*1 WHEELER, Appellant, Ten D. Texas, Appellee.
The STATE of GUYNN, Appellant, Carol Texas, Appellee. The STATE of WHITE, Appellant, Charlie Texas, Appellee. STATE Nos. 59804-59806. Court of Criminal Appeals Texas,
Panel No. 2. July 1982. On Rehearing Sept. 1983. Rehearing Denied Nov. Stevens,
Gerald H. Goldstein and Mark Antonio, Sternberg, Bruce L. David San Austin, Smith, appellant. Allen for Eads, Arthur C. Dist. and Weldon Atty. Jr., Belton, Ralph Asst. Dist. Petty, Atty., Austin, Huttash, for Atty., Robert State’s the State. DALLY,
Before and CLIN- W.C. DAVIS TON, JJ.
OPINION
DALLY, Judge. from convictions for appeals
These are of more than four ounces of possession marihuana. The cases were consolidated trial; case was as- punishment for in each for four imprisonment years. sessed at of error ground The sole advanced appellants is that the trial court erred motion to evi- overruling suppress *2 warrant; through dence a the bin- greenhouse obtained under search the to observe the oculars, could form no definite conclu- but assert the information he saw. type plants sion about showing cause probable support war- Mr. Thereafter, with permission rant was anby obtained unlawful warrant- Garner, Morris and other Deputy Maurice less search. with bin- greenhouse officers observed The search warrant was issued and exe- oculars the Garner about property from 23, 1977, cuted on for the August Wheeler Deputy yards greenhouse. west of a property. premises, These located on sev- he tentatively plants Morris identified enty-four acre tract of in rural Lampa- land as marihuana. greenhouse could see in the sas á a County, greenhouse, included resi- prop- He after dark to the Gamer returned dence and a barn. by Lampasas police offi- erty, accompanied supporting affidavit the warrant re- Deputy Angermann cer Tim and Sheriff affiant, cited Deputy that the Sheriff Bob They greenhouse observed the McClinton. McClinton, had a through observed tele- but with through telescope, vision scopic lens that there were marihuana to see into the telescope were unable plants in the growing greenhouse on the a few greenhouse. August On property. later, five days at between four and o’clock re- McClinton p.m. Deputies Morris and appellant’s To discuss the claim that this accompanied by turned to the Garner land telescopic observation an unlaw- constituted Lampasas and city patrolman Gilbert White search, ful a brief discussion of facts mil- Using 600 detective David Romack. leading to the execution of the search war- lens, able to see limeter were telephoto rant is necessary. the green- through opening the louvered Lampasas County Sheriff Gordon Deputy house, plants positively identify and to Morris he testified that and other officers their surveil- Believing as marihuana. began property surveillance of the Wheeler by a man who lance had been detected in mid-July prompted by informa- greenhouse, came the corner of the around tion that no one was to enter the allowed returned to Sheriff’s Deputy McClinton fenced property telephoning, without first affidavit, and Department, drafted an being gate, or escorted from the and that was exe- warrant which obtained a search large greenhouse there was a within the concerning Testimony night. cuted that fenced which was surrounded property was premises found on the the marihuana an fence. additional admitted. Deputy greenhouse Morris described the two approximately was greenhouse “of plastic,” as constructed clear and ex- house, and was from the yards hundred in the he could see plained sunlight a well-traveled connected to the house inside. something green He also testified ad- premises of the photographs road. The large “a opening” that there was louvered fences evidence show mitted into greenhouse, approxi- end of the west property greenhouse around the there was a mately square, four feet to the gate A of wire. chain-link the other greenhouse fan inside the on side signs: “Be- with two posted was property opening. of the louvered The louvers of the locked—honk dogs” gate ware and “If six inches opening were between four and back later at: 556-3997. twice check permit ventilation of apart, opened Mrs. Wheeler.” you, Thank greenhouse. Katz v. United relying appellants, away a mile on a road about
While looking Deputy pair eight Morris that the tele- (1967), contend L.Ed.2d 576 could see by fifty binoculars of the scopic observation In Katz the Su- greenhouse. He search. opening louvered unconstitutional made clear that but could not green plants preme Court growing “[t]he saw not places. protects people, Amendment He returned various times identify them. They knowingly exposes greenhouse. say opacity What to the enclosure, office, public, even in greenhouse, his own home or double fence, subject protec- gate of Fourth Amendment locked of the outer signs on the Accord, State, subjective expectation tion.” appellants’ Turner v. 499 S.W.2d all show State, (Tex.Cr.App.1978); Long that the contents equal- “objectively, it is (Tex.Cr.App.1975). Rejecting private, S.W.2d remain *3 argument the that a into the actions of physical ly Appellants intrusion clear that main- the given police a enclosure is to find as efforts to necessary recognized a search, the that proper appellants Court held that the focus tain The contend privacy.” the government’s telephoto is whether the lens to observe activities vio- the use of the privacy upon lated which the defendant was an unconsti- contents of justifiably expecta- relied. of this reasonable tutional invasion privacy. tion of
In the recent Maryland, case of Smith 442 99 be L.Ed.2d 220 For reasons which will 61 We disagree. (1979), stated, conclude that ob- Supreme telescopic Court we reiterated that the a proper focus deter- was not servation mining whether the Fourth there has been a search search under Amendment. is whether a Amendment (Tex. State, In 581 Johnson S.W.2d “justifiable,” “reasonable,” “legitimate or anony- police acting on an Cr.App.1971), expectation of privacy” has been invaded. apart- went to the defendant’s tip mous determination, stated, This the Court door, when They knocked on the ment. “normally ques- embraces two discrete answered, looked into a they no one window individual, tions. The first is whether the two inch through gap partially between conduct, his has an actual ‘exhibited appeared drawn and saw what draperies, (subjective) expectation .. privacy,’ . be A search warrant stolen merchandise. whether ... has shown individual on the basis of this observa- was obtained ‘he preserve [something]
that seeks to rejected Court the contention tion. The private ... question search, second observation that the window was whether the subjective expec- individual’s stating:
tation of privacy society is ‘one that facts, say set of we cannot “Under this prepared “reasonable,”’ to recognize as ‘reasonably that could assume ... whether ... expecta- individual’s in- were free from uninvited they tion, ‘justifiable’ viewed objectively, is we through the window’ and spection under the circumstances.” by the protected that no search must hold Fourth Amendment occurred.” The Court in Smith that the in- concluded pen register stallation use of a 469 S.W.2d recorded the telephone numbers (Tex. State, In Turner S.W.2d telephone defendant dialed on his did home police investigating officer Cr.App.1973), constitute a found not search. The Court being used in tipa that marihuana even if subjec- the defendant had some through house looked a window defendant’s tive he dialed numbers per- defendant and two other and saw the claim a “le- private, would be he could not ap- smoking pipe filled with what sons gitimate privacy” noted marihuana. The Court peared to be voluntarily numbers because he con- had were apparently no blinds there telephone the information to veyed window, and that the officer curtains on He assumed the risk that company. premises from the made his observation had “exposed” he had would be re- information rationale, the the Katz next door. Under vealed. find that a search Court refused stating is not a search place, a Katz and taken
Appellants argue that under
“[i]t
open
which is
to view.”
expec- observe that
analysis they had a reasonable
Smith
that:
of the Court noted
tation
the contents
“This
previously
open
court had
stated
served
door of a shed the
Gil
[in
State,
(Tex.Cr.App.
The appellants seek to
these
distinguish
this
argued
The defendants
presses.
cases from the present
by pointing
case
in
unlawful search into an area
Turner,
was an
Johnson,
Long
the fact that in
had a reasonable
the observations
through open windows
observation.
governmental
freedom from
were made without visual aids.
holding,
rejected
argument,
this
Court
However, this distinction does not neces-
situation in which
presents
“Our case
bring the
sarily
visually aided observation
suspect
pre-
it was incumbent
in
present
case within the ambit of
from visual observation.
serve his
search under the Fourth Amendment. Sev-
to cur-
appellees
only
To do that the
have
eral cases
declined to find that
obvious
tain the windows. Absent such
the use of visual aids to
analysis
the Katz
expecta-
action we cannot find that their
premises consti-
private
detect activities in
reasona-
justifiable
tion
Fullbright
tutes
In
v. United
a search.
cert,
The law will not shield criminal
denied,
ble.
States,
(10th Cir.),
385
Manly,
120,
Grimes,
(5th
State v.
85
Cir.1970) (obser
Wash.2d
530
just as in Hernley, the occupants in the apartment precluded apartment could have tained window from an across all obser- by vation the single expedient of curtain- the street was an unlawful search. ing or otherwise covering the windows. Similarly, the court in United v. States Applying the standard of a balancing of Kim, supra, rejecting reasoning the of interests between the security of Fullbright, and held that FBI Hernley order by prevention detection and of agents’ telescopic surveillance of defend- crime and a person’s immunity po- from gambling apart- ant’s activities inside his lice interference in his privacy, we find ment invaded an area in which the defend- that the surveillance in the case did not ant expectation privacy. had a reasonable of violate appellant’s fourth amendment court, distinguishing visually The aided sur- rights.” veillance un- “non-private” places, of and Other courts have also concluded under aided surveillances of activities within analogous circumstances that visually aided homes, found the surveillance visually aided observations did not invade reasonable ex- of a home to be a search. The court refus- pectations of privacy. See United States v. defendant, ed to that leav- by conclude Allen, 633 F.2d (9th Cir.1980) (helicop- ing open, ter and binocular his curtains forfeited his reasona- surveillance of activities on ranch); defendant’s United expectation States v. ble of privacy. Arno, People supra, Maryland, supra. police made their police v. used The
binoculars to look from hilltop place into the from which observations of eighth floor window a business suite Phelan v. to be. Cf. lawfully entitled used being Court, 1005,153 as a distribution center for Cal. por- Superior Cal.App.3d nographic court, The films. relying (1979). visual aids which Rptr. 738 The Kim, found invasion of defendant’s police used in their surveillance reasonable The ma- privacy. not the character greenhouse change did jority found that an has a individual reason- to a their lawful observation search able that v. Fullbright Amendment. See cannot be eye seen naked nor heard United Commonwealth supra; unaided ear. Allen, su- supra; United States v. Hernley, Lee, supra; pra. also United States See We are persuaded by reasoning States, supra. v. United On Lee these cases. set Applying the standards out explained in Katz and further in Smith Amend- of the Fourth protections Maryland, ap- we supra, conclude the use of police ment not restrict the do pellants expec- have not shown a legitimate abilities. physical their unaided senses and greenhouse tation the contents Allen, supra; United See States v. private. appellants say remain (9th 581 F.2d Dubrofsky, their subjective expectation Cir.1978). which enhance Devices is shown the double enclosure of binoculars, vision senses, as the such the fact it is opaque. lens used telephoto telescope wire surrounding We note fences case, as air- techniques such present may pr„p'erty have case, surveillance, used in this craft also to prevent shown intentions appellants’ and con- effectiveness may increase property, into the but the physical intrusion without to surveillance violation tribute impediment fences offered no to visual ob- the Fourth Amendment. Compare servation. United States Wil- affirmed. judgments are cert, liams, Cir.1978), (5th de- F.2d 451 nied 440 L.Ed.2d *6 CLINTON, dissenting. Judge, (1979). Similarly the United States Su- claim discerned Fourth Amendment in preme Court noted Katz that defend- Mary- in Smith Supreme Court by closing partially ant the door of 2577, land, L.Ed.2d 442 U.S. 99 S.Ct. glass-walled telephone booth shown ‘legiti- “had was that Smith that he to the uninvited intended exclude regarding mate expectation privacy’ but not the intruding eye. ear id., atU.S. phone,” numbers he dialed on his However, did appellants even if have mat- The nub at 2581. 99 S.Ct. subjective expectation that the contents in ter was found this: greenhouse private, would we of the remain “ vol- petitioner phone, he used his When case find that under the facts of this such conveyed numerical information untarily society pre- not “one expectation is ” “exposed” telephone company to as ‘reasonable.’ pared recognize Since in the equipment to its that information or otherwise appellants did curtain doing, In so course of business. ordinary into af- obscure the view the com- the risk that petitioner assumed louvered square forded four foot the numbers would reveal to pany expectation forfeited their opening, they he dials.”1 justifiably could not assume privacy and it Accordingly, Id., 2582. 99 S.Ct. at at the interior proba- in all that “petitioner was concluded Long See remain free from observation. no actual State, bility entertained supra; John- State, supra; Turner dialed, and he phone numbers privacy State, also Smith supra. son v. See emphasis otherwise indi- cated. 1. All is mine unless
that,
did,
even if he
his expectation was not
the Government...
This Court has held
”
‘legitimate,’
id.,
at
repeatedly that
the Fourth Amendment
prohibit
obtaining
does not
of infor-
In the case at bar
affirma-
mation revealed to a third
tively displayed such trappings of security,
conveyed by him to Government authori-
which objectively indicated expectations of
ties, even if the information is revealed
privacy,
that his observations of
them
evoked
on the
it will be used
assumption
curiosity Deputy Sheriff Gor-
don Morris to the
for a limited
the confi-
only
purpose
extent
that he
or other
peace officers
dence
be
unsuccessfully
placed
party
tried binocu-
in
third
will not
lars from one mile away,
vision
betrayed.”
telescope, helicopters and aerial photogra-
The Miller rationale
applied by
Su-
phy to intrude on the privacy of citizens
preme Court to
Maryland, supra,
Smith
premises.
their
when
Finally,
all else
inapposite to the facts in the case at bar.
failed,
they acquired a
telephoto
600 mm
majority quotes
selectively only
por-
lens, and began to advance
green-
tion of the Katz dictum that
“[t]he
house. Deputy Morris conceded:
protects people
Amendment
not places.”
“Q:
each
you
So
time
physically
moved
added,
The Supreme Court
“But what he
closer to
greenhouse,
and each
preserve
private,
seeks to
even in an area
you
time
your
increased
magnifica-
public, may
accessible to the
be constitu-
tion, you were trying to shorten the
Id.,
tionally protected.”
at 351-
distance
you
so
actually put
could
352,
This
Government, Katz,
situation may
dropping by
not be
his
equated with
installation of a pen register in
at
at
offices of a
512. Granted that his
telephone company
seized,
to record numbers that words were
still the reasonableness
one dials on a telephone, and to
do so is to
of his
flowed from
approve determined and
public telephone
calculated inva-
“the vital role that the
has
sions of privacy.
communication,” id.,
come
play
private
at
at
accord-
point,
In finding that, even if Smith habored
Harlan,
ing
to Justice
is that a
tele-
objective
some
expectation the phone
phone
place
“a temporarily private
booth is
numbers he dialed would remain private,
momentary occupants’ expectations
whose
his expectation was not “one that society is
”
recognized
freedom from intrusions are
*7
prepared to recognize
‘reasonable,’
as
reasonable,” id.,
as
at
88 S.Ct. at
Supreme Court
proposition
invoked the
(Harlan, J., concurring).2
“that a person has no legitimate expecta-
tion of privacy in information he voluntari-
So,
subjective
of whether a
question
ly turns over to third parties,” and for an
clearly
by
of
so
held
privacy
example pointed to its explanation in Unit-
appellants
“legitimate” depends upon
is
Miller,
ed
435,442-444,96
recognize
what
is
to
as
society
prepared
1619, 1623-24,
(1976):
“The depositor turn, know depend, judges takes in reveal- must in on what ing another, his affairs to is persons, “society that the infor- as for whatever proving mation will be it conveyed by recognize” to more that prepared to —much law, overruling present day, physics Goldman v. United 2. On bad as well as bad for privacy may expectations L.Ed. de- of be reasonable (evidence obtaining detectaphone by admissi- by physical inva- feated electronic as well as ble), wryly Justice Harlan noted: “Its limitation Id., at sion.” is, protection on Fourth Amendment times, is, is appellants in these a most exhibited was reasona- vacy by “reasonable” — undertaking. difficult is violated country, ble. invitation only.6 Nevertheless, considering purpose function of a modern greenhouse rarely exotic, However, of the more use such — constructed of glass anymore3 am satis- is con- sophisticated techniques devices and —I certainly society, fied that rural society, doned, condi- society more will become prepared recognize to as a “reasonable” de- an to as reasonable that which tioned take monstratively objective expectation pri- of in- rejected. generation earlier When vacy greenhouse. in the interior of such a today is extended in approved vasion next, civility
When notions of custom case then the all reasonable no next longer protect served to enclosed land peace are if the officer expectations doomed against depredation, pre- rural communities enables technology can but find the the Legislature penal vailed on to enact to intrude. stealthily him sanctions for specific certain offensive con- I dissent. pro- duct.4 The felt need for still further DAVIS, Before McCORMICK and W.C. produced tection a law against criminal JJ. physical trespass 1377c, generally, Article amended, P.C. as spawned and it MOTION OPINION ON APPELLANTS’ posting of written forbidding notices non- FOR REHEARING country- consensual intrusion all over Now, side. or other enclosures “fencing McCORMICK, Judge. obviously designed to exclude intruders submission, this panel a original On gives ...” notice that one must not enter convictions for appellants’ Court affirmed property building or a without effective four ounces possession more than Code, consent. Y.T.C.A. Penal 80.05.5 § consolidated marihuana. The cases were Thus, soci- commonly code values held trial; was as- for in each case punishment ety respect with to is reflected in years. at four imprisonment sessed for legislation duly representa- its elected tives adopted. have ground The sole of error advanced is that court erred trial A privacy green- fence around an isolated the evi- suppress a motion to overruling unreasonably house is redundant. The for- dence, authority of a search seized under tuitous a circumstance that set slatlike an on the basis of affida- acquired warrant opened louvers when fan went gathered by vit containing information large Quonset style green- ventilate the Appellants unlawful warrantless search. house, open long enough and remained for officers, over contend that various magnified eyes to detect what the mind vantage period, month from diverse not, long hoped plants, marihuana surv- least, ground, in the air and on the points at my society view cause withhold with pri- appellants’ opaque greenhouse its recognition eilled See, 1377b, 3.Traditionally building e.g., Article P.C. is a former flowers, plants, entering glass components amended, proscribed wherein enclosed hunt, vegetables purposes for sometimes are raised of the owner lands without consent hand, sale; conservatory, on the other camp. fish private glass small structure residence near “ raising plants personal for for and flowers *8 any ‘Building’ in- structure enclosed 5. means 918, pleasure of 101 Zon- the resident. C.J.S. occupation for some ... tended for use or 157; Collegiate ing New Diction- § Webster’s manufacture, ornament, trade, purpose or of ary. years For in this State the Commissioner Code, 30.01(2). § Penal use.” V.T.C.A. charged Agriculture has with the re- of been green- sponsibility inspecting commercial Deputy surveillance Morris did not conduct 6. infected to determine whether are houses sought adjoining property until he from pests, injurious or see for- with diseases insect permission owner. from the obtained 119, V.A.C.S., is and he still mer Article Code, Agriculture 71.044. § Y.T.C.A.
389 Mr. Justice (1983), wherein telescopes increasing magni- and lenses of L.Ed.2d 55 analy- Smith/Katz observing finally Rehnquist employed tude before marihuana police made whether plants. The ultimate observation was to determine sis of the facts “search”; through a five-inch in the exhaust opening beeper was monitoring of greenhouse. “[njothing fan louvres of the that opining despite generally po- prohibited the Fourth Amendment con- majority opinion panel facilities sensory augmenting lice from cluded that no “search” under the Fourth such them at birth upon bestowed through telescopic Amendment occurred ob- af- technology as science and enhancement and that no servation of concurring in this case.” forded them legitimate expectation privacy had been Stevens, Brennan and Justices opinion of invaded not manifest because did com- augmentation Marshall disavows a “reasonable” the con- dicta, “held finding that the Court ment as pri- tents of the remain “[Although contrary to the in Katz....” State, citing Long v. vate, 532 591 S.W.2d unobjection- in this case was augmentation State, (Tex.Cr.App.1975); Turner v. 499 the use of able, no means follows that byit and Johnson (Tex.Cr.App.1973); 182 S.W.2d im- does not techniques electronic detection State, v. (Tex.Cr.App.1971). 469 581 S.W.2d - sensitive concerns.” plicate especially analysis Much of the Court’s devoted at-, Clearly, 103 S.Ct. U.S. fact aids” technological “visual Fourth Amend- technology impact employed by the in their surveillance police means a settled ment concerns is no of the greenhouse change did not the other- basis, we renew the question. On wise lawful character of their observation Amendment, analysis. to a search under the Fourth States,
citing Fullbright v.
United
F.2d
392
of the United States
Supreme
Court
cert,
(10th Cir.1968),
432
393
denied
U.S.
expec-
legitimate
that whether a
has stated
830,
97,
(1968);
21
89 S.Ct.
L.Ed.2d 101
has been invaded
tation of privacy
Commonwealth
Hemley,
Pa.Super.
discreet
normally embraces two
“...
cert,
177,
904,
1172,
263 A.2d
48 A.L.R.3d
is whether the indi-
The first
questions.
914,91
denied 401
27 L.Ed.2d
U.S.
S.Ct.
conduct, has exhibited
vidual,
his
Allen,
United States v.
(1971),
privacy,
(subjective) expectation
actual
(9th Cir.1980).
F.2d 1282
has
the individual
‘... whether
...
While we agree
panel opinion’s
with the
(some-
preserve
seeks to
shown that’ he
reasoning
police
use of
binoculars
question
the second
private
as
...
thing)
generally
other visual aids is
acceptable,
ex-
subjective
is whether the individual’s
true focus of the question presented by this
society
is ‘one
pectation
technologi-
case is not whether
use of
as “reasonable”’
recognize
prepared
sensory
per
cal
enhancements is
se a search
expecta-
the individual’s
... whether ...
may
under the Fourth Amendment. There
tion,
‘justifiable’
objectively,
viewed
“search”,
not
may
be
but the answer
Smith
circumstances.”
does not depend
type
on the
of device.
Maryland,
99 S.Ct.
U.S.
Rather, the answer depends
purpose
2577, 2580,
(1979).
L.Ed.2d 220
employment
of the device under the
restatement of Justice
essentially
This is
i.e.,
presented;
facts
whether it invades a
opinion in Katz Unit-
concurring
Harlan’s
“legitimate expectation of privacy.” See
States,
“the
ed
how
supra, explaining
Maryland,
735, 740,
Smith
U.S.
protects people,
Fourth Amendment
2577, 2580,
(1979);
objects
located,
sight,
ordinary. Despite
for
or
of the
plain
or activities are
this will
out
this,
specifically
directly
bear
was
the
continued
upon
investigation
whether
there
a
justified expectation
greenhouse
to
privacy
of
as to those
observe
contents
LaFave,
millime-
objects
affiant,
with a 600
or activities.
Search & until
armed
fan
Seizure,
(1978),
lens,
2.2
pages
caught
glimpse
at
257-58.
ter
a
Section
Moreover,
128,
growing
Illinois,
in
what he observed to be
Rakas v.
U.S.
louvres of
430,
(1978),
plants.
not require person to shut himself off from air,
“fresh sunlight and Amster- scenery”); dam, Perspectives on the Fourth Amend-
ment, (1974). Minn.L.Rev.
Under the presented record, facts by this the trial courts erred in overruling appel- lants’ motion to suppress. The motion for
rehearing granted and the judgments
herGn are reversed and remanded. DAVIS, J.,
W.C. dissents. HERRING, John Appellant, Michael Texas, Appellee. STATE of No. 503-82. Court of Texas, Criminal Appeals of
En Banc. Austin, Ken E. for Mackey, appellant. March Wade, Jeffrey Dist. B. Henry Atty., and Keck, Shelton, Stephen Jim Jacks & Asst. Dallas, Huttash, Dist. Attys., Robert State’s Walker, Atty. and Alfred Asst. States Austin, Atty., for State.
OPINION ON PETITION FOR STATE’S REVIEW DISCRETIONARY CLINTON, Judge. Code, pertinent
As here V.T.C.A. Penal 21.07(a)(3) provides person that a com- § mits an offense if in a he place sexual “knowingly engages ... an act of contact,” purposes and for of sexual of- 21 “sexual Chapter fenses denounced means, here, germane contact” again as “any geni- of ... touching any part arouse tals of another with intent to any person,” gratify the sexual desire