State v. Pierce

• Decision Date: 12 June 2018
• Docket Number: No. SC 96095,SC 96095
• Citation: 548 S.W.3d 900
• Parties: STATE of Missouri, Respondent, v. Bryan M. PIERCE, Appellant.
• Court: Missouri Supreme Court

548 S.W.3d 900

STATE of Missouri, Respondent,

v.Bryan M. PIERCE, Appellant.

No. SC 96095

Supreme Court of Missouri, en banc.

Opinion issued June 12, 2018

Pierce was represented by Natalie Hull Hoge of the public defender’s office in Kansas City, (816) 889-7699.

The state was represented by Nathan J. Aquino of the attorney general’s office in Jefferson City, (573) 751-3321.

Zel M. Fischer, Chief Justice

Bryan Pierce was found guilty in a court-tried case of one count of possession of child pornography. On appeal, he argues the circuit court erred in overruling his motion to suppress evidence and in sentencing him to 15 years' imprisonment. The circuit court's judgment is affirmed.

Factual and Procedural History

Police officers were dispatched to Pierce's home after he called a suicide hotline and said he was hearing voices, including his cat's, telling him to stab himself. When officers arrived, Pierce told them the same. One officer asked Pierce if he wanted them to check the residence to make sure nobody was inside to give Pierce "a little peace of mind." Pierce agreed. Once inside Pierce's home, officers noticed a screensaver on a computer in plain view appearing to depict naked underage girls in a sexually suggestive manner. After officers determined the pictures were saved to the computer's hard drive, they removed the computer and secured a warrant to search it. Pierce was subsequently charged with one count of possession of child pornography.

Before his bench trial, Pierce filed a motion to suppress the evidence seized from his home, arguing he was unable to consent to the officers' warrantless search of his home because he was emotionally disturbed at the time. The circuit court agreed Pierce's consent was not voluntary for this reason but concluded the search was lawful pursuant to the exigent-circumstances exception. Pierce again objected to introduction of the evidence at trial, but was overruled. The circuit court found Pierce guilty.

At Pierce's sentencing hearing, the circuit court stated, "[H]aving proven the defendant up as a prior and persistent offender, it's my understanding that the defendant, his range of punishment was, pursuant to statute, extended to ten to 30 years, is that correct, Mr. Horsman?" Mr. Horsman, the prosecutor, did not confirm this was the range but responded, "We had agreed to a lid of 20, Your Honor." Pierce made no objection to the circuit court's statement concerning the range of punishment. In sentencing Pierce, the circuit court discussed several factors in-depth—ability to be rehabilitated, retribution, and likelihood of re-offending—and concluded "those factors, regardless of my views of whether he's a [sic] good or bad, are what drive my sentence in this case so I meant to mention that before." The circuit court then sentenced Pierce to 15 years' imprisonment. Pierce appealed, and after opinion by the court of appeals, this Court sustained transfer. Mo. Const. art. V, § 10.

Analysis

Pierce first argues the circuit court erred in overruling his motion to suppress evidence. Specifically, he argues the State failed to prove by a preponderance of the evidence that his consent was voluntary or that exigent circumstances existed warranting the officers' warrantless entry into his home. "A consent to search is valid only if it is freely and voluntarily given." State v. Hyland , 840 S.W.2d 219, 221 (Mo. banc 1992). But even assuming, without holding, that Pierce's consent to the search was not freely and voluntarily given, application of the exclusionary rule is not appropriate in this case.

"It is a question of law whether ... the exclusionary rule applies to the evidence seized" and "[q]uestions of law are reviewed de novo. " State v. Johnson , 354 S.W.3d 627, 632 (Mo. banc 2011). "Suppression of evidence, however, has always been our last resort, not our first impulse."

Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). "Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search." Davis v. United States , 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (citation omitted). "For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs." Id. at 237, 131 S.Ct. 2419. The "deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue." Id. at 238, 131 S.Ct. 2419 (citation omitted). "When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs." Id. (citation omitted). "But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, or when their conduct involves only simple, ‘isolated’ negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way." Id. (internal citations and quotation marks omitted). Accordingly, "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’ " Id. at 240, 131 S.Ct. 2419 (citation omitted).

Pierce argues application of the exclusionary rule is warranted in this case because the officers acted deliberately, recklessly, or with gross negligence in conducting a search based on the consent of a man who was emotionally disturbed and had been hallucinating. But regardless of whether Pierce voluntarily consented, the circumstances do not warrant application of the exclusionary rule because there was no indication the officers had knowledge, or should be charged with knowledge, that the search was unconstitutional—i.e., there is no indication they acted in bad faith. As stated above, this case could fall into the good-faith category or, at worst, the isolated-negligence category. There is no indication this police department (or police, in general, in this State) routinely rely on the consent of those who are emotionally or mentally disturbed in an effort to conduct warrantless searches.

"[I]solated, nonrecurring police negligence ... lacks the culpability required to justify the harsh sanction of exclusion." Id. at 239, 131 S.Ct. 2419 (internal quotation marks omitted). The officers' actions in this case were not the type of deliberate police practices that would lead to meaningful deterrence. Accordingly, the circuit court did not err in overruling Pierce's motion to suppress evidence.

Pierce next argues he was sentenced based on the circuit court's "materially false understanding of the possible range of punishment" because the circuit court initially misstated the appropriate range. Pierce is correct the circuit court misstated the range of punishment. Pierce was convicted of a class B felony and found to be a persistent offender. The ordinary range of punishment for a class B felony is five to 15 years, and 10 to 30 years for a class A felony. Sections 558.011.1(1)–(2), RSMo Supp. 2013. At the time of sentencing, only the maximum sentence increased for a persistent offender, while the minimum sentence was unaffected—e.g., a persistent offender convicted of a class B felony was subject to a range consisting of the minimum sentence for a class B felony and the maximum sentence for a class A felony. See § 558.016.7(2), RSMo Supp. 2013; see also, e.g. , State v. Cowan , 247 S.W.3d 617, 619 (Mo. App. 2008) (explaining "the statute only extends the maximum sentence but does not alter the minimum sentence"). As such, Pierce was subject to a sentencing range of five to 30 years, not 10 to 30 years.

Pierce concedes this argument is not preserved for review because he failed to object at the sentencing hearing. Nevertheless, he requests this Court review his sentence for plain error. "Any issue that was not preserved at trial can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error." State v. Letica , 356 S.W.3d 157, 167 (Mo. banc 2011). "Relief under the plain error rule is granted only when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected." State v. Hadley , 815 S.W.2d 422, 423 (Mo. banc 1991). While the circuit court at sentencing initially misstated the appropriate range of punishment, Pierce, who "bears the burden of establishing manifest injustice," as "determined by the facts and circumstances of the case," has failed to meet his burden. State v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006).

At sentencing, the circuit court discussed the reasons underlying its imposition of a 15-year sentence at some length, primary among them that Pierce might re-offend and abuse other children. The circuit court explained, in pertinent part:

If I knew that you went free from this court to abuse another child, it would be very difficult for me to live with myself for that reason. So I always am concerned about that issue, regardless of whose in front of me, but for someone who maybe have [sic] previously committed those type of offenses and arguably has those type of tendencies, then it is something that sincerely concerns me and will probably drive my decision in this case more so than anything else .

(Emphasis added). The circuit court called Pierce's recidivism "the most important factor in this case."

"A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome." Wraggs v. State , 549 S.W.2d 881, 884 (Mo. banc 1977). However, this Court has never vacated a sentence and remanded the case to the circuit court for resentencing pursuant to plain-error review...