State of Missouri, Plaintiff/Respondent v. Timothy A. Pierce , 504 S.W.3d 766 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED103140
)
Plaintiff/Respondent ) Appeal from the Circuit Court of
vs. ) St. Francois County
)
TIMOTHY A. PIERCE, ) Hon. Randall L. Head
)
Defendant/Appellant. ) FILED: September 6, 2016
)
OPINION
Timothy A. Pierce appeals the trial court’s judgment denying his Motion to Suppress. We
reverse and remand.
Background
Appellant Timothy Pierce challenges the legality of a search conducted by two police
officers without a warrant on Pierce’s property. The search uncovered evidence that led to the
conviction of Pierce for various drug offenses. Pierce argues this warrantless search violated his
Fourth Amendment right to privacy.
The record reflects Mr. Pierce owns a 3.9-acre rural tract of primarily wooded property
near Ringer and Cadet Road in St. Francois County, Missouri. The property is completely enclosed
by a barbed wire fence, and there are “private property, no trespassing” signs on each of the two
driveways. On the property stands a mobile home in which Mr. Pierce lives, two uninhabited
mobile homes, two garage-type buildings, and a chicken coop. The furthest outbuilding, the
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chicken coop, stands between Pierce’s residence and the fence. The distance between the coop and
the residence is approximately 75-100 yards. The fence stands another 75-100 yards beyond the
coop. At the time of the search, the chicken coop had been devoid of chickens because they were
either killed or stolen two or three weeks before.
On June 15, 2011, at around 8:00 p.m., Officers Timothy Harris and Michael Ryan received
an anonymous tip regarding the smell of ether in the area of Ringer and Cadet Road. The officers
associated the smell with the manufacturing of methamphetamine, and they followed the smell to
the rear of Mr. Pierce’s property. The officers saw the chicken coop from the fence line and
observed a red light between the cracks in the boards. Although the chicken coop was open on one
side, the open side was facing the residence, so the officers could not see inside. The red light
inside the coop turned white, at which time the officers observed a figure inside the chicken coop.
The officers entered the rear of Pierce’s property by climbing over the barbed wire fence
and walking to the chicken coop. The officers did not discuss first obtaining a search warrant, and
they were aware that Pierce had, on previous occasions, denied requests by police officers to search
his property.
The officers found Pierce in the chicken coop and observed materials in the coop
commonly used to make methamphetamine. The officers arrested Pierce, secured the property,
and acquired a search warrant based on their observations. As a result of that search warrant,
additional evidence of the manufacture of methamphetamine was obtained.
Before trial, Pierce filed a Motion to Suppress, claiming that the evidence was obtained as
a result of an illegal search and, therefore, should be excluded at trial. After a hearing, the trial
court denied the motion, and the trial proceeded before a jury. The jury found Pierce guilty of the
drug offenses charged, and the judge sentenced Pierce to a total term of 26 years in prison.
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Standard of Review
Review of the trial court’s denial of a defendant’s motion to suppress is based upon the
whole record and the totality of the circumstances surrounding its decision. State v. Potter, 72
S.W.3d 307, 313 (Mo. App. S.D. 2002). We will affirm the ruling if it is supported by substantial
evidence. Id. Generally, 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. W.D. 1998). We defer to the trial court’s factual findings
and credibility determinations. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We
consider all evidence and reasonable inferences in the light most favorable to the trial court’s
ruling. State v. Sund, 215 S.W.3d 719, 723 (Mo. 2007). However, whether conduct constitutes a
violation of the Fourth Amendment is an issue of law, which we review de novo. Id.
Analysis
Appellant Pierce argues the warrantless search conducted by the officers was unlawful
because it invaded his right to privacy afforded by the Fourth Amendment. He cites State v.
Berry, 92 S.W.3d 823, 829 (Mo. App. S.D.2003) and cases from other jurisdictions for the
proposition that the chicken coop was within the curtilage of Pierce’s property and that he took the
steps necessary to demonstrate a reasonable expectation of privacy. Relying on State v. Cady, 425
S.W.3d 234 (Mo. App. S.D. 2014) and United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134
(1987), the State responds that the coop was not within the curtilage of the home, but rather in an
open field, and, therefore, should not be protected from a warrantless search. It further contends
exigent circumstances existed to justify the officers’ warrantless search due to risks and hazards
posed by methamphetamine labs. Under the facts of record and for the reasons stated below, we
agree with Appellant Pierce that the coop was within the curtilage of his home and therefore was
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protected from a warrantless search. We also agree that no exigent circumstances were present to
justify the warrantless search.
The concept of a right to privacy is embodied in the Fourth Amendment. This Amendment
reflects the recognition by the Framers that certain enclaves should be free from arbitrary
government interference. Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741 (1984).
Justice Powell, in his opinion, stated:
Since Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the
touchstone of [Fourth] Amendment analysis has been the question whether a person has a
“constitutionally protected reasonable expectation of privacy.” The Amendment does not
protect the merely subjective expectation of privacy, but only those “expectation[s] that
society is prepared to recognize as ‘reasonable.’”
Id. at 1740-41 (internal citations omitted). The Fourth Amendment’s prohibition against
unreasonable searches and seizures inherently acknowledges the sanctity of a person’s home and
extends that protection to the curtilage of the home. State v. Adams, 791 S.W.2d 873, 877 (Mo.
App. W.D. 1990). “[T]he ‘curtilage’ of a person’s home is generally defined under Missouri law
as the enclosed space of ground and buildings immediately surrounding a dwelling house.” State
v. Edwards, 36 S.W.3d 22, 26 (Mo. App. W.D. 2000). This “includes all outbuildings used in
connection with the residence, such as garages, sheds, barns, yards, and lots connected with or in
the close vicinity of the residence.” Berry, 92 S.W.3d at 829 (internal quotation marks omitted).
The United States Supreme Court held that courts facing issues regarding curtilage should
utilize a four-factor test: (1) the proximity to the home of the area claimed to be curtilage; (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. Dunn,
480 U.S. at 301, 107 S.Ct. at 1139–40. Whether or not an area surrounding a dwelling is within
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the dwelling’s curtilage is generally assessed on a case-by-case basis. Edwards, 36 S.W.3d at F.N.
2.
Fourth Amendment protection does not, however, extend to areas known as “open fields.”
As Justice Holmes in Hester v. United States explained, “the special protection accorded by the
Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to
the open fields. The distinction between the latter and the house is as old as the common law.” 265
U.S. 57, 59, 44 S. Ct. 445, 446 (1924); State v. Hunziker, 799 S.W.2d 610, 613 (Mo.App. W.D.
1990) (acknowledging that the “open fields” doctrine applies in Missouri).
Exigent circumstances may justify police officers entering and searching a home or its
curtilage without a warrant. State v. Rowland, 73 S.W.3d 818, 822 (Mo. App. S.D. 2002). “Exigent
circumstances exist in cases of emergency, such as when a ‘delay would endanger life, allow a
suspect to escape, or risk the destruction of evidence because of an imminent police presence.’ ”
Id. (quoting State v. Peters, 695 S.W.2d 140, 147 (Mo. App. W.D. 1985)).
Pierce argues the warrantless search conducted by the officers and the evidence
subsequently obtained and used at trial violated his Fourth Amendment right against unreasonable
searches and seizures because the chicken coop was within the curtilage of his home. The State
in response argues that the chicken coop was not within the curtilage, but rather was located in an
open field and not protected under the Fourth Amendment. The State further argues that even if
the coop was within the curtilage of the home, exigent circumstances existed sufficient to
overcome any Fourth Amendment safeguards provided to property owners. Applying the four-
factor analysis employed by courts to determine whether a structure is within the curtilage of the
home, we conclude that the chicken coop was within the curtilage of Pierce’s home and, therefore,
he had a reasonable expectation of privacy with regard to the chicken coop and the contents therein.
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The first factor is the proximity of the area claimed to be within the curtilage of the home.
It appears undisputed from the record that the coop is located 75-100 yards from Pierce’s residence,
and the fence stands 75-100 yards beyond the coop. In the context of the rural nature of Mr.
Pierce’s property, totaling almost 4 acres, 100 yards is not a great distance, particularly with regard
to the use of a coop for keeping chickens.
This court held in State v. Fierge that the exact number of yards or feet between the
buildings is not, by itself, dispositive of the issue of whether a building is within the curtilage of a
home, as setting such a standard for curtilage would be unrealistic. 673 S.W.2d 855, 856–57 (Mo.
App. E.D. 1984). Instead, we adopted the standard set forth in United States v. Williams, which
held “the outer limits of the curtilage are defined by the walls of the remote outbuildings.” 581
F.2d 451, 454 (5th Cir.1978), cert. denied, 440 U.S. 972, 99 S. Ct. 1537 (1979). We held in Fierge
that a marijuana patch was not within the curtilage because it was located behind the shed, which
was the outermost building from the house. The fact that the marijuana patch in Fierge was 180
feet from the house was not dispositive. Similarly, a distance of 75-100 yards is not dispositive on
the issue of whether the chicken coop is within the curtilage of Mr. Pierce’s home, and we find it
reasonable to maintain a chicken coop a similar distance from one’s primary residence, particularly
on a rural property.
The second factor is whether the area is within an enclosure surrounding the home. The
lack of a fence supports a finding that a structure is outside the curtilage of a residence. See, e.g.
Cady, 425 S.W.3d at 241; Hunziker, 799 S.W.2d at 613. On the other hand, the presence of a fence
indicates a landowner’s expectation of privacy. For example, in State v. Berry, two law
enforcement officers entered a fenced area without a warrant. 92 S.W.3d at 827. The court held
that the fenced area behind the residence was within the curtilage of the home because it was
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located approximately 60 to 80 yards behind the residence with no open fields separating the
residence from the fenced area. Id. at 829. Furthermore, the homeowners visited the buildings
within the fenced area on a regular basis. Id. at 829-30. The court concluded the homeowners took
the necessary steps to demonstrate that they had a reasonable expectation of privacy in the fenced
area and the buildings contained therein. Id. at 830.
Similarly, Mr. Pierce’s 3.9-acre property is surrounded by a barbed wire fence, and the
coop is located within 100 yards of the residence and is within that fence. Pierce took a number of
steps to demonstrate his expectation of privacy, including posting no trespassing signs at two
driveways and denying police officers permission to search his residence without a warrant on
prior occasions. Although a fence alone is not sufficient to delineate curtilage, it strongly suggests
the desire of the property owner for privacy, which the Fourth Amendment is designed to protect.
Such a desire was demonstrated here.
The third factor, the nature of the uses to which the area is put, also favors Pierce. Based
on the record before us, the coop was being used for intimate activities of the home, i.e. keeping
chickens. See Dunn, 480 U.S. at 302. Although the chicken coop was empty at the time of the
search, Mr. Pierce testified at trial that the chickens were all killed or stolen just two or three weeks
prior the search at issue. The recent use of the coop reflects its use for an intimate domestic
purpose.
The final factor, which addresses steps taken by homeowners to protect the area from
observation of people passing by, also favors Mr. Pierce. Although the coop was visible from the
perimeter fence, it was enclosed on three sides. The open side was only visible from the residence,
the contents of the coop hidden from prying eyes that might be present on the perimeter of the
property.
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Although the State relies heavily on Dunn and Cady, we find those cases distinguishable
from the circumstances here. In Dunn, the United States Supreme Court held a barn was not in
the curtilage because: (1) it was not enclosed by the same fence surrounding the home; (2) the
fence enclosing the barn was clearly a cattle fence; and (3) the police officers were able to look
inside the barn while standing in an open field. Dunn, 480 U.S. at 302-03. In contrast, here, the
coop was enclosed by the same fence surrounding the home and the officers were unable to see
the interior of the coop. Cady is equally distinguishable because the shop building at issue was
not surrounded by any fence or barrier, the shop building was not used to carry on the intimate
activities of the home, and the front door of the shop was visible from the road. 425 S.W.3d at 242.
We therefore conclude the chicken coop was located within the curtilage of the home, and
its contents were entitled to Fourth Amendment protections. It is reasonable to expect that the
chicken coop, the outermost building on this fenced-in property, was protected from unreasonable
search. It was not situated in open fields as argued by the State.
Furthermore, we see no reason to expand any of the exceptions to the warrant requirements
based on the record before us, nor does this record present exigent circumstances justifying the
police entering and searching the curtilage without a warrant. The State cites the officers’ concern
that an active methamphetamine lab could endanger life because they are prone to the risk of fire
and explosion. However, nothing in the record supports a finding that there was any risk to human
life.
In conclusion, applying the four-factor Dunn test, we find that the rights afforded by the
Fourth Amendment protected Pierce from a warrantless search of the chicken coop. The officers
should have sought to obtain a search warrant before climbing the fence and entering the property,
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as the smell of ether, coupled with other evidence, can provide probable cause for a search warrant.
See, e.g., State v. Meyers, 992 S.W.2d 246 (Mo. App. E.D. 1999).
Conclusion
The trial court erred in denying Appellant’s Motion to Suppress. It is well settled that
under the “exclusionary rule,” the fruits of an unlawful search or seizure are inadmissible and
cannot be used against a defendant at trial. See State v. Pattie, 42 S.W.3d 825, 827 (Mo. App. E.D.
2001). The evidence described in Appellant’s Motion to Suppress was the fruit of an illegal search
and, therefore, should have been suppressed. We reverse and vacate Appellant’s conviction and
sentence, and remand to the trial court for further proceedings consistent with this opinion.
______________________________________
Lisa Van Amburg, Judge
Angela T. Quigless, P.J. and
Robert G. Dowd, Jr., J., concur.
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