690 S.W.2d 834 (Mo.App. S.D. 1985), 13729, State v. McBurney

Docket Nº:13729.
Citation:690 S.W.2d 834
Party Name:STATE of Missouri, Plaintiff-Respondent, v. Richard Lee McBURNEY, Defendant-Appellant.
Case Date:May 03, 1985
Court:Court of Appeals of Missouri
 
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Page 834

690 S.W.2d 834 (Mo.App. S.D. 1985)

STATE of Missouri, Plaintiff-Respondent,

v.

Richard Lee McBURNEY, Defendant-Appellant.

No. 13729.

Court of Appeals of Missouri, Southern District, First Division.

May 3, 1985

Page 835

William L. Webster, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Devon F. Sherwood, Springfield, for defendant-appellant.

TITUS, Presiding Judge.

Defendant was court-tried and convicted of "growing and cultivating marihuana" in violation of § 195.020, V.A.M.S., and was sentenced to imprisonment for a term of four years. This appeal ensued.

Trial herein, per agreement, was had on written stipulations of facts and abbreviated testimony and demonstrated the following. The sheriff received information marihuana was growing on defendant's rural property. On October 12, 1983, sans a search warrant, two deputies went to defendant's 660' X 1320' tract on foot. The deputies walked about 250 feet onto defendant's property before they found cultivated growing marihuana plants. These plants, not growing within the curtilage, were not visible from any place outside of defendant's property because of undergrowth and trees. After lying in wait for half an hour, the deputies saw defendant and another come into the area where the plants were growing and start stripping leaves from the contraband vegetation. The deputies emerged from hiding, arrested defendant and his companion and advised them of their Miranda rights. After being told his rights, defendant stated that the 86 plants already located by the deputies constituted all the marihuana growing on his property and that the plants were not being grown for sale.

In substance, defendant's position is that a secluded...

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