MO: Deputy at back door to effect arrest in case defendant fled violated curtilage

Two bailbondsmen with a warrant for defendant’s arrest call Sheriff’s deputies per state law for assistance. The deputies look up the arrest warrant from a neighboring county, and they all go to the house where defendant would be found. One bondsman and one deputy to the front door, and one each to the back door. At the back door, they find a marijuana plant, clearly in an area not visible from the road. On the knock at the front door, the defendant comes out the back door, and he gets arrested. The back door was curtilage, and the marijuana plant was suppressed. On the mixed question of law and fact, the trial court’s finding of curtilage and reasonable expectation of privacy is affirmed. State v. Bates, 344 S.W.3d 783 (Mo. App. 2011):

. . . The rationale justifying an officer’s warrantless presence at a residence for a legitimate investigatory purpose is that “there is no reasonable expectation of privacy subject to Fourth Amendment protection where the public at large is welcome.” Kriley, 976 S.W.2d at 22.

We find that Kruse is basically indistinguishable from the present matter. In Kruse, officers went to Kruse’s mobile-home residence shortly after midnight to search for a third party, Jeremy Beel, who had an arrest warrant which had “caution indicators,” meaning the subject was considered dangerous. Kruse, 306 S.W.3d at 606. When the officers arrived at Kruse’s residence, the vehicle Beel was driving was parked on the driveway with a flat tire. Id. “No trespassing” signs were posted near the front door of Kruse’s trailer and on the front door of a shed at the end of the driveway on the property. Id. No obstructions blocked access to the backyard. Id. As the officers passed between the shed and the residence, without first knocking at the front door, the shed door flew open and Kruse came “bolting” out of the shed. Id. at 607. With the shed door open, an officer observed methamphetamine manufacturing equipment inside the shed. Id. A search warrant for the property was secured, pursuant to which the officers discovered various evidence of methamphetamine manufacturing. Id. The trial court found that the officers conducted a warrantless search of Kruse’s backyard and that the search was not justified by exigent circumstances. Id. at 607-08. The Western District of this Court affirmed the suppression of the evidence and found that Kruse had an expectation of privacy in his backyard and that the trial court did not err in finding that exigent circumstances that would allow the officers to search the home of Kruse for Beel did not exist. Id. at 612.

The State encourages us not to follow Kruse or, in the alternative, claims Kruse is distinguishable. We decline the first request and disagree with the second. In Kruse, unlike in this case, the vehicle that police were informed that Beel was driving was at Kruse’s residence. Id. at 606. Beel was considered violent. Id. In this case, Threlkeld had an outstanding warrant for driving while revoked. Despite the more compelling facts in Kruse, suppression of the evidence was affirmed because Kruse had an expectation of privacy in his backyard and the trial court did not err in finding that exigent circumstances did not justify the search. Id. at 612. Likewise, we find the trial court did not err in finding Defendant had a reasonable expectation of privacy in his backyard. In the light most favorable to the trial court’s ruling, the evidence was discovered on “property as to which there was a privacy interest protected by the Fourth Amendment.” Id. We believe Kruse is controlling precedent and not meaningfully distinguishable.

[Arkansas had a similar case and came out just the opposite.]