Nored v. State

¶1dissenting.

¶2Because I would hold that the police had no authority to make a warrantless (1) entry, (2) search of the fenced area around appellant’s apartment, and (3) arrest, I respectfully dissent.

¶3APPELLANT’S CONTENTION

¶4In his first point of error, appellant contends that the fruits of the search must be suppressed because the police failed to obtain a search or arrest warrant before entering the fenced area. The majority does not interpret appellant’s first point of error as contending that the checking of the serial number on the bicycle is a search. Nored v. State, No. 05-93-00208-CR, 875 S.W.2d 392, 395 n. 2, 397 n. 4 (Tex.App.—Dallas March 14, 1994, n.w.h.). However, in the argument under this point of error, appellant contends that “the search of the courtyard area within [his] privacy fence without a warrant was also unlawful.” He complains that the officers “proceeded to search the bicycle inside the privacy fence to determine if its serial number matched that of the stolen bicycle....” Appellant contends that because there were no exigent circumstances, the “facts exclude the use of [article 14.04] of the Texas Code of Criminal Procedure as a justification to [sic] a warrantless search.” In his prayer for relief, appellant contends that “the fruits of the illegal arrest and search should be suppressed for [the] failure of the Highland Park Police officers to obtain an arrest and/or search warrant prior to entering the curtilage of appellant’s property.” At the hearing on the motion to suppress, defense counsel complained that “the search or the seizure of the bicycle was conducted without a search warrant.” He complained that the officers should not have entered the fenced area. Defense counsel further said, “[I]t’s the only bicycle. They know it’s there. They can’t check the serial numbers until they go inside the gate and look at the bicycle....”

¶5I would hold that the argument under this point of error is sufficient to complain of this search because it “directs the attention of the *398appellate court to the error about which the complaint is made.” Tex.R.App.P. 74(d). The argument is sufficient to direct this Court’s attention to the error of which he complains. See Tex.R.App.P. 74(p); Sanchez v. State, 854 S.W.2d 677, 681 n. 1 (Tex.App.—Dallas 1993, pet. refused); Lazcano v. State, 836 S.W.2d 654, 664 n. 2 (Tex.App.—El Paso 1992, no pet.). Because of the liberal briefing rules, I would hold that this Court should address appellant’s argument under his point of error.

¶6THE MAJORITY OPINION-WARRANTLESS ENTRY

¶7The majority holds that the police had the right to approach what they contend was appellant’s “front door.” I disagree.

¶8WARRANTLESS SEARCH

¶9A. Applicable Law

¶101. The Warrant Requirement

¶11Whenever government agents enter into the curtilage they necessarily intrude upon the individual’s reasonable expectation of privacy. Bower v. State, 769 S.W.2d 887, 897 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991) (quoting Kann v. State, 694 S.W.2d 156, 160 (Tex.App.—Dallas 1985, pet. ref'd)). Such a search is permissible only in rare circumstances. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S.Ct. 2408, 2412-13, 57 L.Ed.2d 290 (1978); Roeder v. State, 768 S.W.2d 745, 748 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd). Accordingly, “warrantless searches are improper absent exigent circumstances, at least when the investigating officers have intruded upon the curtilage for the purpose of conducting a search for criminal activity.” Bower, 769 S.W.2d at 897 (emphasis added); See also United States v. Williams, 581 F.2d 451, 453 (5th Cir.1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979).

¶122. Warrant Requirement & The Reasonable Expectation of Privacy

Regarding the warrant requirement and when there is a reasonable expectation of privacy, the court in Bowersaid:

Since the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the following two-fold inquiry has been used to determine whether a search complies with the Fourth Amendment: (1) whether an individual, by his conduct, exhibits an actual, subjective expectation of privacy; and (2) whether that expectation of privacy is one that society is prepared to recognize as reasonable. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984); Smith v. Maryland, 442 U.S. 735, 740-741, 99 S.Ct. 2577, 2580-2581, 61 L.Ed.2d 220 (1979). No single factor, however, determines whether an individual may legitimately claim, under the Fourth Amendment, that a place should be free from government intrusion not authorized by warrant. Oliver v. United States, [466 U.S. at 177], 104 S.Ct. at 1741. The expectation of privacy test has, to an increasing extent, discarded fictional property concepts in resolving the issues of privacy and public security. Texas v. Gonzales, 388 F.2d 145, 148 (5th Cir.1968). Thus, the validity of a search does not turn on trespass law. Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). To violate the Fourth Amendment, there must be an actual intrusion into a constitutionally protected area. The distinction between open field and curtilage is of assistance in determining the existence or not of reasonable privacy expectations. United States v. Williams, 581 F.2d 451, 453 (5th Cir.1978).

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, [466 U.S. at 179], 104 S.Ct. at 1742; accord, Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979).

¶13Bower, 769 S.W.2d at 896 (emphasis added) (quoting Kann, 694 S.W.2d at 159-60). In Katz, the United States Supreme Court said what a resident “seeks to preserve as private even in an area accessible to the public” may *399be constitutionally protected. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Thus, when the police come on to property for a legitimate purpose and restrict their movements to places visitors could be expected to go, observations made from such vantage points are not covered by the Fourth Amendment. See id.

¶14(a) Front Yards, Other Public Areas

¶15A defendant has no reasonable expectation of privacy in the front porch of his home where, presumably, delivery men and others are free to observe evidence or contraband there. See Bower, 769 S.W.2d at 897. In Bower, the Texas Court of Criminal Appeals said:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably ... to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.

¶16Id.(emphasis added) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964)). In Bower, the court further said:

A sidewalk, pathway, common entrance, or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there. The officer who walks upon such property so used by the public does not wear a blindfold; the property owner must reasonably expect him to observe all that is visible. In substance the owner has invited the public and the officer to look and to see. But, by the same reasoning, the officer who intrudes upon property not so open to the public enjoys no such prerogatives.

¶17Bower, 769 S.W.2d at 897 (emphasis added) (quoting Lorenzana v. Superior Court of Los Angeles County, 9 Cal.3d 626, 108 Cal.Rptr. 585, 587, 511 P.2d 33, 35 (1973)).

¶18(b) Backyards, Other Private Areas

¶19The Texas Court of Criminal Appeals has stated that a warrantless search of an individual’s backyard may withstand constitutional scrutiny only when the State shows that an exceptional situation exists at the time of the search. Gonzalez, 588 S.W.2d at 360. Even if an officer has probable cause to conduct a warrantless search, an exceptional situation is still necessary in order to uphold the validity of that search. Id.; see also Kann, 694 S.W.2d at 160.

¶20APPLICATION OF THE LAW TO THE FACTS

¶21The essence of the reason that the majority and I part ways is because they excuse the lack of a warrant for the entry and search in this case. I do not agree that the police had a right to enter into an area hidden from public view by an eight-foot wooden privacy fence.

¶221. No Warrant

¶23It is undisputed that the police did not have a warrant in this ease. The evidence at the suppression hearing showed they opened the latch and entered into the fenced patio area to investigate the offense.

¶242. Reasonable Expectation of Privacy

¶25I would hold that appellant met his burden of proof to show he had a reasonable expectation of privacy within his fenced patio. See Bower, 769 S.W.2d at 897 (discussing fenced areas); Kann, 694 S.W.2d at 161. The record did not show that the fenced area was open to the public or used by the public as a common means of ingress and egress. Other Texas cases have indicated that a fenced-off area immediately surrounding a residence is an area in which there is a reasonable expectation of privacy. See Bower, 769 S.W.2d at 897 (discussing reasonable expectation of privacy in area “purposefully” fenced off); Kann, 694 S.W.2d at 159. This is because people are more likely to keep things of a personal nature in places that are secluded and fenced off from the public view.

¶26*400I would hold that appellant was entitled to expect privacy in the fenced area even if he himself did not erect the fence. He was entitled to privacy even if the fence had holes in it through which the police could see. See Kann, 694 S.W.2d at 158-59. When the police saw the bicycle through the holes in the fence, they were then permitted to take that evidence, along with the evidence that their tracking-device receivers indicated that the bicycle was the stolen bicycle, and obtain a search warrant. They were not authorized to enter the fenced area to check the serial number on the bicycle. See id.

¶27I would hold that the fact that the fence gate was merely latched and not locked or posted “no trespassing” does not mean there is “implied permission” to enter. See Bower, 769 S.W.2d at 897 (a sidewalk, pathway, common entrance, or similar passageway offers an implied permission to the public to enter). The fact that there was no other means of access did not give the police implied permission to enter a privacy-fenced area. I would hold that it is not unreasonable to expect that strangers will not enter a fenced backyard or patio.1 I would hold that an eight-foot privacy fence is more of an implied notice to “keep out.” The police approached a fenced patio, not a front porch. The door they knocked on was not what most would consider to be a “front door,” but was a sliding-glass door. I would hold that appellant met his burden to show that he sought to preserve the area as private.

¶28Further, the police went into the fenced area to knock on the glass door “and investigate,” and they did indeed check the bicycle for a serial number before they arrested appellant. In the process of investigating, they looked over the bicycle to see if it was theirs. Because one of their purposes2 was to get the serial number from the bicycle, and they had no right to be where they were, I would hold that the trial court erred in failing to grant the motion to suppress. See Bower, 769 S.W.2d at 897. When they checked the bicycle, this was a “deviation from [their] purpose” of knocking on the front door. Id.(citing Kann, 694 S.W.2d at 161 (Howell J., concurring)).

¶29If there is no front door to a dwelling, the police are not always justified in approaching by whatever means available. In some instances, there may not be a front door. A person may design their home so that it is purposefully not open to salesmen, uninvited visitors, and the police, who are in the same position as other citizens when they act with no warrant and no warrant exception applies. For instance, in cases involving a high-rise condominium complex, accessible only by residents carrying entry cards, I would not hold that the police are entitled to “find” a front door.

¶30This is an unusual case because most residences have a front door that is clearly accessible to the public. There are no Texas cases involving warrantless searches of residences that have no front door. However, other courts have held that a resident has a reasonable expectation of privacy and that the police may not enter where there is no front door or common area. See Garrison v. State, 28 Md.App. 257, 345 A.2d 86, 89 (1975) (where entrance to building kept locked, visitors must call up to be let in, and police entered at 2:45 a.m. to search basement common to 3 or 4 tenants, search illegal because no evidence from which police could conclude area open to the public, especially at 2:45 a.m.).

¶31There was only one door to appellant’s apartment. "When the police arrived at 6:30 a.m., they never saw appellant, and there was *401nothing in the record to show that appellant knew he was being followed and might try to escape or destroy evidence. Appellant was not going anywhere. The bicycle was not going anywhere. I would hold that the police were required to obtain a warrant to enter the fenced area. No exception to the search warrant requirement applied. See Juarez v. State, 758 S.W.2d 772, 776 (Tex.Crim.App.1988) (consent); Carrasco v. State, 712 S.W.2d 120, 122 (Tex.Crim.App.1986) (search incident to arrest); Bolden v. State, 634 S.W.2d 710, 713-14 (Tex.Crim.App.1982) (emergency); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App. [Panel Op.] 1979) (hot pursuit).3

¶32In other cases where the officers saw stolen items or evidence while looking through an uncurtained window, the officers then went to get a search warrant. They did not enter the home or private area containing the evidence after seeing the evidence. See Bower, 769 S.W.2d at 897 (and cases cited therein). The mere fact that the officers saw the bicycle and knew that their receivers were signaling that it was the stolen bicycle did not justify their entry into appellant’s fenced patio area.

¶333. The Search

¶34The essence of a search under Texas law is an intrusion into an area covered by a reasonable expectation of privacy. The term “search” is defined as a quest for, or a seeking out of that which offends the law. Long v. State, 532 S.W.2d 591, 594 (Tex.Crim.App.1975), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 179 (1976). I would hold that the police did conduct a search while on the patio. They looked at the serial number on the bicycle before they arrested appellant. This is why Bower, cited by the majority, is distinguishable. In Bower, there was no search because the officers were where they had a right to be when they gathered evidence. Bower, 769 S.W.2d at 897. They then obtained a warrant based on what they saw. In this case, when the officers obtained evidence in the form of the serial number off of the bicycle, they were not in a place where they were entitled to be.

¶35Further, in Bower, the officers entered the curtilage in order to ask questions. In the case at bar, the officers entered to investigate, and, obviously, to obtain the serial number. This is a search. The purpose in entering was not the same as that of the officers in Bower. See Bower, 769 S.W.2d at 897 (“warrantless searches are improper absent exigent circumstances, at least when the investigating officers have intruded upon the curtilage for the purpose of conducting a search for criminal activity”).

¶36In United States v. Anderson, 552 F.2d 1296 (8th Cir.1977), federal agents came to the defendant’s residence to question him about a theft of televisions. The agents received no reply to their knock on the front door. They saw a light on in back of the house and heard dogs barking. They proceeded to the back of the house because they thought they could find the defendant there and speak to him. Through a window on the side of the house, they saw evidence of the theft. They then went to get a search warrant based on this evidence. The court held the evidence was legally obtained because, when he saw the evidence, the agent’s legal objective was to find the defendant and talk to him. Id. at 1300. They were not going to the back of the building to search. Id.

¶37Unlike Anderson, in this case, the agents were going in to knock on the glass door and, as indicated by the fact that they did cheek the serial number, also, apparently to obtain the serial number. They did look over the bicycle in order to obtain the serial number before they arrested appellant. To conclude that this amounted to anything less than a search is untenable. ,

¶38This was not a lawful search incident to arrest because the police did not have probable cause to arrest appellant. They also did not establish that an exception applied excusing them from the requirement that they obtain a warrant for this search and for appellant’s arrest. There was no evidence *402that an offense occurred in their presence so that they knew appellant committed it, or even that they knew where the suspect had gone.4See Tex.Code Crim.Proc.Ann. art. 14.01(a) (Vernon 1977); Adkins v. State, 764 S.W.2d 782, 786 (Tex.Crim.App.1988); Simpson v. State, 709 S.W.2d 797, 802-04 (Tex.App.—Fort Worth 1986, pet. ref'd) (officers investigating report of marijuana scent who were allowed into apartment where several people lived had no probable cause to arrest without a warrant defendant asleep in bedroom where nothing connected defendant to marijuana). There was nothing to tie any particular suspect with a criminal act. See Adkins, 764 S.W.2d at 785. No officer testified that he thought appellant was about to escape. Tex.Code CRIm.PROC.Ann. art. 14.04 (Vernon 1977). Appellant was not in a suspicious place. See Holland v. State, 788 S.W.2d 112, 114 (Tex.App.—Dallas 1990, pet. ref'd) (defendant arrested in home without warrant after children shouted that he had hit them with hammer). The officers did not have a specific person who could be arrested pursuant to article 18.16.5See Tex.Code CrimProcAnn. art. 18.16 (Vernon 1977); Mitchell v. State, 756 S.W.2d 71, 74 (Tex.App.—Texarkana 1988, no pet.) (stolen car in front of house, but officers did not know which person inside had stolen car). At the point when the police saw the bicycle, they had no probable cause to arrest anyone. I would hold that, under the facts of this case, because the police could not enter the private area without a warrant, the officers were also required to obtain a warrant for appellant’s arrest.

¶39The police also cannot justify under the plain-view doctrine the fact that they could view the serial numbers on the bicycle while they were on the patio, if that were the case. The plain-view doctrine permits an officer to seize evidence without a warrant if the officer is in a place where he or she has a right to be and sees evidence that is obviously connected to a crime. See Bower, 769 S.W.2d at 897.

¶40For these reasons, I respectfully dissent.