. If two (2) or more persons
share possession of an object, possession is joint.
Anything of value, whether real or personal, tangible or
intangible, in possession or in action.
Any person employed in any way by a government of this State
who is compensated by the government by reason of such person's employment,
any person appointed to a position with any government of this State,
or any person elected to a position with any government of this State.
It includes, but is not limited to, legislators, jurors, members of
the judiciary and Law Enforcement Officers. It does not include witnesses.
When used with respect to a person's conduct or to a result
thereof, means when it is his/her conscious object to engage in that
conduct or to cause that result.
Consciously disregarding a substantial and unjustifiable
risk that circumstances exist or that a result will follow, and such
disregard constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the situation.
An injury that creates a substantial risk of temporary or
permanent medical or psychological damage, manifested by impairment
of a behavioral, cognitive or physical condition. Serious emotional
injury shall be established by testimony of qualified experts upon
the reasonable expectation of probable harm to a reasonable degree
of medical or psychological certainty.
Physical injury that creates a substantial risk of death
or that causes serious disfigurement or protracted loss or impairment
of the function of any part of the body.
When used in relation to a computer system or network, means
use of a computer, computer system, or computer network and includes,
but is not limited to, computer time, data processing, and storage
or retrieval functions.
Male or female heterosexuality, homosexuality or bisexuality
by inclination, practice, identity or expression, or having a self-image
or identity not traditionally associated with one's gender.
Any of the following:
A Law Enforcement Officer assaulted in the performance of his
or her official duties or as a direct result of such official duties;
Emergency personnel, any paid or volunteer firefighter, emergency
room or trauma center personnel, or emergency medical technician,
assaulted in the performance of his or her official duties or as a
direct result of such official duties;
A probation and parole officer assaulted in the performance
of his/her official duties or as a direct result of such official
duties;
An elderly person;
A person with a disability;
A vulnerable person;
Any jailer or corrections officer of the State or one (1) of
its political subdivisions assaulted in the performance of his/her
official duties or as a direct result of such official duties;
A highway worker in a construction or work zone as the terms
"highway worker," "construction zone" and "work zone" are defined
under Section 304.580, RSMo.;
Any utility worker, meaning any employee of a utility that provides
gas, heat, electricity, water, steam, telecommunications services,
or sewer services, whether privately, municipally, or cooperatively
owned, while in the performance of his/her job duties, including any
person employed under a contract;
Any cable worker, meaning any employee of a cable operator,
as such term is defined in Section 67.2677, RSMo., including any person
employed under contract, while in the performance of his/her job duties;
and
Any employee of a mass transit system, including any employee
of public bus or light rail companies, while in the performance of
his/her job duties.
A self-propelled mechanical device designed to carry a person
or persons, excluding vessels or aircraft.
Any boat or craft propelled by a motor or by machinery, whether
or not such motor or machinery is a principal source of propulsion
used or capable of being used as a means of transportation on water,
or any boat or craft more than twelve (12) feet in length which is
powered by sail alone or by a combination of sail and machinery, and
used or capable of being used as a means of transportation on water,
but not any boat or craft having, as the only means of propulsion,
a paddle or oars.
A bodily movement performed while conscious as a result of effort
or determination. Possession is a voluntary act if the possessor knowingly
procures or receives the thing possessed, or having acquired control
of it was aware of his/her control for a sufficient time to have enabled
him or her to dispose of it or terminate his/her control; or
An omission to perform an act of which the actor is physically
capable. A person is not guilty of an offense based solely upon an
omission to perform an act unless the law defining the offense expressly
so provides, or a duty to perform the omitted act is otherwise imposed
by law.
Any person in the custody, care, or control of the Department
of Mental Health who is receiving services from an operated, funded,
licensed, or certified program.
A.
Guilt for an offense may be based upon an attempt to commit an offense
if, with the purpose of committing the offense, a person performs
any act which is a substantial step towards the commission of the
offense. A "substantial step" is conduct which is strongly corroborative
of the firmness of the actor's purpose to complete the commission
of the offense.
B.
It is no defense to a prosecution under this Section that the offense
attempted was, under the actual attendant circumstances, factually
or legally impossible of commission, if such offense could have been
committed had the attendant circumstances been as the actor believed
them to be.
A.
Guilt for an offense may be based upon a conspiracy to commit an
offense when a person, with the purpose of promoting or facilitating
the commission of an offense, agrees with another person or persons
that they or one or more of them will engage in conduct which constitutes
such offense.
B.
It is no defense to a prosecution for conspiring to commit an offense
that a person, who knows that a person with whom he or she conspires
to commit an offense has conspired with another person or persons
to commit the same offense, does not know the identity of such other
person or persons.
C.
If a person conspires to commit a number of offenses, he or she can
be found guilty of only one offense so long as such multiple offenses
are the object of the same agreement.
D.
No person may be convicted of an offense based upon a conspiracy
to commit an offense unless an overt act in pursuance of such conspiracy
is alleged and proved to have been done by him or her or by a person
with whom he or she conspired.
E.
Exceptions.
1.
No person shall be convicted of an offense based upon a conspiracy
to commit an offense if, after conspiring to commit the offense, he/she
prevented the accomplishment of the objectives of the conspiracy under
circumstances manifesting a renunciation of his/her criminal purpose.
F.
For the purpose of time limitations on prosecutions:
1.
A conspiracy to commit an offense is a continuing course of
conduct which terminates when the offense or offenses which are its
object are committed or the agreement that they be committed is abandoned
by the defendant and by those with whom he or she conspired;
2.
If an individual abandons the agreement, the conspiracy is terminated
as to him/her only if he/she advises those with whom he/she has conspired
of his/her abandonment or he/she informs the law enforcement authorities
of the existence of the conspiracy and of his/her participation in
it.
G.
A person shall not be charged, convicted or sentenced on the basis
of the same course of conduct of both the actual commission of an
offense and a conspiracy to commit that offense.
[1]
Note: Under certain circumstances this offense can be a felony
under state law.
A.
A person
is criminally responsible for the conduct of another when:
1.
The ordinance defining the offense makes him/her so responsible;
or
2.
Either before or during the commission of an offense with the purpose
of promoting the commission of an offense, he/she aids or agrees to
aid or attempts to aid such other person in planning, committing or
attempting to commit the offense.
B.
However,
a person is not so responsible if:
1.
He/she is the victim of the offense committed or attempted;
2.
The offense is so defined that his/her conduct was necessarily incident
to the commission or attempt to commit the offense. If his/her conduct
constitutes a related but separate offense, he/she is criminally responsible
for that offense but not for the conduct or offense committed or attempted
by the other person; or
3.
Before the commission of the offense he/she abandons his/her purpose
and gives timely warning to law enforcement authorities or otherwise
makes proper effort to prevent the commission of the offense.
[Ord. No. 23.65, 9-7-2023]
A.
The City hereby finds that it is beneficial for the public health
and welfare of the City to utilize administrative search warrants
as may be issued under the provisions of this Section.
B.
Administrative search warrant defined; procedure.
1.
An "administrative search warrant" is a written order commanding
the search or inspection of any property, place or thing and the seizure,
photographing, copying or recording of property or physical conditions
found thereon or therein to determine or prove the existence of violations
of any ordinance or Code Section of the City relating to the use,
condition or occupancy of property or structures located within the
said City or to enforce the provisions of any such ordinance or Code
Section. See Camara v. Municipal Court of City and County of San Francisco,
387 U.S. 523, 538-39 (1967).
2.
An administrative search warrant may be issued by the judge
of the Osage Beach Municipal Division or by another judge of the County
Circuit Court having jurisdiction over the things or places to be
searched or seized.
3.
Any such warrant shall be directed to the Chief of Police or
any other Police Officer, or any Code Enforcement Officer, or Building
Inspector of the City, and shall be executed by authorized City personnel
within the City limits and not elsewhere.
C.
Application.
1.
Any Police Officer, Code Enforcement Officer, Fire Department
personnel, Building Inspector, or City Attorney for the City may make
application to the judge for the issuance of an administrative search
warrant.
2.
The application shall:
a.
Be in writing;
b.
State the time and date of the making of the application;
c.
Identify the property or places to be entered, searched, inspected
or seized in sufficient detail and particularity that the officer
executing the warrant can readily ascertain it;
d.
State that the owner or occupant of the property or places to
be entered, searched, inspected or seized has been requested by an
appropriate officer of the City to allow such action and has refused
to allow such action, or give the reasons such request has not been
made;
e.
State facts sufficient to show probable cause for the issuance
of a search warrant, as provided in this Chapter, to:
(1)
Search or inspect for violations of an ordinance
or Code Section specified in the application;
(2)
Show that entry or seizure is authorized and necessary
to enforce an ordinance or Code Section specified in the application
and that any required due process has been afforded prior to the entry
or seizure;
f.
Be verified by the oath or affirmation of the applicant; or
g.
Be signed by the applicant and filed in the court of the judge
hearing the application.
3.
The application may be supplemented by a written affidavit by
oath or affirmation. Such an affidavit shall be considered in determining
where there is a probable cause for the issuance of a search warrant
and in filling out any deficiencies in the description of the property
or place to be searched or inspect. Oral testimony shall not be considered.
The application or execution of a search warrant shall not be deemed
invalid for the sole reason that the application or execution of the
warrant relies upon electronic signatures of any person seeking the
warrant or judge issuing the warrant.
D.
Hearing procedure.
1.
The judge shall hold a non-adversary ex parte hearing to determine
whether probable cause exists to inspect or search for violations
of any ordinance or Code Section or to enforce any ordinance or Code
Section, including the abatement of violations and the seizure of
property related thereto.
2.
The judge shall determine whether the action to be taken is
reasonable in light of the facts stated. The judge shall consider
the goals of the ordinance or Code Section sought to be enforced and
such other factors as may be appropriate, including, but not limited
to, the physical condition of the specified property, the age and
nature of the property, the condition of the area in which the property
is located, the known violation of any relevant ordinance or Code
Section and the passage of time since the property's last inspection.
The standard for issuing a warrant need not be limited to actual knowledge
of an existing violation of an ordinance or Code Section.
3.
If it appears from the application and any supporting affidavit
that there is probable cause to inspect or search for violations of
any ordinance or Code Section or to enforce any such ordinance or
Code Section, a search warrant shall immediately be issued.
4.
The warrant shall issue in the form of an original and two (2)
copies and the application and any supporting affidavits and one (1)
copy of the warrant as issued shall be retained in the records of
the Municipal Court.
E.
The search warrant shall:
1.
Be in writing and in the name of the City;
2.
Be directed to any Police Officer, Code Enforcement Officer,
or Building Inspector in the City;
3.
State the time and date the warrant was issued;
4.
Identify the property or places to be searched, inspected or
entered upon in sufficient detail and particularity that the officer
executing the warrant can readily ascertain it;
5.
Command that the described property or places be searched or
entered upon and that any evidence of any ordinance violations found
therein or thereon, or any abatement performed therein or thereon,
or a description of any property seized pursuant to an abatement,
be returned within ten (10) days after filing the application, via
a warrant return to the judge who issued the warrant, to be dealt
with according to law;
6.
Be signed by the judge with the title of his/her office indicated.
F.
A search warrant issued under this Chapter shall be executed only
by the Chief of Police, other Police Officer, Code Enforcement Officer,
or Building Inspector of the City; provided however, that one (1)
or more designated City officials may accompany the officer. The warrant
shall be executed in the following manner:
1.
The warrant shall be executed by conducting the search, inspection,
entry or seizure as commanded and shall be executed as soon as practicable
and in a reasonable manner.
2.
The officer shall give the owner or occupant of the property
searched, inspected or entered upon a copy of the warrant.
a.
If any property is seized incident to the search, the officer
shall give the person from whose possession it was taken, if the person
is present, an itemized receipt for the property taken. If no such
person is present, the officer shall leave the receipt at the site
of the search in a conspicuous place.
b.
A copy of the itemized receipt of any property taken shall be
kept in the files of the officer conducting the search. If more than
one (1) officer conducts the search, only one (1) copy of the receipt
needs to be kept.
c.
The disposition of property seized or abated pursuant to a search
warrant under this Section shall be in accordance with an applicable
ordinance or Code section, but in the absence of same, then with Section
542.301, RSMo.
3.
The officer may summon as many persons as he/she deems necessary
to assist him/her in executing the warrant and such persons shall
not be held liable as a result of any illegality of the search and
seizure.
4.
An officer making a search pursuant to an invalid warrant, the
invalidity of which is not apparent on its face, may use such force
as he/she would be justified in using if the warrant were valid.
5.
A search warrant shall expire if it is not executed and the
required return made within ten (10) days after the date of the issuance
of the warrant.
6.
After execution of the search warrant, the warrant, with a return
thereon signed by the officer making the search, shall be delivered
to the Municipal Court.
7.
The return shall show the date and manner of execution and the
name of the possessor and of the owner, when not the same person,
if known, of the property and places searched or seized.
8.
The return shall be accompanied by any photographs, copies or
recordings made, a description of any abatements performed, and by
any property seized pursuant to an abatement, along with a copy of
the itemized receipt of such property required by this Section; provided
however, that seized property may be disposed of as provided herein
and in such a case a description of the property seized shall accompany
the return.
9.
The Court Clerk, upon request, shall deliver a copy of the return
to the possessor and the owner, when not the same person, of the property
searched or seized.
