STATE OF MISSOURI, Plaintiff-Respondent v. WILLIAM BRYCE CREUTZ, JR.
Date Filed2022-12-21
DocketSD37383
JudgeBorthwick, J. and Growcock, J. - Concurs
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Missouri Court of Appeals
Southern District
In Division
STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD37383
) Filed: December 21, 2022
WILLIAM BRYCE CREUTZ, JR., )
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
Honorable Robert N. Mayer, Circuit Judge
AFFIRMED
William Bryce Creutz, Jr. (âCreutzâ) appeals the judgment of the Circuit Court of
Stoddard County, Missouri (âtrial courtâ), convicting him, after a jury trial, of one count of
possession of a controlled substance and of the infraction of trespass in the second degree.
The trial court sentenced Creutz to a term of seven years in the Missouri Department of
Corrections on the possession count and ordered no fine on the trespass infraction.
On appeal, Creutz claims that the trial court clearly erred in refusing to suppress
evidence found in a vehicle inventory search because the search violated the Fourth and
Fourteenth Amendments to the United States Constitution and article I, section 15 of the
Missouri Constitution and Section 304.155 in that Section 304.155 required that Creutz be
given the opportunity to make arrangements to remove the vehicle. 1 Creutz seeks reversal
of his conviction on the possession count (Count I) and remand for a new trial on that
count. The judgment is affirmed.
Factual Background and Procedural History
The State charged Creutz with felony possession of a controlled substance, first-
degree harassment, misdemeanor possession of a controlled substance, possession of drug
paraphernalia, resisting arrest, and first-degree trespass, all relating to events that occurred
on January 5, 2021.
On October 15, 2021, Creutz filed a motion to suppress all evidence obtained
during an inventory search of a vehicle he was driving. Creutz argued the vehicle was not
lawfully impounded because he was not permitted to contact a responsible driver to
remove the vehicle and he was not given an opportunity to retrieve the vehicle before it
was towed. Creutz argued the inventory search was unlawful because it was not conducted
in accordance with a reasonable, standard policy of routinely securing and inventorying the
contents of the impounded vehicle. 2
On October 20, 2021, the trial court held a suppression hearing. One witness,
Officer Jacob Garcia (âOfficer Garciaâ), testified at the hearing. Officer Garcia testified he
was a patrolman with the Dexter Police Department. Officer Garcia testified he arrived at
a private residence in Dexter, Missouri on January 5, 2021 after receiving a dispatch report
1
Unless otherwise noted, all statutory references are to RSMo 2016, as amended through January 5, 2021,
the date of the alleged crimes.
2
Creutz also argued in his motion to suppress that the search was unlawful because the vehicle was towed to
the ownerâs home rather than impounded. Creutz abandons this argument on appeal, and there is no record
evidence that the vehicle was towed to the vehicle ownerâs home. On appeal, Creutz also abandons his
argument that the inventory search was not pursuant to established police procedures, claiming only that the
inventory search was unlawful because Creutz was not given the opportunity to remove the vehicle or have it
removed pursuant to Section 304.155.
2
that the homeowner had reported a suspicious vehicle in the driveway and that the vehicle
had followed the homeownerâs minor daughter home from basketball practice and had
attempted to drive into the homeownerâs garage. When Officer Garcia arrived, he
observed Creutz sitting in the driverâs seat of a vehicle with the homeownerâs vehicle
behind Creutzâs vehicle. When Officer Garcia arrived, Lieutenant Jody Laramore
(âLieutenant Laramoreâ) of the Missouri State Highway Patrol was at the scene and
Officer Elledge arrived shortly thereafter. 3 Officer Garcia testified Creutz failed to obey
multiple orders to roll his windows down, and that Creutz was making movements
underneath clothing located in the passenger seat and retrieved an unknown item black in
color, which Officer Garcia reported to Lieutenant Laramore. 4 Creutz then exited the
vehicle in â[a] defensive posture, he, uh, at that time he kind of postured his chestâ[.]â
Creutz failed to comply with orders to turn around and put his hands behind his back and
he began to resist. Officer Garcia testified Officer Elledge tased Creutz when Creutz
began to resist and then Officer Garcia tased Creutz when the first taser cycle was not
successful. After a brief struggle, Creutz was secured in handcuffs and placed under arrest
for harassment of a minor child, trespassing, and resisting arrest. Officer Garcia testified
vehicle dispatch was contacted and officers learned Creutz was driving with a revoked
license and a tow truck was called because Creutz was under arrest and the vehicle was on
third-party private property. With regard to the vehicle seizure and inventory search,
Officer Garcia testified:
3
Lieutenant Laramore testified at trial that he served as Zone Sergeant for the Missouri Highway Patrol in
Stoddard County at the time of the alleged crimes and was promoted to Lieutenant and started work as the
Assistant Director of the Missouri Highway Patrol Gaming Division in June 2021. This opinion refers to him
by his title at the time of trial.
4
Stateâs Exhibit 2 shows Officer Garcia recounting at the scene to the other officers that Officer Garcia
pulled up and saw Creutz reaching in the passenger seat for something Creutz had concealed and that Officer
Garcia thought Creutz was grabbing for a knife or gun.
3
Q Does your department have a written policy with regard to inventory
searches that are performed any time a vehicle is towed from a
scene?
A We do.
Q And in this case did you follow that written policy?
A I did.
Q And there are numerous reasons for a written policy but some of
them would be to protect the police department about allegations of
things being stolen or lost?
A Yes, sir.
Q And so, did you conduct an inventory search of that vehicle?
A I did.
Q And you did that pursuant to the written policy of your department?
A Yes, sir.
Q And during that search you found some contraband that is the
subject of some criminal charges that [Creutz] faces?
A We did.
Q That includes a clear glass smoking device, um, that had
methamphetamine residue on it, a plastic baggie containing a crystal
substance in a black pouch, those were all found inside the
vehicle; is that correct?
A Yes, sir.
On cross examination Officer Garcia testified he had read the Dexter Police
Department written policy concerning inventory searches whenever a vehicle is towed
from a scene, and that the policy provides for an inventory search before the vehicle is
towed from the scene. Officer Garcia testified Creutzâs vehicle was towed to a private
impoundment lot and that this was in accord with standard policy because the Dexter
Police Department does not have its own impoundment lot.
With regard to whether Creutz was given an opportunity to contact someone to
retrieve the vehicle, Officer Garcia testified:
Q And, uh, did to [sic] give [Creutz] the opportunity to contact
someone to pick up the vehicle?
A At that time, I donât believe that we obtained any information, uh, of
[Creutz] due to the noncompliance of our basic orders.
Q And when [sic] [Creutz] the owner of the vehicle?
A No, sir.
Q Who was the owner of the vehicle?
A His mother.
4
Q Did you contact his mother to pick up the vehicle?
A No, sir, I donât believe we had a way to contact her, I donât believe
we had a number.
Q And you didnât ask [Creutz] for the number?
A Iâm not a hundred percent sure, sir.
Q Did you give [Creutz] the opportunity to move the vehicle?
A No.
Q Did you give [Creutz] the opportunity to contact someone else to
pick up the vehicle?
A At that time I donât believe [Creutz] was able to contact anybody
due to his state of mind. We couldnât even get a phone number from
[Creutz].
Q Iâm sorry, I, you said due to his and then I, I didnât hear you, Iâm
sorry.
A Due to, I mean, the totality of the circumstances of [Creutzâs]
noncompliance, um, when we asked him questions, uh, there was a
few times we didnât get a response so, I mean, no, sir.
Officer Garcia also testified Creutz was highly agitated, had to be tased twice, and
seemed somewhat intoxicated on some kind of illicit substance, and that Creutz did not
seem in the frame of mind to give coherent answers to anything that would be asked. At
the conclusion of the hearing, Creutzâs counsel argued:
Mr. Oliver seems to be misstating my actual point which is that the, the
vehicleâs owner is not the Defendant in this case. The vehicleâs owner is,
um, a, instead of a citizen that deserves the right to privacy to have their,
their property protected from illegal searches and seizures and the right to
be notified and given the opportunity to, uh, to pick up their vehicle.
[Creutzâs] mother should have been contacted, his mother should have been
given the opportunity to, to pick up the vehicle and the client should have
been given the opportunity to contact someone to pick up the vehicle as
well.
The trial court permitted supplemental briefing, and Creutz filed a memorandum of
law, arguing again that the warrantless search was unlawful and the evidence obtained
therefrom should be excluded because law enforcement did not contact the vehicle owner
(Creutzâs mother) and did not give Creutz the opportunity to contact anyone to have the
vehicle moved.
5
On November 4, 2021, the trial court denied the motion to suppress, finding that
âthe inventory search was reasonableâ without further explanation.
The case was tried to a jury on November 12, 2021. Lieutenant Laramore and
Officer Garcia testified for the State. Creutz asked for and received a continuing objection
to the inventory search as in violation of his rights under the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and article I, sections 10, 15,
and 18(a) of the Missouri Constitution.
Lieutenant Laramore testified he had 26.5 years of experience patrolling with the
Missouri Highway Patrol prior to the events in question on January 5, 2021. Lieutenant
Laramore testified he observed Creutz in the vehicle appearing âangryâ and âagitatedâ and
seemingly talking even though no one else was in the vehicle. Lieutenant Laramore
testified he knocked on the window and asked Creutz to step outside and talk and Creutz
refused, and that Creutz was asked several times to step outside the vehicle and at one
point Officer Garcia said he was going to knock out the window if Creutz did not comply.
Creutz eventually complied and opened the driverâs door and exited the vehicle.
Lieutenant Laramore testified Creutz exited the vehicle with something in his right hand
and clenched his fist and raised his chest, which law enforcement calls âbowing upâ or the
âfighting stance[,]â giving âan indication that something may happen.â Lieutenant
Laramore testified Creutz was ordered to show his hands and calm down but did not
comply. Lieutenant Laramore testified Creutz ultimately was tased a total of three times,
once by Officer Elledge and then by Officer Garcia and once more by Officer Elledge after
Creutz was on the ground but not complying with orders to put his hands behind his back
so he could be cuffed.
6
Officer Garcia testified Creutz did not comply with Lieutenant Laramoreâs orders
to roll down the window. Officer Garcia testified Creutz âwas actively reaching around in
the vehicle[,]â and that â[h]e had a pile of clothing it appeared to be in the passengerâs seat
and he was reaching under that clothing. And at one point in time I observed him almost
like grab something with his hand, and thatâs whenever I told [Lieutenant] Laramore what
he was doing for him to be aware and cautious.â Officer Garcia testified he informed
Creutz that if Creutz did not comply, then Officer Garcia would have to remove or break
the window. Officer Garcia testified he then began to walk around to the driverâs side of
the vehicle and then Creutz âexited the vehicle and slammed the door shut and obtained
more of aggressive posture.â Officer Garcia testified Creutz was given multiple orders to
calm down and turn around and place his hands behind his back and he failed to do so.
With regard to the inventory search, Officer Garcia testified:
Q So your Department has a written policy with regard to what
happens when a vehicle -- a subjectâs vehicle is towed from a scene;
is that correct?
A It is.
Q And what are the reasons for that policy?
A As of the inventory Iâm guessing or just the detail?
Q Why do you, when a vehicleâs being towed, why do you do an
inventory search? Why do you document all the things that are in
that car?
A So we take accountability of the personâs property and we have that
accountability recorded so nothing is lost or, you know, we canât be
held accountable for property that was not misplaced by us.
The homeowner testified he pulled in behind Creutzâs car and Creutz appeared
dazed and confused in the driverâs seat of the vehicle and repeatedly told the homeowner
that the home was Creutzâs house. Creutz told the homeowner Creutz was part of the
Mafia or some group tied to the Mafia and told the homeowner to go inside and get the
house title or Creutz would kill him. The homeowner contacted law enforcement.
7
Creutz testified in his defense. He testified he was driving his motherâs car and
testified he was âjust loafingâ or âcruisingâ even though he was almost an hour from
home. He testified he did say something to the homeowner about the house title and that
the homeowner said he would get the title and they had no cross words. He testified he
refused to follow orders to exit the vehicle because officers were âacting erratically.â He
testified he did not recall whether the glass case containing the methamphetamine and pipe
was his. He testified the substance in the pipe was nitro hydroxide, which he used to
âblow smokeâ and to achieve âtelekinesesâ [sic] or âconnectâ and to avoid use of
methamphetamine.
Sarah Brown testified for the State that she is a drug chemist for the Missouri State
Highway Patrol and that the substance discovered during the inventory search contained
methamphetamine and that she has never heard of nitro hydroxide despite conducting tens
of thousands of drug tests during her career.
The State dismissed Counts III (misdemeanor possession of a controlled substance)
and IV (possession of drug paraphernalia). The jury found Creutz not guilty on Counts II
(harassment) and V (resisting arrest). The jury found Creutz guilty on Count I (felony
possession of a controlled substance). On Count VI, Creutz was charged with first-degree
trespass and the jury found Creutz guilty of the lesser included offense of second-degree
trespass. On December 7, 2021, Creutz filed a motion for judgment of acquittal or in the
alternative for a new trial, again arguing the trial court erred in denying his motion to
suppress. 5 On December 20, 2021, the trial court entered its judgment sentencing Creutz
to seven years in prison on Count I and assessing no fine on Count VI.
5
Creutz argued the denial of his motion to suppress violated his due process rights under the Fifth and
Fourteenth Amendments to the United States Constitution and article I, section 10 of the Missouri
8
Creutz filed a timely appeal.
Standard of Review
We âwill reverse a trial courtâs ruling on a motion to suppress only if it is clearly
erroneous.â State v. Holman, 502 S.W.3d 621, 624(Mo. banc 2016). Clear error exists if, after reviewing the entire record, we are âleft with a definite and firm belief a mistake has been made.âId.
(quoting State v. Bell,488 S.W.3d 228, 238
(Mo.App. 2016)). âA trial courtâs ruling on a motion to suppress must be supported by substantial evidence.â State v. Johnson,354 S.W.3d 627, 631
(Mo. banc 2011). âThe facts and reasonable inferences from such facts are considered favorably to the trial courtâs ruling, and contrary evidence and inferences are disregarded.âId. at 631-32
. This is true when, as here, the trial court does not issue findings of fact when ruling on a motion to suppress. State v. Smith,595 S.W.3d 143
, 145 (Mo. banc 2020). âThe question of whether a criminal defendantâs constitutional rights were violated is a question of law reviewed de novo.â State v. Gates,635 S.W.3d 854
, 857 (Mo. banc 2021).
Preservation of Error
We will not convict a trial court of error for reasons not presented to it and instead
argued for the first time on appeal. State v. Stone, 430 S.W.3d 288, 290(Mo.App. 2014). This requirement is âto eliminate error by allowing the trial court to rule intelligently and to avoid âthe delay, expense, and hardship of [an] appeal and retrial.ââ Brown v. Brown,423 S.W.3d 784, 787-88
(Mo. banc 2014) (quoting Pollard v. Whitener,965 S.W.2d 281, 288
(Mo.App. 1998)).
Constitution and also violated his right to present a complete defense under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri
Constitution. Although Creutz failed to identify the Fourth Amendment to the United States Constitution in
his motion for new trial, we find he sufficiently preserved his argument for review for the reasons set out in
the Preservation of Error discussion.
9
Creutz correctly acknowledges he never cited Section 304.155 to the trial court but
nonetheless claims he has preserved his point for appellate review under State v. Amick,
462 S.W.3d 413 (Mo. banc 2015), because even though he did not cite the statute he made
clear to the trial court that the evidence obtained from the vehicle inventory search should
be suppressed because he was not given the opportunity to remove the vehicle or contact
the vehicle owner (his mother) or someone else before it was towed. In Amick, the
Supreme Court of Missouri concluded Amick preserved his claim of improper juror
substitution in violation of Section 494.485 by objecting to the juror substitution procedure
at the time and in his motion for new trial despite never citing the statute to the trial court:
Although defense counsel did not cite section 494.485 in his objection or
motion for a new trial, the objection plainly and unequivocally informed the
trial court of Mr. Amickâs position that the proposed juror substitution was
error. Further, trial judges are presumed to know the law and to apply it in
making their decisions. This presumption, in addition to Mr. Amickâs
timely and specific objection to the precise issue of the propriety of
substituting alternate Juror 14 for Juror 12 after the jury had commenced
deliberations, is sufficient to preserve the issue for appeal.
Amick, 462 S.W.3d at 415(citing State v. Finley,403 S.W.3d 625, 629
(Mo.App. 2012); Dycus v. Cross,869 S.W.2d 745, 751
(Mo. banc 1994) (trial courts are assumed to know
the law)).
While Creutz failed to cite Section 304.155, Creutz did repeatedly advise the trial
court (in his motion to suppress, at the suppression hearing, and at trial) of Creutzâs
position that the evidence obtained from the inventory search should be suppressed
because Creutz was not given the opportunity to remove the vehicle or contact the vehicle
owner or someone else to remove the vehicle before it was searched and impounded. He
raised denial of his motion to suppress as a claimed error in his motion for judgment of
acquittal or in the alternative for a new trial without providing factual detail. Thus, while
10
the far better practice would have been to bring the statute and the Stateâs claimed lack of
compliance to the trial courtâs attention to leave no question as to preservation of error, this
Court will find the argument preserved for appeal under Amick and will review Creutzâs
claim of violation of Section 304.155.
Analysis
In his sole point on appeal, Creutz asserts the trial court clearly erred in denying his
motion to suppress and in admitting at trial, over Creutzâs objection, evidence obtained
from the vehicle Creutz was driving at the time of his arrest. 6 Creutz claims he was
subjected to an unreasonable search and seizure in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and article I, section 15 of the Missouri
Constitution because Section 304.155 required he be given the opportunity to remove the
vehicle or have the vehicle removed before it was searched and towed from the private
residence in Dexter.
Creutzâs argument is unavailing. âThe Fourth Amendment of the United States
Constitution guarantees the right of the people to be free from unreasonable searches and
seizures.â Smith, 595 S.W.3d at 145. âArticle I, section 15 of the Missouri Constitution
protects against unreasonable searches and seizures to the same extent as the Fourth
Amendment.â Johnson, 354 S.W.3d at 630. â[B]oth provisions provide the same guarantees against unreasonable searches and seizures.âId. at 632
. âA warrantless search is âper se unreasonable . . . subject only to a few specifically established and well- delineated exceptions.ââ Greene v. State,585 S.W.3d 800
, 804 (Mo. banc 2019) (quoting Arizona v. Gant,556 U.S. 332, 338
(2009)).
6
The State did not argue that Creutz lacked standing to challenge the search of the vehicle. Creutz testified
the vehicle belonged to his mother and Officer Garcia testified the vehicle was registered to Creutzâs mother.
11
âInventory searches are now a well-defined exception to the warrant requirement of
the Fourth Amendment.â State v. Jones, 865 S.W.2d 658, 660(Mo. banc 1993) (quoting Colorado v. Bertine,479 U.S. 367, 371
(1987)). âAn inventory search does not implicate the policies requiring a warrant or probable cause.âId.
(citing Bertine,479 U.S. at 371
). âAn inventory search is valid where reasonable police regulations for inventory procedures are administered in good faith.âId.
(citing Bertine,479 U.S. at 374
). â[I]nventory procedures serve to protect an ownerâs property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.â Bertine,479 U.S. at 372
.
Section 304.155.1(5) provides:
Any law enforcement officer within the officerâs jurisdiction, or an officer
of a government agency where that agencyâs real property is concerned,
may authorize a towing company to remove to a place of safety:
(5) Any abandoned property for which the person operating such property is
arrested for an alleged offense for which the officer takes the person into
custody and where such person is unable to arrange for the propertyâs
timely removal[.]â
In State v. Milliorn, 794 S.W.2d 181, 186 (Mo. banc 1990), the Supreme Court of
Missouri considered a prior version of Section 304.155.1(5) 7 and declared:
As we have said, Bertine, Lafayette and Opperman all require some
showing that the decisions to impound and conduct an inventory were
7
The version of Section 304.155.1(5) then in effect stated:
1. Any member of the state highway patrol, sheriff, or other law enforcement officer
within his jurisdiction may authorize a service station, towing operator, salvage dealer, or
motor vehicle repair shop to remove to a place of safety:
(5) Any vehicle for which the person driving such vehicle is arrested for an alleged offense
for which the officer is required to take the person into custody[.]
RSMo 1986. In 1996, the Legislature amended Section 304.155.1(5) to include the âand where such
person is unable to arrange for the propertyâs timely removalâ requirement. See Sec. 304.155.1(5)
RSMo Cum. Supp. 2015; see also S.B. 560 (1996). The current version of Sec. 304.155.1(5) has
been in effect since 2009. See RSMo Cum. Supp. 2021; see also H.B. 683 (2009).
12
carried out âin accordance with standard procedures in the local police
department.â Opperman, 428 U.S. at 375, 96 S.Ct. at 3100 (emphasis in
original). In our view, Section 304.155.1(5), RSMo 1986, establishes
standardized criterion for the decision to impound a vehicle. That statute
permits a member of the state highway patrol to arrange for removal of a
vehicle on a public highway when the person driving the vehicle is
âarrested for an alleged offense for which the officer is required to take the
person into custody.â
Once the decision to impound is made consistent with the statutory
authority, the inventory that follows is reasonable if the government shows
it is motivated by a desire to protect itself against false claims of theft or to
protect property from damage. See W. LaFave, 3 Search & Seizure § 7.4(a)
at 98 (2nd ed. 1987) (âthe courts have upheld inventory searches whenever
the initial taking of custody of the car has been considered lawfulâ). We do
not believe prophylactic inventories for such purposes violate the Fourth
Amendment. The State showed by a preponderance of the evidence that the
impoundment in this case was motivated by legitimate governmental
concerns, not a desire to search for evidence.[ 8]
In this case, the State established the decision to impound was made consistent with
statutory authority in Section 304.155.1(5) and that the pre-impoundment inventory search
was reasonable because the State was motivated by legitimate governmental concerns, not
a desire to search for evidence. Officer Garcia testified Creutz was placed under arrest for
harassment of a minor child, trespassing, and resisting arrest. Officer Garcia testified
vehicle dispatch was contacted and officers learned Creutz was driving with a revoked
license and a tow truck was called because Creutz was under arrest and the vehicle was on
8
In Milliorn, the Supreme Court of Missouri considered the version of Section 304.155.1(5) then in effect in
analyzing the Stateâs argument that the trial court erred in granting a motion to suppress marijuana
discovered in a camper shell of a truck because, per the State, the evidence was admissible under the
inevitable discovery doctrine in that the State would have towed the vehicle and conducted an inventory
search under Section 304.155.1(5) and inevitably would have discovered the marijuana at that time. The
court rejected this argument, finding that although the impoundment and inventory were lawful under Section
304.155.1(5), the State failed to establish inevitable discovery where neither witness for the State âtestified
regarding routine inventory procedures for impounded vehicles. . . . In the absence of evidence showing the
inevitability of the inventory search of the automobile, the inevitable discovery doctrine cannot justify the
admission of the evidence.â 794 S.W.2d at 184. In this case, there is no issue of a hypothetical inventory
search and application of the inevitable discovery doctrine as the parties do not dispute the evidence was
discovered during a pre-impoundment inventory search of the vehicle. Further, in this case, Officer Garcia
testified concerning the Dexter Police Department written procedures for towing and pre-towing search of an
arresteeâs vehicle.
13
third-party private property. Officer Garcia testified the pre-impoundment inventory
search of the vehicle was conducted in accordance with written policy of the Dexter Police
Department and that the vehicle impoundment in a third-party facility was also pursuant to
established procedures because the Dexter Police Department does not own an
impoundment facility. Officer Garcia testified one of the purposes of the written inventory
policy is to protect the police department from allegations of property being lost or stolen.
The State established that it lawfully seized the vehicle and administered in good faith
reasonable police regulations relating to inventory procedures in its seizure and inventory
search of the vehicle Creutz drove.
The Stateâs evidence established each element of Section 304.155.1(5); namely, the
alleged crimes occurred within the jurisdiction of the Dexter Police Department; Creutz
was operating the vehicle; Creutz was arrested and taken into custody for multiple alleged
offenses; and Creutz was unable to arrange for the vehicleâs timely removal.
The only element Creutz challenges is whether he was unable to arrange for the
vehicleâs timely removal. Viewing the evidence in the light most favorable to the ruling,
as required by the standard of review, the State proved Creutz was unable to arrange for
the vehicleâs timely removal. The evidence was that Creutz parked the vehicle illegally in
the driveway of the private residence in Dexter. The homeowner told law enforcement he
told Creutz to leave and Creutz would not leave. Creutz was agitated, incoherent, and
threatened to kill the homeowner. Creutz failed to cooperate with law enforcement orders
to exit the vehicle until law enforcement threatened to break the car window and then
Creutz refused to put his hands behind his back and ultimately was tased three times before
law enforcement subdued him to handcuff him. Creutz was arrested and taken into
custody so he had no ability to remove the vehicle personally. Even had he not been taken
14
into custody, the evidence was that he was driving with a revoked license so his further
operation of the vehicle would have been unlawful. See Section 302.321. Further, the
vehicle was not registered to Creutz, creating at least a question as to whether he was in
lawful possession of the vehicle. Having someone else remove the vehicle was not an
option because no qualified driver was there to accept law enforcementâs release of the
vehicle. Stateâs Exhibit 2 reflects law enforcement asked Creutz if he had a phone and
Creutz responded that he did not because it was in the possession of the Butler County
Justice Center. The State presented evidence that Creutz was incoherent and could not
provide basic information so they deemed him unable to provide the vehicle ownerâs
phone number. Officer Garcia testified law enforcement did not have a phone number for
Creutzâs mother, to whom the vehicle was registered.
Further, Section 304.155.1(5) places the burden on the person operating the vehicle
to arrange for timely removal, not law enforcement. Creutz presented no evidence that
anyone would have been willing or able to remove the vehicle. Even had someone been
willing or able to remove the vehicle, law enforcement had no obligation to allow for
alternative arrangements where the vehicle was parked illegally on third-party property and
where Creutz had threatened to kill the homeowner. Accepting Creutzâs argument would
place law enforcement in the untenable situation of causing undue delay in removal of the
vehicle (and potentially the arrestee) from private property and potentially escalating an
already dangerous situation by inviting other persons to trespass on private property to
remove the vehicle. Nothing in Section 304.155.1(5) requires such a result. The trial court
did not clearly err in finding the warrantless inventory search reasonable despite law
enforcementâs failure to contact the vehicleâs registered owner or to permit Creutz to
arrange for the vehicleâs removal. Contrary to Creutzâs argument, Section 304.155.1(5)
15
does not require the State to show that âimpounding [a personâs] car was the only viable
option.â Section 304.155.1(5) contains no language to that effect. 9
Creutz argues Stateâs Exhibit 2, body cam footage of the January 5, 2021 events,
shows that the trial court clearly erred in denying his motion to suppress because he claims
Stateâs Exhibit 2 shows he was coherent and able to communicate with law enforcement
officers and could have made arrangements for the vehicle had he been asked or that law
enforcement could have made other arrangements for the vehicle since the video shows
they knew the vehicleâs registration prior to the inventory search. As Creutz notes,
â[u]nder the âclearly erroneousâ standard of review, the trial courtâs findings of fact are
entitled to deference even where they are based on physical or documentary evidence
which is equally available to an appellate court.â State v. Williams, 334 S.W.3d 177, 181(Mo.App. 2011) (citation omitted). We do accord deference to the trial courtâs findings on all factual issues and after review of Stateâs Exhibit 2 find no error, let alone clear error, in the trial courtâs determination that the inventory search was reasonable. 9 The parties discuss State v. McDowell,519 S.W.3d 828
(Mo.App. 2017), where the court affirmed denial of a motion to suppress evidence found during a vehicle inventory search while also finding that a mere request by law enforcement that the arrestee provide the identity of the vehicle owner did not equate to proof that the arrestee was unable to arrange for the timely removal of the vehicle under Section 304.155.1(5).Id.
at 835- 36. In McDowell, the court upheld the vehicle seizure and inventory search under the âcommunity caretakingâ doctrine set out in Bertine and other United States Supreme Court cases even though the court found lack of compliance with Section 304.155.1(5).Id.
In this case, we need not consider whether the
vehicle seizure and search were lawful under the âcommunity caretakingâ doctrine or any other doctrine of
Fourth Amendment jurisprudence because the State proved compliance with Section 304.155.1(5). Here, the
State offered evidence of why Creutz was unable to arrange for the vehicleâs timely removal (arrest, driving
while revoked, incoherent and agitated and threatened to kill homeowner, refusing to respond to law
enforcement directives to the point of being tased three times, vehicle not registered to Creutz, vehicle
illegally parked on private property), where the lone evidence of compliance with Section 304.155.1(5) in
McDowell was that the arrestee (arrested in a hotel lobby with vehicle in the parking lot) had a revoked
license and had been asked the identity of the vehicle owner. Creutz argues law enforcement did not even
ask Creutz the vehicle ownerâs identity, but we find law enforcement did not need to ask under these
circumstances to establish compliance with Section 304.155.1(5). Officer Garcia testified the vehicle was
registered to Creutzâs mother but law enforcement did not have a phone number for her and did not view
Creutz as able to provide a phone number. Creutz argued at the suppression hearing that his mother had a
right of privacy in the vehicle.
16
Creutz claims that Stateâs Exhibit 2 also clearly demonstrates that the inventory
search was a pretext for further investigation. We disagree and further find that any
analysis of motive for the inventory search is irrelevant in light of our determination that
the vehicle seizure and inventory search were lawful. Because the police conducted a
lawful inventory search, any investigatory motive for the search does not invalidate the
search. âThe presence of an investigatory motive, even if proven, does not invalidate an
otherwise lawful inventory search.â State v. Meza, 941 S.W.2d 779, 782(Mo.App. 1997) (quoting U.S. v. Agofsky,20 F.3d 866, 873
(8th Cir. 1994)). See also Milliorn,794 S.W.2d at 185
(â[T]he mere suspicion that contraband or other evidence will be found does not invalidate an otherwise valid inventory search conducted pursuant to proper police procedure.â) (quoting State v. OâConnell,726 S.W.2d 742, 748
(Mo. banc 1987)). Likewise, the exclusionary rule does not apply because of the lawfulness of the vehicle seizure and inventory search. See State v. Wilbers,347 S.W.3d 552, 562
(Mo.App. 2011) (âTo trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.â) (quoting Herring v. United States,555 U.S. 135, 143-44
(2009)).
Conclusion
The judgment is affirmed.
GINGER K. GOOCH, J. - Opinion Author
BECKY J.W. BORTHWICK, J. - Concurs
JENNIFER R. GROWCOCK, J. - Concurs
17