Nored v. State

reversed, Appellees’ argument appellees hereby must fail for sev are ordered compelling nothing City eral reasons. The most reason is to recover from the of San legislature’s authority pursuant to the Antonio. municipal Texas Constitution to define what governmental

activities be considered will proprie

and what activities will be deemed Const,

tary. § art. 13. The consti XI, Tex. permits legislature

tution also to reclassi

fy any prior statutory or common law classi municipal activity.

fication of a Fur Id.

thermore, legislative may action withdraw a remedy common law when “it is a reasonable Jerry NORED, Appellant, Mack in power exercise of the the interest of general City welfare.” Lebohm v. Texas, Appellee. Galveston, The STATE of 154 Tex. (1955). City convincingly argues No. 05-93-00208-CR. pro

the classification of certain activities as Texas, Appeals Court of prietary under common law is anachronistic Dallas. light expanded government role municipality might recent decades. aWhere March provided past have services as a volun tary gesture corpo to benefit those within its limits, today

rate such services are often by today’s citizenry

demanded and even es orderly management

sential for the a mu

nicipality. Clearly, this is true for func

tion of street maintenance. This distinction during legislative

was illustrated debate Act,

on the Amended Tort Claims one where argued governmental activity

senator that a basically

is one that is demanded

public, proprietary whereas function is one municipality competes

in which the with

private sector. See John T. Montford & Will Barber, 1987 Texas Tort

G. Reform: Quest a Fairer and More Predictable System, Texas Civil Justice 25 Houston Thus, legislature

L.Rev.

reasonably intended accord cities with protections sovereign

some of the same

immunity enjoyed by the state and other political

local subdivisions under the state.

Appellees complain also the Tort Act constitutional

Claims violates state

provision against taking with- adequate compensation, yet pro- fail

out argument

vide about how this clause was in the of this case. There-

violated context

fore, complaint. shall not address this we

Tex.R.App.P. 74(f). City’s point

Accordingly, the of error is

granted. judgment trial Dallas, Drescher, appel- for

Jeanette L. lant. Wetherholt, Dallas, appellee. for B.

Anne LAGARDE, CHAPMAN and Before MORRIS, JJ.

OPINION LAGARDE, Justice. appeals his conviction

Jerry Mack Nored building. After the trial burglary of a sup- appellant’s motion court overruled press, appellant pleaded guilty. Pursuant ap- plea bargain, a the trial court sentenced twenty-five years’ imprisonment. pellant to contend- Appellant brings points two of error (1) violated that: monitoring rights by a Fourth Amendment by entering ap- tracking device and mobile warrant; a pellant’s property without statutorily re- to obtain a failed installing mobile quired order before a points tracking device. We overrule judgment. affirm the trial court’s FACTUAL BACKGROUND Greg Brand- Highland Park officer burgla- that due to a rash statter testified Park, Highland in an area of ries attempt catch “sting” operation to up set burglar. police placed (a tracking equipped a mobile device with garage leased for beeper) in a residential dye purpose. Theft-detection was parts of handle bars and other placed on the beeper signaled bicycle. When moved, being the officers was (Tex.Crim. 7, 9 garage; gone. Russell v. hurried to the Russell, criminal beeper’s signal App.1986). In the court of The officers traced the on explained proof squad appeals further burden receivers their cars followed the signal apartment complex in Dallas as follows: to an Highland mile outside the about one-half suppress in motion to As the movant a city

Park limits and less than a mile from the evidence, produce a defendant must evi- bicy- garage placed where the had presumption that dence defeats cle. proper police therefore shifts conduct and proof A the burden of to the State. defen- yard apartment was located within a proof his initial burden of dant meets “privacy” As surrounded wooden fence. establishing that a search or seizure oc- next to the Officer Brandstatter walked curred without a warrant. fence, through he heard a noise. He looked 1) Once a defendant has established bicycle a knothole the fence and saw 2) or seizure occurred and that no matching description bicycle of the taken obtained, proof warrant was the burden of garage. from the After officers with hand- produces If shifts to the State. the State beeper held receivers confirmed that the was warrant, proof fence, of a the burden of gate evidence inside the the officers entered the is shifted back to the defendant to show apartment. approached If invalidity of the warrant. the State on Officer Brandstatter knocked the door. warrant, produce unable to evidence of a is He testified that the officers intended to prove of the it must the reasonableness investigate bicycle in fact whether the was search or seizure. garage. a man the one taken from the "When (citations Russell, 717 S.W.2d at 9-10 door, him to came to the the officers asked omitted). However, is not footnote the State step Brandstatter asked outside. Officer required prove propriety of the search house, anyone him still in the whether was beyond a doubt. Lalande v. said, ‘Tes, guy and the man who Uves State, 115, 676 S.W.2d here is in there.” Officer Brandstatter then 117-18 (Tex.Crim.App.1984). man, ap- him out.” “summoned When door, pellant, Officer Brandstat- came of Review Standard “gave ter him over to Officer Barrow.” hearing, suppression At a the trial appellant When Officer Barrow saw judge judge is the sole of the witnesses’ hands, dye on his he ar- theft-detection credibility weight given and the their testi him.1 checked the serial rested State, 539, mony. v. 800 543 Romero that it number on the and confirmed judge may (Tex.Crim.App.1990). The trial garage. was the taken from the reject any accept or or all of the witnesses’ elapsed Thirteen minutes from the time the testimony. Johnson v. 803 S.W.2d beeper being indicated 272, (Tex.Crim.App.1990), cert. de 287 appellant. until the officers arrested moved — 2914, nied, -, 115 111 S.Ct. U.S. 1078, grounds, L.Ed.2d overruled on other MOTION TO SUPPRESS 681, 685 n. 6 Heitman v. 815 S.W.2d Burden of Proof (Tex.Crim.App.1991). engage do not We sup review. consider a defendant seeks to our own factual We When improperly applied right to the trial court press evidence on the basis of the be whether Romero, seizure, 800 the law to the facts. See free of unreasonable search and showing Absent a proof initially on the defendant. S.W.2d at 543. burden of is relevant, only marginally argument, parties is and at record. The issue however, 1. In the briefs oral present a did not disputed because whether the officer arrested legality challenging examining to determine wheth- error before his hands thoroughly ground. re- We have with the theft- arrest on this er hands were stained submission, interpretation sup- Our dye. filed viewed the record. ported by After both sides detection in the statement of facts viewed supplemental the statement of facts citations to ruling. light court's interpretation most favorable to the trial support of each side's

395 705, Karo, discretion, able.” United States we do not disturb abuse of 3296, 3302, 712, L.Ed.2d 530 104 S.Ct. findings. trial court’s Maddox Jacobsen, (quoting United States (Tex.Crim.App.1985). We 104 S.Ct. U.S. light in the most favorable view the evidence (1984)). State, L.Ed.2d 85 ruling. trial court’s Daniels (Tex.Crim.App.), re- argument, appellant his support U.S. concerning of federal cases lies on a series (1986), on other L.Ed.2d 252 overruled chemicals monitoring legally obtained grounds, Juarez v. process of manufac- used in the that can be If (Tex.Crim.App.1988). n. the evidence Karo, refining illegal drugs. See turing or ruling, do not supports the trial court’s we 3296; United States Johnson, ruling. disturb that 276, 1081, Knotts, 103 S.Ct. 75 460 U.S. uphold ruling must the trial court’s We (1983); Cassity, L.Ed.2d 55 United States upheld theory, if it can on valid be (6th Cir.1980); States v. 631 F.2d 461 United argued it in regardless of whether the State Cir.1980). (6th In each Bailey, 628 F.2d 938 appeal. trial or on Lewis v. the cases, law enforcement officers of these 345, (Tex.Crim.App. 347 placed beepers inside containers of chemicals 1984) (disposing suppress of motion to on suspects. officers that the were sold to grounds standing of lack of de beepers chemicals were monitored the as the spite argue fact that State did not lack of transported taken inside a and then were standing appeal). at trial or on that moni- private area. The courts held the beepers did not violate the

toring of the privacy FOURTH AMENDMENT RIGHTS suspects’ expectations of reasonable areas, long public as the chemicals were as error, point appellant In his first of con- high- during transportation public on such as overruling tends that the trial court erred in However, ways. the courts held that the suppress police his motion to because the suspects’ monitoring did violate the reason- (1) rights by his Fourth violated Amendment expectations privacy of when the chemi- able monitoring beeper the after areas, public such as cals were taken out of brought it within an area in he had a which private residence. From these inside (2) expectation privacy by of and cases, that the monitor- appellant concludes entering onto the without war- ing beeper appel- in this of the case violated rant.2 expectation privacy after lant’s reasonable of bicycle public area and entered left Monitoring Beeper area, namely, yard appellant’s private Appellant this does not contend under privacy fence. surrounded point beeper illegally of error Karo, Knotts, Cassity, Bailey and or that installed could not monitor however, distinguishable, be- cases are all beeper bicycle public while the was in a legally chemi- they involved obtained cause argues monitoring place. Appellant that the to assume that cals. It is not unreasonable beeper of the violated his Fourth Amend po- property legally obtained will be free of bicycle rights brought ment after he monitoring. lice privacy surrounding his inside the fence issue, applied the same rea apartment. To resolve this we must The courts have not monitoring soning of the to contraband. See United States determine whether (1st Cir.1977) Moore, 106, beeper infringed expectation “an of 562 F.2d (“[T]here be society prepared reason- is a clear line of demarcation is consider (1) reads, monitoring beeper challenging point 2. The of error "The as fruits suppressed brought be- arrest search should be it the fence and after behind and/or 'monitoring’ tracking cause the of an electronic prop- police’s warrantless onto illegal device became when the failed to point erty. interpret contend- We do not this as before secure an arrest entering search warrant and/or police’s checking the serial number an an area in which the defendant had illegal was an search. on the expectation privacy.” interpret We of tween, hand, and position oth so that it can be recovered on the one contraband and items, goods, posses ap- er such as stolen whose to its lawful owner. Nor does returned other, illegal, goods, has, why sion is and on the what pellant explain a thief should use, possession is suspected have, ever their whose expectation that he a reasonable once legal.”), cert. 98 S.Ct. booty po- takes his behind closed doors the L.Ed.2d 521 The courts monitoring lice will discontinue the distress consistently have held that installation signal property. the stolen Such emitted monitoring beepers placed inside con is not one that not the Fourth Amend traband does violate society recognize as prepared reason- See, Most, e.g., ment. United States States, 411 A.2d able. Lucas v. United Cf. Cir.1986) (installation (9th F.2d (D.C.1980) (department store’s electronic Sheikh, heroin); United States v. 654 F.2d inventory tag prevent of items for (5th 1981) (in Sept. A Cir. Unit unreasonable). shoplifting invasion heroin), monitoring in de stallation and privacy in minimal —the this case was nied, loca- beeper informed the (1982), overruled on other L.Ed.2d beeper. tion of the stolen We grounds by Zuniga-Salinas, United States v. monitoring beeper after hold (5th Cir.1992) (en banc); 952 F.2d beeper behind appellant took the Botero, United States v. 589 F.2d privacy appellant’s fence did not violate the (9th Cir.1978) (installation monitoring in and expectation privacy. reasonable of Accord- cocaine), denied, ingly, of appellant has not shown a violation (1979); 60 L.Ed.2d 1045 United States rights. his Fourth Amendment (9th Dubrofsky, 581 F.2d 211-12 Cir. 1978) (installation heroin); monitoring and Entering Appellant’s Property Bishop, United States v. 530 F.2d Cir.) curiam) (installation (5th (per and moni Appellant argues that offi next the bank), money toring in stolen from cert. de property onto his vio cers’ warrantless nied, 50 L.Ed.2d U.S. S.Ct. rights. Fourth Amendment Officer lated his (1976). appellant’s apart Brandstatter testified that by yard ment was inside a surrounded Thus, upon appellant the cases which relies eight-foot high privacy The entrance fence. distinguishable. are As the chemicals and property through gate a “with a illustrate, to the society willing contraband cases regular gate Appellant latch on it.” concedes recognize higher expecta- as a apartment only one door. The that his privacy legally property tion of obtained through gate, through the the officers walked than for contraband. Unlike the chemicals area, above, appellant’s The beepers patio acted as and to door. eases cited where legitimate privacy expecta- purpose entering property of onto the was to intrusions on the “to suspects, beeper occupants apartment tions of the in this case talk to the sophisticated burglar Be- and if acted as alarm. determine if in fact this is our simply notifying police people sides of the fact of in fact these were the ones that took bicycle, beeper provided it, basically investigating.”3 the theft of the police a means for the to trace recover right police have the same as property. Appellant

the stolen does not ex- residential person other to enter onto plain why has a to assume that thief property up to the front door. walk property he steals will not have means (Tex.Crim.App.), 887, 897 crying Bower v. out its unfortunate fate its owner 927, police notifying as as them of its t. well cer dissent, and, investigate, obviously, Contrary to obtain the serial to the assertions of the J., of their dissenting). [the record does not show that "one (Chapman, number.” Id. at 401 purposes get police's] the serial number was to police's only intent on enter evidence of bicycle.” Nored v. from 392, property was in there was "to see who 1994, n.w.h.) (Tex.App. (Chap — Dallas fact ones that and determine if were in man, J., (footnote omitted). dissenting) Nor does bicycle.” took the that "the officers entered to the record show (3) arrest, respectful- (1989), 3266, 106 apartment, and overruled lant’s L.Ed.2d ly dissent. grounds Heitman v. on other posses If the express not made has sion CONTENTION APPELLANT’S trespass, and any form of prohibiting orders error, con point first In his front path the usual police

if the follow search must be the fruits of the tends that door, not violated the have then police failed to obtain suppressed because rights. Amendment Id. person’s Fourth entering arrest warrant before a search or case, that “No the record does not show in majority does not area. The the fenced Trespassing” signs post were Entry” or “No of error as terpret point first appellant’s gate. gate was not ed on the fence or checking the serial contending that opened by pushing down locked and could be bicycle is a search. Nored v. number on the show on the handle. Nor does the record 05-93-00208-CR, 875 S.W.2d No. path that the deviated from the usual March 395 n. 397 n. approach appellant’s door. in their — Dallas n.w.h.). However, argument in the Accordingly, the record does not show error, contends under this in deter the trial court abused its discretion courtyard area within that “the search of the mining appel did not violate that the a warrant was fence without [his] lant’s reasonable offi complains He also unlawful.” entering appellant’s property through the inside “proceeded cers to search Thus, gate. necessary closed warrant was if its serial privacy fence to determine property.4 for the to enter onto the bicy stolen matched that of the number point of error. We overrule first Appellant contends that because cle....” circumstances, exigent there were no 18.21, ARTICLE SECTION 14 of of the [article 14.04] “facts exclude the use error, appellant con- point In his second of justi Procedure as a Texas Code of Criminal overruling in tends that the trial court erred search.” his [sic] fication to warrantless suppress did his motion to because relief, contends that “the prayer for authorizing installa- obtain court order illegal should fruits of the arrest and search tracking tion of the mobile device under arti- High failure of the suppressed [the] be for 18.21, 14 of cle section of the Texas Code an arrest land Park Police officers to obtain Criminal Procedure. See Tex.Code CRiM. entering prior to search warrant and/or (Vernon 18.21, Supp. § 14 PROcAnn. art. At the curtilage appellant’s property.” of 1994). record, however, not show The does suppress, hearing the motion to defense on of the that a court order installation or the complained that “the search counsel Accordingly, appel- device was not obtained. conducted without seizure lant has failed to show that the trial complained that the He a search warrant.” overruling the motion abused its discretion the fenced not have entered officers should suppress ground.5 to on this overrule We said, “[I]t’s area. Defense counsel further appellant’s point second of error. only bicycle. They know it’s there. until They the serial numbers can’t check judgment. trial court’s affirm the

We they go gate and look at inside bicycle....” CHAPMAN, Justice, dissenting. argument under this I hold that the I hold that the would

Because would (1) complain this of entry, point of error is sufficient authority to make a warrantless no (2) it “directs the attention appel- search because of the fenced area around applicability express opinion of appel- We no of 5. 4. The issue of whether violated by searching rights suspect property Fourth Amendment has no lant’s in which a the statute to serial number without first obtain- for the legitimate property present interest. or future ing us. We make a search warrant is not before ruling propriety of that search. See no on the supra note 2. 398

appellate Since the decision Katz United court to the error about which Tex.R.App.P. 74(d). complaint States, 507, is made.” 347, 19 389 U.S. 88 S.Ct. argument is sufficient to direct (1967), following L.Ed.2d 576 two-fold attention to the error of which he Court’s inquiry has been used to determine wheth- Tex.R.App.P. 74(p); complains. See Sanchez complies a search with the Fourth er State, 677, (Tex.App.— 854 681 n. 1 S.W.2d individual, (1) Amendment: whether an 1993, refused); pet. Lazcano v. Dallas conduct, actual, subjec- his exhibits 654, 2 Paso 664 n. — El expectation privacy; and wheth- tive 1992, pet.). liberal brief Because expectation privacy er that is one that rules, I would hold that this Court should recognize society prepared as reason- argument appellant’s address under his States, able. v. United 466 U.S. Oliver of error. 170, 104 80 L.Ed.2d 214 S.Ct. 735, (1984); Maryland, 442 U.S. Smith THE MAJORITY OPINION- 740-741, 2577, 2580-2581, ENTRY WARRANTLESS (1979). factor, single how- L.Ed.2d No majority holds that the had the ever, determines whether an individual approach what contend was claim, disagree. may legitimately “front door.” under the Fourth Amendment, place that a should be free WARRANTLESS SEARCH government from intrusion not authorized States, Applicable [466 A. Law warrant. Oliver v. United 177], expec- U.S. at 104 S.Ct. Requirement 1. The Warrant has, increasing tation of test to an agents government enter into Whenever extent, discarded fictional con- curtilage they necessarily upon intrude cepts resolving the issues pri the individual’s reasonable Gonzales, public security. Texas v. vacy. Bower v. (5th Cir.1968). Thus, F.2d (Tex.Crim.App.), cert. validity not turn on tres- of a search does (1989), 109 S.Ct. 106 L.Ed.2d 611 over Maryland Penitentiary Hay- pass law. grounds, ruled other Heitman v. on den, (Tex.Crim.App.1991) (quoting (Tex. L.Ed.2d 782 To violate the Fourth Kann v. ref'd)). App. pet. Amendment, Such a in- there must be an actual — Dallas only in permissible search is rare circum constitutionally protected trusion into a Arizona, 385, Mincey stances. 437 U.S. open field area. distinction between 2412-13, 390-91, 2408, 98 57 L.Ed.2d S.Ct. curtilage in and is of assistance determin- (1978); 745, 290 Roeder v. 768 S.W.2d pri- or not of reasonable the existence 1988, pet. [1st Dist.] — Houston vacy expectations. United States ref'd). Accordingly, searches “warrantless (5th Cir.1978). Williams, F.2d circumstances, exigent improper are absent immediately Curtilage sur is “the land investigating at least officers have when rounding and associated with the home” upon curtilage purpose for the intruded conducting activity.” of a search for criminal and the same Fourth Amend warrants Bower, added); (emphasis at 897 protections that attach to the home. ment Williams, 581 F.2d See also United States States, 179], at [466 Oliver v. United U.S. (5th Cir.1978), accord, 1742; at 104 S.Ct. Gonzalez 59 L.Ed.2d 789 (Tex.Crim.App. 1979). Requirement & The

2. Warrant Expectation added) Bower, of Reasonable (emphasis at 896 769 S.W.2d Privacy 159-60). Kann, In (quoting 694 S.W.2d at Katz, Supreme said the United States Court requirement and Regarding the warrant preserve private to as what a resident “seeks expectation of when there is a reasonable public” may in an area accessible to the privacy, court in Bower said: even (b) Backyards, Private Areas Other constitutionally protected. Katz v. United be States, Appeals has of Criminal The Texas Court (1967). Thus, po- when 19 L.Ed.2d of an indi- that a stated warrantless legitimate to for a lice come on backyard may withstand constitu- vidual’s restrict their movements purpose and shows scrutiny when the State tional go, expected be obser- places visitors could exists at the exceptional an situation vantage points are from such vations made Gonzalez, 588 S.W.2d of the search. time See not covered the Fourth Amendment. probable cause if an officer has 360. Even id. search, exceptional an a warrantless conduct (a) necessary uphold in order to Yards, situation is still Areas Front Other Public Id.; also validity that search. see of A defendant has reasonable Kann, at 160. 694 S.W.2d porch in front of his home privacy of where, presumably, delivery men and others free to observe evidence or contraband are THE OF LAW APPLICATION Bower, at 897. In there. See THE FACTS TO

Bower, Appeals the Texas Court of Criminal majori- the reason that the The essence of said: ty part ways I is because excuse the express from the Absent orders for the and search lack of warrant against any possible trespass, in possession agree I this case. do private public there is no rule of or con- into an area hidden from to enter se, illegal per it or a duct which makes eight-foot privacy public view an wooden person’s right condemned invasion of the fence. privacy, anyone openly peace- ably up steps ... knock on to walk 1. No Warrant

the front door of man’s “castle” with asking questions the honest intent undisputed It did not occupant questioner thereof —whether evidence at a warrant this ease. The have salesman, pollster, be a or an officer of hearing they opened suppression showed the law. patio the latch and entered into the fenced added) (emphasis (quoting Id. Davis v. Unit- investigate the area to offense. (9th Cir.1964)). States, ed 327 F.2d Bower, further said: Privacy Expectation of 2. Reasonable sidewalk, entrance, pathway, A common passageway implied similar offers met his burden would hold permission public to enter which expec- proof he had a reasonable to show necessarily negates any expec- patio. tation of within his fenced regard tancy to observations Bower, (discussing at 897 fenced upon made there. The officer who walks Kann, areas); The rec- 694 S.W.2d at 161. property by public does such so used the was not show that the fenced area ord did blindfold; not the owner wear public by public the as a open to the or used reasonably all expect must him to observe ingress egress. and Other common means of that is In substance the owner has visible. have indicated that a fenced-off Texas cases public to look invited the and the officer immediately surrounding a residence is area But, reasoning, by to the same and see. expec- in there is a reasonable an area which upon property not who intrudes Bower, officer privacy. See S.W.2d tation public enjoys pre- such open so to the no pri- (discussing expectation of reasonable rogatives. off); vacy “purposefully” fenced in area added) Kann, Bower, at 159. This is because (emphasis at 897 likely keep things of a people are more to (quoting Superior Los Lorenzana Court of places in that are secluded Cal.Rptr. personal nature Angeles County, 9 Cal.3d (1973)). public from the view. and fenced off 511 P.2d were, they they no to be I was entitled to and where would hold expect privacy in area if he I trial court erred in the fenced even would hold that fence. He was grant suppress. himself did not erect to failing to the motion See Bower, to if fence had holes they entitled even the 769 S.W.2d at 897. When through police in it could which see. See bicycle, this was a “deviation checked Kann, 694 S.W.2d at 158-59. When purpose” knocking on the from [their] police bicycle through the holes Kann, saw (citing front door. Id. 694 S.W.2d at fence, they permitted to take (Howell were then J., concurring)). evidence, along with the evidence that dwelling, the If there is no front door to a tracking-device receivers indicated that their justified police always approaching are not bicycle, the stolen and obtain was in- means In some whatever available. They a search warrant. were not authorized stances, A may not be a front door. there to enter the fenced area to check the serial may design their home so that it is bicycle. id. number on the salesmen, purposefully open not to uninvited I that the fact that the fence would hold visitors, police, who are in the same gate merely latched and not locked or was position they citizens act with as other when posted trespassing” “no does not mean there exception applies. no warrant and warrant Bower, “implied permission” to enter. See instance, involving high-rise For cases (a sidewalk, pathway, at 897 com- complex, only res- condominium accessible entrance, passageway mon or similar offers cards, I carrying idents would hold enter). implied permission public to the to a front police are entitled “find” no other means of The fact that there was door. give police implied permis- access did not most resi- This is an unusual case because I privacy-fenced sion to area. would enter clearly a front that is ac- dences have door expect hold that it is not unreasonable to public. are no Texas cessible to the There backyard strangers will not enter a fenced involving of resi- cases warrantless searches eight-foot patio.1 priva- I would hold that an However, that have no front door. dences cy implied “keep fence is more of an notice to have held that a resident has a other courts police patio, approached out.” The a fenced and that they porch. not a front The door knocked on may there is no police not enter where be a was not what most would consider to common area. See front door or Garrison door,” sliding-glass “front was a door. but Md.App. 345 A.2d would hold that met his burden to (where locked, building kept visi- entrance to sought preserve the area as show that he in, police up to be let tors must call private. com- entered at 2:45 a.m. to search basement Further, went into the fenced tenants, illegal mon to 3 or 4 because glass area to knock on the door “and investi- conclude no evidence from which could gate,” they did indeed check the open public, especially at 2:45 area to the for a serial number before arrested a.m.). appellant. process investigating, if it There was one door to they looked over the to see was at 6:30 purposes2 apartment. arrived theirs. Because one of their was "When a.m., they appellant, and there was bicycle, never saw get the serial number from the light in the most favorable to the Interestingly, whether his own the evidence when asked say public, judgment, difficult to backyard open officer it would be one mistake, testified, going through by since the at the serial number "I wouldn't want them looked there, no, generally, they go through they could there." said “checked” it. See but officer Noted, at n. 2. The is that 875 S.W.2d cross, may supposed but are not to something, the does it is a reasonable 2. If a private without a warrant. A they search in areas the evidence that intended deduction from State, position majority is their plausible for the more to do it. See Johnson v. 541 S.W.2d (criminal intent); right to be in the officer had a (Tex.Crim.App.1976) FDIC contention that contends, was, apparently it Equip. Leasing, the area because it v. F & A 854 S.W.2d 1993, writ) (intent). open public. View — Dallas place in a where they not bicycle, were of the to show that nothing in the record to be. might try they to were entitled being he was followed knew destroy Appellant was evidence. escape or Bower, Further, the the officers entered bicycle not anywhere. The was going In the questions. to ask curtilage in order po that the anywhere. I would hold going bar, to investi- officers entered at the case to required to obtain a warrant lice were and, serial obviously, to obtain the gate, exception the No the fenced area. enter purpose in This is a search. number. requirement applied. See warrant search the as that of entering not the same was (Tex. State, 772, 776 v. 758 S.W.2d Juarez Bower, at 769 S.W.2d officers Bower. (consent); Crim.App.1988) Carrasco (“warrantless improper ab- searches are (Tex.Crim.App.1986) 712 S.W.2d circumstances, at least when exigent sent (search arrest); Bolden v. incident to upon the have intruded investigating officers (Tex.Crim.App.1982) 713-14 634 S.W.2d conducting a purpose curtilage 588 S.W.2d (emergency); Gonzalez activity”). criminal search for 1979) (Tex.Crim.App. Op.] [Panel Anderson, 552 F.2d In United States (hot pursuit).3 (8th Cir.1977), agents came federal In the officers saw sto- other cases where question him residence to the defendant’s through looking len items or evidence while agents re- televisions. The about a theft of window, the officers then an uncurtained the front reply to their knock on ceived no get They did not went to a search warrant. They light on in back of door. saw containing private area enter the home barking. They pro- dogs house and heard seeing after the evidence. See evidence they of the house because ceeded to the back (and Bower, cited at 897 cases there thought they could find the defendant therein). mere fact that the officers saw Through a window on speak to him. their receivers and knew house, they evidence of the saw side signaling that it was the stolen were war- They get a search theft. then went appellant’s justify did not their into held this evidence. The court rant based on patio fenced area. because, legally obtained evidence was evidence, agent’s legal when he saw the 3. The Search and talk objective to find the defendant was is The essence of a search under Texas law going to They were not to him. Id. at 1300. by a rea an intrusion into an area covered building to search. Id. back privacy. The term sonable case, Anderson, agents Unlike for, quest or a seek “search” is defined as a and, glass door going in to knock on were Long the law. out that which offends they fact that did cheek as indicated (Tex.Crim.App. number, also, apparently to obtain the serial 1975), They look over the number. did the serial hold 48 L.Ed.2d 179 would the serial number bicycle in order to obtain while on did conduct a search they appellant. To conclude before arrested They patio. looked at the serial number anything less than a this amounted to they appellant. on the before arrested , search is untenable. Bower, majority, why cited This is Bower, search incident to This not a lawful distinguishable. there was no proba- did not have they arrest because because the officers were where They also did appellant. arrest they gathered evi ble cause to had a to be when Bower, exception applied excus- They that an not establish dence. 897. they requirement ing them from a warrant based on what

then obtained and for case, for this search obtain a warrant In this when the officers obtained saw. no evidence arrest. There was off

evidence in the form of the serial number being pursued. Appellant fleeing he knew he was was not when he was arrest- ed, nothing in the record to show and there was presence obviously that an offense occurred in their so and sees evidence that is connected Bower, to a at 897. it, crime. See they appellant knew committed they suspect even that knew where the reasons, respectfully For I dissent. these gone.4 See Tex.Code art. Crim.Proc.Ann. 14.01(a) (Vernon 1977); Adkins v. (Tex.Crim.App.1988);

S.W.2d

Simpson v. 802-04 S.W.2d ref'd)( (Tex.App. pet. Worth offic — Fort investigating report marijuana ers scent apartment

who were allowed into where sev people probable eral had no lived cause to A.S., In the Matter of a Child. asleep arrest without a warrant defendant No. 13-93-450-CV. nothing bedroom where connected defendant marijuana). any nothing There was to tie Texas, Appeals Court particular suspect with a criminal act. See Corpus Christi. Adkins, 764 S.W.2d 785. No officer testi thought appellant fied that he was about to March 1994.

escape. Tex.Code art. 14.04 CRIm.PROC.Ann. (Vernon 1977). Appellant suspi was not place.

cious Holland v. pet. — Dallas

ref'd) (defendant arrested in home without

warrant after children shouted that he had hammer).

hit them with The officers did not specific person

have a who could be arrested

pursuant to article 18.16.5 See Tex.Code (Vernon 1977); art. 18.16

CrimProcAnn. (Tex.

Mitchell v. (stolen

App. pet.) car in — Texarkana house, front of not but officers did know car). At

which inside had stolen bicycle, they when the saw probable anyone.

had no cause to arrest that, case,

would hold under the facts of this private

because the could not enter the warrant,

area without a were officers also

required to obtain a warrant for

arrest. justify also cannot under the

plain-view they doctrine the fact could

view the serial numbers on the while patio, if were on the that were the case. plain-view permits doctrine an officer to if

seize evidence without a warrant the officer place

is in a where he or she has a to be priva- 4. The never saw and did not had a reasonable They only parked saw the cy. permit know where he went. Article 18.16 does the warrant- bicycle. private less into home or other area just because stolen items are located there. pursuant could not be seized article 18.16 because it was in an area in which

Case Details

Case Name: Nored v. State

Court Name: Court of Appeals of Texas

Date Published: Mar 14, 1994

Citation: 875 S.W.2d 392

Docket Number: 05-93-00208-CR

Court Abbreviation: Tex. App.