State v. Tackett

Decision Date08 February 2000
Citation12 S.W.3d 332
Parties(Mo.App. W.D. 2000) State of Missouri, Appellant, v. Mike A. Tackett, Respondent WD57545 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Clay County, Hon. Larry D. Harman, Judge

Counsel for Appellant: Timothy W. Anderson
Counsel for Respondent: John H. Edmiston

Opinion Summary: The State appeals the circuit court's interlocutory order suppressing evidence in this case, in which Tackett stands charged with creation of a controlled substance.

AFFIRMED.

Division Three holds:

To justify the seizure of the antihistamines, the State relies on the exception to the Fourth Amendment's warrant requirement that legitimizes a warrantless search and seizure which are incident to a lawful arrest. Specifically, it contends that there was probable cause to arrest Tackett for the crime for which he is now charged.

Section 195.420 provides that it is unlawful for any person to possess chemicals listed in section 195.400.2 with the intent to alter that chemical to create a controlled substance. In addition to the chemical-in-possession requirement, for a person to be in violation of section 195.420, the statute also requires that he or she have an intent to create a controlled substance. Tackett allegedly possessed pseudoephedrine, which is commonly in antihistamines as is listed in the statute. Assuming the antihistamines were found pursuant to a lawful search, they were not subject to a warrantless seizure unless there was probable cause to believe that, at the time of Tackett's arrest, he not only possessed the antihistamines but did so with an intent to create a controlled substance.

Other than the fact he possessed one of the numerous ingredients necessary to manufacture methamphetamines, which was not unlawful to possess and had a legitimate purpose, there were no other circumstances which would warrant an arrest. To carry its burden to show that there was probable cause to arrest him for the crime of creation of methamphetamines and seize the antihistamines as evidence thereof, the State is essentially contending that people who possess antihistamines in the quantities purchased here must be intending to manufacture methamphetamines. The Court rejects this contention and, on the totality of the circumstances, finds that the State failed to carry its burden to show that there was probable cause to believe that Tackett had the requisite intent to create methamphetamines so as to establish the necessary probable cause for his arrest, and incident thereto, for the seizure of the antihistamines.

Edwin H. Smith, Judge

The State appeals, pursuant to section 547.200.1(3), RSMo Supp. 1997,1 from the interlocutory order of the Circuit Court of Clay County suppressing evidence in this case, in which the respondent, Mike A. Tackett, stands charged with the class D felony of "creation of a controlled substance," in violation of section 195.420.

The State raises two points on appeal. It claims that the trial court erred in sustaining the respondent's pretrial motion to suppress evidence, suppressing twelve boxes of Equate brand antihistamines seized in a search of a vehicle in which the respondent was a passenger, because there was substantial evidence establishing that the search and seizure were lawful in that: (1) the initial stop of the vehicle was justified on the basis that the officer effectuating the stop had reasonable suspicion to believe that the respondent was engaged in criminal activity, or on the alternative basis, that he had observed a traffic violation; and (2) the search and seizure were incident to a lawful arrest in that, after the stop was effectuated, the officer had probable cause to arrest the respondent for the crime of creation of a controlled substance, methamphetamine, section 195.420.

We affirm.

Facts

On April 16, 1998, Detective Clayton O'Donnell (O'Donnell) of the Higginsville Police Department received an anonymous tip from an employee of the local Wal-Mart, informing him that three males had purchased the maximum amount of antihistamine allowed by the store, six boxes per customer. The tipster further informed O'Donnell that the three men left the store in a blue Camaro and advised him of the license number.

Having received the anonymous tip, O'Donnell proceeded to Wal-Mart and radioed another officer to be on the lookout for the blue Camaro. While driving to Wal-Mart, O'Donnell observed three men in a blue Camaro driving in the opposite direction. The license matched the license number given to him by the tipster. While turning around to follow, O'Donnell again radioed the other officer, requesting that he locate the suspect vehicle.

Having caught up to the suspect vehicle, rather than stopping it immediately, O'Donnell followed to see what the suspects were going to do with the antihistamines. As he followed in his marked police car, the passengers in the vehicle began "looking around quite a bit." The Camaro at some point turned right into the parking lot of a convenience store, at which time O'Donnell noticed that the right turn signal was not working properly. Having checked the plates to a Knob Noster address, O'Donnell pulled around the block in order to be in position to intercept the vehicle before it got to Interstate 70. He radioed the other officer about the location of the suspect vehicle and advised him "to cover the other directions out of [the convenience store]." He also contacted another officer at home about the situation. After a few minutes had elapsed, O'Donnell proceeded back to the convenience store and saw the blue Camaro headed in the opposite direction, requiring him to turn around. As he turned around, he radioed one of the other officers to stop the vehicle.

The vehicle was subsequently stopped pursuant to O'Donnell's direction. Having arrived at the scene, O'Donnell approached the vehicle and asked the two male passengers to exit the vehicle, at which time he searched them for weapons and found none. One officer was assigned to stay with the driver and another with the respondent, who was sitting in the front passenger seat when the vehicle was stopped. O'Donnell spoke with the passenger located in the back seat, who identified himself as Michael Ford. O'Donnell advised Ford about the reason for the stop, his concerns about the quantity of antihistamines purchased and whether they were purchased to manufacture methamphetamines. Ford "claimed that he'd been in prison and had no knowledge of methamphetamine or what it was used or what it was made with or anything else." He also told O'Donnell that "he'd been working in Knob Noster that morning working on the car" and also had been in Warrensburg. When he was asked why they were in Higginsville, he said, "He didn't really know, he was just riding with them."

After questioning Ford, O'Donnell asked the officer in charge of the respondent what he had learned from his interrogation of him. He reported that the respondent claimed that "he didn't know anything illegal in the car" and that "there were no drugs or anything else in the car." O'Donnell then proceeded to question the driver, Jesse Tackett, the respondent's brother. Jesse Tackett, like Ford, denied any criminal wrongdoing. O'Donnell then asked permission to search the vehicle, which Jesse Tackett first denied and then allowed, saying, "Yeah, go ahead, there's nothing in there anyway."

Upon searching the vehicle, O'Donnell found twelve boxes of Equate antihistamines along with two Wal-Mart receipts, showing two purchases of six boxes each at the local store. The boxes were in plain view on the back seat of the vehicle. They were in a semi-clear Wal-Mart plastic bag.

After discovering the antihistamines, O'Donnell called the Lafayette County prosecuting attorney to determine how he should proceed. He was advised that, although there was not enough to convict the suspects for the crime of creation of a controlled substance, he should interrogate them further to determine what they intended to do with the antihistamines. The suspects were then arrested and transported to the local police department. There, all three were Mirandized and further interrogated. All three denied involvement in any criminal activity. As to the purchase of the antihistamines, the respondent told O'Donnell that they had purchased them for allergies. O'Donnell did not observe any signs of allergy suffering as to the respondent or the other two suspects.

After being incarcerated for some time, the respondent, in an attempt to prevent Ford, who was on parole from prison, from getting into any trouble, agreed to talk further. At this point, "[i]t had already been mentioned to him that Dan Criteman from the Narcotics Task Force was coming up and that there was the possibility of working as an informant." The respondent then told O'Donnell that he and his brother intended to "take [the antihistamines] to a gentleman in Knob Noster in a trailer park and could trade that for methamphetamine. Or they, this gentleman would double their money."

From the record provided, it is unclear what took place immediately after the respondent's admissions to O'Donnell. It does not reflect whether he remained in jail or was bonded out. It does reflect that on June 15, 1998, he was indicted in Lafayette County for the class D felony of creation of a controlled substance, in violation of section 195.420.2, and a warrant issued for his arrest on June 23, 1998. He was subsequently arrested on September 11, 1998. He was arraigned on September 28, 1998, and pled not guilty. On October 7, 1998, John H. Edmiston filed his entry of appearance on behalf of the respondent, along with a motion for a change of judge, which was sustained on October 19, 1998.

On October 29, 1998, the Honorable Larry D. Harman, Circuit Judge for the Seventh Judicial Circuit, was assigned to the case by the Missouri Supreme Court. On November 4, 1998, a change of venue...

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