Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Montgomery County Hon. Kelly
VAN AMBURG, JUDGE.
Stufflebean appeals the trial court's judgment after a
jury convicted him of attempting to manufacture a controlled
substance, methamphetamine. Finding no reversible error, we
Stufflebean ("Appellant") was charged with
attempting to manufacture methamphetamine, for an incident
occurring on May 18, 2012. A jury found him guilty as charged
on December 16, 2016. This appeal follows.
2012, 23354 Lloyd Road (the "Burke property") was
owned by Appellant's cousins, Christopher Burke
("Burke") and his sister, Mandy. The Burke property
had previously been owned by Christopher and Mandy's
father, and the trailer on the Burke property had once been
the family's residence, although no one lived there by
16, 2012, deputies responding to report of possible
trespassing at 23354 Lloyd Road entered the uninhabited
trailer and found a duffle bag containing muriatic acid,
Coleman fuel, and an ice-pack label - items consistent with
the manufacture of methamphetamine. Because such items were
not safe to transport, and no one was available for an
immediate pickup of the items, a deputy at the scene hid the
bag with the items under the porch until someone could
days later, on May 18, 2012, Deputy Todd Clark
("Clark") and two other deputies responded to a
call regarding suspicious activity at the Burke property. On
arrival, the officers encountered Burke and Cody Jackson
("Jackson") at the front of the trailer, and Clark
observed a third individual run from the rear of the trailer
into a wooded area. Clark later testified that he believed
the individual to be Appellant based on Clark's viewing
of a photograph of Appellant that hung in the sheriff's
department squad room. Burke and Jackson were detained, and
after an unsuccessful attempt to locate the third individual,
Clark conducted what he called a "protective sweep"
of the interior of the trailer. During the sweep, he observed
more items consistent with the manufacture of
Clark interviewed Burke, who at first denied that a third
person had been present at the trailer. Clark told Burke that
he believed it was Appellant who ran from the trailer, and
that if Burke told the truth he would not be arrested that
night. Burke confirmed that is was Appellant who had run from
the trailer. Burke also told Clark that he, Appellant, and
Jackson went to the Burke property to "make money"
by making methamphetamine.
Detective Jeff Doerr ("Doerr"), obtained a search
warrant for the trailer. Doerr seized and photographed items
from the trailer, including those that were hidden under the
porch on May 16. Doerr gave the seized hazardous material
items to the drug task force for destruction. He did not
obtain permission from the court or take representative
samples of the materials before their destruction.
investigation yielded evidence that Burke had purchased
pseudoephedrine on May 18. Doerr and Lieutenant Scott
Schoenfeld ("Schoenfeld") went to Burke's home
on May 21 to interview him further. At that point, Burke said
that he bought the pseudoephedrine for Appellant and told the
officers the entire sequence of events from May 18, which
included Burke and Appellant visiting several different
stores to purchase ingredients for methamphetamine
manufacture. Officers then investigated Burke's claims by
viewing surveillance videos and obtaining receipts for items
purchased, some of which were admitted as evidence at trial.
At trial, Burke testified that he did not remember making the
statements to police on May 18 and 21.
facts relevant to the points on appeal appear below.
State claims that Appellant's Points I and IV are
multifarious and are therefore not subject to appellate
review. While we agree that Appellant's Points I and IV
are multifarious, we prefer to decide cases on the merits
when it is feasible to do so, as it is here.
Amendment claim (Point I)
first point, Appellant contends that the trial erred in
overruling his motion to suppress evidence seized from the
Burke Property and in overruling his motion to reconsider
suppression of the same evidence. Appellant claims that the
police violated his Fourth Amendment rights with respect to
the evidence seized from the Burke Property on May 16 and 18.
We review a trial court's ruling on a motion to suppress
for clear error, reversing only if "we are left with the
definite and firm impression that a mistake has been
made." State v. Pierce, 504 S.W.3d 766, 769
(Mo. App. E.D. 2016). We defer to the trial court's
factual findings and credibility determinations and consider
all evidence and reasonable inferences in the light most
favorable to the trial court's ruling, disregarding all
contrary evidence and inferences. State v. Loggins,
445 S.W.3d 105, 109 (Mo. App. E.D. 2014). Finally,
"while we defer to the trial court's factual
findings and credibility determinations, the question of
whether the Fourth Amendment has been violated is a legal one
that we review de novo." State v.
Brown, 382 S.W.3d 147, 156 (Mo. App. W.D. 2012).
Fourth Amendment to the United States Constitution guarantees
"[t]he right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures . . ." U.S. Const. amend. IV.
Fourth Amendment rights are personal and may not be asserted
vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34
(1978). "A person who is aggrieved by an illegal search
and seizure only through the introduction of damaging
evidence secured by a search of a third person's premises
or property has not had any of his Fourth Amendment rights
infringed." Id. at 134. To show that his Fourth
Amendment rights have been violated personally, a defendant
must have an actual, subjective expectation of privacy in the
place or thing searched, and that expectation must be
"reasonable" or "legitimate." State
v. Faruqi, 344 S.W.3d 193, 205 (Mo. banc 2011). A
defendant who does not have a reasonable expectation of
privacy related to that property at the time of the allegedly
improper search or seizure lacks standing to complain of the
search or seizure of property. State v. Mosby, 94
S.W.3d 410, 416 (Mo. App. W.D. 2003). Even if Appellant had a
personal, subjective expectation or belief that his property
in the Burke trailer would go undisturbed, that is not
enough. A "legitimate" expectation of privacy
requires more than a subjective expectation of not being
discovered. Brown, 382 S.W.3d at 157.
does not claim the trailer was a residence for the purposes
of Fourth Amendment analysis. Instead he asserts that his
"business use of the trailer as acknowledged by the
trial court gave rise to a legitimate expectation of privacy
and suffices to confer standing." The purported
"business use" refers to Appellant's work for
his brother James's tree service. Our review of the
record shows that Appellant lacked standing to challenge the
searches because this claimed expectation of privacy was not
evidence on record is that, in the summer of 2012, James and
others working for his tree service, including Appellant,
would come to the Burke property "a couple times a
week" to burn tree debris, that they sometimes kept a
change of clothes or coolers in the trailer, and that before
the water was disconnected in the spring of 2012, they would
sometimes wash up in the trailer, as well. Appellant did not
own the Burke Property or the trailer thereon, nor did he
stay at the trailer overnight on or between May 16 and 18.
During that time, the trailer was in the process of being
torn down, the water was shut off in the trailer, and only
one room in the trailer offered safe shelter; otherwise, in
various places, the trailer's walls were missing, the
roof was caving in, and the floor was rotting away.
of expectations of privacy by law must have a source outside
of the Fourth Amendment, either by reference to concepts of
real or personal property law or to understandings that are
recognized and permitted by society." State v.
Williams, 485 S.W.3d 797, 801 (Mo. App. W.D. 2016),
citing Rakas, 439 U.S. at 143 n.12. Appellant's
claim of a reasonable, business-related expectation of
privacy in the trailer is wholly unsupported by the evidence.
Although Appellant asserts that "the Fourth Amendment
applies to a shack on a worksite as much as it does to a
living room at a residence, " we see no evidence in the
record supporting a reasonable conclusion that the trailer
was used as "commercial premises" for the tree
service. James testified that the trailer was in the process
of being scrapped in May 2012, and that James and the tree
service employees used it for the very limited purposes of
storing a change of clothes or a cooler a couple of days per
week. There is no evidence that James kept tools, equipment,
or records relating to the business in the trailer, or that
James met with customers, planned jobs or performed any part
of his business operations inside the trailer. Even if we
assume, arguendo, that James had an expectation of
privacy in the trailer as owner of the tree service,
Appellant offers no authority to support his claim that he
may assert James's privacy interest vicariously.
Compare New York v. Burger, 482 U.S. at 699
("An owner or operator of a business thus has an
expectation of privacy in commercial property, which society
is prepared to consider to be reasonable, ") with
Rakas, 439 U.S. 133-34, supra.
that Appellant had no legitimate privacy interest via
traditional concepts of property control or ownership, nor as
an employee of James's tree service, we next examine
whether society would otherwise find Appellant's
expectation of privacy to be legitimate or reasonable.
Williams, 485 S.W.3d at 801. Appellant did not
attempt to protect his claimed privacy interest; the trailer
was open to the elements due to its missing roof and walls,
and not secured against intruders. "What a person
knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment
protection." Katz v. United States, 389 U.S.
347, 351 (1967). Tree service employees were only present at
the trailer intermittently, at all other times the trailer
would appear abandoned and accessible to any person who felt
inclined to enter. There were no signs warning against
trespass, fences, or other barriers to entry that would
demonstrate an expectation of privacy. See State v.
Pierce, 504 S.W.3d 766, 771 (Mo. App. E.D. 2016)
(Homeowner demonstrated his expectation of privacy in chicken
coop by locating it within a barbed wire fence, posting
"no trespassing" signs, and denying others entry to
his property); State v. Nichols, 628 S.W.2d 732, 735
(Mo. App. S.D. 1982) ("One of the main rights attaching
to property is the right to exclude others and one who owns
or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue
of this right to exclude").
not persuaded of a societal expectation of privacy in a
partially collapsed, uninhabited, and dilapidated trailer
which is not used as a residence or for legitimate commercial
purposes and is also wholly unsecured and left open to the
public and the elements. This finding is even stronger when,
as here, the party claiming the privacy interest does not
have a personal proprietary, residential, or occupational
interest in the building. Point I is therefore denied.
of the searches (Point II)
second point, Appellant claims that whether or not he had a
legitimate expectation of privacy in the trailer, the
searches were nonetheless illegal, and their fruits, namely
Burke's statements to officers on May 18 and 21, should
be suppressed. We disagree. As discussed with respect to
Point I, Appellant had no legitimate expectation of privacy
in the trailer, thus he cannot assert a violation of his
Fourth Amendment rights. "[S]uppression of the product
of a Fourth Amendment violation can be successfully urged
only by those whose rights were violated by the search
itself, not by those who are aggrieved solely by the
introduction of damaging evidence." Alderman v.
United States, 394 U.S. 165, 171-72 (1969). We decline
Appellant's request that we exercise so-called
"pragmatic judicial supervision of very questionable
law-enforcement tactics." Point II is denied.
out-of-court statements (Point III)
third point, Appellant claims that the trial court erred in
admitting the testimony from Clark, Doerr, and Schoenfeld
regarding Burke's out-of-court, unsworn hearsay
statements. Appellant further challenges the admission of
audio recordings of those statements. Appellant essentially
argues that no inconsistent statement exists when the witness
cannot remember whether he made the statement. For this
issue, Appellant concedes that he did not object to
Clark's testimony at trial, however, the issues as to
Doerr's and Schoenfield's testimony were properly
preserved. Because the basis of the claim is the same for all
of the testimony, and for ease of analysis, we address all
three officers' testimony as if preserved.
review the admission of evidence for abuse of discretion.
State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009).
We will not disturb a trial court's broad discretion in
admitting evidence unless it is clearly against the logic of
the circumstances. Id. Even then, we reverse for
evidentiary error only on a demonstration of prejudice.
491.074 allows for the use of prior inconsistent statements
as substantive evidence in criminal cases:
Notwithstanding any other provisions of law to the contrary,
a prior inconsistent statement of any witness testifying in
the trial of a criminal offense shall be received as
substantive evidence, and the party offering the prior
inconsistent statement may argue the truth of such statement.
of a prior inconsistent statement requires a foundational
inquiry as to whether the witness made the statement and
whether the statement is true. State v. Reed, 282
S.W.3d 835, 838 (Mo. banc 2009). "If a witness claims
not to remember if a prior statement was or was not made, a
proper foundation has been laid to admit the prior
inconsistent statement." Id. At trial, Burke
testified that he did not recall any of the statements he
made to officers on May 18 or 21, nor did he meaningfully
recall any other events of May 18. Burke testified only that
he, Appellant, and Jackson were present at the trailer on his
property when sheriff's deputies arrived there on May 18,
that he spoke to deputies that day, and that a few days
later, two officers came to speak with him. Burke testified
that although he could not recall making certain statements,
he did not deny making those statements. Hence, the State
laid a proper foundation for admitting the officers'
testimony about Burke's prior statements.
further claims that the trial court erred in allowing
testimony about recordings of Burke's May 18 and 21
statements because the State did not quote each of
Burke's prior statements verbatim in its examination of
Burke or confront Burke after each inconsistent answer by
reading or playing the prior statement back while he was
still on the stand. However, the Missouri Supreme Court, in
Reed, has held that "[a] specific question is
not necessary to lay a foundation" for the admission of
a prior inconsistent statement. 282 S.W.3d at 838.
cases Appellant cites for his contention that the proponent
of a prior inconsistent statement must specifically quote the
statement in question are inapposite to the instant case. In
Reed, the State elicited testimony from an officer
that a witness told him that he believed the defendant was
making methamphetamine, even though "the State failed
even to ask [the witness] a generally related question"
to whether he ever said he believed the defendant was making
methamphetamine. In State v. Duncan, 397 S.W.3d 531
(Mo. App. E.D. 2013), this court held that impeachment was
improper when a witness was impeached using a prior statement
made by another person, that was not materially inconsistent
with the witness's trial testimony. In State v.
Tolen, 295 S.W.3d 883 (Mo. App. E.D. 2009), the
defendant wished to admit a phone call in which the victim
told the defendant that her aunt lied. However, on
examination, the question asked of the victim was whether she
told the defendant that she, the victim, told a third party
that her aunt lied. This court held that the trial court did
not err in finding that the victim's response during
examination was not inconsistent with her statement on the
phone call, noting that "[a]bsent the threshold showing
of an inconsistency between the testimony and the statements
contained within the proffered exhibits, use of the exhibits
to impeach is questionable." Id. at 889-90.
Here, no such issues exist. Unlike in Reed, here,
Burke was questioned directly about the statements he made to
officers on May 18 and 21, for example:
Q: Do you recall telling the police you were buying [the