Missouri Court of Appeals
Southern District
Division Two
STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD32636
)
TENA D. CADY, ) Filed April 2, 2014
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY
Honorable Carr L. Woods, Senior Judge
AFFIRMED
Tena D. Cady (“Defendant”) appeals her conviction on two counts of attempt to
manufacture a controlled substance, see section 195.211.1 Defendant raises three points on
appeal: first, that the trial court erred in overruling her motion to suppress and her continuing
objection to the admission of evidence found during the search of her shop building because the
shop building was located within the curtilage of her property, rendering the initial “knock and
talk” improper, and because any subsequent consent to search was involuntary; second, that the
trial court erred in admitting NPLEx records into evidence, as the records contained hearsay and
were not adequately shown to fall under any recognized exception to the hearsay rule; and third,
that the trial court erred in admitting NPLEx records into evidence because their admission
1
All references to section 195.211 are to RSMo Cum.Supp. 2003.
violated Defendant’s right to confrontation. Finding no merit in any of Defendant’s points, we
affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, see State v. Sund, 215 S.W.3d 719, 723
(Mo. banc 2007), the following evidence was adduced at trial.
On October 20, 2010, Trooper Kelsey Rutledge of the Missouri State Highway Patrol
received information that Joe Cady, Defendant’s husband, was manufacturing methamphetamine
in a shop building located near the couple’s residence in Lawrence County. Trooper Rutledge
and three additional officers arrived at Defendant’s property at approximately 10:00 p.m. that
evening. A gravel driveway led from the road to the house and continued past the house to the
shop building. The house and the shop building were visible from the road and neither was
enclosed by a fence. Two officers stopped at the house while Trooper Rutledge and the
remaining officer continued on to the shop building; Trooper Rutledge intended to conduct a
“knock and talk.”
Trooper Rutledge, who is trained in drug detection, smelled the strong chemical odor
associated with the manufacture of methamphetamine immediately upon exiting his vehicle.
Trooper Rutledge approached the shop building, knocked on the door, and said, “Joe, are you
here?” A male voice responded, “Yeah, right here.” Trooper Rutledge asked the man if he
would step outside so they could talk, after which Trooper Rutledge heard what sounded like
someone running through the shop building in the opposite direction.
Because he feared whoever was inside the shop building would destroy any evidence that
might be inside, Trooper Rutledge and the other officer entered the shop building, running
through it quickly in order to clear the building of any other people; this initial entry of the shop
building lasted approximately one minute. While inside, Trooper Rutledge noticed numerous
2
chemicals and paraphernalia associated with the manufacture of methamphetamine. Upon
reaching the opposite end of the shop building, Trooper Rutledge heard what sounded like
someone running through the brush outside. Trooper Rutledge and the other officer pursued the
fleeing individual and, as they exited the shop building, Trooper Rutledge saw marijuana plants,
some in excess of six-feet tall, commingled with vegetable plants in a large garden located
between the shop building and the house, as well as additional marijuana plants along a
perimeter fence.
Approximately one hour later, Trooper Rutledge and the other officer found Dennis
Grider hiding in the nearby woods behind some abandoned cars. Grider had a pair of rubberized
cotton gloves in his hip pocket; an identical pair of rubberized cotton gloves was found inside the
shop building, adjacent to the chemicals being used to manufacture methamphetamine. Grider
was placed under arrest and transported to jail, while Trooper Rutledge returned to Defendant’s
property.
When Trooper Rutledge returned, he found the two officers who had approached the
house sitting inside the house talking with Defendant’s two sons, ages 17 and 19, a girlfriend of
one of the boys, and another young individual. Defendant arrived at the property a short time
later. Trooper Rutledge informed Defendant of what he had found inside and around the shop
building, namely the chemicals used for the manufacture of methamphetamine and the marijuana
plants. Trooper Rutledge placed Defendant under arrest and advised her of her Miranda2 rights;
Trooper Rutledge did not handcuff Defendant. Defendant admitted knowing about the marijuana
plants but told Trooper Rutledge “that they were being tended to by her husband Joe.” When
asked about the chemicals that had been found, Defendant said, “[T]hat wasn’t any of her
business. . . . That’s Joe’s business.”
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3
During the initial pursuit of Dennis Grider, Trooper Rutledge had called Sergeant
Danielle Heil, a narcotics investigator in the Highway Patrol’s Division of Drug and Crime
Control; she arrived at the property sometime after 11:00 p.m. and found Trooper Rutledge and
two officers outside in the driveway and Defendant and her two sons inside the house. Sergeant
Heil, Trooper Rutledge, and the two other officers questioned Defendant about her husband’s
whereabouts, but Defendant stated that she did not know where he was. Sergeant Heil did not
handcuff Defendant, and no law enforcement officer mentioned taking Defendant to jail or drew
a weapon on Defendant. Sergeant Heil asked for permission to search the premises, and
Defendant and her sons agreed. Sergeant Heil filled out a consent-to-search form allowing her to
search the house and the shop building in Defendant’s presence, went over the form with
Defendant and her sons, and Defendant and her sons each signed the form. Defendant later
stated that she signed the consent form because she “didn’t think [she] had anything to worry
about.”
Defendant led the officers through the house and was generally cooperative, pointing out
drugs and drug paraphernalia along the way. The officers seized marijuana, foil containing
methamphetamine residue, and paraphernalia from Defendant’s bedroom. Marijuana and
paraphernalia were also found in the bedroom of one of Defendant’s sons.
Inside the shop building, the officers found approximately seven pounds of processed
marijuana. They also found chemicals and components used to manufacture methamphetamine,
including three 48-count boxes of “Wal-Act” brand pseudoephedrine pills and a jar containing a
bi-phase liquid representative of methamphetamine in the final stages of production; the bi-phase
liquid was later confirmed to be methamphetamine. An anhydrous ammonia generator was still
smoking during the search, indicating that someone had recently been in the process of making
4
methamphetamine with anhydrous ammonia. There was a strong chemical odor in the area
around the shop building. In addition to the chemicals and methamphetamine-production
components, the officers seized glass pipes, two rifles, and a shotgun from inside the shop
building, some of which were located behind a door that Defendant unlocked. A total of 32
marijuana plants were also seized, most of which had been interspersed with tomato plants in the
garden outside the shop building; a dryer found inside the shop building was being used to dry
marijuana. The marijuana plant material seized from the property totaled 4.67028 kilograms.
Defendant was released and was not taken to jail that night.
Shortly thereafter, Trooper Rutledge continued his investigation by accessing records of
Defendant’s purchases of pseudoephedrine using records from the National Precursor Log
Exchange (“NPLEx”).3 The NPLEx records showed that between January 15, 2010, and January
3, 2011, Defendant made ten pseudoephedrine purchases; she attempted an additional seven
pseudoephedrine purchases but was stopped from doing so because she had already reached the
statutory limit of nine grams of pseudoephedrine per thirty-day period. In particular, Defendant
purchased a 48-count box of Wal-Act pseudoephedrine tablets on October 8, 2010, and again on
October 18, 2010, with each box containing 2.88 grams of pseudoephedrine. It would be
unusual for an individual to consume in a legitimate manner that much pseudoephedrine in such
a short time. Defendant claimed that she purchased the pseudoephedrine for her allergies,
however no pills were found anywhere on the property except in the shop building.
After charges were filed against Defendant, she filed a motion to suppress all evidence
found on her property on October 20, 2010, as well as any testimony regarding that evidence.
3
The NPLEx database was created in August 2010 and “tracks all purchases of products containing
pseudoephedrine. Missouri is a member of NPLEx. A buyer must present identification at the time of purchase of
any product containing pseudoephedrine, whereupon the buyer’s name is immediately recorded into the national
database.” State v. Solis, 409 S.W.3d 584, 588 n.3 (Mo.App. 2013).
5
Defendant alleged that, although Trooper Rutledge and the other officers had the right to
approach the house for a “knock and talk,” they did not have the right to approach the shop
building in the same manner because she had an expectation of privacy in that portion of her
property. She further argued that any subsequent consent to search the property was involuntary
because, “where there’s initially an invalid search[,] you can’t correct that by later getting the
person to consent to the search.” The trial court denied Defendant’s motion, which she renewed
on the first day of trial. Defendant then asked for a continuing objection to the admission of any
evidence and testimony resulting from the search on her property, which was granted by the trial
court without objection by the State.
At trial, before the State mentioned the NPLEx records in its opening statement,
Defendant objected on the basis that the NPLEx records were testimonial in nature, as they are
used in prosecutions. Defendant further objected that the State had failed to identify a custodian
for the records or prepare an appropriate business-records affidavit. Both objections were
overruled. Defendant made similar objections when the State attempted to admit State’s Exhibit
#56—the NPLEx records—into evidence; both objections were again overruled.
A jury found Defendant guilty of attempt to manufacture marijuana and attempt to
manufacture methamphetamine, and she was sentenced to five years’ and 12 years’
imprisonment, respectively, with the sentences to run concurrently. This appeal followed.
Both Searches of Shop Building were Legal
In her first point, Defendant claims that the trial court erred in overruling her motion to
suppress and continuing objection to the admission of evidence found during the search of her
property because the shop building is located within the curtilage of her property and the officers
acted outside of their authority in approaching the shop building for a “knock and talk”;
accordingly, Defendant contends that any later consent to search the property was not
6
sufficiently attenuated from the initial illegal search. Defendant further contends that her later
consent to search the property was involuntary. We disagree.
Standard of Review
We review the denial of a motion to suppress for clear error, which occurs when “we are
left with the definite and firm impression that a mistake has been made.” State v. Kriley, 976
S.W.2d 16, 19 (Mo.App. 1998). In doing so, we “defer[] to the trial court’s factual findings and
credibility determinations, State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998), and
consider[] all evidence and reasonable inferences in the light most favorable to the trial court’s
ruling.” Sund, 215 S.W.3d at 723. Whether conduct constitutes a violation of the Fourth
Amendment is an issue of law, which we review de novo. Id.
Knock and Talk at Shop Building was Lawful
We first turn to Defendant’s contention that the knock and talk conducted by Trooper
Rutledge and the officer with him at the shop building on the night in question was unlawful.
“[A] ‘knock and talk’ is employed when law enforcement officers receive information relating to
illegal drug activity that they believe has merit but is insufficient to obtain a warrant[.]” State v.
Cromer, 186 S.W.3d 333, 342 (Mo.App. 2005). Essentially, officers go to the referenced
location, knock on the door, speak with whomever answers the door, and try to obtain consent to
search the premises. Id. “Law enforcement officers are legally permitted to knock on the door
of a private residence and seek consent to enter and search without probable cause or a warrant.”
Id.
Defendant acknowledges that “a law enforcement officer’s warrantless presence at a
residence, without any other justification, allows him or her to investigate a crime or to conduct
official business at a residence in places where the public is invited.” State v. Kriley, 976
S.W.2d 16, 22 (Mo.App. 1998). While conceding that law enforcement had a legal right to be
7
present and conduct a knock-and-talk at the front door of her residence, Defendant posits that
because the shop building was within the curtilage of her residence “and the public was not
welcome at the shop building,” Trooper Rutledge and the officer with him had no legal right to
be present at the door of the shop building to conduct a knock-and-talk. Logically, Defendant’s
argument fails if either premise is incorrect. The first premise of Defendant’s argument—the
shop building was within the curtilage of her residence—is not correct.
“The protection of the Fourth Amendment extends to the curtilage of a person’s home.”
State v. Adams, 791 S.W.2d 873, 877 (Mo.App. 1990). “[T]he ‘curtilage’ of a person’s home is
generally defined as the enclosed space of ground and buildings immediately surrounding a
dwelling house.” State v. Edwards, 36 S.W.3d 22, 26 (Mo.App. 2000). This “includes all out-
buildings used in connection with the residence, such as garages, sheds, barns, yards, and lots
connected with or in the close vicinity of the residence.” State v. Berry, 92 S.W.3d 823, 829
(Mo.App. 2003) (internal quotation marks omitted).
Whether or not an area surrounding a dwelling is within the dwelling’s “curtilage”
is generally assessed on a case-by-case basis, weighing four factors: (1) the
proximity of the area claimed to be curtilage to the home; (2) whether the area is
within an enclosure surrounding the home; (3) the nature of the uses to which the
area is put; and (4) steps taken to protect the area from observation by people
passing by.
Edwards, 36 S.W.3d at 26 n.2; see also United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct.
1134, 94 L.Ed.2d 326 (1987). “The term ‘curtilage’ has no application to any building not used
as a dwelling.” State v. Woodrome, 407 S.W.3d 702, 707-08 (Mo.App. 2013) (internal quotation
marks omitted).
Here, a review of the evidence pertaining to the physical location and attributes of the
shop building and surrounding area supports that the shop building is not part of the curtilage of
Defendant’s residence. First, Trooper Rutledge testified that the shop building sits some 100
8
yards from Defendant’s house; a distance of 100 yards is not “immediately surrounding” or “in
the close vicinity of the residence.” See, e.g., State v. Hunziker, 799 S.W.2d 610, 613 (Mo.App.
1990) (finding a shed located approximately 100 feet from the house outside the curtilage); State
v. Simpson, 639 S.W.2d 230, 232 (Mo.App. 1982) (finding a field containing marijuana plants
located 100 yards from the residence outside the curtilage).
Second, there was no evidence that the area surrounding the shop building is enclosed. In
fact, State’s Exhibits 46 and 47—photographs of the shop building, house, and surrounding
property—indicate that there is no fence or other barrier enclosing the house and shop building
from the public. Defendant concedes that there is no fence surrounding the residence. The lack
of a surrounding fence is a factor supporting that the shop building is outside the curtilage of
Defendant’s residence. See, e.g., Hunziker, 799 S.W.2d at 613 (finding a shed to be outside the
curtilage where there was no fence around the residence or outbuildings).
Third, there was no evidence that the shop building is used to carry on the “intimate
activities of the home” as is required for a structure to be included within a dwelling’s curtilage.
See id. Rather, testimony and photographic evidence indicate that the area surrounding the shop
building is strewn with scrap items and unwanted debris, such as inoperable vehicles, rusted
barrels, and multiple sinks. Use of the shop building as a dumping ground for trash does not
elevate the shop building to a status equal to that of a residence. See United States v. Mooring,
137 F.3d 595, 596 (8th Cir. 1998). Furthermore, Trooper Rutledge testified to a strong chemical
odor associated with methamphetamine, which he noticed immediately upon exiting his vehicle;
such evidence is indicative of a building not being used to continue the intimate activities of the
home. See Dunn, 480 U.S. at 302-03.
9
Finally, Trooper Rutledge testified that, although there are trees growing around the
house and to the east of the property, the shop building, including its front door, is visible from
the road. He further testified that the driveway goes past the house and to the shop building.
If an occupant permits visitors to enter onto portions of the property, such as the
driveway or front walk, so as to reach the door, or if such areas are visible from
outside the property, then the occupant is generally held not to have a reasonable
expectation of privacy in those portions of the property.
Edwards, 36 S.W.3d at 27.
None of the four factors used in determining whether a particular area of an individual’s
property is included in the curtilage indicate or support the shop building’s inclusion here.
Because the shop building was not part of the curtilage of her residence, Trooper Rutledge and
the accompanying officer were exercising their lawful authority to conduct the knock-and-talk.
See Hunziker, 799 S.W.2d at 613 (“[A]ny area not within the curtilage of the residence may be
searched without a warrant under the open fields doctrine.”).4
Defendant’s Consent to Search was Voluntary
Because the officers’ presence at the shop building door was lawful, there is no
“poisonous tree,” the fruit of which must be excluded, as argued by Defendant. Thus, any
subsequent consent to search the shop building cannot be disqualified as tainted by that presence.
While the legal fruit of the initial search of the shop building provides probable cause for the
subsequent search, we must still examine the voluntariness of Defendant’s consent to search the
property in order to determine whether the subsequent warrantless search was valid.
“[A] warrantless search conducted with proper consent, voluntarily given, is
constitutionally valid.” Cromer, 186 S.W.3d at 347 (internal quotation marks omitted).
4
Defendant does not challenge the lawfulness of the subsequent entry into the shop building based upon information
obtained after Trooper Rutledge exited his vehicle and knocked on the shop building door.
10
Consent is freely and voluntarily given if, considering the totality of all the
circumstances, . . . the objective observer would conclude that the person giving
consent made a free and unconstrained choice to do so. A court must consider all
the circumstances surrounding the encounter to determine whether the police
conduct would have been communicated to a reasonable person that the person
was not free to decline the officers’ requests or otherwise terminate the encounter.
Factors used to determine whether consent to a search was given voluntarily
include, but are not limited to: (1) the number of officers present; (2) the degree
to which the officers emphasized their authority; (3) whether weapons were
displayed; (4) whether the officers were misleading or fraudulent; and (5)
evidence regarding what was said or done by the person giving the consent.
Id. (internal quotation marks and citations omitted).
Here, Trooper Rutledge, Sergeant Heil, and two other law enforcement officers were
present at the time Defendant consented to the search of her property. Four officers is not an
unreasonable or overwhelming number, see State v. White, 755 S.W.2d 363, 365 (Mo.App.
1988), especially considering that, at minimum, Defendant’s two sons were also present in the
room. While Trooper Rutledge had placed Defendant under arrest before obtaining her consent
to search, being in custody does not automatically preclude voluntary consent. See State v.
Taylor, 917 S.W.2d 222, 225 (Mo.App. 1996). Moreover, Trooper Rutledge had read Defendant
the Miranda warnings. She was not handcuffed, and no guns or other weapons were drawn.
The record is devoid of any evidence of deception or fraud on the part of law enforcement. By
her own admission, Defendant signed the consent form because she “didn’t think [she] had
anything to worry about.” She even went so far as to assist the officers in conducting the search,
unlocking doors, leading them through the property, and directing their attention to illegal items.
When considered in their totality, the circumstances indicate that Defendant voluntarily
consented to the subsequent search of her property, including the shop building. There was thus
no error in the trial court’s decision overruling Defendant’s motion to suppress and her
accompanying objections at trial. Defendant’s first point is denied.
11
State’s Exhibit #56 (NPLEx Records) Admissible
In her second and third points, Defendant challenges the admission of State’s Exhibit
#56, claiming that the trial court erred in allowing it into evidence, first, because the State failed
to establish a sufficient foundation for its admission under either the official documents or
business records exceptions and, second, because the NPLEx records are testimonial in nature
and their admission thus constituted a violation of her right to confrontation. We disagree with
both claims.
Section 195.017.21 Establishes Foundation for Admission of Records to Create Rebuttable
Presumption as to the Identity of Purchaser of Pseudoephedrine Products
A trial court has broad discretion to admit or exclude evidence at trial. This
standard of review compels the reversal of a trial court’s ruling on the admission
of evidence only if the court has clearly abused its discretion. [T]hat discretion is
abused when a ruling is clearly against the logic of the circumstances and is so
unreasonable as to indicate a lack of careful consideration. Additionally, on direct
appeal, this Court reviews the trial court for prejudice, not mere error, and will
reverse only if the error was so prejudicial that it deprived the defendant of a fair
trial. Trial court error is not prejudicial unless there is a reasonable probability
that the trial court’s error affected the outcome of the trial.
State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006) (internal quotation marks and
citations omitted).
Sections 195.017 and 195.417,5 as implemented by 19 C.S.R. 30-1.074, govern the sale
of pseudoephedrine in Missouri. Any product containing pseudoephedrine must be sold only by
a registered pharmacist or a registered pharmacy technician from behind a pharmacy counter
“where the public is not permitted.” Section 195.017.11(1); section 195.417.4. Any person
purchasing such product must be at least eighteen years old and provide acceptable photographic
identification verifying that fact by date of birth. Section 195.017.11(2) and (3). The seller must
“deliver the product directly into the custody of the purchaser.” Section 195.017.11 (4). Such
5
All references to section 195.017 and 195.417 are to RSMo Cum.Supp. 2010.
12
sellers must maintain an electronic log of each pseudoephedrine product transaction, which must
include each purchaser’s name, address, and signature; the amount of pseudoephedrine
purchased; the date and time of each purchase; and the name or initials of the individual who
dispensed the pseudoephedrine to the purchaser. Section 195.017.12. This information is then
required to be transmitted in real time to an electronic pseudoephedrine tracking system
maintained by the Missouri Department of Health and Senior Services (“DHSS”). Section
195.017.13; section 195.417.5; 19 C.S.R. 30-1.074(3)(C). Only law enforcement agencies have
access to this database and, in order for a particular law enforcement officer to gain access, he or
she must request access through the chief, sheriff, or chief executive officer of his or her
particular agency, who must then, in writing, request the officer’s access from DHSS. 19 C.S.R.
30-1.074(3)(N); see section 195.417.7. Any knowing or reckless violation of subsections 11
through 15 of section 195.017 or any provision of section 195.417 constitutes a class A
misdemeanor. Section 195.017.16; section 195.417.9.
Both Defendant and the State focus their arguments under this point on whether the
NPLEx records comprising State’s Exhibit #56 constitute an official public record or a business
record. Neither argument is on point, however, because subsection 21 of section 195.017 states,
“Logs of transactions required to be kept and maintained by this section and section 195.417
shall create a rebuttable presumption that the person whose name appears in the logs is the
person whose transactions are recorded in the logs.” (Emphasis added). This evidentiary
presumption is established by the “[l]ogs of transactions required to be kept and maintained by”
sections 195.017 and 195.417. Therefore, under the clear and plain language of this statue, so
long as a foundation is laid establishing that the records at issue are “[l]ogs of transactions
required to be kept and maintained by” sections 195.017 and 195.417, those records are
13
admissible in evidence to “create a rebuttable presumption” as to the identity of the purchaser in
the transactions shown in those records.
Here, Trooper Rutledge identified State’s Exhibit #56 as an “NPLEx printout record
which details the pseudoephedrine purchases of [Defendant] from August through December
2010.” Trooper Rutledge further testified that NPLEx is the database referenced in the
applicable Missouri statutes, outlined the process by which an individual must proceed to
purchase pseudoephedrine pursuant to the relevant statutes, and detailed the process he
underwent to gain access to the NPLEx system. Such testimony, all in accordance with the
requirements of sections 195.017 and 195.417, authenticated State’s Exhibit #56 as “[l]ogs of
transactions required to be kept and maintained by” sections 195.017 and 195.417, and thereby
provided a proper foundation for its admission in evidence.
Because State’s Exhibit #56 was admissible under section 195.017.21 to create the
rebuttable presumption contained in that section, whether it was otherwise admissible as an
official public record or a business record, as argued by the parties, is irrelevant. The trial court
did not abuse its discretion in admitting it into evidence under the provisions of section
195.017.21. Defendant’s second point is denied.
NPLEx Records Not Testimonial
The trial court also did not err in admitting the NPLEx records over Defendant’s
objection that such records violated her right to confrontation. The Confrontation Clause states,
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. CONST. amend. VI. “In Crawford v. Washington, [541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], the United States Supreme Court held that the
Confrontation Clause demands that all testimonial evidence be excluded unless the declarant is
unavailable to testify and the defendant had a prior opportunity for cross-examination.” State v.
14
March, 216 S.W.3d 663, 665 (Mo. banc 2007) (citing Crawford, 541 U.S. at 68). Thus, the
paramount inquiry here is whether the NPLEx records are considered testimonial under
Crawford. This inquiry concerns a question of law that this Court reviews de novo. March, 216
S.W.3d at 664-65.
Although the Court in Crawford did not offer a precise definition of “testimonial,” it did
delineate “three useful ‘formulations of this core class of “testimonial” statements’:
(1) ‘ex parte in-court testimony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially,’
(2) ‘extrajudicial statements . . . contained in affidavits, depositions, prior
testimony, or confessions,’ and
(3) ‘statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for
use at a later trial.’”
March, 216 S.W.3d at 666 (quoting Crawford, 541 U.S. at 51-52). The United States Supreme
Court later elaborated on what constitutes a testimonial statement in Davis v. Washington, 547
U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), holding “that a statement made in response to
police interrogation is testimony when its ‘primary purpose’ is not to respond to an ongoing
emergency but ‘to establish or prove past events potentially relevant to later criminal
prosecution.’” March, 216 S.W.3d at 666 (quoting Davis, 547 U.S. at 822).
Using the examples of “testimonial” in Crawford and the “primary purpose” test outlined
in Davis, it is clear that the NPLEx records at issue in this case are not “testimonial” for purposes
of the Confrontation Clause. As Trooper Rutledge testified, “The intent of [the NPLEx] program
is to prevent people from purchasing pseudoephedrine to manufacture methamphetamine[,]” not,
as Defendant argues, to be used at a later criminal prosecution. This is evidenced by the
statutory requirement that pharmacies enter the information identifying the purchaser into the
15
database at the point of sale, thus enabling the pharmacist to instantly discern whether the
purchaser has reached his or her daily or monthly limit of permitted pseudoephedrine purchases,
see section 195.417, subsections 2 and 3, and block any excess purchases. Section 195.017.13;
19 C.S.R. 30-1.074. The real-time compilation of pseudoephedrine purchases likewise does not
fall under any of the three examples of testimonial statements identified in Crawford, which
focus on statements and documents prepared specifically for use in a criminal prosecution.
Defendant urges us to view the NPLEx records as analogous to a laboratory report, such
as that in March; in that case, our Supreme Court found a laboratory report identifying a
substance seized from the defendant’s custody as cocaine to be testimonial in nature, thereby
invoking the Confrontation Clause.6 216 S.W.3d at 665-67. The relevant information in the
laboratory report in March, however, was prepared and analyzed well after the underlying
criminal activity and arrest, and it was created in direct response to a law enforcement officer’s
production of the suspected illegal substance in furtherance of the officer’s goal of proving an
element of the alleged crime. The records at issue here merely consist of a printout containing
information entered and amassed at the time Defendant purchased or attempted to purchase
pseudoephedrine. Those entries were made and recorded regardless of whether Defendant
thereafter committed a crime with the purchased product. To the extent that they consist of a
compilation of several discreet items of non-criminal data that occurred at an identifiable place
and time without further analysis, the NPLEx records more closely resemble telephone records,
see United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011) (cellular telephone records
kept by telephone company are not testimonial), rather than a laboratory report analyzing a
6
Similar to March, Defendant’s reply brief also cites us to Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.
Ct. 2527, 174 L. Ed. 2d 314 (2009) (evidence affidavits reporting the results of forensic analysis which showed that
material seized by the police and connected to the defendant was cocaine were testimonial) and Bullcoming v. New
Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (report of analyst who certified defendant’s blood-alcohol
content for purpose of prosecution on driving while intoxicated charge was testimonial).
16
seized compound prepared for the sole purpose of proving in a prosecution of a crime the
presence of illegal substances.
Moreover, simply because a piece of evidence can be used in a criminal prosecution does
not make that use its primary purpose. The use of the word “primary” by the Supreme Court in
Davis implies that a piece of evidence may have multiple purposes and, indeed, seems to imply
specifically that one of those alternative purposes may be use in a criminal prosecution, so long
as use in a criminal prosecution is not the primary purpose. That is, the fact that the record of an
individual’s pseudoephedrine purchases might be used later on in a criminal prosecution does not
negate the primary purpose of the NPLEx registry: to limit the purchase of pseudoephedrine in
order to limit the ability to manufacture methamphetamine.
Because the NPLEx records are not testimonial in nature, Defendant’s right of
confrontation was not violated, and the trial court did not err in admitting the NPLEx records.
Defendant’s third point is denied.
Decision
Defendant’s convictions are affirmed.
GARY W. LYNCH, J. - Opinion author
DON E. BURRELL, J. - concurs
MARY W. SHEFFIELD, J. - concurs
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