Kann v. StateKann v. State
Lead Opinion
Mеrna Argovitz Kann appeals her conviction in two cases for possession of marijuana and codeine. In two grounds of error, she maintains that the trial court erred in overruling her motion to suppress evidence because such evidence was seized pursuant to an illegal search in violation of: (1) the Fourth and Fourteenth Amendments to the United States Constitution; and (2) Article I, Section 9 of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure. In her third ground of error, she contends that the search warrant and supporting affidavit failed to show probable cause. We agree with appellant’s second contention, that the TEX.CONST. art. I, § 9 and TEX.CODE CRIM.PRO.ANN. art. 38.23 (Vernon 1979) mandate the exclusion of the evidence in question and find that ground dispositive of this appeal. Accordingly, we reverse the judgment of the trial court.
Evidence developed at the pretrial hearing in support of appellant’s motion to suppress evidence reflects that on September 27, 1982, Richardson Police Officer Melody Acord received a telephone call from an Irving police officer by the name of Myers. Officer Myers told Officer Acord that he had just received information from an informant that marijuana was growing in the back yard of a residence on Towne House Street in Richardson, and that the occupant’s first name was Merna. Officer Acord then looked over the water log for the street in question, found the namе Mer-na Kann and her address at 601 Towne House Street. The officer drove to the address and found the residence to be a single family town house. The officer proceeded to drive down the alley until she was behind the town house. She was unable to view appellant’s back yard from the alley because a six foot wooden fence blocked her line of vision. Appellant’s carport occupied the space between the alley and the fence. A сlosed gate in the fence was located at the rear of the carport. Acord walked the length of appellant’s carport to the fence and by bending down near the fence and peering through a hotei was able to recognize marijuana plants growing in pots in appellant’s back yard. Acord included what she had seen in an affidavit made for the purpose of procuring a search warrant.
The appellant contends that Officer Acord, before peeking through appellant’s fence, did not have sufficient information to justify a search warrant. The only information Acord had before she peeked through the fence was a telephone call from an officer, who she did not know personally, that an anonymous tipster had reported that someone on Towne House Street named Merna was growing marijuana in her backyard. This information, without a doubt, falls short of establishing probable cause for a sеarch. The only information contained in the affidavit which provided probable cause for the issuance of the search warrant on the appellant’s premises was that Acord had seen marijuana growing in appellant’s backyard. Appellant maintains that Acord’s action in going into her carport and peering through her fence to see her backyard without a warrant constituted an illegal search and that through that search Acord obtained the essential information for her affidavit. Appellant further contends that since the search warrant was a product of the prior illegal search, the seizure of evidence incidental to the search warrant was also illegal and must be excluded. Thus, appellant argues that the warrant cannot justify
At the outset, we acknowledge that Article I, Section 9 of the Texas Constitution and the Fourth Amendment of the Federal Constitution are, in all material aspects, the same. Crowell v. State,
Since the decision in Katz v. United States,
Curtilage is “the land immediately surrounding and associated with the home” and warrants the same Fourth Amendment protections that attach to the home. Oliver v. United States,
Following the definition of curtilage set out in Oliver, we hold that the curtilage surrounding appellant’s home encompassed her carport. See Woodbury v. Beto,
Whenever government agents enter into the curtilage they necessarily intrude upon the individual’s reasonable expectation of privacy. United States v. Jackson,
In addition to the numerous federal circuit cases, the Texas Court of Criminal Appeals has stated that a warrantless search of an individual’s back yard may withstand constitutional scrutiny only when the State shows that an exceptional situation exists at the time of the search. Gonzalez v. State,
In the present case, the State does not contend, nor do we find, that any exceptional circumstances existed at the time of the officer’s intrusion onto appellant’s curtilage. The burden of proving the reasonableness of a warrantless search is on the State. DeLao v. State,
It appears to us that the search made of appellant’s home under the search warrant was but a continuation of that illegal search which the officer instituted without any warrant when she entered upon appellant’s premises and peeked through her fence. In any event, the necessary information contained in the affidavit for the search warrant was illegally obtained, and therefore, makes the entire search illegal. We hold that evidence obtained by reason of the search is rendered inadmissible and that the trial court erred in overruling appellant’s motion to suppress the evidence. Therefore, we reverse the judgment of the trial court.
Reversed and remanded.
HOWELL, J., concurring.
CARVER, J., dissenting.
Notes
. However, the Fifth Cirсuit, at least has not hesitated to hold a search illegal where the government agent trespasses in order to obtain his plain view. United States v. Jackson,
Concurrence Opinion
concurring.
Believing that the disposition of the instant case is controlled by Gonzalez v. State,
The Gonzalez court’s distinction of its prior authority, Long v. State,
This Court held that the initial inquiry in Long was not a search.... Had the warden in the instant case seen the contraband as he returnеd to his car, Long would indicate that there was no illegal search. The warden did not turn to leave after receiving no response to his inquiries.... [IJnstead of leaving, he initiated a search for ... violations.
Gonzalez,
If, as held in Gonzalez, a random walk through the suspect’s yard, pursuant to no response at the door, engaged in for the purpose of uncovering any indications of unlawful conduct, constitutes an illegal search, then one cannot escape the conclusion that it is also illegal for an оfficer to travel through an unenclosed carport and peer through a small hole or gap in a wood fence for similar purposes. No legitimate distinction can be drawn between Gonzalez and the case at bar. Peering through cracks in a fence is indistinguishable from peering through cracks in an outhouse. In each case, the key element is that neither officer could have obtained the evidence except through a breach of the curtilage. Both officеrs were in a place where they had no right to be.
The reversal in the subsequent case of Wheeler v. State,
Gonzalez is consonant with the ancient doctrine of trespass ab initio. An officer, or any other member of the public, is authorized by well established community custom, to enter premises by the indicated usual route for the purpose of knocking on the front door, but once he deviаtes from this purpose, the officer loses his status as an invitee. He has no right to be there and any search whatever becomes illegal. The carport in the present case was completely open, but it was nevertheless an area where the officer had no right to be present. The only reason for walking through the carport was to search for suspected marijuana by means of peering through a small aperture in the fence. Entry into a proteсted area was integral to the search; no view through the fence could have been obtained without it.
If this case is to be decided upon federal constitutional principles, United States v. Leon, — U.S. -,
Long, Gonzalez and Wheeler all reiterate and freely recognize the established Texas law. If a warrant is based upon illegally secured evidence, the evidence se
I find no foreshadowing of the rule in United States v. Leon anywhere in the Texas cases. Any question regarding the adoption of the Leon rule in Texas should be left to the Texas Court of Criminal Appeals.
Dissenting Opinion
dissenting.
Merna Kann appeals her conviction in two cases for possession of marijuana and codeine urging that the only evidence of her guilt should have been suppressed because it was obtained in violation of her Fourth Amendment right to privacy. I would reject Kann’s complaint of error and affirm.
The record reflects that officers executing a search warrant of Kann’s townhouse found 46 growing marijuana plants in a fenced back yard, marijuana joints in Kann’s purse, and loose marijuana leaves and seeds on a coffee table. The search warrаnt was issued by a magistrate in reliance upon an affidavit of an Officer Acord of the Richardson police substantially stating that she received a telephone call with the caller identifying himself as Officer Myers of the Irving Police; that an informant had told him (Myers) that a woman named Merna was growing marijuana in the back yard of a house on Towne House Lane in Richardson; that she (Acord) had found a Merna Kann subscribing to city water service at 601 Towne House Lane.
At the subsequent supрression hearing it was further developed that she (Acord) had driven to the street location and had found that No. 601 was one of a block-long series of two-story town houses each with an open front yard, no side yard, a fenced back yard, and outside of the fence, a block-long continuously built series of carport spaces entered from an alley; and that she (Acord) had walked the depth of the carport and peeked through a natural space in the fеnce of No. 601 and had seen growing marijuana plants which she recognized from her prior training. On the basis of the evidence found when the warrant was executed, Kann was convicted.
Kann argues that she had a “constitutionally protected reasonable expectation of privacy” in her fenced back yard which society, and its law enforcement officers, were bound to accept as “justifiable”, as in Oliver v. United States, — U.S. —,
The history of the exclusionary rule urged here by Kann is recited in United States v. Leon, — U.S. —,
The issue addressed in Leon was whether the rule should be applied to exclude evidence of guilt discovered under a search warrant duly issued by a magistrate, but which search warrant was subsequently held to be invalid. Leon reasons that the rule was to be applied to officers, not magistrates, as a deterrent, Id. at 3417; but that the deference given the magistrаte’s warrant was not “boundless,” Id. at 3417; and that the rule might yet be applied if (1) the affidavit upon which the magistrate acted was knowingly or recklessly false, (2) the magistrate did not perform his “neutral and detached function” but served “merely as a rubber stamp for the police”; or (3) there was the absence of any substantial basis for determining the existence of probable cause. Id. at 3417.
Leon holds:
We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abid-ed by its terms. “[Sjearches pursuant to a warrant will rarely require any deep inquiry into reasonableness,” Illinois v. Gates, 462 U.S. [213], at 267, 103 S.Ct. [2317], at 2347 [76 L.Ed.2d 527 ] (WHITE, J., concurring in the judgment), for “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” United States v. Ross,456 U.S. 798 , 823, n. 32,102 S.Ct. 2157 , 2172, n. 32,72 L.Ed.2d 572 (1982). Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald,457 U.S. 800 , 815-819,102 S.Ct. 2727 , 2737-2739,73 L.Ed.2d 396 (1982), and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
Suppression therefore remains an appropriate remеdy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware,438 U.S. 154 ,98 S.Ct. 2674 ,57 L.Ed.2d 667 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York,442 U.S. 319 ,99 S.Ct. 2319 ,60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on а warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, 422 U.S. [590], at 610-611, 95 S.Ct. [2254] at 2265-2266 [45 L.Ed.2d 416 ] (POWELL, J., concurring in part); see Illinois v. Gates, supra,462 U.S., at 264 ,103 S.Ct., at 2344 (WHITE, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient, i.e., in failing to particularize the place to be searched or the*164 things to be seized that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, — U.S. [-], at-, 104 S.Ct. [3424], at 3427 [82 L.Ed.2d 737 ]. [Footnotes omitted].
Id. at 3421-22.
The evidence before us reflects that the officer’s affidavit which was put before the magistrаte reflected fully and accurately all the information obtained. Whether the informants’ information alone supported probable cause for the search warrant, or whether the officer’s investigation, alone or in conjunction with the informants’ information supported probable cause, were issues put squarely to the magistrate’s decision. There is nothing in our record to indicate that the magistrate abandoned his judicial role in determining the existence of probable cause to issue his warrant. There is nothing in the record that would occasion a reasonably well-trained officer, in good faith, to believe that the magistrate’s decision to issue the warrant was unsupported. I find no reason to apply here the exclusionary rule and suppress evidence of the guilt of Kann discovered by the officer in obedience to the order of the magistrate.
Kann argues that, upon reflection, the information of an unknown informant, relayed through an unconfirmed member of the Irving Police to a Richardson policeman, cannot be said to provide “probable cause” justifying the search warrant. For the sake of argument, I agree. Kann further argues that, upon reflection, the officer’s trespass into someone’s carport and peeking through someone’s fence was an invasion of Kann’s reasonable expectation of privacy, which claimed privacy was one that sociеty would deem justified, and that the evidence thus secured should have been disregarded by the magistrate in determining whether to issue the search warrant. For the sake of argument, I agree. Nevertheless, absent allegation and proof, which is absent in this record, Leon does not permit this eourt, or counsel, to speculate on these arguments abstractly. Leon specifically holds that:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is apprоpriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
Leon,
I would hold that the trial court was justified by the holdings in Leon and Adams to determine that the deterrent effect of the exclusionary rule’s application here was outweighed by the needs of the truth-finding functions of the judge and jury.