State of Missouri, Plaintiff/Respondent v. Daniel J. Hastings

In the Missouri Court of Appeals
Eastern District
DIVISION FIVE
STATE OF MISSOURI, ) No. ED100435
)
Plaintiff/Respondent, ) Appeal from the Circuit Court of
) Lincoln County
vs. )
) Honorable Chris K. Mennemeyer
DANIEL J. HASTINGS, )
) Filed: November 25, 2014
Defendant/Appellant. )
I. INTRODUCTION
Defendant Daniel Hastings was convicted by jury in the Circuit Court of Lincoln County of
one count of Burglary in the First Degree, section 569.160, R.S.Mo. (2000), one count of Tampering
with a Motor Vehicle in the First Degree, section 569.080, R.S.Mo. (Cum. Supp. 2007), two counts
of Stealing, section 570.030, R.S.Mo. (Cum. Supp. 2007), and one count of Identity Theft, section
570.223, R.S.Mo. (Cum. Supp. 2007). On appeal, Hastings argues that the trial court erred by: (1)
failing to suppress evidence of his possession of identification documents belonging to victim K.R,
because police obtained this evidence after a warrantless entry of his home that violated the Fourth
Amendment to the United States Constitution; (2) permitting the State to refresh a witness’s memory
with a deposition taken in a previous case, because the deposition was taken outside the Hastings’s
presence; (3) failing to provide the jury with an “acting in concert” instruction, because “acting in
concert” was an element of the crimes with which he was charged; and (4) demonstrating an overt
bias against him. Hastings also contends that there was insufficient evidence to support his conviction
for (1) burglarizing J.R.’s home, (2) stealing prescription sunglasses and $300 in cash from J.R.’s
purse, (3) stealing J.R.’s identification documents, and (4) tampering with victim S.W.’s motor
vehicle. We reverse the trial court’s judgment, and remand for a new trial.
II. FACTS
As our ruling on Hastings’s first point regarding warrantless entry by police into his home is
dispositive of this appeal, we recount the facts of this case primarily as they relate to that point. On
May 30, 2011, Illinois State Trooper Paul Moak received an anonymous tip that someone by the
name of either Daniel or Dennis was attempting to sell a 2010 Hyundai Elantra for $2000. The tipster
believed the car may have been stolen, and stated that it was located near a specific address in West
Frankfort, Illinois.
Trooper Moak drove by the address four or five times before eventually finding the car parked
in the driveway of a house across the street from the address provided by the tipster. He checked the
license plate number, which revealed that the car had been stolen in Troy, Missouri. Trooper Moak
called for backup, and West Frankfort municipal police officers Stacey Eaton and Shawn Tallutto
arrived at the scene.
Without waiting to obtain a warrant, Trooper Moak and Officer Eaton approached the door of
the house, while Officer Tallutto stayed in the driveway with the car. Officer Eaton knocked on the
door of the residence and Hastings’s girlfriend, Tina Spani, answered. The officers asked Spani if
they could speak to “a male subject at the residence” regarding the vehicle that was parked in the
driveway. While the officers were speaking with Spani on the front porch, a man, later identified as
Hastings, walked from the interior of the home toward the front door, saw the police officers, and
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then “briskly” turned around and walked back to the interior of the residence. About the ensuing
events, Trooper Moak testified at the suppression hearing as follows:
Q. And what did you do then?
A. Officer Eaton entered the residence and detained Mr. Hastings, led him back
toward the front door of the residence, that way we could speak with him
regarding the vehicle in the driveway.
Q. Where did that detention occur?
A. I don’t know because when she entered the residence she stepped around the
corner and I could not see them from where I was standing. It was just inside
the front door and there’s an entryway and . . . [the room opens up] to the left
and they stepped around that corner.
Q. So you didn’t enter the house, is that correct?
A. I remained at the front door with Ms. Spani. Officer Eaton actually entered the
house at that point.
Q. At any point during—did you enter the house?
A. I did. Yes.
Q. At what point did you enter the house?
A. Whenever Officer Eaton escorted him back toward the front door area, there’s
like a small foyer, walkway area at the front door.
Q. Did you go any further in the house than the front foyer?
A. I did not. No.
Thereafter, Trooper Moak asked Hastings for identification, and Hastings produced a wallet
from his pocket. When Hastings opened the wallet, Trooper Moak observed that it contained
identification documents belonging to a woman, J.R., who he knew had been the victim of a burglary
in Troy, Missouri. Trooper Moak then arrested Hastings for possession of stolen identity documents,
and the stolen car in the driveway was towed away for processing.
The State charged Hastings with identity theft, property damage, tampering with a motor
vehicle, two counts of burglary, and four counts of stealing. These charges related both to the
burglary of victim J.R.’s house, from which the identity documents, prescription sunglasses, and
$300 in cash were taken, and to the theft of the car, which was stolen during a burglary of victim
S.R.’s house across the street. The jury convicted Hastings of identity theft, tampering with a motor
vehicle, one count of burglary, and two counts of stealing. This appeal follows.
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III. STANDARD OF REVIEW
“At a hearing on a motion to suppress, ‘the state bears both the burden of producing evidence
and the risk of non-persuasion to show by a preponderance of the evidence that the motion to
suppress should be overruled.’” State v. Grayson, 336 S.W.3d 138, 142 (Mo. banc 2011) (quoting
State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992)). “[T]his Court considers the evidence
presented at both the suppression hearing and at trial to determine whether sufficient evidence exists
in the record to support the trial court’s ruling,” id. (quoting State v. Pike, 162 S.W.3d 464, 472 (Mo.
banc 2005)), and “reverse[s] only if clearly erroneous,” id. (quoting State v. Goff, 129 S.W.3d 857,
862 (Mo. banc 2004). “This Court defers to the trial court’s factual findings and credibility
determinations, and considers all evidence and reasonable inferences in the light most favorable to
the trial court’s ruling.” State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (citation omitted).
“When, as here, there is little or no dispute about the facts, the question of whether the Fourth
Amendment [to the United States Constitution] has been violated is a question of law . . . [that is]
reviewed de novo.” State v. Simmons, 158 S.W.3d 901, 907 (Mo. App. W.D. 2005).
IV. DISCUSSION
Hastings’s first point is dispositive. He argues that the trial court erred by failing to suppress
evidence of his possession of identification documents belonging to victim J.R., because police
obtained the evidence after entering his home without a warrant in violation of the Fourth
Amendment to the United States Constitution. He asserts that his encounter with police was
involuntary, that police had no probable cause to seize him, and that no exigent circumstances
justified the police’s warrantless entry. In response, the State contends that police had probable cause
to seize Hastings, because: (1) they were there to investigate a stolen car parked in the driveway; (2)
an anonymous informant had stated a man going by the name of “Daniel or Dennis” had tried to sell
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the stolen car; and (3) the officers saw Hastings “briskly” walk away from the front door. The State
also contends that exigent circumstances justified the warrantless entry, because Hastings could have
fled through the rear of the home or destroyed evidence of victim J.R.’s identification documents.
“The Fourth Amendment to the United States Constitution, made applicable to the states by
the Fourteenth Amendment, ‘guarantees citizens the right to be free from unreasonable searches and
seizures.’” State v. Cook, 273 S.W.3d 562, 569 (Mo. App. E.D. 2008) (quoting State v. Burnett, 230
S.W.3d 15, 18 (Mo. App. W.D. 2007)). “Missouri’s prohibition against unreasonable searches and
seizures, contained in Article I, Section 15 of the Missouri Constitution, is ‘coextensive with the
protection provided by the Fourth Amendment.’” Id. (quoting State v. Cromer, 186 S.W.3d 333, 343
(Mo. App. W.D.)). “The analysis under both the U.S. Constitution and the Missouri Constitution is
identical.” Id. (quoting Burnett, 230 S.W.3d at 18).
“’[P]hysical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed,’ and that it is ‘a basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable.’” Id. (quoting Payton v.
New York, 445 U.S. 573, 585-86 (1980)); see also Payton, 445 U.S. at 588-89 (“[Violating] the
sanctity of the home . . . . is simply too substantial an invasion to allow without a warrant, at least in
the absence of exigent circumstances, even when . . . probable cause is clearly present.” (quoting
United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978))). Nevertheless, “the State may overcome
this presumption [of unreasonableness] by demonstrating that a warrantless search or seizure falls
within one of a carefully defined set of exceptions based on the presence of “exigent circumstances.”
Cook, 273 S.W.3d at 570 (citing Payton, 445 U.S. at 587 n.25). “Exigent circumstances exist in cases
of emergency, such as when a ‘delay would endanger life, allow a suspect to escape, or risk the
destruction of evidence because of an imminent police presence.’” State v. Rowland, 73 S.W.3d 818,
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822 (Mo. App. W.D. 2002) (quoting State v. Peters, 695 S.W.2d 140, 147 (Mo. App. W.D. 1985));
see also Kentucky v. King, 131 S. Ct. 1849, 1856, (2011) (recognizing exigent circumstances
exceptions are: (1) to render emergency aid to the injured or protect occupant from imminent injury;
(2) “hot pursuit of a fleeing suspect”; and (3) to prevent the imminent destruction of evidence);
Missouri v. McNeely, 133 S. Ct. 1552, 1570 (2013) (recognizing same, as well as “burning building”
exception). “The justification for the exigency exception is time related, i.e., there is a need that will
not brook the delay incident to obtaining a warrant.” Cromer, 186 S.W.3d at 344 (quoting State v.
Simmons, 158 S.W.3d 901, 908 (Mo. App. S.D. 2005)).
“To determine whether a law enforcement officer faced an emergency that justified acting
without a warrant, this Court looks to the totality of circumstances,” McNeely, 133 S. Ct. at 1559, “on
a case-by-case basis,” Cook, 273 S.W.3d at 570. We ask how the facts at the time of the entry “would
have appeared to ‘prudent, cautious, and trained officers,’” Cook, 273 S.W.3d at 570 (quoting
Cromer, 186 S.W.3d at 344), and whether “the circumstances, viewed objectively, justify the action,”
King, 131 S. Ct. at 1859 (quoting Brigham City v. Stuart, 547 U.S. 398, 404 (2006)). “We apply this
‘finely tuned approach’ . . . because the police action at issue lacks ‘the traditional justification that . .
. a warrant . . . provides.’” McNeely, 133 S. Ct. at 1559 (second and third alteration in original)
(quoting Atwater v. Lago Vista, 532 U.S. 318, 347, n.16 (2001)). And we must remember that “[t]he
exigent circumstances exception to the warrant requirement for police incursion into a home . . . is
narrowly drawn.” Rowland, 73 S.W.3d at 822; see also Coolidge v. New Hampshire, 403 U.S. 443,
455 (1971) (explaining “exceptions are ‘jealously and carefully drawn’” (quoting Jones v. United
States, 357 U.S. 493, 499 (1958))). “We cannot . . . excuse the absence of a search warrant without a
showing by those who seek exemption from the constitutional mandate that the exigencies of the
situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456 (1948).
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Here, Trooper Moak’s testimony does not support the State’s claim that exigent circumstances
demanded Officer Eaton’s “presumptively unreasonable” entry into Hastings’s home.1 There is no
indication in the record that Officer Eaton’s need to enter the premises was so urgent that she could
not have waited for consent or a warrant.2
First, contrary to the State’s argument, Officer Eaton’s warrantless entry was not necessary to
thwart an escape. Trooper Moak testified that he and Officer Eaton were standing on the front porch
speaking with Tina Spani, when they observed Hastings walk from the interior of the residence
toward the front door, then “briskly” turn around and walk back into the interior. Officer Eaton
immediately entered the residence, but Trooper Moak remained on the front porch. Officer Tallutto,
who was guarding the stolen car in the driveway, also remained in place. Thereafter, Officer Eaton
“walked [with Hastings] back to the front door of the residence,” but did not place him in handcuffs
or “restrain him in any way.” Trooper Moak asked Hastings for identification, and Hastings produced
a wallet from his pocket. Upon observing victim J.R.’s identification documents in plain view in the
wallet, Trooper Moak finally “told Mr. Hastings that he was going to be detained for further
questioning.”
These circumstances give no suggestion of the urgency attendant to the imminent flight of a
suspect. See Cook, 273 S.W.3d at 571 (observing that “likelihood the suspect will escape if not
swiftly apprehended” may create exigent circumstance (quoting Cromer, 186 S.W.3d at 344)). Nor
1
Officer Eaton did not testify at the suppression hearing or at trial.
2
We note that the trial court concluded that “Officer Eaton was voluntarily allowed in the residence” by Tina
Spani before Eaton went to the rear to retrieve Hastings. Though this finding aligns with Trooper Moak’s testimony at the
suppression hearing, Moak testified at trial that he and Officer Eaton were “standing outside, just outside the front door of
the residence . . . basically on the porch area,” when Eaton “entered the residence and detained [Hastings].”
On appeal, the State does not argue that police were voluntarily allowed into the residence, and this issue is not
essential to our analysis. Furthermore, even if Officer Eaton was invited into the “front foyer” of the residence, consistent
with Trooper Moak’s suppression hearing testimony, the record contains no indication that the scope of her invitation
extended to additional areas in the rear of the residence. See Cromer, 186 S.W.3d at 342 (“If consent is given, law
enforcement must remain within the ‘scope of the consent.’” (quoting State v. Garcia, 930 S.W.2d 469, 472 (Mo. App.
S.D. 1996))). The same Fourth Amendment analysis applies when police venture beyond the scope of their invitation
without a warrant. See id. at 343-44.
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do they suggest that Officer Eaton was in “hot pursuit” of Hastings at the moment she entered the
residence. See King, 131 S. Ct. at 1856 (recognizing “hot pursuit of a fleeing suspect” may be exigent
circumstance). Moreover, Officer Tallutto was standing guard in the driveway of the residence,
where he was well positioned to thwart any attempt to flee in the stolen car. Viewing these
circumstances objectively, we cannot conclude that a “prudent, cautious, and trained” officer would
have had such a pressing concern that Hastings would “escape if not swiftly apprehended” as to
demand a presumptively unreasonable incursion into the home. Cf. State v. Childress, 828 S.W.2d
935, 944 (Mo. App. S.D. 1992) (“[W]e may concern ourselves only with what the officers had reason
to believe at the time of their entry . . . . [A] search is not to be made legal by what it turns up.”
(second and third alterations in original) (quoting Ker v. California, 374 U.S. 23, 40 n.14 (1963))).
Instead, Hastings’s return to the interior of his residence upon seeing police at his front door is
protected by the Fourth Amendment. “When law enforcement officers who are not armed with a
warrant knock on a door . . . . and request[] the opportunity to speak . . . the occupant has no
obligation to open the door or to speak.” King, 131 S. Ct. at 1862. “And even if an occupant chooses
to open the door and speak with the officers, the occupant need not allow the officers to enter the
premises and may refuse to answer any questions at any time.” Id. Thus, the mere withdrawal of a
suspect into the interior of his or her own home does not create the exigency of an imminent escape.
Permitting such an exception to the warrant requirement would swallow the principle that “[a]t the
very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion.” Payton, 445 U.S. at 589-90 (quoting Silverman v.
United States, 365 U.S. 505, 511 (1961)).
Moreover, contrary to the State’s contention, Officer Eaton’s entry into Hastings residence
was not necessary to prevent the imminent destruction of victim J.R.’s identification documents. See
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Rowland, 73 S.W.3d at 822 (recognizing need to prevent imminent destruction of evidence may be
exigent circumstance). Beyond the fact of Hastings’s “brisk” return to the interior of his own home—
which, as we have explained, is protected by the Fourth Amendment, King, 131 S. Ct. at 1862—the
only evidence the State cites in support of its contention that Officer Eaton’s entry was necessary to
prevent the imminent destruction of evidence is Trooper Moak’s testimony that he was aware the
owner of the stolen car “was a next door neighbor to the burglary victim [J.R.],” and that J.R.’s
identification documents had been stolen in the burglary.3 But Trooper Moak’s awareness that J.R.’s
identification documents might be present at the residence does not by itself justify a belief that
Hastings was attempting to destroy them. See United States v. Lynch, 934 F.2d 1226, 1232 (11th Cir.
1991) (“The mere presence of contraband . . . does not give rise to exigent circumstances.”); United
States v. Radka, 904 F.2d 357, 362 (6th Cir. 1990) (“The mere possibility of loss or destruction of
evidence is insufficient justification [for a warrantless entry].”). “[A]ffirmative proof of the
likelihood of the destruction of evidence . . . [is] required.” Id. Because there is simply nothing in the
record to support the theory that the imminent destruction of evidence compelled Officer Eaton’s
urgent and presumptively unreasonable incursion into Hastings’s home, we cannot justify the entry
into the home on that basis.4 See United States v. Ramirez, 676 F.3d 755, 762-63 (8th Cir. 2012)
(holding warrantless entry of hotel room not justified to prevent imminent destruction of evidence of
drugs, despite officers’ reasonable belief suspects were in possession of drugs, and suspects’ attempt
to shut door of room to prevent officers’ entry after officers announced their presence).
3
Trooper Moak gave this testimony at the pre-trial suppression hearing. We note that at trial, however, Trooper
Moak gave no indication he or Officer Eaton initially had reason to suspect the stolen car was connected to the theft of
J.R.’s identity documents, or that Hastings in particular might possess them.
4
Because Officer Eaton’s warrantless entry into Hastings’s residence was not justified by exigent circumstances,
we need not address whether police had probable cause to believe Hastings committed an offense. See Payton, 445 U.S. at
588-89; Cook, 273 S.W.3d at 573 (“[P]robable cause, without more, does not sanction the warrantless intrusion into
Defendant’s home by law enforcement officials.”).
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Accordingly, the State’s arguments that exigent circumstances justified Officer Eaton’s
warrantless entry are unpersuasive. Instead, as Hastings contends, police obtained the evidence of his
possession of J.R.’s identification documents after illegally entering his home in violation of the
Fourth Amendment to the United States Constitution. “Evidence discovered and later found to be
derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree.” 5 Oliver,
293 S.W.3d at 442 (quoting State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995)). The trial court
clearly erred by failing to grant Hastings’s motion to suppress this evidence.
Generally, this Court will not reverse on the basis of a federal constitutional error if the error
was harmless beyond a reasonable doubt.6 State v. Driscoll, 55 S.W.3d 350, 356 (Mo. banc 2001)
(citing Dawson v. Delaware, 503 U.S. 159, 166-67 (1992)). “[T]he test for determining whether a
constitutional error is harmless . . . . is whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained . . . .” Id. (second alteration in original)
(quoting Neder, 527 U.S. at 15). Here, the evidence of Hastings’s possession of J.R.’s identity
documents plainly supported Hastings’s conviction of Identity Theft, section 570.223. The evidence
circumstantially linked Hastings to the burglary of J.R.’s house (Burglary in the First Degree, §
569.160), in which prescription sunglasses and $300 in cash were stolen from J.R.’s purse, (two
counts of Stealing, § 575.030). Likewise, Hastings’s possession of the identification documents
provided circumstantial evidence of his involvement in the theft of the car (Tampering with a Motor
5
The State does not argue that this evidence was admissible because police inevitably would have discovered it
using “standard, proper, and predictable procedures . . . [in the] pursuit of a substantial, alternative line of investigation at
the time of the constitutional violation.” State v. Oliver, 293 S.W.3d 437, 443 (Mo. banc 2009) (providing in limited
circumstances that “evidence may be admissible, despite a constitutionally invalid search, if law enforcement personnel
would have ultimately or inevitably discovered the evidence”).
6
“On the other hand, ‘there are some constitutional rights so basic to a fair trial that their infraction can never be
treated as harmless error.’” State v. Smith, 595 S.W.2d 764, 766 (Mo. App. W.D. 1980) (quoting Chapman v. California,
386 U.S. 18, 23 (1967)). “Examples of such errors include: (1) total deprivation of the right to counsel; (2) biased judge;
(3) denial of right to self-representation; and (4) lack of a public trial.” State v. Goucher, 111 S.W.3d 915, 917 n.3 (Mo.
App. S.D. 2003) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). Such “structural” errors require automatic
reversal, because they “necessarily render[] a criminal trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.” Washington v. Recuenco, 548 U.S. 212, 218-19 (2006) (quoting Neder v. United States, 527 U.S. 1, 1
(1999)).
10
Vehicle, section 569.080), because the car was stolen from a house across the street from J.R.’s on
the same night that the identification documents were stolen and J.R.’s checkbook was found in the
car. Thus, the erroneously admitted evidence factored too prominently in the State’s case to conclude
“beyond a reasonable doubt that . . . [it] did not contribute to the verdict obtained” on each of the
preceding counts. State v. Whitfield, 107 S.W.3d 253, 262 (Mo. banc 2003) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). We must reverse Hastings’s conviction of one count of Burglary
in the First Degree, section 569.160, one count of Tampering with a Motor Vehicle in the First
Degree, section 569.080, two counts of Stealing, section 570.030, and one count of Identity Theft,
section 570.223.
V. CONCLUSION
“Although there is an inclination to avoid reversing convictions on ‘procedural’ grounds,
particularly where the [officer’s actions] bore fruit, this [C]ourt regards the protection of the Fourth
Amendment as more than a mere technicality.” State v. Kriley, 976 S.W.2d 16, 24 (Mo. App. W.D.
1998) (quoting State v. Slavin, 944 S.W.2d 314, 321 (Mo. App. W.D. 1997)). “It must be
remembered that [t]he issue of guilt of the defendant . . . is irrelevant to the determination of whether
the evidence sought to be suppressed is admissible at the trial of the criminal charge.” Id. (quoting
Slavin, 944 S.W.2d at 321) (alterations in original). “The Fourth Amendment is the vehicle by which
all citizens’ rights are protected,” id. (quoting Slavin, 944 S.W.2d at 321), and “[t]he protection of . . .
[these] rights supersedes any benefit derived from bending the law to secure a single conviction,”
State v. Miller, 894 S.W.2d 649, 657 (Mo. banc 1995).
As we have explained, the trial court clearly erred by failing to suppress the evidence of
Hastings’s possession of J.R.’s identification documents, because the evidence was obtained in
violation of Hastings’s Fourth Amendment rights. Moreover, we cannot say beyond a reasonable
11
doubt that this error did not contribute to Hastings’s convictions of one count of Burglary in the First
Degree, section 569.160, one count of Tampering with a Motor Vehicle in the First Degree, section
569.080, two counts of Stealing, section 570.030, and one count of Identity Theft, section 570.223.
We therefore reverse the trial court’s judgment of conviction on these counts, and remand for a new
trial on same.
_________________________________
Lisa S. Van Amburg, Judge
Angela T. Quigless, C.J. and
Kurt S. Odenwald, J. Concur.
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