                        MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT


 STATE OF MISSOURI,                          )
                                             )   WD78739
                     Respondent,             )
    v.                                       )   OPINION FILED:
                                             )
 BRYAN M. PIERCE,                            )   October 18, 2016
                                             )
                      Appellant.             )


             Appeal from the Circuit Court of Jackson County, Missouri
                       Honorable Wesley Brent Powell, Judge

                              Before Division One:
         Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.


         Mr. Bryan M. Pierce appeals his conviction following a bench trial for the class

B felony of possession of child pornography, for which he was sentenced as a prior and

persistent offender to fifteen years in the Department of Corrections. He claims that

his due process rights were violated because the trial court misunde rstood the range of

punishment in imposing sentence and that the court erred in overruling his motion to

suppress evidence because he was incapable of consenting to a search of his premises

and no exception applied to allow a warrantless search. We affirm in part, reverse in

part, and remand for resentencing.




                                             1
          Viewing the evidence in the light most favorable to the trial court’s ruling on his

motion to suppress, 1 Kansas City police officers were dispatched to Mr. Pierce’s home

in June 2013 to check on an emotionally disturbed person, following Mr. Pierce’s call

to a hotline about hearing voices, including his cat, telling him to stab himself. When

the officers arrived, Mr. Pierce came out onto the front porch and repeated to Officers

Robert Erpelding and Paul Russo that voices were telling him to stab himself in the

heart and that his cat also wanted him to stab himself with a knife. Officer Erpelding

offered to check the residence to make sure it was safe and confirmed with Mr. Pierce

before officers entered that no one else lived in the home. He remained outside with

Mr. Pierce, calling an ambulance, while Officer Russo and Sergeant Patrick Kelly, who

had arrived at the home, went inside to “clear the residence” at Mr. Pierce’s request.

Mr. Pierce left in the ambulance, and Officer Erpelding was called inside to confirm

whether still pictures, moving in a continuous “slide show” on the screen of a large

computer monitor, depicted girls younger than age 17, some of whom were naked,

posing in a sexually suggestive manner. The computer monitor was located in plain

view in a first-floor room that also contained a mattress. Sergeant Kelly moved the

computer mouse, and the images disappeared. Concerned whether the images were

streaming from the Internet or were on the computer’s hard drive, which could affect

their preservation, Sergeant Kelly also opened a “My Pictures” computer-file folder

and found similar images there. The officers removed the computer and its associated

hardware for backing up and processing as evidence. A warrant was secured to search




1
    State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007).

                                                  2
the computer, and Detective Kimberly Shirley-Williams took it to an FBI regional

forensic computer lab for examination.

          A July 2014 grand jury indictment charged Mr. Pierce with one count of the class

B felony of possession of child pornography under section 573.037. 2 Mr. Pierce filed

a motion to suppress in February 2015 arguing that the evidence was the fruit of a

warrantless search and seizure in violation of his constitutional rights. The circuit court

conducted a suppression hearing, and defense counsel argued that, as an emotionally

disturbed person, Mr. Pierce was unable to consent to a search of his residence and if

he had consented to anything it was to “clear the residence” which is not the s ame as a

search, and that his rights were violated when the sergeant touched the computer mouse

without a warrant and started to search the hard drive. The court sua sponte suggested

that the issue was whether exigent circumstances might have justified th e search,

stating in this regard,

          My thought too on this was – that it’s almost not even a consent issue.
          It’s really almost an exigent exchange situation, that they’ve got someone
          who is emotionally disturbed who’s claiming there’s voices and they may
          have to clear or look through the residence to make sure there’s not – you
          know, there’s not a safety issue in the house.

Invited to address this issue, defense counsel contended that the officers had no need

to “clear the residence,” because Mr. Pierce had told the officers he lived alone and an

ambulance had already been called for him. “So I don’t know why they would need

to, for any other individual safety or for Mr. Pierce’s safety, need to clear the residence

when clearly Mr. Pierce was already going to be going to the hospital, Your Honor,”

counsel stated.



2
    Statutory references are to RSMo 2000 and cumulative supplements, unless otherwise indicated.

                                                   3
        In its order denying the motion to suppress, the circuit court agreed that Mr.

Pierce, as an “emotionally disturbed party,” could not voluntarily consent to a search

of his residence. The court concluded that entry into the home was lawful, however,

finding the officers “justified under this emergency situation [i.e., the defendant

hearing voices telling him to harm himself,] to sweep or ‘clear the residence’ and

determine if anyone was in the home.” The court also ruled that the subsequent search

and seizure of the computer was lawful “under the plain view and inevitable discovery

doctrine.”

        The circuit court granted Mr. Pierce’s motion to waive a jury trial. The bench

trial began in April 2015 with the introduction of evidence that Mr. Pierce was a prior

and persistent offender. 3 Mr. Pierce again objected to the introduction of the State’s

evidence seized from the computer, and the court again denied the motion. He was

granted a continuing objection, but further asserted objections to the seized evidence

during trial. Finding that more than twenty specific images taken from the computer

depicted underage girls engaging in sexually explicit conduct, the court found Mr.

Pierce guilty as charged.

        During the sentencing hearing, the circuit court stated, “having 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?” The prosecutor responded by stating, “We had agreed




3
  The prior offenses included a guilty plea in Boone County to the class D felony of sexual abuse in
the first degree, a guilty plea in Iowa to sexual abuse in the third degree arising from charges including
indecent contact with a child and dissemination or exhibition of obscene materials to minors, a second
guilty plea to lascivious acts with a child arising from similar charges in Iowa, and a guilty plea in
Atchison County to the class C felony of domestic assault in the second degree.

                                                    4
to a lid of 20, Your Honor,” and the court then asked, “A lid of 20 in exchange for the

waiver of a jury trial, is that correct?”    The prosecutor and defense counsel verified

that this was the agreement. After taking evidence, exhaustively reviewing the factors

it had considered in determining the sentence, and hearing Mr. Pierce’s plea for

clemency based on his efforts to overcome his addictions and professed innocence, as

well as the arguments of counsel, the court imposed a fifteen-year sentence of

incarceration. Mr. Pierce timely filed this appeal.

                                      Legal Analysis

                                     Sentencing Error

       As to the first point, Mr. Pierce argues that, by stating that the enhanced range

of punishment would be extended to ten to thirty years, the court had a “materially

false understanding of the possible range of punishment” and, thus, violated his due

process rights. Because no objection to the circuit court’s statement about the range of

punishment was made during the sentencing hearing, we must review the matter, if at

all, for plain error. Rule 30.20. 4 Plain-error review is a two-step process. State v.

Sauerbry, 447 S.W.3d 780, 790 (Mo. App. W.D. 2014). We first “determine whether

the claim of error ‘facially establishes substantial grounds for believing that manifect

injustice or miscarriage of justice has resulted.’” Id. (quoting State v. Martin, 103

S.W.3d 255, 262 (Mo. App. W.D. 2003)). And second, “if the error is obvious, this

Court may consider whether a miscarriage of justice will occur if the error is left

uncorrected.” Id.




4
  Rule references are to the Missouri Supreme Court Rules of Criminal Procedure (2015), unless
otherwise indicated.

                                              5
       Here, the circuit court erroneously stated that Mr. Pierce’s enhanced range of

punishment was ten to thirty years.      Neither the prosecutor nor defense counsel

corrected this erroneous statement, despite being asked if it was correct. Under section

558.011.1(2), the range of punishment for a class B felony is five to fifteen years.

Although Mr. Pierce was convicted of a class B felony, because he was a prior and

persistent offender, the total authorized maximum term of imprisonment was “any

sentence authorized for a class A felony.” § 558.016.7(2). The sentence authorized for

a class A felony is ten to thirty years or life imprisonment. § 558.011.1(1) . As this

Court stated in State v. Cowan, 247 S.W.3d 617, 619 (Mo. App. W.D. 2008), the

persistent-offender enhancement statute “only extends the maximum sentence but does

not alter the minimum sentence.” Because “[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,” we remanded in Cowan for resentencing.            Id. (quoting

Wraggs v. State, 549 S.W.2d 881, 884 (Mo. banc 1977)). As here, the circuit court in

Cowan had recited the incorrect range of punishment—ten to thirty years, rather than

five to thirty years. Id.

       In Cowan, however, the appellant had properly preserved the error by raising it

during the sentencing hearing.     While the error here is obvious, because we are

reviewing the matter for plain error, we must further determine whether a miscarriage

of justice will occur if the error is not corrected. Mr. Pierce cites State v. Olney, 954

S.W.2d 698, 700-01 (Mo. App. W.D. 1997), and State v. Taylor, 67 S.W.3d 713, 716

(Mo. App. S.D. 2002), to support his argument that plain-error review and remand are



                                           6
appropriate when a court has a mistaken understanding about the appli cable

punishment.    In both cases, the circuit courts had imposed consecutive sentences,

mistakenly believing that they lacked discretion to do otherwise under the armed

criminal action statute. In Olney, this Court was reluctant to impinge on the trial court’s

sentencing authority, even though it acknowledged that the State had made a persuasive

case that the trial court would not have viewed concurrent sentences as appropriate.

Olney, 954 S.W.3d at 701. The court in Taylor essentially relied on Olney to find

manifest injustice. Taylor, 67 S.W.3d at 716.

       Mr. Pierce also cites State v. Rowan, 165 S.W.3d 552, 556 (Mo. App. E.D. 2005),

where the court, applying plain-error review, found that the defendant had suffered

prejudice due to the sentencing court’s misunderstanding about parole eligibility,

because that error “resulted in the imposition of the maximum sentence permissible

under the statute,” despite the court’s expressed desire to grant the defendant leniency.

The appeals court was also concerned that, while the error went to a collateral

consequence of pleading guilty, it involved a sentencing court affirmatively

misinforming the defendant. Id. at 555.

       The State contends to the contrary that other authority supports upholding the

sentence on the ground that where the trial court’s comments demonstrate that it has

decided to impose a sentence based on proper considerations, rather than on an

erroneous interpretation of a statute, a defendant fails to meet his or her burden of

demonstrating plain error in sentencing. See, e.g., State v. Elam, No. SD33905, 2016

WL 3555216, at *5 (Mo. App. S.D. June 28, 2016) (stating, “The record shows that the

sentences were based on valid considerations; there is no indication that the trial court’s



                                            7
sentences were based on a misapprehension of the applicable law, or that the trial court

relied on the prosecutor’s misstatement of the law”); see also State v. Scott, 348 S.W.3d

788, 800) (Mo. App. S.D. 2011) (holding that trial court’s comments and request that

defense counsel respond to the State’s position demonstrate that court “did not simply

rely on prosecutor’s incorrect interpretation of the statute but exercised independent

discretion in imposing consecutive sentences), abrogated on other grounds by State v.

Sisco, 458 S.W.3d 304 (Mo. banc 2015); State v. Seaton, 815 S.W.2d 90, 92 (Mo. App.

E.D. 1991) (finding that trial court did not follow prosecutor’s erroneous

recommendation; court properly made sentences on sex crimes consecutive after

expressing desire to impose the maximum sentence). Of note, is that, unlike here, each

of these cases involved the prosecutor misstating the law.

       The circuit court discussed the reasons underlying its impositon of a fifteen -year

sentence at some length, primary among them that Mr. Pierce might re-offend and abuse

other children. Because we have consistently remanded for resentencing on plain-error

review, however, where the record shows that a sentencing court is under the mistaken

impression that it lacks authority to impose a lesser sentence, we must vacate Mr.

Pierce’s sentence. See, e.g., State v. Williams, 465 S.W.3d 516, 519-20 (Mo. App. W.D.

2015) (stating that when “a court sentences a defendant based on a mistaken belief of

the available range of punishment, it commits evident, obvious, and clear error, and

such error results in a manifest injustice if left uncorrected”; also noting that the circuit

court “still had before it the option of sentencing Williams to the minimum term

available for the unenhanced felony”); and State v. Summers, 456 S.W.3d 441, 447 (Mo.

App. W.D. 2014) (vacating sentence after finding trial court had mistakenly believed



                                             8
that armed criminal action statute required consecutive sentences). Here, the circuit

court stated that the range of punishment was ten to thirty years, so we have no basis

for concluding that it believed it had the discretion to sentence Mr. Pierce to anything

less than ten years. This point is granted.

                                  Motion to Suppress

      As to the second point, whether the computer images should have been

suppressed because they were the fruit of an unlawful search and seizure, the circuit

court determined that the search was justified by exigent circumstances. We cannot

agree that the warrantless search of Mr. Pierce’s home was justified by exigent

circumstances. “It is a basic principle of Fourth Amendment law that searches and

seizures inside a home without a warrant are presumptively unreasonable. ” Brigham

City v. Stuart, 547 U.S. 398, 403 (2006) (citations and internal quotation marks

omitted). Despite this general principle, it is well established that law enforcement

officers are not required to obtain a warrant before entering a home if exigent

circumstances exist. Kentucky v. King, 563 U.S. 452, 460 (2011). In particular, “law

enforcement officers may enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an occupant from imminent injury.”

Brigham City, 547 U.S. at 403. It bears emphasizing that “‘[t]he exigent circumstances

exception to the warrant requirement for police incursion into a home . . . is narrowly

drawn,” and only exists “‘in cases of emergency.’” State v. Hastings, 450 S.W.3d 479,

485 (Mo. App. E.D. 2014) (quoting State v. Rowland, 73 S.W.3d 818, 822 (Mo. App.

W.D. 2002)).




                                              9
      The evidence at the suppression hearing and at trial does not support invocation

of the exigent circumstances doctrine in this case. This evidence makes clear that

officers searched Mr. Pierce’s home based on his consent, as an accommodation to try

to calm him, not because they believed there was anything dangerous inside the

residence. Officers spoke to Mr. Pierce on his front porch, outside his home. Officer

Robert Erpelding, who primarily interacted with Mr. Pierce, testified at the suppression

hearing that Mr. Pierce told him “that he was hearing voices and they were telling him

to stab himself in the heart with a knife. He also informed me that his cat wanted him

to stab him in the heart with a knife, as well.” Officer Erpelding testified that he told

Mr. Pierce that, “if you’d like, we can check out the residence for you, make sure it’s

safe.” Before officers entered the home, Officer Erpelding verified with Mr. Pierce

that no one was living with him, so that officers would not be surprised by encountering

someone.

      On cross-examination, Officer Erpelding repeated that the search of the

residence was based on Mr. Pierce’s consent:


            Q.     And before he’s taken to the hospital, you ask him if it’s
      okay to check out the residence?

            A.     What I did was I asked him if he would like if we checked
      out the residence, you know, for his safety, because there could be
      somebody in the house, you never know.


      Officer Erpelding’s testimony at trial is even clearer that the search was

conducted at Mr. Pierce’s request, to give him peace of mind, not because of any belief

on the officers’ part that an imminent risk of injury existed:




                                           10
             Q.     When you came into contact with him, what happened?

              A.     I asked him what was going on tonight. And he informed
      me that he was hearing voices, that he believed from the TV to tell himself
      to kill himself with a knife. And he was also hearing voices about – from
      his cat to stab himself in the heart.

             Q.     Okay. When he told you that, what did you do?
            A.      Basically, I just tried to talk to him about small talk. And I
      asked him, I said, well, sir, you know, if you’d like, we can go ahead and
      we can clear your residence, make sure there's nobody inside and – you
      know, if that works for you, that way give you a little peace of mind.

      After engaging Mr. Pierce in “small talk,” officers offered to search his home

“if [he] would like” and “if that work[ed] for [him],” to “give [him] a little peace o f

mind.” Nothing in the record indicates that officers had any reasonable basis to believe

that an emergency justified their warrantless entry into Mr. Pierce’s home or that the

home contained a person or object that presented an imminent risk of injury. Mr. Pierce

was outside the home, uninjured, and apparently cooperating with the officers. He

assured officers that they would not encounter anyone inside. No exigency in this case

justified the officers’ disregard of the constitutional warrant requirement.

      Still, we find that the circuit court properly denied Mr. Pierce’s suppression

motion. “‘[C]onsent searches are a valid exception to the warrant requirement of the

Fourth and Fourteenth Amendments.’” State v. Patterson, 489 S.W.3d 907, 911 (Mo.

App. W.D. 2016) (citation omitted); see also State v. Hyland, 840 S.W.2d 219, 221 (Mo.

banc 1992) (stating, “Where consent is lawfully obtained, law enforcement officers

may conduct a search commensurate in scope with the permission given . This is so

even though the search was not otherwise supported by probable cause or reasonable

suspicion of criminal activity”).



                                           11
             When the State relies on consent to justify a search, the State has
      the burden of proving the consent was freely and voluntarily given. The
      State does not satisfy this burden merely by showing a submission to a
      claim of lawful authority. Voluntariness of the consent is determined by
      looking at the totality of the circumstances. Consent is freely and
      voluntarily given if, considering the totality of the circumstances, the
      objective observer would conclude that the person giving consent made a
      free and unconstrained choice to do so. This determination involves a
      consideration of a number of factors, including, but not limited to, the
      number of officers present, the degree to which they emphasized their
      authority, whether weapons were displayed, whether the person was
      already in custody, whether there was any fraud on the part of the officers,
      and the evidence of what was said and done by the person consenting.

State v. Selvy, 462 S.W.3d 756, 769 (Mo. App. E.D. 2015) (citations omitted); accord

State v. Cady, 425 S.W.3d 234, 243 (Mo. App. S.D. 2014); State v. Solis, 409 S.W.3d

584, 591 (Mo. App. S.D. 2013).        The subject’s mental state, such as a state of

intoxication, is also relevant to the voluntariness of consent to search. State v. Dowdy,

332 S.W.3d 868, 872 (Mo. App. S.D. 2011). “Consent is involuntary if the officer ‘has

reason to know that the consent was not knowingly granted. ’” Id. (quoting State v.

Earl, 140 S.W.3d 639, 641 (Mo. App. W.D. 2004)).

      Here, the trial court found that Mr. Pierce had not validly consented to the search

of his home. It explained:

             The officers were responding to a call from an “emotionally
      disturbed party.” When they arrived, Defendant advised that he was
      hearing voices.     Based on these circumstances, the State cannot
      establish[ ] that Defendant’s consent to search his residence was the
      “product of a rational intellect and a free will,” and therefore, voluntarily
      given.

(quoting State v. Berry, 526 S.W.2d 92, 100 (Mo. App. 1975)).

      That Mr. Pierce was emotionally disturbed and had experienced auditory

hallucinations, may not, by itself, be sufficient to render his consent to the search

involuntary.   See 4 Wayne R. LaFave, S EARCH       AND   S EIZURE : A T REATISE   ON THE


                                           12
F OURTH A MENDMENT § 8.2(e) (5th ed. 2012, database updated 2015) (“It should not be

assumed . . . that anyone suffering from some type of mental disease or defect is

inevitably incapable of giving a voluntary consent to a search.” ); see also, Bryan S.

Love, Comment, Beyond Police Conduct: Analyzing Voluntary Consent to Warrantless

Searches by the Mentally Ill and Disabled, 48 S T . L OUIS U NIV . L.J. 1469, 1470 (2004)

(noting that such cases present “close, fact-sensitive questions”).

      Regardless whether the circuit court correctly found that Mr. Pierce lacked

capacity to consent to a search, the circumstances here do not warrant application of

the exclusionary rule. “The fact that a Fourth Amendment violation occurred . . . does

not necessarily mean that the exclusionary rule applies”; instead, “exclusion has always

been our last resort, not our first impulse.” Herring v. United States, 555 U.S. 135,

140 (2009) (citations omitted). “[T]he exclusionary rule is triggered only when police

practices are ‘deliberate enough to yield meaningful deterrence, and culpable enough

to be worth the price paid by the justice system.’” State v. Johnson, 354 S.W.3d 627,

633 (Mo. banc 2011) (quoting Davis v. United States, 564 U.S. 229, 240 (2011)); see

also State v. Carrawell, 481 S.W.3d 833, 845–46 (Mo. banc 2016) (plurality opinion).

“[E]vidence should be suppressed only if it can be said that the law enforcement officer

had knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 143 (citations

omitted).

      Here, the officers were aware that Mr. Pierce had experienced auditory

hallucinations, and he was agitated when they encountered him.          Mr. Pierce was,

however, able to recognize that he needed assistance, call a suicide hotline to secure it,



                                           13
explain to the officers why he was upset, express his desire that the officers clear his

residence, and answer their questions as to whether they would encounter anyone

inside. It appears that throughout the encounter Mr. Pierce was cooperative and lucid,

and officers did not feel the need to physically restrain him. Nothing in the record

indicates that Mr. Pierce’s comments to officers were unintelligible or unrelated to the

officers’ queries. Further, there is no indication that the officers conducted the search

with the intent of finding evidence of any crime or that their offer to “clear the

residence” for Mr. Pierce was in bad faith or a subterfuge to conduct an illegal search.

      In these circumstances, even though the court later determined that Mr. Pierce

lacked capacity, it cannot fairly be said “that the law enforcement officer had

knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 143. Exclusion

of the evidence developed as a result of the search would therefore not be warranted,

even if that search was based on defective consent. See Illinois v. Rodriguez, 497 U.S.

177, 187 (1990) (finding no Fourth Amendment violation “when officers enter without

a warrant because they reasonably (though erroneously) believe that the person who

has consented to their entry is a resident of the premises” with authority to consent to

search); United States v. Grap, 403 F.3d 439, 445 (7th Cir. 2005) (where person

consenting to search suffers from mental illness, “[t]he proper inquiry [as to application

of exclusionary rule] focuses upon the objective facts, as presented to a reasonable

inquirer, that would reasonably put him or her on notice that a voluntary consent could

not be given.”). This point is denied.




                                           14
                                       Conclusion

      The circuit court did not err in overruling Mr. Pierce’s motion to suppress the

evidence found by the officers during the warrantless search of his home , so we affirm

the conviction. Because the circuit court misunderstood the range of punishment,

however, we vacate the sentence and remand for resentencing only.



                                                /s/ Thomas H. Newton
                                                Thomas H. Newton, Judge


Gabbert, P.J., and Ahuja, J. concur.




                                           15
