State v. Charlton, 24766.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPhillip R. Garrison
Citation114 S.W.3d 378
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Daniel Alan CHARLTON, Defendant-Appellant.
Docket NumberNo. 24766.,24766.
Decision Date31 July 2003
114 S.W.3d 378
STATE of Missouri, Plaintiff-Respondent,
Daniel Alan CHARLTON, Defendant-Appellant.
No. 24766.
Missouri Court of Appeals, Southern District, Division One.
July 31, 2003.
Motion for Rehearing or Transfer Denied August 21, 2003.
Application for Transfer Denied September 30, 2003.

[114 S.W.3d 380]

Michael Baker, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck A. Burgess, Assistant Attorney General, Jefferson City, for respondent.


Daniel Alan Charlton ("Appellant") was convicted, following jury trial, of one count of manufacturing a controlled substance, methamphetamine, a violation of Section 195.211.1 The trial court entered judgment in accordance with the jury's verdict and sentenced Appellant to seven years imprisonment. We affirm.

Viewed in the light most favorable to the verdict, the evidence revealed the following: On July 29, 2000, James Rackley ("Rackley"), an officer with the Lebanon, Missouri police department, was campaigning

114 S.W.3d 381

door-to-door for the office of sheriff of Dallas County, Missouri. Rackley was off-duty, not in uniform, and operating in a private capacity at all times pertinent herein.

In the course of his campaigning that evening, Rackley went to Appellant's home, located nine miles south of Buffalo, Missouri, approximately one quarter of a mile off State Highway TT. To reach Appellant's home, Rackley passed through an open gate and traversed a private gravel driveway that crossed a small creek. Appellant's home lay beyond a stand of trees that, at that time of the year, obstructed Rackley's view of the home from Highway TT. No sign was posted warning visitors against trespassing.

Upon arriving at Appellant's home, Rackley observed marijuana plants growing in a white plastic bucket and in a flowerbed abutting Appellant's house. When Rackley got out of his vehicle, Appellant's dog bit his pant leg. Appellant came out of his house and restrained the dog. Rackley introduced himself, informed Appellant about his campaign, and left a campaign flier with him before leaving. No mention was made of the marijuana plants Rackley had observed.

Rackley went immediately to the Dallas County sheriff's department where he contacted Deputy Aaron Walker ("Walker") and told him of the marijuana growing in Appellant's flowerbed. Walker called the sheriff of Dallas County, Billy Blair ("Blair"), who instructed Walker to go to Appellant's residence with Rackley and two other deputies to investigate Rackley's claim.

Upon arriving at Appellant's home, Walker saw the marijuana growing in the flowerbed. When Appellant came out of the house and asked why the officers were there, Walker placed him under arrest for cultivating marijuana. When Appellant told Walker his wife, Diane Charlton, was in the house, she was summoned from the house and also placed under arrest. Walker asked Appellant for permission to search the home, which Appellant refused.

Appellant and his wife were taken to the Dallas County jail, with one deputy staying behind to guard Appellant's property while a search warrant was sought. Walker obtained a warrant, based upon affidavits provided by himself and Rackley, and returned to Appellant's home with Blair and several deputies to execute the warrant. In the course of executing the search warrant, Blair discovered what he believed to be a makeshift methamphetamine laboratory ("meth lab") in a bedroom closet.

Blair left the room and contacted officers with a specialized multi-jurisdictional task force experienced in "taking down" such meth labs, which typically contain extremely dangerous chemicals. Upon their arrival, the meth lab was disassembled and several items were seized from Appellant's bedroom, including the following: methamphetamine, a book entitled "Secrets of Methamphetamine Manufacture," by Uncle Fester, Priority Mail cardboard book packaging, into which the book fit and bearing the name "D. Charlton" and the addresses of Appellant and, an online bookseller, a green notebook containing chemical formulas used in the manufacture of methamphetamine and phone numbers and references to pagers, pseudoephedrine, a list of manufacturers of matches (from which red phosphorous, an ingredient in the methamphetamine manufacturing process, may be obtained), an electric skillet coated with a white crusty substance, a bottle of Red Devil Lye, a bottle of Heet, needles, coffee filters, a measuring cup, a funnel, a thermometer, plastic tubing, three pill grinders, a bottle of iodine, two bottles of isopropyl alcohol, a turkey baster, a mason

114 S.W.3d 382

jar containing toluene, three packages of litmus paper, a mason jar containing a clear fluid, two glass jars containing eye droppers, a mason jar one-quarter full of blue liquid, a mason jar containing four distinct layers of liquid, a hand pump, an aquarium pump, three beakers, one of which was attached to tubing, a bottle of muriatic acid, and a one-gallon can of Coleman fuel.

In a second room in Appellant's house, the officers found a gas mask, methamphetamine paraphernalia, a mirror with razor blades and drinking straws next to it, boxes of the over-the-counter cold medicine Sudafed, a jar containing liquid and white powder, measuring scales, a spoon, scissors, and several sandwich bags, the corners of which had been cut off. Additionally, the kitchen contained a small Tupperware container in which powdered pseudoephedrine was found. No evidence of drug possession or manufacturing was discovered in the bedroom of Appellant's teenage son.

Appellant presented no evidence at trial. At the close of evidence, the jury found him guilty of manufacturing a controlled substance. As Appellant had waived his right to jury sentencing, the trial court sentenced him to seven years imprisonment. This appeal follows.

Appellant raises six points on appeal. In his first point, he claims the trial court erred in overruling his motion to suppress and quash the search warrant, and in admitting, over his objection, exhibits seized on the basis of that warrant, and testimony concerning them, because the items "were seized as a result of an illegal and unconstitutional search of Appellant's residence and its curtilage." Specifically, Appellant claims the search and seizures in question violated the Fourth Amendment in that, first, the "initial search and arrest of Appellant was made without a warrant" and in the curtilage of his home and, second, the information used to support the subsequent issuance of the search warrant was obtained by way of an illegal trespass, namely, when deputies went to Appellant's home to search it on the basis of Rackley's observations.

When reviewing a trial court's ruling on a motion to suppress, our inquiry is limited to a determination whether there is sufficient evidence to support the trial court's ruling. State v. Middleton, 43 S.W.3d 881, 884 (Mo.App. S.D.2001) (citing State v. Fuente, 871 S.W.2d 438, 441 (Mo. banc 1994); State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.App. W.D.1999)). In making this determination, we are to affirm the trial court's finding unless it is clearly erroneous. Middleton at 884 (citing Woolfolk at 828). Although we review the facts under this "clear error" standard, our review of claims that the Fourth Amendment has been violated is de novo. Middleton at 884 (citing State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998)).

The first prong of Appellant's argument under this point alleges the unconstitutionality of his arrest in that it occurred allegedly within the curtilage of his home and without a warrant. This argument need not be addressed, however, because no evidence was seized incident to Appellant's arrest, rendering the constitutionality of the arrest irrelevant to Appellant's motion to suppress.

The second prong of Appellant's argument asserts that the search warrant was tainted by the illegality of the deputies' entry on Appellant's property for the purpose of investigating Rackley's account of having seen marijuana plants growing there. Appellant argues he had a reasonable expectation of privacy in the flowerbed adjacent to his home, which could not be seen from the state highway some

114 S.W.3d 383

distance from the house. He argues at length that the flowerbed constituted part of the curtilage of his home and was, therefore, subject to the Fourth Amendment's prohibition of unreasonable search and seizure. See State v. Schweitzer, 879 S.W.2d 594, 596 (Mo.App. E.D.1994).

However, the issue whether the deputies' entry on Appellant's property violated the Fourth Amendment is irrelevant because the search warrant Appellant sought to quash was supported by probable cause even if the observations of Walker and the other deputies are not considered. The initial observation of the marijuana plants on Appellant's property was made by Rackley, an off-duty police officer campaigning door-to-door for election as sheriff. Rackley's affidavit describing what he saw outside Appellant's home was included with the State's application for the search warrant and supplied ample probable cause to support the issuance of the warrant.

The only question to be answered, then, is whether Rackley, acting in a private capacity, was subject to the strictures of the Fourth Amendment. He clearly was not. The law is well settled that the Fourth Amendment is inapplicable to searches or seizures effectuated by private citizens not acting at the behest of a government entity. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048, 1051 (1921); State v. Brasel, 538 S.W.2d 325, 330 (Mo. banc 1976); State v. Horsey, 676 S.W.2d 847, 854 (Mo.App. S.D.1984). We have previously stated that "[a]n off duty police officer is not automatically acting in concert with or at the direction of government officials simply because he discovers contraband." State v. Woods, 790 S.W.2d 253, 257 (Mo.App. S.D....

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