Cooksey v. State
350 S.W.3d 177
Tex. App.2011Background
- Appellant Cooksey pled no contest to possession of marijuana (4 ounces to 5 pounds) and received five years deferred adjudication and a $500 fine.
- Confidential informant claimed appellant grew marijuana at his Center Point home; informant deemed credible and reliable by the SEU.
- Sheriff’s officers conducted a “knock and talk” without a warrant to seek consent to search.
- Officers observed appellant from the backyard after approaching the front; no weapons or danger observed.
- Appellant led officers to the back where he admitted marijuana plants were his and signed a form consenting to a search.
- Pretrial motion to suppress all seized evidence was denied; appellant pled no contest and argues suppression error on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant had a constitutionally protected privacy interest in the backyard | Cooksey argues backyard/curtilage is protected | State contends no privacy interest due to approach and consent | Yes; backyard/curtilage protected (likely privacy interest exists) |
| Whether the sheriff’s entry into the backyard without a warrant was lawful | State must show probable cause and exigent circumstances or valid protective sweep | No probable cause or exigent circumstances; no valid protective sweep | Entry not lawful; not justified by probable cause, exigent circumstances, or a valid protective sweep |
| Whether the consent to search was voluntary given the illegal entry | Consent tainted by illegal entry; attenuated by Brick factors uncertain | Taint not sufficiently attenuated; consent not voluntary | Consent not voluntary; taint未 attenuated; suppress evidence |
Key Cases Cited
- Pool v. State, 157 S.W.3d 36 (Tex.App.-Waco 2004) (backyard curtilage considerations for privacy)
- Gutierrez v. State, 221 S.W.3d 680 (Tex.Crim.App. 2007) (probable cause and exigent circumstances for warrantless entry)
- McNairy v. State, 835 S.W.2d 101 (Tex.Crim.App. 1991) (probable cause and exigent circumstances required for warrantless entry)
- Reasor v. State, 12 S.W.3d 813 (Tex.Crim.App. 2000) (protective sweep standards after arrest)
- Gould v. United States, 364 F.3d 578 (5th Cir. 2004) (protective sweep requirements; five-factor test)
- Brick v. State, 738 S.W.2d 676 (Tex.Crim.App. 1987) (six Brick factors for voluntariness of consent)
- Stone v. State, 279 S.W.3d 688 (Tex.App.-Amarillo 2006) (attentuation of taint from illegal entry for consent)
- Beaver v. State, 106 S.W.3d 243 (Tex.App.-Houston [1st Dist.] 2003) (attentuation factors for voluntary consent)