779 S.W.2d 258 (Mo.App. W.D. 1989), WD 41116, State v. Supinski

Docket Nº:WD 41116.
Citation:779 S.W.2d 258
Party Name:STATE of Missouri, Respondent, v. Alfred John SUPINSKI, Appellant.
Case Date:July 25, 1989
Court:Court of Appeals of Missouri
 
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Page 258

779 S.W.2d 258 (Mo.App. W.D. 1989)

STATE of Missouri, Respondent,

v.

Alfred John SUPINSKI, Appellant.

No. WD 41116.

Court of Appeals of Missouri, Western District.

July 25, 1989

Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 31, 1989.

Page 259

C. Clifford Schwartz, Clayton, for appellant.

William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

GAITAN, Presiding Judge.

Appellant, Alfred John Supinski, was charged by information on March 29, 1988, in Callaway County. The case was tried in Boone County following appellant's motion for a change of venue.

Appellant was charged as a prior and persistent offender on five counts: Count I--receiving stolen property under section 570.080, RSMo 1986, for the parts of a 1975 Ford truck on or about November 13, 1986; Count II--receiving stolen property for the parts of a 1984 Chevrolet truck; Count III--receiving stolen property for a closed U-Haul trailer; Count IV--receiving stolen

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property for a 1979 King thirty-foot horse trailer; and Count V--possession of a vehicle with altered identification numbers under section 301.390, RSMo 1986, for a 1979 King thirty-foot horse trailer. Prior to trial, Count IV was declared nolle prosequi. Appellant was convicted of the remaining counts. He was sentenced on each count to seven years imprisonment with the sentences to run concurrently.

On November 13, 1986, Sheriff Harry Lee was in the Readsville area of Callaway County accompanied by Investigator Payne. Payne had received a phone call about a possible stolen U-Haul trailer at a residence on County Road 155. Sheriff Lee and Investigator Payne went around to the back on the north side of the house and knocked on the door. There was no response. They went back to their vehicle and backed onto the road to head east. When they got to the east end of the house, there was a metal shed open to the south facing the County Road. They stopped because Sheriff Lee stated that he could see into the open end of this metal shed and could see what appeared to be a U-Haul trailer sitting in the back of the shed. The officers got out of the patrol car and crossed a fence, and walked over another fence. Sheriff Lee then observed under a tarp the front frame of a pickup truck. There were some very large holes in the tarp and he could see that the dash had been partially pulled back and the vehicle identification number (VIN) tag was there on that portion of the dash. He wrote the number down and went back to the patrol car and got on the radio and had the number checked to determine if the truck had been reported stolen. A 1984 Chevrolet pickup bearing that VIN had been reported stolen. The officers then went to the prosecuting attorney's office, filled out and signed an affidavit requesting a search warrant.

Sheriff Lee testified that he had executed a search warrant on the property of appellant, a farm in Callaway County, on November 13, 1986. There, he seized parts of a 1975 Ford truck, parts of a 1984 Chevrolet truck, a closed U-Haul trailer, and a 1979 King horse trailer. He identified the items seized from the photographs and utilized an aerial photo to describe the property. On January 5, 1987, Sheriff Lee executed a second search authorized by a warrant. The return and inventory from that search included two halves of a frame and truck tailgate.

The first point raised on appeal is that the first search warrant was deficient in that it was based on illegal trespass and not based on probable cause; that the trial court erred in overruling appellant's objections and the motion to suppress evidence obtained. However, appellant's theory that the search warrant was the poisonous fruit of an illegal trespass was not presented in its motion to suppress, at trial or in the motion for a new trial. The failure to raise a particular ground for suppressing evidence in the trial court or in the motion for a new trial results in the matter not being preserved for appellate review. State v. Buss, 768 S.W.2d 197, 200 (Mo.App.1989). This issue is only reviewable under the plain error doctrine. Rule 29.12(b). Under the plain error standard of review, "the plain error complained of must impact so substantially upon the rights of the defendant that manifest injustice or a miscarriage of justice will result if left uncorrected." State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986). The burden of demonstrating that the action of the trial court resulted in manifest injustice or a miscarriage of justice is given to the defendant. State v. Groves, 646 S.W.2d 82, 83 (Mo. banc 1983). The appellant has not met that burden here.

In the case at bar, we believe that the open fields doctrine, which allows the search of an area by police officers without a warrant, is applicable, and thus there is no violation of defendant's Fourth Amendment rights. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The open fields doctrine applies to areas not within the curtilage of the home. Id. at 300, 107 S.Ct. at 1139. In Dunn, the Court stated that there are four factors to be considered in determining the extent of a home's curtilage: (1) the proximity of the area claimed to be the curtilage to the

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home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passers-by. Id. at 300, 107 S.Ct. at 1139. These factors bear upon the central question of "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'Umbrella' of Fourth Amendment protection." Id.

Missouri courts have recognized the applicability of the open fields doctrine. State v. Seaton, 679 S.W.2d 908, 909 (Mo.App.1984); and State v. McBurney, 690 S.W.2d 834, 835 (Mo.App.1985). The doctrine is applicable in the case at bar and we believe that the shed was not within the curtilage of the home.

First, there was evidence presented at trial that the open shed was between 45 and 50 yards from County Road 155. The distance between the house and the location of the pickup truck behind the shed support the inference that the shed and the items surrounding it should not be regarded as an adjunct of the house. Second, the shed area was not included within an enclosure surrounding the house.

Additionally, there was no evidence presented that would imply that the shed was being used or associated with activities and privacies of domestic life as to be regarded as part of appellant's home. And finally, no steps had been taken to prevent the activities around the shed from observation by passers-by. The officers were able to observe the U-haul trailer in the shed from the road. They were also readily able to scale the fences.

Therefore, we find that the search of the shed was properly obtained through an open field examination. The trial court was correct in overruling appellant's motion to suppress the evidence obtained by the subsequent warrant.

Appellant's second point on appeal is that the trial court prejudicially erred in allowing the prosecutor to introduce evidence of the character of appellant when character was not placed in issue. We disagree.

It is recognized that the State may cross-examine a witness about a defendant's prior criminal history in order to test both the witness' familiarity with the defendant's reputation and the stringency of the standard under which the reputation was earned when the...

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