State v. Deaton

• Decision Date: 15 March 2013
• Docket Number: No. SD 31913.,SD 31913.
• Citation: 395 S.W.3d 50
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Hershel Burns DEATON, Defendant–Appellant.
• Court: Missouri Court of Appeals

395 S.W.3d 50

STATE of Missouri, Plaintiff–Respondent,
v.
Hershel Burns DEATON, Defendant–Appellant.

No. SD 31913.

Missouri Court of Appeals,
Southern District,
Division Two.

March 15, 2013.

[395 S.W.3d 51]

Evan Joseph Buchheim, Jefferson City, for respondent.

Alexa Irene Pearson, for appellant.

MARY W. SHEFFIELD, J.

Hershel Burns Deaton (“Defendant”) appeals his convictions for possession of chemicals with intent to manufacture a controlled substance and for possession of a controlled substance with intent to distribute. See§ 195.420, RSMo (2000);

[395 S.W.3d 52]

§ 195.211, RSMo Cum.Supp. (2011). He argues the trial court erred in overruling his motion to suppress evidence discovered during two searches of his vehicle and any testimony related to the searches of the vehicle. We disagree and affirm the trial court's judgment.

Standard of Review ¹

“We review a trial court's ruling on a motion to suppress in the light most favorable to the ruling and defer to the trial court's determinations of credibility.” State v. Breese, 250 S.W.3d 413, 418 (Mo.App. S.D.2008). “Our review of the ruling is limited to determining whether it was supported by sufficient evidence and we will reverse only if we find it to be clearly erroneous.” Id. In conducting our review, we consider “evidence adduced at the hearing on the motion to suppress as well as evidence adduced at trial.” Id. Finally, we will affirm the trial court's decision with respect to a motion to suppress evidence “if it is plausible under any theory.” State v. McDonald, 170 S.W.3d 535, 540 (Mo.App. W.D.2005). See also State v. McLaughlin, 272 S.W.3d 506, 509 (Mo.App. E.D.2008).

Factual and Procedural Background

On September 29, 2010, Angela Smith (“Smith”) contacted Stoddard County Sheriff's Deputy Keith Haynes (“Deputy Haynes”) and told him a man she knew as Mr. Huff (who was later identified as Defendant) wanted her to provide him with pseudoephedrine pills to manufacture methamphetamine. Deputy Haynes met with Smith and listened while Smith and Defendant spoke on the telephone about the planned transaction. The purpose of the conversation was to arrange a trade of pseudoephedrine pills for methamphetamine. Defendant wanted the pills so he could make more methamphetamine.

A few days later, Deputy Haynes again met with Smith. This time, Deputy Haynes gave her three marked boxes of pseudoephedrine pills and a digital recorder. Deputy Haynes then followed Smith to her home while Deputy Dennis Fowler (“Deputy Fowler”) set up surveillance of Smith's home.

Deputy Fowler had been told to look for a green SUV. After getting into position at Smith's home, he observed a green SUV pull into the driveway. He observed a man get out of the car and go into Smith's home. The man Deputy Fowler observed entering Smith's home was subsequently identified by Smith as being Defendant.

Once Defendant was inside, he and Smith talked for a while. Smith then gave Defendant the three boxes of pseudoephedrine. Defendant left a cigarette package and told Smith there was methamphetamine in the package. He suggested Smith take some of the methamphetamine because she was sick, and it would make her feel better. After about twenty

[395 S.W.3d 53]

minutes, Deputy Haynes called Smith so she would have an excuse to ask Defendant to leave.

When Deputy Fowler observed the SUV leave Smith's home, he called Deputy Haynes. Deputy Haynes then spoke with Smith who identified Defendant and informed Deputy Haynes Defendant had taken the pseudoephedrine pills and left a cigarette package that was supposed to contain methamphetamine. Deputy Haynes arranged for two uniformed deputies to stop Defendant's vehicle. Deputy Haynes was right behind the uniformed deputies when they stopped Defendant. Deputy Haynes arrested Defendant, and Defendant was placed in handcuffs. Deputy Haynes conducted a brief search of the SUV and discovered the three boxes of pseudoephedrine in the vehicle's center console. The SUV was then transported to the sheriff's department for safety reasons.

Meanwhile, Deputy Fowler went to Smith's home to retrieve the recorder and the methamphetamine. Smith showed him the cigarette package, but when Deputy Fowler opened it, it contained rolled up paper instead of methamphetamine. Deputy Fowler confronted Smith, asking her if she had kept the methamphetamine. She denied it. Deputy Fowler called Deputy Haynes to tell him about the discovery.

One of the uniformed deputies drove the SUV to the sheriff's department. There, he searched the vehicle and found “a cigarette package which contained a clear plastic bag which had a white powdery substance inside.” The cigarette package was the same brand as the package Defendant had left with Smith. Later testing showed the white powder was 1.06 grams of methamphetamine.

Defendant was charged with possession of chemicals with intent to manufacture a controlled substance and possession of a controlled substance with intent to distribute. Prior to trial, Defendant filed a motion to suppress the items seized from his vehicle and any testimony related to the searches of the vehicle. In the motion to suppress, he argued there was no probable cause to arrest him because the deputies quickly learned Defendant had not left methamphetamine at Smith's home and the pseudoephedrine pills alone were not evidence of a crime. Thus, the search was not lawful as a search incident to arrest. At the hearing on the motion to suppress, defendant's attorney made the additional argument that Smith's statements could not support a finding of probable cause because Smith had not provided reliable information in the past. The trial court overruled Defendant's motion to suppress, stating “the searches conducted by law enforcement officers were incident to the lawful arrest of defendant.”

Defendant was later tried by a jury. In addition to testimony regarding the events described above, the State introduced into evidence a recording of the conversation between Smith and Defendant during which they planned the transaction. The State also introduced the recording of the transaction in which Smith gave Defendant the pseudoephedrine pills in exchange for what Defendant told Smith was methamphetamine. The jury found Defendant guilty on both counts, and this appeal followed.

Discussion

In his sole point on appeal, Defendant claims the trial court erred in overruling his motion to suppress because there was no probable cause for his arrest as Smith had not provided reliable information in the past and her statements had not been corroborated. Because there was no probable cause for the arrest, Defendant's argument continues, the searches of

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