State v. Cady

• Decision Date: 27 May 2014
• Docket Number: No. SD 32636.,SD 32636.
• Citation: 425 S.W.3d 234
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Tena D. CADY, Defendant–Appellant.
• Court: Missouri Court of Appeals

425 S.W.3d 234

STATE of Missouri, Plaintiff–Respondent,

v.Tena D. CADY, Defendant–Appellant.

No. SD 32636.

Missouri Court of Appeals,

Southern District,

Division One.

April 2, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 23, 2014.

Application for Transfer Denied May 27, 2014.

Samuel Buffaloe, Columbia, MI, for Appellant.

Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MI, for Respondent.

GARY W. LYNCH, J.

Tena D. Cady (“Defendant”) appeals her conviction on two counts of attempt to manufacture a controlled substance, seesection 195.211. ¹ Defendant raises three points on appeal: first, that the trial court erred in overruling her motion to suppress and her continuing objection to the admission of evidence found during the search of her shop building because the shop building was located within the curtilage of her property, rendering the initial “knock and talk” improper, and because any subsequent consent to search was involuntary; second, that the trial court erred in admitting NPLEx records into evidence, as the records contained hearsay and were not adequately shown to fall under any recognized exception to the hearsay rule; and third, that the trial court erred in admitting NPLEx records into evidence because their admission violated Defendant's right to confrontation. Finding no merit in any of Defendant's points, we affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, see State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007), the following evidence was adduced at trial.

On October 20, 2010, Trooper Kelsey Rutledge of the Missouri State Highway Patrol received information that Joe Cady, Defendant's husband, was manufacturing methamphetamine in a shop building located near the couple's residence in Lawrence County. Trooper Rutledge and three additional officers arrived at Defendant's property at approximately 10:00 p.m. that evening. A gravel driveway led from the road to the house and continued past the house to the shop building. The house and the shop building were visible from the road and neither was enclosed by a fence. Two officers stopped at the house while Trooper Rutledge and the remaining officer continued on to the shop building; Trooper Rutledge intended to conduct a “knock and talk.”

Trooper Rutledge, who is trained in drug detection, smelled the strong chemical odor associated with the manufacture of methamphetamine immediately upon exiting his vehicle. Trooper Rutledge approached the shop building, knocked on the door, and said, “Joe, are you here?” A male voice responded, “Yeah, right here.” Trooper Rutledge asked the man if he would step outside so they could talk, after which Trooper Rutledge heard what sounded like someone running through the shop building in the opposite direction.

Because he feared whoever was inside the shop building would destroy any evidence that might be inside, Trooper Rutledge and the other officer entered the shop building, running through it quickly in order to clear the building of any other people; this initial entry of the shop building lasted approximately one minute. While inside, Trooper Rutledge noticed numerous chemicals and paraphernalia associated with the manufacture of methamphetamine. Upon reaching the opposite end of the shop building, Trooper Rutledge heard what sounded like someone running through the brush outside. Trooper Rutledge and the other officer pursued the fleeing individual and, as they exited the shop building, Trooper Rutledge saw marijuana plants, some in excess of six-feet tall, commingled with vegetable plants in a large garden located between the shop building and the house, as well as additional marijuana plants along a perimeter fence.

Approximately one hour later, Trooper Rutledge and the other officer found Dennis Grider hiding in the nearby woods behind some abandoned cars. Grider had a pair of rubberized cotton gloves in his hip pocket; an identical pair of rubberized cotton gloves was found inside the shop building, adjacent to the chemicals being used to manufacture methamphetamine. Grider was placed under arrest and transported to jail, while Trooper Rutledge returned to Defendant's property.

When Trooper Rutledge returned, he found the two officers who had approached the house sitting inside the house talking with Defendant's two sons, ages 17 and 19, a girlfriend of one of the boys, and another young individual. Defendant arrived at the property a short time later. Trooper Rutledge informed Defendant of what he had found inside and around the shop building, namely the chemicals used for the manufacture of methamphetamine and the marijuana plants. Trooper Rutledge placed Defendant under arrest and advised her of her Miranda² rights; Trooper Rutledge did not handcuff Defendant. Defendant admitted knowing about the marijuana plants but told Trooper Rutledge “that they were being tended to by her husband Joe.” When asked about the chemicals that had been found, Defendant said, “[T]hat wasn't any of her business.... That's Joe's business.”

During the initial pursuit of Dennis Grider, Trooper Rutledge had called Sergeant Danielle Heil, a narcotics investigator in the Highway Patrol's Division of Drug and Crime Control; she arrived at the property sometime after 11:00 p.m. and found Trooper Rutledge and two officers outside in the driveway and Defendant and her two sons inside the house. Sergeant Heil, Trooper Rutledge, and the two other officers questioned Defendant about her husband's whereabouts, but Defendant stated that she did not know where he was. Sergeant Heil did not handcuff Defendant, and no law enforcement officer mentioned taking Defendant to jail or drew a weapon on Defendant. Sergeant Heil asked for permission to search the premises, and Defendant and her sons agreed. Sergeant Heil filled out a consent-to-search form allowing her to search the house and the shop building in Defendant's presence, went over the form with Defendant and her sons, and Defendant and her sons each signed the form. Defendant later stated that she signed the consent form because she “didn't think [she] had anything to worry about.”

Defendant led the officers through the house and was generally cooperative, pointing out drugs and drug paraphernalia along the way. The officers seized marijuana, foil containing methamphetamine residue, and paraphernalia from Defendant's bedroom. Marijuana and paraphernalia were also found in the bedroom of one of Defendant's sons.

Inside the shop building, the officers found approximately seven pounds of processed marijuana. They also found chemicals and components used to manufacture methamphetamine, including three 48–count boxes of “Wal–Act” brand pseudoephedrine pills and a jar containing a bi-phase liquid representative of methamphetamine in the final stages of production; the bi-phase liquid was later confirmed to be methamphetamine. An anhydrous ammonia generator was still smoking during the search, indicating that someone had recently been in the process of making methamphetamine with anhydrous ammonia. There was a strong chemical odor in the area around the shop building. In addition to the chemicals and methamphetamine-production components, the officers seized glass pipes, two rifles, and a shotgun from inside the shop building, some of which were located behind a door that Defendant unlocked. A total of 32 marijuana plants were also seized, most of which had been interspersed with tomato plants in the garden outside the shop building; a dryer found inside the shop building was being used to dry marijuana. The marijuana plant material seized from the property totaled 4.67028 kilograms. Defendant was released and was not taken to jail that night.

Shortly thereafter, Trooper Rutledge continued his investigation by accessing records of Defendant's purchases of pseudoephedrine using records from the National Precursor Log Exchange (“NPLEx”).³ The NPLEx records showed that between January 15, 2010, and January 3, 2011, Defendant made ten pseudoephedrinepurchases; she attempted an additional seven pseudoephedrine purchases but was stopped from doing so because she had already reached the statutory limit of nine grams of pseudoephedrine per thirty-day period. In particular, Defendant purchased a 48–count box of Wal–Act pseudoephedrine tablets on October 8, 2010, and again on October 18, 2010, with each box containing 2.88 grams of pseudoephedrine. It would be unusual for an individual to consume in a legitimate manner that much pseudoephedrine in such a short time. Defendant claimed that she purchased the pseudoephedrine for her allergies, however no pills were found anywhere on the property except in the shop building.

After charges were filed against Defendant, she filed a motion to suppress all evidence found on her property on October 20, 2010, as well as any testimony regarding that evidence. Defendant alleged that, although Trooper Rutledge and the other officers had the right to approach the house for a “knock and talk,” they did not have the right to approach the shop building in the same manner because she had an expectation of privacy in that portion of her property. She further argued that any subsequent consent to search the property was involuntary because, “where there's initially an invalid search[,] you can't correct that by later getting the person to consent to the search.” The trial court denied Defendant's motion, which she renewed on the first day of trial. Defendant then asked for a continuing objection to the admission of any evidence and testimony resulting from the search on her property, which was granted by the trial court without objection by the State.

At trial, before the State mentioned the NPLEx records in its opening statement, Defendant objected on the basis that the NPLEx records were testimonial in nature, as they are used in...