*1 friend”77—is a the firmest dog life —“in Texas The STATE per it is also But companion. treasured sensible, draws and the law property, sonal types of between distinctions policy-based BETTS, Appellee. Tony Tyrell throughout majority rule No. PD-1221-12. including Texas since most of America— with so warm-heartedness 1891—leavens Appeals of Texas. Court Criminal rule ber-mindedness, a rational applying For the April an emotional one. rather than (1) above, we decline reasons discussed precedent classi 122-year-old our
jettison (2) ordinary property, and dogs as
fying in re damages rooted noneconomic
permit
lational attachment. law, the human- common Texas
Under undeniable, bond, is uncom- while
animal matter how it is conceived
pensable, no dam-
litigation a measure —as “special value” or (including “intrinsic ages from the attachment
value ... derived as a pet”78), for his
that an owner feels compan- loss of claim for
personal-injury distress, any other or
ionship or emotional labeling mat- packaging
theory. pet in a owner’s Recovery not: rooted
ters understand
feelings prohibited. We (or actual) market limiting recovery incommensurate with
value seems suffered, pet-death ac- harm but
emotional harm, while for such compensating
tions legislated, are not
they certainly be can common law should en-
something Texas
shrine. appeals’ judg- the court of reverse
We in favor of judgment
ment and render
Strickland.
78.
77. Lord note *3 TX, Corsicana, Keathley, for
Steve A. Appellant. Goldstein, At-
Stacey
Prosecuting
State
TX,
McMinn,
Austin,
Lisa C.
torney,
n
Austin,
the State.
Attorney,
State’s
delivering
OPINION
food for Meals on Wheels to a
private residence when he noticed a num-
HERVEY, J.,
opinion
delivered the
ber of
in the street. He mentioned
KELLER, P.J.,
in which
meal,
to the recipient of the
who
MEYERS, WOMACK, JOHNSON,
complained that
the dogs came into her
KEASLER, COCHRAN,
ALCALA,
yard to relieve themselves. After leaving
JJ., joined.
residence,
Martin reported the dogs to
Tony Tyrell
Appellee,
was indict City
cross-examination,
Hall. On
Martin
cruelty
ed for
to animals. See Tex. Pe
stated that he
prior
had made
reports to
§
granted
42.09. The trial court
nal
*4
Code
city
dogs
about
up
backyard
tied
in a
Appellee’s
suppress,
motion to
which in the same area.
complained
aof warrantless
search and
Animal Control Officer Randy Feather-
Appeals
seizure.
Waco Court of
af
ston testified that he received a call con-
firmed the trial court’s order.
State
cerning
fighting
responded
animals
and
10-11-00419-CR,
No.
tied to chains
ished,
presented indi-
evidence was
skinny
appeared
and
dogs
“[n]o
were
All of the
danger
of death
cating
dogs
poor
overall
to be malnourished
bodily injury on
health,
ap-
which
or serious
puppies,
inflicting
death
especially
human,”
dogs were housed
On cross-examina-
any
“[t]he
almost lifeless.
peared
yards
he entered the
from the street
tion,
explained that
approximately
Miers
sus-
enter-
they
he had “reasonable
could be viewed without
because
where
property
dogs were in
The trial court
picion
property.”
to believe
on to the
ing
upon his own
danger”
following
based
conclusions:
immediate
also made the
relayed
and information
visual observation
ex-
had a reasonable
1. The Defendant
Thirteen
Featherston.
from
pectation
privacy.
humane
turned over to the
seized
property was
The Defendant’s
society.
State
by agents of the
searched
that she is
Deanna Hall testified
a warrant.
where the
of the
owner
Hall
the Defendant nor
3. Neither
*5
St.).
(108
ex-
4th
Hall
seized
NE
were
control
to the animal
gave consent
nephew. Ap-
her
Appellee
that
is
plained
to come
police
officer or the
officers
her, and
lived with
previously
had
pellee
backyard
the residence
into the
moved,
him
give
continued to
after he
she
living.
dogs
were
where
keep
dogs
proper-
his
on her
permission to
dogs
were
backyard
4.
where
The
dogs daily, but
ty.
cared for the
Appellee
curtilage
housed and seized
a time when he could
if there was
and thus is afforded
residence
house, Hall would feed them
it to the
make
protections as
same 4th Amendment
that she did not
instead. Hall testified
the residence.
enter her
to the officers to
give consent
circum-
exigent
There were no
5.
know about their
and she did not
property,
in this case which
present
stances
returned
at her house until she
presence
exception
an
to the war-
would be
evening.
that
home
requirement.
rant
that he housed his
Appellee testified
the mo-
ruling granting
The
6.
Court’s
per-
with her
in his aunt’s
dogs
should be affirmed.
suppress
tion to
nearby
he resides
mission because
facility
yard
holding
with no
apartment
OF APPEALS
II. WACO COURT
dogs
He
that
dogs.
for the
stated
that
argued
the State
appeal,
On direct
yards
approximately 65-70
were housed
granting
erred in
the motion
the trial court
Hall, he testified
from the street. Like
had no
because
suppress
consent for the
provide
that he did not
the search and
complain
about
to enter the
and seize his
officers
dogs
plain
were in
and because
seizure
dogs.
officers. The Waco Court
view of the
granted Appellee’s mo-
The trial court
the trial
disagreed and affirmed
Appeals
response
to the
suppress.
tion to
sup-
motion to
granting
order
court’s
con-
findings
motion for
of fact and
State’s
Tex.
press.
2012 WL
law,
trial court entered
clusions of
App. LEXIS
conclusions of law.
findings of fact and
determined
found,
court of
first
among
things,
other
The
The trial court
expectation of
a reasonable
that Betts had
Miers and Officers Featherston
Chief
street,
the animals seized
viewed,
noting
Ivey
dogs
privacy,
from the
property,
previously
Betts’
Betts had
III.
STANDING
and continued to
lived at
residence
ground
The State’s first
for re
permis-
there
his aunt’s
keep
dogs
his
with
view
Appellee’s standing
contests
to chal
sion,
pen
and there were structures and a
lenge the search and seizure that were the
*1-2,
at
dogs.
to house the
Id.
Tex.
subject of the
suppress.
motion to
*3-5.
App. LEXIS
The court Fourth Amendment of the U.S. Constitu
I,
tion and Article
activity
criminal
Section
of the
then concluded that the
Texas
protect
Constitution
individuals from un
cruelty
was not in the
view of
animal
reasonable searches and seizures. Rich
*2,
from the
Id. at
officers
street.
(Tex.
ardson
Tex.App. LEXIS
at *5-7. The court
Crim.App.1993).
rights
secured
found
Officer Featherston heard a
I,
the Fourth Amendment and Article
Sec
already
after he
puppy yelping
tion
are personal,
accordingly,
property and observed the condition of the
accused has standing
challenge
the ad
dogs when he walked to the back of the
mission of
evidence obtained
an “unlaw
although
And
Chief Miers testi-
only
ful” search or
if
seizure
he had a
fied that he could see the
from the
legitimate expectation
privacy
street, the court discounted this statement
place invaded. Rakas v. Illinois 439 U.S.
housed approxi-
because
128, 139, 143,
L.Ed.2d 387
mately seventy yards from the street and
(1978); Richardson,
permission dogs to house when he did (1979). 61 220 L.Ed.2d not live at and the yard the house was In a considering whether defendant entirely public? exposed to the objectively has demonstrated an reason majority Did the of the court of expectation privacy, able of we examine improperly ignore the trial totality of the circumstances surround court’s dispositive factfinding in ruling search, ing the including that the jus- search and seizure was not (1) whether the had a property accused tified under the view doctrine? possessory place interest in by 3. Did err majority failing to (2) vaded; was legitimately whether he Elias, follow the mandates State v. (3) invaded; place in the whether he had 339 (Tex.Crim.App.2011), S.W.3d 667 complete dominion or control and the and remand the to the trial judge case to (4) others; right whether, to exclude make fact findings legal and conclusions intrusion, before the took normal pre he entry the issue of whether onto the customarily cautions taken those property justified (5) was under the commu- seeking privacy; put he whether nity use; (6) caretaking place doctrine? private to some and
204 a per requirement and not a consider is consis- privacy claim of
whether his
improper
standing
challenge
to
privacy.
have
notions of
son to
with historical
tent
See,
v.
e.g., Brendlin
Cali
actions.
police
State,
85 S.W.3d
v.
Granados
127 S.Ct.
fornia,
Villarreal,
(Tex.Crim.App.2002);
(2007) (holding
passen
L.Ed.2d
a non-exhaustive
This is
at 138.
S.W.2d
own,
vehicle,
they did not
a
which
gers of
factors,
disposi-
no one factor is
list of
validity
challenge
had
Granados,
223. “Al
85 S.W.3d
tive.
Olson, 495 U.S.
Minnesota v.
stop);
traffic
court’s factual
to the trial
though we defer
(1990)
109 L.Ed.2d
light most
them in the
and view
findings
guest has
overnight
that an
(holding
we re
party,
prevailing
to the
favorable
in his
privacy
legitimate expectation
novo.”
standing de
issue of
legal
view the
home).
upon
Consequently, based
(Tex. host’s
Kothe
circumstances,
view
totality of the
Crim.App.2004).
light,
appropriate
ing the evidence
trial court’s
supports
The record
had a
Appellee
supports
the record
a reasonable
Appellee had
conclusion
in his
privacy
expectation
reasonable
privacy.
expectation of
backyard.
aunt’s
occurred was
and seizure
where the search
longer
he no
While
by Deanna Hall.
owned
relies on several United
The State
residence,
per-
had
lived at the
argue
cases
Supreme
States
Court
his
keep
aunt to
from his
mission
expectation
priva-
there is
reasonable
no
premises
to enter the
backyard
exposed
it
backyard because was
cy in the
which he
dogs,
feed his
to water and
order
view,3
those cases are not
but
public
daily
on a
basis.2
did
Katz,
Supreme
controlling here.
two-wire fenc-
three sides with
fenced on
person
“what a
know-
did state that
was enclosed
the fourth side
ing, and
even in his own
public,
to the
ingly exposes
fence. The
privacy
wood
neighbor’s
office,
subject of Fourth
is not a
home or
yards
approximately
kept
but
the Court
protection,”
Amendment
*7
house,
road,
a
the
in
from the
behind
surveil-
government
to hold that
went on
the
yard. Some of
part of the back
central
the
phone
booth violated
public
lance of
dog-
near
ground
chained to the
dogs were
Amendment,
public and
despite the
Fourth
structures,
in pens
and others
house
Katz v.
nature of the booth.
transparent
Certainly the
by chainlink.
surrounded
347, 351,
States,
88 S.Ct.
389 U.S.
United
animals is a com-
and shelter of
housing
(1967).
507,
Although oth-
L.Ed.2d 576
19
backyard.
mon
use for one’s
private
lan-
cases have used
Supreme
er
Katz,
in
none of
similar to that
Appellant
guage
that
did
recognize
We
standing.
addresses
specifically
the
those cases
interest
in
ownership
not have an
case,
while the officers did
factor to And in each
just
that
one
property, but
445,
See,
Riley,
449-
v.
488 U.S.
e.g.,
3.
Florida
explained
we
that ”[i]f
v.
In Wilson
693,
(1989)
52,
it over to
a vehicle has turned
Fourth v. Cir California COURT AND THE PLAIN aolo, 207, 215, VIEW DOCTRINE (1986) (holding L.Ed.2d 210 Fourth require Amendment “does not The State argues next police traveling public airways at court appeals improperly ignored the this altitude to obtain a warrant in order to trial dispositive court’s fact finding in rul observe what is visible to the eye”).4 naked ing that the search and seizure was not justified under view doctrine. argues,
The State also relying on Villar- Specifically, argues the State real, 935 S.W.2d at that Appellee did court give failed to requisite any expectation not retain of privacy in his judge’s deference to the trial finding fact aunt’s house because of his status as a when it concluded that “it is clear that guest, but this case is different from Vil- not. Chief Miers could observe the Villarreal, condition of larreal. appellant from the street.” See guest spent couple invited who *8 *2-3, 2012 Tex.App. hours in the LEXIS at *6-7. residence for a business reason, transaction. For that We held that the the State that appellant, contends “who possessory has no in- the court proprietary appeals’s plain ruling view terest in the premises, guest, but is a has should be reversed. Santana,
4. The State also cites any expectation privacy. United States v. have In con Id. 38, 42, trast, case, 427 dogs U.S. 49 L.Ed.2d in this the were located in .the (1976), house, clearly that curtilage but case is distin protected by of the which is Santana, guishable. suspect In in the front the Fourth Amendment. See Oliver v. United States, doorway 170, 180, of her home "was not in an area 104 (1984); any expectation where privacy.” she had L.Ed.2d 214 see also v. Gonzalez that, State, Supreme explained Id. The under (Tex.Crim.App. 588 S.W.2d Amendment, 1979) interpreting (describing curtilage cases the Fourth the as land imme person standing diately surrounding in the threshold of her dwell and associated with the house). ing "public” place is in a where she does not object justify the seizure of al met to afford courts should Appellate plain view: a trial court’s de most total deference by supported facts First, of historical officials must termination law enforcement record, the trial especially object when can be the where the lawfully be an evalu Second, are based on findings fact the “incrimi- court’s viewed.” “plainly Guz credibility object plain and demeanor. the ation of character” of nating (Tex.Crim. State, “immediately apparent” 955 S.W.2d man view must be of deference third, The same amount App.1997). the officials officials. And the of law questions object. to “mixed the given right should be to access must have the fact,” ques if the resolution of those (Tex. Keehn v. credibility turns on an evaluation tions omitted). (citations Crim.App.2009) may courts Appellate Id. and demeanor. Keehn, officials In law enforcement of law questions “mixed de novo review in the parked a van properly approached category. that falling not within and fact” through the win- driveway, and appellant’s Id. dow, tank propane see a they plainly could Miers “wit- judge found that The trial ammonia, which is anhydrous containing dogs appeared from the street nessed manufacturing methamphetamine. used in chained and malnourished to be the entered the van and seized The officers by the backyard,” supported and this is discussing the warrant. tank without a he could see Miers testified that record. view doc- plain of the requirement third he en- roadway, view, from the before dogs trine, stated, in the ab- “Plain we that he circumstances, He testified tered the can never exigent sence of skinny that all of the a war- observed and seizure without justify a search and in to be malnourished have appeared when law enforcement officials rant object.” Because the trial Id. right overall health. to access an poor no lawful record, Thus, could by the doctrine alone finding supported plain-view court’s properly van to seize the justify entry failed into the court justify when it concluded That would the sei- finding defer to that tank. doctrine by if which the offi- only “it clear that Miers could zure the search is not Chief access the van and obtained from the cers entered observe the condition of reasonable *2-3, to the tank was rendered TexApp. street.” See rule. Id. We concluded some other at *6-7. LEXIS warrant exception vehicle to the search However, giving proper even entry into the requirement supported deference, suggestion seizure to the tank —after observ- van and access plain-view doctrine is justified was through of the van ing the contents merit. searches conducted While window, cause to probable the officers had unreasonable, per without a warrant are se aboard, believe that contraband view does not seizing contraband exception consequently, the automobile the Fourth Amendment. run afoul of right to enter the van gave the officers *9 (Tex. 538, State, 28 541 Walter v. S.W.3d 335-36. the tank. Id. at and seize doc ‘plain “The view' Crim.App.2000). case, record the instant the an officer to seize contraband permits trine the officers could if the fact that plain sight open supports he or view which sees from the street. view the plainly he is.” DeLao v. lawfully he is where However, fact that could see State, the (Tex.Crim.App. 291 officers 550 S.W.2d 1977). not mean that Thus, dogs from afar does must be the requirements three
207
go
entitled to
onto the
that the
they
search
conducted
a
warrant, at
warrant,
the
without a
and seize
he satisfied his burden of estab-
exigen
in the absence of some other
least
lishing
claim,
his Fourth Amendment
and
did not
cy.
at 335. The officers
See id.
the burden
to the
shifted
State to establish
and
right
go
yard
have a lawful
to
into the
the
exception to
warrant requirement.
dogs. Appellee’s dogs
kept
seize the
State,
See Amador v.
221 S.W.3d
672-
is,
home, that
in the
of his aunt’s
State,
(Tex.Crim.App.2007);
73
Bishop v.
cur-
curtilage.
within
residence’s
The
the
85 S.W.3d
822 (Tex.Crim.App.2002).
by
a house is
the
tilage
protected
of
present
community
State did not
the
United
Fourth Amendment. Oliver v.
caretaking argument during the
to
motion
States,
170, 180,
suppress
on appeal.
“[I]n cases
(1984);
214
80
see
v.
L.Ed.2d
Gonzalez
which
party
the State is the
the
appealing,
State,
(Tex.Crim.App.
S.W.2d
360
of
principle
appellate
basic
jurisprudence
1979) (describing curtilage as
land im
the
points
argued
trial are deemed
surrounding and
with
mediately
associated
applies
to be
equally
waived
to the State
house). The
have a
the
officers did not
Mercado,
and the defense.” State v.
yard,
warrant
enter the
State
to
and the
S.W.2d
78 (Tex.Crim.App.1998); see
argue
exception
does not
that an
to the
Steelman,
also State v.
S.W.3d
Therefore,
requirement
warrant
existed.
(Tex.Crim.App.2002). Because the com-
plain
were not
police
by
the
authorized
the
munity caretaking function was not a theo-
to make a
entry
view doctrine
warrantless
ry
the
argued by
State at trial or
to
to seize the
yard
dogs.
into the
court
appeals,
of
State cannot here
rely
theory
prove
on that
to
that the trial
THE COMMUNITY
V.
CARETAKING
ruling
court’s
should be
reversed
this
DOCTRINE
Steelman,
Court.5 See
PRICE, J., concurring opinion. a of the of privacy filed point me as the when the strikes beside with the resolution of agree I Court’s question is whether he had dispositive community-caretaking plain-view the and the standing challenge to seizure. join the readily those facets of issues and join I the do not Court’s opinion.1 Court’s however, I be-
standing analysis, because
lieve the has misconceived the issue. Court
Perhaps misguided by the State Prosecut- issue,2 Attorney’s of the
ing formulation ENYONG, parte Kufreabasi Ita Ex appellant had the Court asks whether the Appellant. in the expectation privacy a reasonable of PD-0649-12, Nos. PD-0650-12. really it is premises searched.3 But the is in legality the of search that issue Appeals Texas. Court Criminal Indeed, the as acknowledges here. April 2013. analysis, correctly plain-view much in its there was no search in- concluding the
volved because trial court found fully the
the authorities could
obseiwe
condition,
dogs,
their lamentable
with-
and
Humble,
Nwuli,
TX,
Appel-
0.
Joan
intruding
upon
curtilage
out
even
the
lant.
Therefore,
question
the
is
the house.4
Miller,
Mandy
Assistant District Attor-
really
appellant
standing
whether the
had
Houston,
McMinn,
ney,
Lisa C.
State’s
presented by
on
facts
virtue of
Austin, TX,
Attorney,
for State.
ownership
possessory
interest
in the
viz.,
seized,
things
It
dogs.
OPINION
is
on
record that the
undisputed
PER CURIAM.
his,
and that should suffice to resolve
standing
issue
his favor.5 Whether
agreement,
to
plea
Ap-
Pursuant
appellant
had a
expectation
reasonable
pellant pled guilty in 2010 to assault and
Majority Opinion
property
1.
he had a
11-15.
interest
seized
LaFave,
narcotics);
Wayne
see also
R.
and Seizure. A
2.
Id. at 6.
Search
on the Fourth
Treatise
11.3(c),
(5th
2012)
§
at 225
ed.
Amendment
("Assume now
a situation which
defen-
Id.
3.
at 6-11.
moving
suppress
dant
to
certain evidence has
established
interest in those effects
Jardines,
Compare
Id. at 11-12.
Florida v.
any expec-
—
has not in addition
but
established
-,
U.S.
185 L.Ed.2d
privacy
tation of
as to them....
Is such a
(2013) (drug-sniff dog's physical
intrusion
totally
standing?
person
Not at all.
upon
curtilage
a home in
order
Though
directly
authority
there
little
giving
probable
detect facts
rise to
cause itself
...,
point
it
‘possessory
would seem- that a
a "search” for Fourth Amendment
constitutes
give
interest in the item seized
rise
purposes).
should
protection
fourth amendment
and should en-
challenge
title an individual to
the reasonable-
Jeffers,
5. See United States
”
95-96,
(quoting
(defen-
of the seizure.’
William
(1951)
ness
A.