State v. Berry

• Decision Date: 13 January 2003
• Docket Number: No. 24809.,No. 24807.,24807.,24809.
• Parties: STATE of Missouri, Respondent, v. Susan BERRY and Steven Morrison, Appellants.
• Court: Missouri Court of Appeals

92 S.W.3d 823

STATE of Missouri, Respondent, v. Susan BERRY and Steven Morrison, Appellants.

No. 24807.

No. 24809.

Missouri Court of Appeals, Southern District, Division One.

January 13, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stuart H. King and Sue Chrisman, William H. McDonald & Associates, Springfield, for Appellants.

No brief filed for Respondent.

ROBERT S. BARNEY, Judge.

Appellants, Susan Berry and Steven Morrison, respectively, appeal their convictions in six cases each, of the Class A misdemeanor of animal abuse, proscribed by section 578.012, RSMo 2000, after a bench trial in the Circuit Court of Lawrence County. At trial, the parties entered into a joint stipulation of facts and Appellants reserved their right to appeal the trial court's denial of their respective prior motions to suppress evidence and quash warrants.¹

Appellants have raised four points of trial court error. Points One and Three are dispositive and are reviewed conjunctively.² In Point One, Appellants assert that the trial court erred in overruling their respective motions to suppress evidence and quash warrants because on November 30, 2000, law enforcement officials had illegally entered the curtilage of their property without a warrant or the presence of exigent circumstances, and as a result of their illegal search any evidence gathered should have been suppressed. In Point Three, Appellants challenge the affidavit of Lawrence County Deputy Sheriff, Linda Tuck, i.e., the "statement of probable cause," supporting the State's request for a search warrant. Appellants maintain, inter alia, that the affidavit was insufficient to provide probable cause for the issuance of a search warrant because it was based on information gathered as a result of an illegal search of their property.

The record shows that Appellants lived in a mobile home on approximately eight acres in Lawrence County. The acreage was comprised of two distinct spaces: an approximate 200 by 200 foot area containing the mobile home, a barn, outbuildings, a shed, and a trailer, and open fields beyond this front portion of the property. The mobile home was located a little less than three miles "down [Lawrence County Road] 1225." Access to the mobile home was gained from a gravel driveway that ran along the north side of the mobile home. Immediately behind Appellants' mobile home was a fenced area that contained a barn, outbuildings, a shed, and a trailer, all of which were used by Appellants to house both domestic and exotic animals.

At the end of the driveway was a gate leading to the fenced area that remained closed at all times. Several large dogs were staked out on the other side of the gate, apparently to discourage visitors who were there without permission. Deputy Tuck testified at the motion to suppress hearing that although it was apparent to her that visitors were discouraged, nevertheless, she and Missouri Department of Agriculture inspector Lee Weeks entered the fenced area without a search warrant.

The record further shows that some nine months earlier, on February 17, 2000, these same officers had made a previous search of Appellants properties, pursuant to a lawfully obtained search warrant. During this prior visit in which Dr. Charles Dake, a veterinarian, accompanied the officers, Deputy Tuck testified that she had observed animals tied up and lying in water and mud with nothing to keep them warm. Animals were observed standing in their own manure. She also testified that Appellants were told they needed to provide better shelter for their animals, including making provisions for drier areas to live in. According to Deputy Tuck, Appellants were then given five days to comply with the recommendations. However, no arrests were made and no animals were seized that day.

Significantly, Deputy Tuck testified that she returned five days later and determined that Appellants had in fact complied with the recommendations. No further enforcement action was taken at that time, and Deputy Tuck informed Appellants that the situation would continue to be monitored.

On November 23, 2000, the Humane Society received a citizen's complaint that Appellants' animals were not being cared for properly. At some point, that report was forwarded to Deputy Tuck. One week after the complaint, on November 30, 2000, Deputy Tuck and Mr. Weeks returned to the residence to see if Appellants were still under compliance with the recommendations. The pair made an attempt to contact Appellants, but no one was home.

As they stood in Appellants' driveway, Deputy Tuck could see animals tied up to "piles of junk" in the fenced area. Deputy Tuck testified that although it was apparent to her that visitors were discouraged from freely entering the Appellants' properties, she and Mr. Weeks entered into the fenced area. As previously related, neither official had a search warrant.

After entering the area, Deputy Tuck and Mr. Weeks proceeded to a trailer that they knew from their prior visit had contained dogs. Although the door to the trailer was unlocked, there was some object propping it closed. When Deputy Tuck heard dogs barking in the trailer, she opened the door to look in and saw 25 to 30 dogs in crates and tied to short chains inside the trailer.

Deputy Tuck testified at the suppression hearing that she entered the fenced area in the course of conducting her investigation. She testified that she did not enter the trailer where the dogs were crated because she could see everything from the open doorway. Deputy Tuck further testified that although she opened the barn door, only Mr. Weeks entered the barn. The record reveals that after investigating the condition of the animals in the barns and buildings within the fenced area, and in the words of Deputy Tuck, finding animals suffering from neglect, Deputy Tuck left Appellants' residence to obtain a search warrant.

In the affidavit in support of the warrant, Deputy Tuck stated that on November 30, 2000, she and Mr. Weeks went to Appellants' residence to conduct a follow-up investigation of animal neglect. Although Deputy Tuck recited her observations relating to the animals housed in the trailer and barn, she did not reveal that she and Mr. Weeks had in fact physically entered the fenced area of Appellants' property prior thereto in order to make these observations. She further stated in the affidavit that Appellants had been given over nine months to comply with recommendations given to them in February 2000, but that Appellants had failed to comply.³

Deputy Tuck filed the application for a search warrant and attached her affidavit. Based upon the affidavit of Deputy Tuck, a search warrant was issued on December 4, 2000. However, it wasn't until December 7, 2000, that the animals were impounded by the authorities.⁴

As previously set out, Appellants contend that the trial court erred when it overruled their motion to suppress evidence and quash warrant because law enforcement officials illegally entered Appellants' curtilage without a warrant and without the presence of exigent circumstances. In particular, Appellants maintain that as a result of this illegal entry, any evidence gathered should have been suppressed since Appellants had a reasonable expectation of privacy in the area immediately surrounding their residence.

"Review of the trial court's denial of Defendant's motion to suppress is based upon the whole record and the totality of the circumstances surrounding its decision and we will affirm the ruling if it is supported by substantial evidence." State v. Potter, 72 S.W.3d 307, 313 (Mo. App.2002). "`Although we review the facts under a clearly erroneous standard, the issue of whether the Fourth Amendment has been violated is a question of law which we review de novo.'"⁵ Id. (quoting State v. Middleton, 43 S.W.3d 881, 884 (Mo.App.2001)).

"The Fourth Amendment prohibition against unreasonable searches and seizures inherently acknowledges the sanctity of a person's home and extends protection to the curtilage of the home." State v. Schweitzer, 879 S.W.2d 594, 596 (Mo.App. 1994). "The curtilage 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."⁶ State v. Fierge, 673 S.W.2d 855, 856 (Mo.App.1984).

"A search without a warrant is per se unreasonable under the Fourth Amendment — subject only to a few well defined exceptions." State v. Akers, 723 S.W.2d 9, 13 (Mo.App.1986). The State has the burden to justify a warrantless search and seizure by demonstrating that the search fell within an exception to the warrant requirement. State v. Tackett, 12 S.W.3d 332, 337 (Mo.App.2000). Some exceptions to the warrant requirement are: (1) a search incident to a lawful arrest; (2) a seizure of items within plain view; (3) an automobile search based on probable cause; or (4) a protective sweep search for weapons. Id. None of these exceptions are present in this case.

Additionally, 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.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. 1985)).

In State v. Roberts, 957 S.W.2d 449 (Mo. App.1997), the court acknowledged that although Missouri had not addressed the application of an emergency exception to the warrant requirement in cases involving an animal's welfare, courts in other jurisdictions have applied this exception to such situations. Id. at 452 n. 2. In Tuck v. United States, 477 A.2d 1115, 1121 (D.C.App.1984), the court held that the exigent circumstances exception to the warrant requirement applied to the seizure of...