Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Francois County Cause No.
14SF-CR00079-01 Honorable Wendy W. Horn.
Colleen Dolan, Judge.
Hartrup ("Defendant") appeals his conviction of one
count of manufacturing marijuana, a controlled substance,
under § 195.211. 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.
Factual and Procedural Background
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.
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
Standard of Review
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).
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). 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.
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.
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. 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.
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).