State v. Cromer

• Decision Date: 27 December 2005
• Docket Number: No. WD 64674.,WD 64674.
• Citation: 186 S.W.3d 333
• Parties: STATE of Missouri, Respondent, v. Fred E. CROMER, Appellant.
• Court: Missouri Court of Appeals

186 S.W.3d 333

STATE of Missouri, Respondent, v. Fred E. CROMER, Appellant.

No. WD 64674.

Missouri Court of Appeals, Western District.

December 27, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

Application for Transfer Denied April 11, 2006.

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Irene C. Karns, Columbia, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.

ROBERT G. ULRICH, Judge.

Fred E. Cromer appeals his convictions of two counts of possessing chemicals with the intent to manufacture methamphetamine, section 195.420,¹ two counts of possession of drug paraphernalia with the intent to manufacture methamphetamine, section 195.233, one count of possession of pseudoephedrine, section 195.246, RSMo Cum Supp.2001, and one count of manufacturing a controlled substance, methamphetamine, section 195.211. Mr. Cromer's sole point on appeal is that the trial court erred in overruling his motion to suppress and admitting over his objection evidence of items seized from his garage. Mr. Cromer claims the police arrested him in his home without consent or the presence of exigent circumstances and that the subsequent consent to search was not voluntary as it was the product of his unlawful seizure, all in violation of the Fourth Amendment, the Fourteenth Amendment, and Article I, Section 15 of the Missouri Constitution. Mr. Cromer's point is partially granted, and the judgment of convictions is reversed and remanded for a new trial.

Facts

On December 7, 2001, Lt. Howard Judd of the Buchanan County Drug Strike Force received a tip from a confidential informant that Christopher Allen Barker was involved with a man named Fred in the making of methamphetamine. The informant told Lt. Judd that he had been to an address in St. Joseph, Buchanan County, Missouri, within the past couple days and had observed what he or she believed to be a methamphetamine lab and the finished product of methamphetamine. The informant further told Lt. Judd that Fred lived with a woman named Donna, but did not know Fred or Donna's last name. Finally, the informant gave Lt. Judd a description of the vehicles driven by Donna, Fred, and Mr. Barker and gave Lt. Judd and Lt. Shawn Collie, another Strike Force member, directions regarding how to get to the address where the lab was located. From this description, Lt. Judd and Lt. Collie determined that the residence was located on Riverview Drive in St. Joseph, Missouri.

After receiving this tip, Lt. Judd and Lt. Collie discussed the information with the rest of the Strike Force. Sgt. Tiger Parsons, another Strike Force member, informed the other officers that he knew Fred and Donna. He identified them as Fred E. Cromer and Donna L. Todd. Upon further checking, the Strike Force learned that Mr. Barker was currently on parole for possession of methamphetamine. The officers spoke with Mr. Barker's parole officer, who stated that Mr. Barker gave his current address as 722 Riverview in St. Joseph. A CAD check revealed that Fred E. Cromer and Donna L. Todd were also residents of 722 Riverview in St. Joseph. Sgt. Parsons further informed the Strike Force that he had information from the past that Mr. Cromer and Ms. Todd were methamphetamine users and that Mr. Cromer was a methamphetamine cook. Sgt. Parsons told the other officers that, based on his past dealings with Ms. Todd, he believed that if he approached her she would allow the officers to search the residence.

At approximately 10:30 that night, Sgt. Parsons, Lt. Collie, Lt. Judd, and Investigator Tammy Mann² drove to the neighborhood, parked the Strike Force vehicles a block or two away from the residence located at 722 Riverview Drive, and walked to the residence. They planned to do a "knock and talk," i.e., knock on the front door of the residence and ask for authorization to enter and search the residence. They were dressed in civilian clothes. Sgt. Parsons and Lt. Collie knocked on the residence's front door. Lt. Judd and Investigator Mann went into the backyard in case the occupants attempted to flee; the officers believed that Mr. Barker had a history of running from the police.

Holly Todd, Mr. Cromer, and Ms. Todd's twelve-year-old daughter answered the door. Sgt. Parsons asked Holly if her parents were home; she told him that her mother was at work and her father was working on a car in Savannah, Missouri. Sgt. Parsons asked Holly if they could come inside and she allowed them to enter the home. Once inside, he obtained Ms. Todd's work phone number from Holly. The officers called Jesse Todd, Holly's fourteen-year-old brother, into the living room. Without consent, they quickly walked through the rest of the house to determine whether other people or hazardous chemicals were present, and, finding none, then waited in the living room. Mr. Cromer has not argued that this search violated his rights. Lt. Judd and Investigator Mann were informed by radio that the other two officers were inside; they then entered the house through the back door.

Sgt. Parsons called Ms. Todd at work and told her that the police were at her house due to a citizen's report and were concerned about a situation there. He asked that she come home immediately. Ms. Todd told him that she would seek permission from her boss to go home, and she would call him back. Ms. Todd called and informed Sgt. Parsons that she could leave work in about twenty minutes. Sgt. Parsons asked for permission to search the house, and Ms. Todd replied that the officers could search the house but not until she arrived at the home. Ms. Todd told the officers they could wait inside the residence until she arrived.

Lt. Judd left the living room and entered Ms. Todd's bedroom, which was at a corner of the house, where he could observe events occurring at the front of the house. He saw a car back into the driveway and notified the other officers of this event with his radio. Mr. Cromer and Mr. Barker were in the vehicle, although the officers only knew two men were in the car and did not yet know their identities. Mr. Cromer and Mr. Barker sat in the car for fifteen to twenty minutes; they then took items from the trunk of the car and carried them toward the garage attached to the house. Lt. Judd observed that the items were a white five-gallon bucket and a couple of bags. He could not see what was in the bucket or the bags.

Lt. Judd advised the other officers when the two men had exited the car. Lt. Collie and Sgt. Parsons left the living room and went into Jesse's room, which led to the garage through a connecting door. The officers heard the overhead garage door open and then close behind Mr. Cromer and Mr. Barker. Upon hearing the garage door close, Lt. Collie and Sgt. Parsons opened the connecting door and stepped into the garage. Both Lt. Collie and Sgt. Parsons testified that they did not know the identities of the two men in the garage at that time. Neither Lt. Collie nor Sgt. Parsons could identify Mr. Barker, and only Sgt. Parsons could identify Mr. Cromer. Sgt. Parsons did not see Mr. Cromer to identify him until both he and Lt. Collie were in the garage with Mr. Cromer and Mr. Barker.

Mr. Barker had several backpacks in his hands, and Mr. Cromer was carrying two five-gallon plastic buckets. The officers testified that they were concerned about their safety as they could not see Mr. Cromer and Mr. Barker's hands, they understood Mr. Barker to have a history of violence including weapons possession, and the officers believed the men might be holding hazardous chemicals related to methamphetamine production. The officers ordered the two men to put their hands on their heads and then patted both men down for weapons. Lt. Collie observed plastic bottles containing a clear liquid on a bed of dry ice in one of the buckets Mr Cromer had been carrying and knew this to be a step in the manufacture of methamphetamine. Lt. Judd entered the garage and also observed the buckets. The garage smelled of ether and anhydrous ammonia, both of which the officers knew are used in the production of methamphetamine.

Mr. Cromer and Mr. Barker were then arrested. After visually inspecting the chemicals in the bucket to ensure that they were stable, the officers left things where they were on the garage floor; they did not look in the backpacks. The officers determined to wait until they had proper equipment before going near the potentially hazardous chemicals. Lt. Judd took Mr. Cromer to Ms. Todd's bedroom, and Sgt. Parsons took Mr. Barker into the living room in order to question them separately. Lt. Judd attempted to obtain Mr. Cromer's consent to a search, but he refused at that time, stating that it was not his residence. When Mr. Cromer was informed that his Probation and Parole officer had stated Mr. Cromer's address was 722 Riverview Drive, Mr. Cromer responded that it was his ex-wife's house and admitted that he stayed there. Mr. Cromer denied knowing what was in the buckets and stated that he was just carrying them for Mr. Barker.

Ms. Todd arrived home thirty minutes to an hour after Mr. Cromer and Mr. Barker were taken from the garage. Ms. Todd did not consent to a search of the residence when she first arrived home. She was concerned about Mr. Cromer, whom she considered upset and confused. She asked and was permitted to go into the bedroom where Lt. Judd was questioning him. Sgt. Parsons joined them there a few minutes later, and Ms. Todd consented to a search of the home. Shortly thereafter, Mr. Cromer consented to a search. During the search, neither Ms. Todd nor Mr. Cromer revoked their consent.

Lt. Collie retrieved protective gear from one of the Strike Force vehicles, and he and Lt. Judd returned to the garage after Ms. Todd consented to a search. Lt. Judd and Investigator Mann cataloged the evidence...