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State v. Hartrup

Court of Appeals of Missouri, Eastern District, Second Division

February 28, 2017

RANDY S. HARTRUP, Appellant.

         Appeal from the Circuit Court of St. Francois County Cause No. 14SF-CR00079-01 Honorable Wendy W. Horn.


          Colleen Dolan, Judge.

         Randy Hartrup ("Defendant") appeals his conviction of one count of manufacturing marijuana, a controlled substance, under § 195.211.[1] Defendant argues his motion to suppress should have been granted because the evidence was the product of an unconstitutional search within the curtilage of his home, where he had an expectation of privacy that was violated pursuant to the Fourth Amendment of the United States Constitution and article I, section 15 of the Missouri Constitution. The trial court did not plainly err in denying the motion to suppress because the evidence was seized constitutionally under the plain view exception. We therefore affirm the judgment of the trial court.

         I. Factual and Procedural Background

         On July 10, 2013, Sergeant Donald Crump ("Sergeant Crump"), Officer S.D. Thompson ("Officer Thompson"), and Trooper Tim Craig went to Defendant's address to investigate an anonymous tip that Defendant was growing marijuana outside his mobile home. The property at the address had a driveway with a mobile home on the left and a house on the right. The mobile home was situated perpendicular to the road and parallel to the driveway. The officers approached the mobile home to conduct a "knock and talk" investigation. The officers first knocked on the door that faced the driveway, and no one answered. Sergeant Crump testified that Officer Thompson then proceeded around to the back of the mobile home, encountering no obstacles, to ascertain whether there was another door on which to knock. At the rear corner of the home, Officer Thompson observed a picnic table approximately one foot from the home with a pot on top of it containing eight marijuana plants. During cross-examination, the defense attorney showed Sergeant Crump a picture of the scene depicting a large bush, and the officer confirmed that it blocked the view of the marijuana plants from the front door. After Officer Thompson alerted Sergeant Crump to the plants, the officers continued their attempt to make contact with an owner of the property. They knocked on the door of the house across the driveway, which Defendant's mother answered. After speaking with her and asking her to have Defendant contact them, the officers seized the plants.

         The State charged Defendant with one count of manufacturing a controlled substance, a class B felony. The trial court found Defendant guilty and sentenced him to six years. Defendant now appeals.

         II. Standard of Review

         When reviewing a motion to suppress evidence, this Court will not reverse the trial court unless the decision was clearly erroneous. State v. Ivy, 455 S.W.3d 13, 17 (Mo. App. E.D. 2014). We view all facts in the light most favorable to the ruling, disregarding any contrary evidence and inferences. State v. Kelly, 119 S.W.3d 587, 592 (Mo. App. E.D. 2003). "If the trial court's ruling is plausible in light of the record viewed in its entirety, this court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. While we defer to the trial court's factual findings and credibility determinations, Fourth Amendment violations present an issue of law and are reviewed de novo. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc. 2007).

         III. Legal Background

         The Fourth Amendment to the United States Constitution and article 1, section 15 of the Missouri Constitution confer on individuals the right to be free from unreasonable search and seizure where society recognizes a reasonable expectation of privacy exists. State v. Bates, 344 S.W.3d 783, 787 (Mo. App. S.D. 2011).[2] However, when evidence is found in a location open to the public with no reasonable expectation of privacy, no search-and no constitutional violation-occurs. Id. at 787-88.

         A reasonable expectation of privacy generally extends to a person's home and its curtilage. Missouri v. Pierce, 504 S.W.3d 766, 769 (Mo. App. E.D. 2016). The "curtilage" of a home is the enclosed space of ground and buildings immediately surrounding a dwelling. Id. Curtilage includes, for example, porches, yards, garages, and sheds. Kelly, 119 S.W.3d at 593. Four factors are used to determine whether an area is within the curtilage of the home: "(1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) how the area is used; and (4) the steps taken to protect the area from observation by people passing by." Id. (citing United States v. Dunn, 480 U.S. 294, 301 (1987)). These same factors may be used to decide, on a case-by-case basis, whether an area of curtilage is open to the public. Id. Law enforcement officers may be present on areas of curtilage open to the public absent a warrant without incurring a Fourth Amendment violation. Id. Indeed, "it is altogether proper for police with legitimate business to enter the areas of curtilage open to the public." State v. Edwards, 36 S.W.3d 22, 26 (Mo. App. W.D. 2000).

         When deciding whether a given area is within the curtilage of a home and whether that area is open to the public, "the key is whether the occupant of the premises has somehow exhibited a reasonable expectation of privacy in the area." Kelly, 119 S.W.3d at 593. "If in a particular case an occupant has taken effective steps to protect areas of the property from view and from uninvited visitors, then a privacy interest may be found in that area sufficient to preclude police from coming onto it for investigative purposes without permission." Edwards, 36 S.W.3d at 27.[3] Missouri courts have found that "normal means of public access to the residence doors" do not carry a reasonable expectation of privacy and are not protected by the Fourth Amendment. Id. Thus, under the plain view exception to the Fourth Amendment, "evidence found in plain view along those means of public access" may be seized by an officer, even without a warrant, and admitted as evidence without infringing on the occupant's constitutional rights. Id.

         Missouri courts have held that "knock and talk" investigations by officers do not violate occupants' constitutional rights. State v. Kriley, 976 S.W.2d 16, 22 (Mo. App. W.D. 1998). During a "knock and talk" investigation, in which law enforcement officers receive a tip about drug activity that they believe has merit but is insufficient to obtain a warrant, the "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." State v. Nebbitt, 455 S.W.3d 79, 90-91 (Mo. App. E.D. 2014). "[W]hen the police come on private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations from such vantage points are not restricted by the Fourth Amendment. " State v. Kruse, 306 S.W.3d 603, 609 (Mo. App. W.D. 2010).

         IV.Discus ...

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