RENDERED: FEBRUARY 18, 2016 

,Suptrtut Court of 71ReuEllik_11 

2014-SC-0005.11-DG 

COMMONWEALTH OF KENTUCKY 

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 

DAT E3-to S.J......k-Gc040,44.7*XAPPELLANT 
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 

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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 

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side, it's grown up weeds in that area, 

that's the area he was standing in 

watching the back door. 

Commonwealth: 

Trooper White: 

Commonwealth: 

Trooper White: 

Commonwealth: 

Trooper White: 

And why would he have done that? 

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. 

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? 

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. 

Fence around the trailer or anything? 

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: 

Trooper White: 

In front of the residence was the grass 

mowed down? 

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? 

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Trooper White: 

Defense Counsel: 

Trooper White: 

Defense Counsel: 

Trooper White: 

Defense Counsel: 

Trooper White: 

Just like I said, just a small area was 

maintained at all. 

And that was only in the front of the 

residence? 

Like I say, mowed—looked like the width 

of one mower went around the edge of the 

trailer to the back. 

And while you were in front, that was 

when Trooper Smith went around back? 

While I encountered Mr. Dixon he was 

around the back corner. 

Was he with you originally? 

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 crossexamination 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 

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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) 

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(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 fourfactor 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) . 

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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 

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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. 

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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. 

2For 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). 

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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. 

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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 

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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 

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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. 

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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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