                                             RENDERED: FEBRUARY 18, 2016


               ,Suptrtut Court of 71ReuEllik_11
                              2014-SC-0005.11-DG
                                     DAT E3-to                                 S.J......k-Gc040,44.7*X-

COMMONWEALTH OF KENTUCKY                                             APPELLANT


                   ON REVIEW FROM COURT OF APPEALS
V.                    CASE NO. 2012-CA-002188-MR
                   HART CIRCUIT COURT NO. 12-CR-00133


PHILLIP DIXON                                                         APPELLEE



               OPINION OF THE COURT BY JUSTICE KELLER

                                  REVERSING

      Phillip Anthony Dixon entered a conditional guilty plea to drug charges

following the denial of his motion to suppress. The Court of Appeals reversed

and remanded the denial and the judgment of conviction. This Court granted

the Commonwealth's motion for discretionary review, and we reverse the Court

of Appeals.

                             I. BACKGROUND.

      Kentucky State Police (KSP) received an anonymous complaint that

Phillip Dixon was using and making methamphetamine in his home. KSP

Troopers Charles White and Jeremy Smith went to the address provided by

police dispatch to investigate. On arrival, they discovered that the address

belonged to Dixon's mother who told them that Dixon lived in a nearby trailer

separated from her house by woods. The troopers proceeded down a nearby
gravel road, passed at least two more residences, and located Dixon's trailer at

the end of the road.

      The troopers noted several indications of methamphetamine production

at Dixon's trailer, including: an open fire burning near the front door, which

smelled like burning plastic; windows covered from the inside; and four

vehicles parked in the driveway. The troopers approached the front door in

order to perform a warrantless knock and talk, but before they reached it,

Dixon came out of the trailer and met them in front of the porch.

      As Trooper White and Dixon spoke, Trooper Smith walked along the

outskirts of the maintained area surrounding the trailer to watch for anyone

attempting to flee through the back door. Dixon told Trooper White that he

would like to cooperate but would not allow the troopers to search his home

without a warrant. Immediately thereafter, Trooper Smith radioed from his

position behind the trailer and reported that he could see two 20-ounce bottles

containing white residue that appeared to be one-step methamphetamine labs

near the back porch. Trooper White and Dixon joined Trooper Smith at his

position in tall grass, about 15 feet from the back porch. From this location,

both troopers saw smoke emanating from the open back door and smelled a

chemical odor consistent with methamphetamine production.

      Based on these observations, the troopers believed that the trailer was

housing an active methamphetamine lab. Trooper White asked Dixon if there

was anyone else inside, and Dixon replied that he had friends inside. Acting

pursuant to what they believed to be exigent circumstances, the troopers

                                        2
entered the trailer and evacuated the occupants for safety reasons. During

their protective sweep, the troopers observed methamphetamine precursor

chemicals and three more bottles that also appeared to be one-step labs in

plain view. Based on his observations inside and outside of the trailer, Trooper

White immediately contacted a KSP clean-up unit and obtained a search

warrant for further investigation.

      Dixon was charged with numerous drug-related criminal offenses in a

twelve-count indictment. Dixon moved to suppress all the evidence collected

from his trailer and argued that the troopers had unlawfully exceeded the

scope of the knock and talk by entering the protected curtilage of his residence.

The trial court held a suppression hearing, and Trooper White testified

consistent with the facts set forth above. Specifically as to the issue of

curtilage, Trooper White testified as follows:

      Trooper White:            As I approached the front door, Mr. Dixon,
                                which was the one we received the
                                complaint on, exited—comes out of the
                                front door and meets us there right in
                                front of his porch.

      Commonwealth:             Let me stop you. Was Trooper Smith with
                                you at that time as well in front of the
                                residence?

      Trooper White:            He was. But as I began to speak, actually
                                as I went toward the front door, Mr. Dixon
                                met me, Trooper Smith went outside the
                                curtilage around the residence to the
                                backside. There was just a small area in
                                front of this house that was even mowed—
                                that was taken care of. He went around
                                the gravel drive, around the outside
                                curtilage, to the back corner of this
                                residence. There's a pond to the left-hand
                                         3
                   side, it's grown up weeds in that area,
                   that's the area he was standing in
                   watching the back door.

Commonwealth:      And why would he have done that?

Trooper White:     Like I said, it was a drug complaint,
                   wanted to make sure that no one had run
                   out the back door—that effect—while I was
                   speaking to Mr. Dixon.



Commonwealth:      Now, you describe Trooper Smith as going
                   around outside the curtilage. Can you
                   describe how far he would have been from
                   that back deck when he would have
                   observed those bottles there?

Trooper White:     Like I said, it was—this was not
                   maintained well. There was barely enough
                   room to walk around that trailer as far as
                   what had been mowed, so he was—I would
                   say-15 feet away from the trailer, which
                   is this pond is probably 25 feet from the
                   trailer, just guessing.

Commonwealth:      Fence around the trailer or anything?

Trooper White:     No, there's no fence. It just simply leads
                   into a grassy area—a tall grass area—
                   there's a pond and then the rest of it is all
                   wooded.

                   . . . [on cross-examination]

Defense Counsel:   In front of the residence was the grass
                   mowed down?

Trooper White:     Just a short patch in front of it but not all
                   the way. There was a gravel drive that
                   went down in front of the residence and
                   went down into the woods, but it wasn't
                   maintained.

Defense Counsel:   Okay, so in the back it wasn't maintained?
                            4
      Trooper White:            Just like I said, just a small area was
                                maintained at all.

      Defense Counsel:          And that was only in the front of the
                                residence?

      Trooper White:            Like I say, mowed—looked like the width
                                of one mower went around the edge of the
                                trailer to the back.

      Defense Counsel:          And while you were in front, that was
                                when Trooper Smith went around back?

      Trooper White:            While I encountered Mr. Dixon he was
                                around the back corner.

      Defense Counsel:          Was he with you originally?

      Trooper White:            Just when we got out of the residence—got
                                out at the residence. I seen him start
                                toward me but then he went on around
                                the back corner.

      Near the end of Trooper White's testimony, defense counsel admitted two

photographs of the rear of Dixon's trailer. The photographs show one plastic

bottle on a small back porch or deck and the trailer's backdoor slightly ajar.

The area surrounding the back of Dixon's trailer appears overgrown with tall

grass and trees, and it is littered with trash and other debris. There also

appears to be another structure, resembling a residence, to the left of Dixon's

trailer visible through the trees. After Defense Counsel concluded his cross-

examination of Trooper White, the trial court sought a brief clarification of the

photographs:

      Trial Court:              What I am concerned about—I'm not
                                understanding—can you show me or make
                                a mark where the other detective was?
                                You said he was outside the curtilage, but
                                         5
                               it looks like a pig sty back there to be
                               perfectly honest.

      Trooper White:           The picture doesn't go back far enough to
                               show where he was standing. This is the
                               strip of the grass going around [pointing to
                               the photograph]. He's back, back over
                               here [again pointing to the photograph].

      Trial Court:             Okay, so he is beyond anything in the
                               photograph?

      Trooper White:           Yes.

Due to the angle of the courtroom camera and the photograph, the video record

does not reveal where Trooper White pointed.

      Trooper White was the only witness to testify at the hearing; Dixon,

although present, did not testify. Following arguments by both parties, the

trial court denied the suppression motion from the bench. In a subsequent

written judgment, the court applied United States v. Dunn, 480 U.S. 294

(1987)'s four-factor analysis and found, according to Trooper White's

uncontroverted testimony, that Trooper Smith walked around or outside of the

trailer's curtilage and thus the search was lawful. Pursuant to a subsequent

plea agreement, Dixon entered a conditional guilty plea to complicity to

manufacture methamphetamine, complicity to possess marijuana, and

complicity to possess drug paraphernalia, and the trial court sentenced him to

ten years' imprisonment.

      The Court of Appeals reversed and remanded. The Court also considered

the Dunn factors, but found, in accordance with Quintana v. Commonwealth,

276 S.W.3d 753 (Ky. 2008), that the troopers did not have a right to venture
away from the front of the house pursuant to a knock and talk and to invade

the curtilage of Dixon's residence when they stood 15 feet from his trailer. This

Court granted the Commonwealth's petition for discretionary review.

                        II. STANDARD OF REVIEW.

      The factual findings of the trial court in a suppression matter are

conclusive so long as they are supported by substantial evidence; thus "a

reviewing court should take care both to review findings of historical fact only

for clear error and to give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers."   Commonwealth v. Ousley,

393 S.W.3d 15, 22-23 (Ky. 2013). "Using those facts, the reviewing court then

conducts a de novo review of the trial court's application of the law to those

facts to determine whether the decision is correct as a matter of law."

Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006).

                              III. ANALYSIS.

      Because KSP ultimately obtained a search warrant based on the

observations of Troopers White and Smith from behind Dixon's trailer, the

issue requiring resolution in this case is whether the troopers made those

observations from a lawful vantage point.

      The Fourth Amendment protects "[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures." U.S. Const. amend. IV. A "search" occurs for purposes of the Fourth

Amendment when the government invades an individual's reasonable

expectation of privacy. Smith v. Maryland, 442 U.S. 735, 739-40 (1979)

                                        7
(discussing Katz v. United States, 389 U.S. 347 (1967)). An individual enjoys a

reasonable expectation of privacy in "curtilage," which is the area immediately

surrounding a house that "harbors the intimate activity associated with the

sanctity of a man's home and the privacies of life." Dunn, 480 U.S. at 300

(internal quotations omitted). However, an individual has no reasonable

expectation of privacy in an "open field," the area outside a home's curtilage. 1

Oliver v. United States, 466 U.S. 170, 179 (1984).

       In United States v. Dunn, the Supreme Court sought to clarify the line

between protected curtilage and unprotected open field. The Court held that a

barn, which was located 60 yards from the home and not within the area

enclosed by a fence surrounding the house, was outside of the home's

protected curtilage. 480 U.S. at 301. In so doing, the Court created a four-

factor analysis for determining protected areas:

       [C]urtilage questions should be resolved with particular reference
       to four factors: the proximity of the area claimed to be curtilage to
       the home, whether the area is included within an enclosure
       surrounding the home, the nature of the uses to which the area is
       put, and the steps taken by the resident to protect the area from
       observation by people passing by.

Id.

       The Court addressed how police may lawfully search curtilage in

California v. Ciraolo, 476 U.S. 207 (1986). There, it was undisputed that the


        1 "Open field" is a term of art. The term "may include any unoccupied or
undeveloped area outside of the curtilage. An open field need be neither 'open' nor a
`field' as thoSe terms are used in common speech. For example, . . . a thickly wooded
area nonetheless may be an open field as that term is used in construing the Fourth
Amendment." Oliver v. United States, 466 U.S. 170, 180 n. 11 (1984) .


                                           8
place to be searched, i.e. a fenced-in backyard, was within the protected

curtilage. Id. at 213. Nonetheless, the Court found that police did not violate

the Fourth Amendment when they performed a warrantless search of the

backyard from an airplane flying in navigable airspace. Id. at 215. The Court

reasoned that the fact "[t]hat the area is within the curtilage does not itself bar

all police observation. The Fourth Amendment protection of the home has

never been extended to require law enforcement officers to shield their eyes

when passing by a home on public thoroughfares." Id. at 213.

      Subsequently in Florida v. Riley, the Court relied on Ciraolo and

maintained, "our reasoning [in Ciraolo] was that the home and its curtilage are

not necessarily protected from inspection that involves no physical invasion .. .

. As a general proposition, the police may see what may be seen 'from a public

vantage point where [they have] a right to be." 488 U.S. 445, 449 (1989)

(alteration in original) (quoting Ciraolo, 476 U.S. at 213). The Riley Court went

on to hold that no warrant was required when police searched a backyard

greenhouse from 400 feet above in a circling helicopter.   Id. at 452.

      With this federal precedent in mind, we considered the connection

between curtilage and knock and talk procedures in Quintana v.

Commonwealth, 276 S.W.3d 753 (Ky. 2008). There, after thoroughly discussing

the Fourth Amendment ramifications when police approach a residence

without a warrant, we held:

      Instead of falling directly under the knock and talk rule, as the
      Sixth Circuit has held, when an officer leaves the approach to the
      main entrance of a residence, a separate and distinct curtilage

                                         9
      question arises. The trial court is tasked with determining
      separately whether the new area where the officer ventures is
      within the protected curtilage of the home. To determine this, the
      four-factor analysis of Dunn must be applied: proximity to the
      house, whether the area is enclosed with the house, how the area
      is being used, and what the resident has done to secure his
      privacy. If the area is determined to be within the protected
      curtilage, then the officer is not in a place where he has a right to
      be, and any evidence thus illegally seized must be suppressed.
      United States v. Jenkins, 124 F.3d 768 (6th Cir.1997).

Id. at 760. Thus, when police depart from ordinary knock and talk procedure,

i.e. do something other than approach the main entrance of a house just as

any member of the public might, the trial court must determine whether the

new vantage point taken up by the officer is within the protected curtilage of

the home. To make this determination, the trial court should treat the

question like any other curtilage question and analyze the Dunn factors. If that

vantage point is within the curtilage, any observations may not be relied on as

they are the product of an illegal search; however, if that vantage point is

outside the curtilage, the officer is free to look into the curtilage in accordance

with Ciraolo and Riley.

      Finding no reason to depart from this analysis, we analyze the Dunn

factors in turn.

A.    Proximity to the Residence.

      The trial court found that Trooper Smith's vantage point (the vantage

point) was "about 15 feet" from the rear of Dixon's trailer, and Trooper White's

testimony supports this factual finding.




                                         10
       The Court of Appeals found this proximity "highly significant" to its

conclusion that the vantage point was within the trailer's curtilage. The Court

reasoned that while areas which are hundreds of feet from a residence are

unlikely to be within the curtilage, areas within a few feet from a residence are

usually within curtilage. 2

       While we cannot disagree with this general proposition and believe that,

devoid of all context, an area that is 15 feet from a residence may well be

within curtilage, we reiterate the purpose of the four-factor analysis. The

factors are not meant to be "mechanically applied . . . . Rather, [they] are useful

analytical tools only to the degree that, in any given case, they bear upon the

centrally relevant consideration—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." Dunn, 480 U.S. at 301 (internal quotations

omitted). There is no doubt that proximity can create intimacy and that

Trooper Smith's proximity to the trailer falls in Dixon's favor; however, we must

consider the underlying context of this proximity before we can affix its

significance.




        2 For support, the Court cited Dunn, 480 U.S. at 301-02 (holding that a barn
located 60 yards from the residence was not within the curtilage); Dunn v.
Commonwealth, 360 S.W.3d 751, 757-58 (Ky. 2012) (holding that the area searched by
police was "more than 300 to 400 feet" from the residence and was not within the
curtilage); Ousley, 393 S.W.3d at 28-29 (holding that trash cans located "no farther
away than the far side of his narrow driveway" or "pretty close" or a "very short
distance" from the residence was within the curtilage); and Quintana, 276 S.W.3d at
760-61 (holding that when an officer walked 30 to 40 feet across a backyard to a
window air conditioning unit on the far end of the house, he was within the curtilage).

                                          11
B.     Whether the Vantage Point Is Included Within an Enclosure
       Surrounding the Residence.

       The trial court found that there was no evidence of any enclosure behind

the trailer, and the record supports this finding. The Court of Appeals found

that this fact supported the conclusion that the vantage point was not within

the curtilage, and we agree. Like proximity, lack of a fence is not dispositive;

however it does weigh in favor of the Commonwealth's argument that the

vantage point was outside the "umbrella" of Dixon's trailer.   Compare Ciraolo,

476 U.S. at 211 (defendant "took normal precautions to maintain his privacy"

by erecting a fence) (citation omitted), with Widgren v. Maple Grove Twp., 429

F.3d 575, 582 (6th Cir. 2005) ("erecting a fence likely would have added little

privacy in this remote rural location").

C.    How the Vantage Point Is Being Used.

      As mentioned above, Trooper White was the only witness to testify; thus,

the trial court was only guided by his testimony and the photographs. There

were relatively few facts found concerning the use of the vantage point. The

findings and the record are clear that the vantage point was in tall,

unmaintained grass. Iri addition to those facts, the trial court found that the

area behind the trailer was in a "pigsty condition" and "basically a dumping

ground," findings that the photographs support. The court also stated that

Trooper Smith "stood in taller grass which was situated behind the

photographer, and as a result, is not depicted in the photographs." Thus, it is

unclear whether the vantage point was outside the perimeter of the "dumping

ground" or inside it.
                                           12
      The Court of Appeals said that the evidence did not show that this back

area was used as an extension of the residence. Again, we agree. On the other

hand, Dixon argues that the back area was "littered with his personal effects"

and thus the vantage point was within the curtilage of his trailer. This position

is not supported by the facts. There is no evidence that the vantage point was

within the "dumping ground." Even if that evidence existed, there is nothing in

the record to support the argument that Dixon was using this area as his own

dump or that the debris was Dixon's property. A court could just as

reasonably infer, and perhaps the trial court did, that the area was a "dumping

ground" for others, thereby negating any expectation of privacy. Moreover, if

the vantage point was not within the "dumping ground" then that would

support the Commonwealth's argument that it bore no intimate connection

with Dixon's trailer.

D. What the Resident Has Done to Secure His Privacy.

      The trial court specifically stated that there was "no evidence that Dixon

had taken any action to secure his privacy behind the trailer." This finding is

supported by Trooper White's testimony that there was no fence or sign posted

near the trailer. Moreover, because Dixon did not testify, the record is bare as

to any other actions he may have taken to secure his privacy.

      The Court of Appeals inferred facts that are not supported by the record

regarding this factor. The Court stated that "Dixon went to great lengths to

secure his privacy. He placed his trailer away from his mother's house [and it]

was also located far way from any neighbors at the end of a gravel road." The

                                       13
record does not support these facts. Trooper White testified that Dixon's trailer

was "about a tenth of a mile" away from his mother's residence and at the end

of a gravel road. But there is no evidence that Dixon purposely "placed" his

trailer in that location or for that purpose. Furthermore, Trooper White

testified that he passed at least two other residences on the gravel road leading

up to Dixon's trailer. There is no evidence that Dixon isolated himself from

these other neighbors; in fact, one of the photographs shows what appears to

be another residence through the trees and within sight of Dixon's trailer.

      The Court of Appeals also stated that the long grass, itself, shielded the

back area from view and communicated that visitors were not welcome to

access it. This inference, although potentially reasonable, is also not

supported by the evidence. There is no evidence that the grass impeded

visibility. While there is evidence that a narrow strip of grass around the

trailers was mowed, there is no evidence that Dixon was the mower or that

whoever mowed the strip intentionally left the back area unmaintained.

Moreover, a court could just as likely infer that the mower did not mow this

area because he or she had no use for it or no ownership interest in it.

E.    Additional Evidence.

      The Commonwealth carried the burden in this case to demonstrate that

the warrantless entry falls within a recognized exception to the warrant

requirement, and part of that burden was proving that the vantage point was

outside of the curtilage. King v. Corn., 386 S.W.3d 119, 122 (Ky. 2012). We are




                                        14
satisfied that the Commonwealth met its burden when Trooper White

unequivocally testified that Trooper Smith did not invade the curtilage.

      We are generally hesitant to be persuaded by such a conclusive

statement from a witness. However, we cannot fault the trial court for relying

on such testimony when it was uncontested and further, supported by the

facts as outlined above. Dixon was free to attack this conclusion through cross

examination or conflicting testimony but he failed to do so. He did not ask

Trooper White to define his understanding of curtilage; he did not question

Trooper White's line of sight; nor did he inquire as to how Trooper Smith

proceeded to the vantage point. Perhaps more importantly, Dixon did not offer

any testimony as to his use of the area in question nor any testimony regarding

any affirmative steps he may have taken to secure its privacy.

      Therefore, based on the totality of the Dunn factors, as well as Trooper

White's uncontroverted testimony, we hold that neither trooper unlawfully

encroached on the trailer's curtilage. Thus, Dixon's Fourth Amendment rights

were not violated when Trooper White later relied on his observations to enter

the trailer according to exigent circumstances and ultimately obtain a search

warrant.

                             IV. CONCLUSION.

      For the reasons stated above, we reverse the Court of Appeals and

reinstate the trial court's judgment.

      All sitting. All concur.




                                        15
COUNSEL FOR APPELLANT:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

COUNSEL FOR APPELLEE:

Erin Hoffman Yang
Assistant Public Advocate




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