644 S.W.2d 911 | Tex. App. | 1983
OPINION
The offense is possession of marihuana; the punishment is three years probation and a three hundred dollar ($300.00) fine.
The appellant, Fred John Wilkerson, advances two grounds of error. The first challenges the legality of the search and subsequent seizure of the marihuana without a warrant and the second challenges Wilkerson’s arrest without a warrant or exigent circumstances.
We affirm the conviction.
The record reveals that officers of the Fort Worth Police Department received an anonymous telephone call reporting that there was marihuana growing in the back yard at a specific address. Officers were dispatched to investigate the tip. From their car as they arrived at the address, they could see eight-foot high marihuana growing in the back yard, shielded only by a four-foot chain link fence. The officers knocked on the door, determined that no one was home, and set up surveillance of the house. Two of the three officers en
We shall first consider Wilkerson’s contention that the search was illegal. The record shows that the officers responded to an anonymous tip. It is true that such a tip does not establish probable cause to search, but it does provide sufficient justification for police officers to begin an investigation. Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980).
Upon arriving at the house, the record shows that the officers could see the eight-foot high marihuana plants from the street. It is well settled that an officer may seize what he sees in plain sight or open view if he is lawfully where he is. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Further, for the Fourth Amend ment protection to come into play, a person must exhibit a reasonable expectation of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Eight-foot high marihuana plants, shielded only by a chain link fence and visible from the street, do not exhibit a reasonable expectation of privacy.
Thus, the sighting of the marihuana by the officers was not the result of a “search” at all, but merely the result of the officers’ looking onto the property from a place where they clearly had a right to be. Wilkerson’s first ground of error is overruled.
Wilkerson also urges that his arrest was invalid because it was without a warrant and without exigent circumstances excusing the issuance of a warrant. The record shows that the arrest was made after Wilkerson admitted ownership of the marihuana while standing adjacent to it. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Y.A.C.C.P. art. 14.01. This is the circumstance we have here. The subsequent seizure of the marihuana was valid as incident to the arrest. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975). Wilkerson’s second ground of error is also overruled.
The judgment of the trial court is affirmed.