State v. Diercks

• Decision Date: 15 May 1984
• Docket Number: No. WD,WD
• Citation: 674 S.W.2d 72
• Parties: STATE of Missouri, Respondent, v. John DIERCKS, Appellant. 34650.
• Court: Missouri Court of Appeals

Page 72

674 S.W.2d 72

STATE of Missouri, Respondent, v. John DIERCKS, Appellant.

No. WD 34650.

Missouri Court of Appeals Western District.

May 15, 1984.

James Endicott, Versailles, for appellant.

John Ashcroft, Atty. Gen., and Bruce Farmer, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and KENNEDY and LOWENSTEIN, JJ.

KENNEDY, Judge.

Defendant was convicted upon jury trial of growing and cultivating marijuana, § 195.200.1(3), RSMo Supp.1983. He was sentenced to 15 years in prison in accordance with the verdict of the jury.

Defendant has appealed, alleging several instances of trial error which he claims entitle him to a reversal. We affirm the conviction.

The facts are as follows:

Defendant was living with his girl friend in a house located on the Gravois arm of the Lake of the Ozarks. The house was owned by his girl friend's father, a John Fee.

Living nearby, one lot removed, was Mr. John Loman. The Loman house and the Fee house where defendant and his girl friend were living were separated by a building lot. There was a house on this lot but it was forward of the Loman and Fee houses so that the view and the passage between the two houses was unobstructed.

The defendant and Loman became engaged in an altercation. Defendant called the water patrol to complain of an assault upon himself by Loman. Two officers, Joseph Hughes and Gary Haupt, showed up. After talking with the defendant they went to talk with Mr. Loman in his front yard. Loman told the officers that marijuana plants were being grown in the backyard of the Fee residence where appellant lived. Officer Hughes walked across the intervening lot toward the Fee residence. He saw pots along the seawall and also on the back porch of the Fee residence, containing what he thought were marijuana plants. As a part of his officer's training he had been taught to identify marijuana plants. The back porch or "sundeck" was unenclosed except by a railing. The potted plants were sitting on tables, on some benches and on the floor.

Hughes returned to where Officers Haupt and Loman were. Haupt and Hughes, accompanied by Loman, then went back to the Fee residence. The defendant was on the dock. Haupt took Hughes' Miranda card and read the defendant his Miranda rights.

Hughes asked the defendant if he had any identification on him. He said he did have "up at the house." Hughes and Haupt followed defendant toward the house. As they neared the door, the defendant said: "Come on in, be careful." The "be careful" was because of paint on the officers' shoes from the freshly painted boat dock.

The three entered the house. Defendant searched through the house for his identification. He opened up a small box that looked like a jewelry box on an end table. He closed it very quickly, but not before Hughes spotted a bag with a "leafy-looking material" in it. Hughes asked defendant if he would open the box again. Defendant immediately agreed, and Hughes took the bag of what turned out to be marijuana, as Hughes had suspected.

Defendant was placed under arrest. Other officers arrived shortly, and the potted marijuana plants were loaded on the truck and hauled away.

In due course defendant was charged with "manufacturing marijuana," was tried and convicted.

The marijuana plants seized at the place of defendant's residence on the day of his arrest, as earlier described, were introduced in evidence. There were 190 of them. Defendant says the court erred in admitting them into evidence, because their seizure was the product of an unreasonable and unlawful warrantless search.

This point is denied.

The plants which were located in the pots (sometimes referred to by the witnesses as "flats" or "little peat pots") on the back porch of defendant's residence were plainly visible to Officer Hughes as he stood on the adjoining property, and were recognizable by him as marijuana plants. They were from four to six inches high. The plants on the back porch could be seen from the Loman premises, although they could not be recognized from that distance as marijuana. The plants located in the pots along the seawall were even more readily visible. There seemed to be no attempt to conceal the plants from view from the adjoining property. There was no apparent expectation of privacy.

The appellant's attack here focuses upon the warrantless seizure of the plants on the back porch. He says, citing State v. Buchanan, 432 S.W.2d 342 (Mo.1968), that the porch was within the "curtilage" and therefore within the Fourth Amendment protection against warrantless searches.

He says that the "plain view" doctrine does not justify the seizure of the plants seen by the officer from a distance, but identified from the adjoining landowner's premises. He says that two of the conditions of the "plain view" doctrine, listed in State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980) were not met, viz., that the officer's seeing and identifying the contraband was "inadvertent," and that the officer was at a place where he had a right to be. He adds that appellant's invitation or consent for the officers to be upon the Fee property was only for the purpose of investigating the assault and did not allow the officers the range which they took in discovering the marijuana plants.

We think the basic inquiry is whether appellant had a legitimate expectation of privacy in the places where he had the potted marijuana, and we conclude that he did not. With respect to the plants sitting along the seawall, visible at close range from points where the public was coming and going, that seems fairly clear. As to the plants on the back porch, a closer analysis is necessary, but the same conclusion holds. For one thing, the display of the plants on the seawall indicates that defendant had no expectation of privacy in the same plants on the back porch. Add the fact that they were on an unenclosed porch, visible and identifiable from the adjoining neighbor's property, and you have a picture of property--if that term can be used with respect to contraband--for which no privacy was expected. See People v. Lashmett, 71 Ill.App.3d 429, 27 Ill.Dec. 657, 389 N.E.2d 888 (1979); People v. Dasenbrock, 96 Ill.App.3d 625, 52 Ill.Dec. 85, 421 N.E.2d 948 (1981); State v. Esrock, 660 S.W.2d 222, 225 (Mo.App.1983); State v. Simpson, 611 S.W.2d 556, 558 (Mo.App.1981); People v. Fillhart, 93 Misc.2d 911, 403 N.Y.S.2d 642 (1978).

Back to State v. Buchanan, 432 S.W.2d 342 (Mo.1968): The case does not help defendant, but it needs to be commented upon. There the officers, searching a house for a sawed-off shotgun used in a robbery under a search warrant held by the court to have been invalid, found the shotgun in the front yard. The court held that the gun was within the "curtilage," ¹ that the officers were "not lawfully on the premises," and that the seizure was invalid. The difference between Buchanan and our case is the relationship of the officers to the premises. The officers' only purported authority in Buchanan was the invalid search warrant. In our case, the officers were on a legitimate mission, namely, to investigate the assault reported by defendant. In the performance of their duties they were not confined to a straight path, forbidden to look either to the right or to the left. If there was a technical trespass on the intervening owner's property from which Officer Hughes viewed the marijuana plants on the back porch, that does not render the search or seizures invalid. See U.S. v. Molkenbur, 430 F.2d 563 (8th Cir.1970), cert. denied, 400 U.S. 952, 91 S.Ct. 244, 27 L.Ed.2d 258.

Another feature which distinguishes Buchanan from this case is the advertence of the discovery of the gun in Buchanan, as opposed to the inadvertence of the discovery of the contraband in our case.

Assuming "inadvertence" has anything to do with the right to seize contraband which is easily visible and identifiable from a neighbor's property, it does not disqualify this seizure that Officer Hughes walked across the intervening lot and viewed the plants with the purpose and expectation of seeing marijuana. The "inadvertence" spoken of in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and in State v. Strickland, supra, is related, not to developments after the officers' arrival on the premises in response to appellant's summons, but to their initial presence in and about the premises where the contraband was located. See State v. McCurry, 587 S.W.2d 337, 341 (Mo.App.1979).

Defendant offers a second reason why the marijuana plants should not have been admitted in evidence. There were 190 plants found at defendant's residence and admitted in evidence. A chemical analysis had been conducted only upon 7 of them. Defendant says that the 183 other plants were not identified as marijuana and therefore not entitled to admission in evidence. Defendant's argument is, taken from his brief:

In order for there to have been a proper foundation, Mr. Durham [the chemist] either, one, should have tested each plant and matched each tested sample with the potted plant in court, or, two, should have examined each marihuana plant previously and have been able to identify each one in court as the plant he viewed previously. Neither method of identification occurred here.

However, there was sufficient foundation laid for the admission of the plants into evidence. Chemist Durham and Officers Haupt and Hughes each testified that the plants were marijuana plants. Durham, of course, had chemically tested 7 of the 190 plants and testified that to chemically test each marijuana plant would have been unnecessarily time consuming. Officers Haupt and Hughes both testified to their familiarity with marijuana plants and expressed the opinion that these were of that species. The evidence was entirely sufficient for admissibility.

Of course, if there was any doubt about their being marijuana plants, it was defendant's...