COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
MARC BURNETT,
Appellant
§
§
§
§
§
§
§
§
V.
THE STATE OF TEXAS,
Appellee
NO. 05-11-01243-CR
BRIEF OF APPELLANT
On appeal from Criminal District Court
Number Two of Dallas County
Trial Cause No. F11-51275-I
ROBERT T. BASKETT
State Bar No. 01871000
2612 Boll Street
Dallas Texas 75204-1002
214/965-0900
214/880-0443 [fax]
COURT-APPOINTED
COUNSEL FOR APPELLANT
ORAL ARGUMENT REQUESTED
5th Court of Appeals
FILED: 12/21/11
14:00
Lisa Matz, Clerk
IN THE
IDENTITY OF PARTIES AND COUNSEL
Appellant:
State:
1.
Marc Burnett, Appellant
2.
Lisa Fox
704 Herman
Hurst Texas 76054
Trial Counsel
3.
Mario Herrera
4236 Lovers Lane
Dallas Texas 75209
Trial Counsel
4.
Robert T. Baskett
2612 Boll Street
Dallas Texas 75204
Appellate Counsel
1.
Brooke Grona-Robb
Danielle Uher
Assistant District Attorneys
133 N. Riverfront Blvd.
Dallas Texas 75207
2.
DA Appellate Division
133 N. Riverfront Blvd.
Dallas Texas 75207
Appellate Counsel
i
TABLE OF CONTENTS
Identities of Parties and Counsel .................................................................................................... i
Index of Authorities ..................................................................................................................... iii
Statement of the Case .................................................................................................................... 1
Issues Presented ............................................................................................................................. 2
DID THE TRIAL COURT ERR IN
DENYING THE MOTION TO SUPPRESS
THE FRUITS OF THE WARRANTLESS
ARREST, SEARCH, AND SEIZURE?
Statement of Facts ......................................................................................................................... 2
Summary of Argument .................................................................................................................. 5
Argument ....................................................................................................................................... 6
Prayer ........................................................................................................................................... 12
Certificate of Service ................................................................................................................... 12
ii
INDEX OF AUTHORITIES
Federal Cases
Katz v. United States 19 L. Ed. 576 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
California v. Ciraolo, 476 U.S. 207 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Horton v. California, 469 U.S. 128, 136 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) . . . . 7
Nikolas v. City of Omaha, 605 F3d 539 (8th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Oliver v. United States, 466 U.S. 170 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577 , 61 L. Ed. 2d 220 (1979) . . . . . . . . . . . . . . . 7
Texas v. Brown, 460 U.S. 730 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Texas v. Gonzales, 388 F. 2d 145 (5th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Davis, 423 F.2d 974(5th Cir.), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Dunn, 480 U.S. 294 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Garcia, 997 F2d 1273 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Jackson, 585 F.2d 653 (4th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Jackson, 588 F. 2d 1046 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Kano, 468 U.S. 705 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Struckman, 603 F3d 731 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Van Dyke, 643 F. 2d 992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Williams, 581 F. 2d 451 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Woodbury v. Beto, 426 F.2d 923 (5th Cir 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iii
State Cases
Atkins v. State, 882 SW2d 910 (Tex. App.-Houston [1st] 1994, pet. Ref’d) . . . . . . . . . . . . . . . . 10
Bower v. State, 769 SW2d 887 (Tex. Cr. App. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10
Burton v. State, 339 SW3d 349 (Tex. App.-Texarkana 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Cooksey v. State, 350 SW3d 177 (Tex. App.- San Antonio 2011) . . . . . . . . . . . . . . . . . . . . . . . . 7
Cornelius v. State, 900 SW2d 731 (Tex. Cr. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ebarb v. State, 598 SW2d 842 (Tex. Cr. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Gonzalez v. State, 588 SW2d 355 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
Gutierrez v. State, 221 SW3d 680 (Tex. Cr. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hurwitz v. State, 673 SW2d 347 (Tex. Cr. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kann v. State, 694 SW2d 156 (Tex. App.-Dallas 1985, pet. Ref’d) . . . . . . . . . . . . . . . . . . . . . . . 6
Keehn v. State, 279 SW3d 330 (Tex. Cr. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Nored v. State, 875 Sw2d 392 (Tex. App.-Dallas 1994, pet. Ref’d) . . . . . . . . . . . . . . . . . . . . . . 10
Pool v. State, 157 SW3d 36 (Tex. App.-Waco 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Quintana v. Commonwealth, 276 SW 3d 753 (Ky. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rosales v. State, 875 SW2d 705 (Tex. App.-Dallas 1993, pet. Ref’d) . . . . . . . . . . . . . . . . . . . . . 6
Russell v. State, 717 Sw2d 7 (Tex. Cr. App. 1986, disapproved . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Peyrani, 93 SW3d 384 (Tex. App.-Houston [14th] 2002, pet. Ref’d) . . . . . . . . . . . . 9, 10
Trimble v. State, 842 NE2d 298 (Ind. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Walter v. State, 28 SW3d 538 (Tex. Cr. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11
iv
State Court Rules
Rule 44.2 (a), Tex. R. App. P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Constitutional Provisions
Fourth Amendment .................................................................................................................6, 7, 8
v
IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
MARC BURNETT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
§
§
§
§
§
§
§
§
NO. 05-11-01243-CR
BRIEF OF APPELLANT
This brief is respectfully submitted on behalf of the Appellant, Marc Burnett.
STATEMENT OF THE CASE
An indictment charged Burnett with possession of phencyclidine with intent to deliver
(CR 5),1 a first degree felony. Sec. 481.112 (d), Tex. H & S Code. A prior felony was alleged,
raising the punishment range up to life or any term of years from fifteen to ninety-nine.
Sec.12.42 ©, Tex. Penal Code.
After a contested hearing on a motion to suppress evidence 2 (RR II), which was denied
1
Citation to the Clerk’s Record is (CR pg); to the four-volume Reporter’s Record, (RR
vol; pg).
2
This hearing was before Hon. Quay Parker.
1
(RR II; 85), Burnett entered an open plea of guilty before the trial court. 3 (RR III: 7). It was
understood by all that the suppression issue was to be pursued on appeal. (RR III: 9).
After a sentencing hearing,4 at which the court denied the State’s motion to withdraw its
jury waiver (RR IV: 28), the court accepted Burnett’s pleas of “guilty” and “true,” (RR IV: 6),
then imposed a sixteen-year prison term and a fine of $1,000.00. (RR IV: 52-53).
ISSUES PRESENTED
DID THE TRIAL COURT ERR IN
DENYING THE MOTION TO SUPPRESS
THE FRUITS OF THE WARRANTLESS
ARREST, SEARCH, AND SEIZURE?
STATEMENT OF FACTS
This Statement of Facts deals with the issue of whether the motion to suppress should
have been granted. Burnett gave a judicial confession (CR 20) that on January 18, 2011, he
possessed with intent to deliver phencyclidine in the amount of four grams or more but less than
200 grams. He also admitted to the facts of the prior conviction alleged for enhancement. The
issue contested was whether the warrantless entry onto the premises was lawful.
At the hearing on Burnett’s Motion to Suppress (CR 14), Dallas Police officer Jeremiah
Byous testified that several days before January 18, 2011, he received information that a location
was “selling drugs again.” Persons would walk or drive to the back door. (RR II:7)5. They
3
This hearing was before Hon. Pat McDowell.
4
This hearing was before Hon. John Ovard.
5
They got general information about activities there and knew there had been a previous
arrest at the location. (RRII: 7). Where the information came from or how fresh it was is not
disclosed in the record.
2
surveilled the place but saw no illegal or suspicious activity. No one was there (RR II:8).
On January 18, 2011, the police had decided to raid the place. Several officers
approached the house, including Byous, officer Ruben Rivera, and officer Daniel Canete, who
was “several cars back.” (RRIV: 45). According to Byous, there was a vehicle parked in the
driveway and a female at the back corner of the house. (RRII: 9). He walked up the driveway
beside the house, and, once he cleared the corner, he saw Burnett standing behind some burglar
bars at the back door.6 (RRIV: 9). He had a small vial in his left hand and paper money in his
right hand. (RR II: 10). Burnett quickly turned and went inside. (RRII: 12). They opened the
“cage” door and the back door, which were not locked, and pursued him inside. (RRII: 12).
Burnett dropped a brown vial inside a kitchen area, and was arrested. (RRII: 12-13). They then
did a “protective sweep” to look for others and to “determine exactly what we have and to what
extent.” (RRII: 13). They found several small vials, two large vials, and some marijuana. (RRII:
14). They got no warrant (RRII: 14), although they could have. (RRII: 18).
At first, Byous could not say if they had to enter through a fence, but said there was no
fence around the back yard. (RRII: 18). Later he would admit the entire back yard was fenced
(RRII: 30) and that there was a fence, but the gate was open. (RRII: 74; RRIV: 42). They had to
walk 50 to 60 feet up a narrow driveway (Defendant’s Exhibit 7; RRII: 19).7 They had seen
nothing illegal when they started up the long driveway. (RRII: 19-20). They could have done an
undercover buy, but that was a “lengthy process” and anyway, they had seen no illegal activity.
6
He called it a “cage,” but photographs show what it really was. See, Defendant’s
Exhibit 13.
7
This driveway was flanked by the house on one side and bushes on the other. (RRII:
20).
3
(RRII: 19).
He described the house as having a fenced front yard, which “possibly” indicated an
expectation of privacy. (RRII: 23). It was very common, “lots of them,” for houses in the
neighborhood to have barred windows and doors. (RRII: 24). He admitted it was “possible” the
occupant had taken steps to shield th public from coming onto the property (RRII: 35), but
declared his belief it was permissible for them to go onto the curtilage if “there’s a pattern of
commonality where we know individuals go and receive information, we’re allowed to go into
it.” 8 (RRII: 35). He could not see Burnett or any illegal activity until he cleared the back corner
of the house. (RRII: 25).
Officer Rivera accompanied Byous up the driveway and behind the house. They did not
have to open any gates, hurtle fences, or push through shrubbery to get to the back door. (RRII:
38). When Burnett went inside and closed the back door, they ran in after because they had
observed a felony9 and “didn’t want no evidence to get destroyed.” (RRII: 39). They could have
gotten a warrant but decided not to do so. (RRII: 50).
He never saw any illegal activity until they went into the back yard. (RRII: 46, 49). They
could not see the female until they went around the corner (RRII: 46), although Byous claimed he
could see her from the street, and she could see them, in uniform, as they approached up the side
of the house. (RRII: 11). She was standing in front of the “cage.” (RRII: 48).
He agreed that the fences and shrubs indicate an expectation of privacy (RRII: 52), as
8
If a person commonly walks back into an area we have the right to do so, and we did
and that’s all.” (RRII: 21).
9
PCP is commonly sold in small brown vials. (RRII: 40). He smelled its odor as he
walked up the driveway. (RRII: 44).
4
well as the high shrubbery on both sides of the driveway and the totally fenced back yard. (RRII:
57). He admitted there was a gate indicating privacy, but went in anyway. (RRII: 59). He had to
walk five or six feet past the corner of the house to see the female. (RRII: 62).
He identified the various defense photographs as depicting the scene. (RRII: 57-63).
He, too, admitted they could have set up an undercover buy or at least surveilled the
premises to see if there actually was all the traffic coming and going, but they did not. (RRII: 6364).
Argument that police entry on premises where there was an expectation of privacy
violated Fourth Amendment right (RRII: 83-84) was countered by the State’s argument that the
police only went where the “drug buyers” went (RRII: 84).10 Later, however, the prosecutor
claimed the police had the right to go where any “normal citizen” could go. (RRII: 85). The
Court denied the motion. (RRII: 85). No findings of fact or conclusions of law were made or
requested.
Standing was not contested at the hearings. The State produced evidence that Burnett
admitted to police that he was living at the house, having just gotten out of prison, and he was
found to have had a key to the premises. (RRIV: 46).
SUMMARY OF ARGUMENT
Had the police not made a warrantless and unlawful entry onto the curtilage they would
not have seen any illegal activity at all, and therefore the entry into the house and seizure of the
drugs was a violation of federal and state constitutional protections.
10
The State urged they were following “where they had information” (RRII: 85), but
never attempted to show when or how that information was obtained or whether it was reliable.
5
ARGUMENT
The curtilage of a dwelling is entitled to the same protections under the Fourth
Amendment as the home itself. Oliver v. United States, 466 U.S. 170, 180 (1984); Rosales v.
State, 875 SW2d 705, 713 (Tex. App.-Dallas 1993, pet. ref’d). This means protection of
personal privacy in an area intimately linked to the home, both physically and psychologically,
where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207 (1986).
Warrantless intrusions and searches are presumptively unreasonable. United States v.
Kano, 468 U.S. 705, 717 (1984); Gutierrez v. State, 221 SW3d 680 (Tex. Cr. App. 2007). The
State bears the burden of showing an exception to the warrant requirement. Russell v. State, 717
Sw2d 7 (Tex. Cr. App. 1986, disapproved on other grounds, Handy v. State, 189 SW3d 296
(Tex. Cr. App. 2006).
Certainly there is no reasonable doubt that the area into which the officers encroached in
order to observe the alleged offense was part of the curtilage in this case. Kann v. State, 694
SW2d 156 (Tex. App.-Dallas 1985, pet. ref’d), United States v. Dunn, 480 U.S. 294 (1987)
(curtilage can be present were fencing serves to demark a specific area land immediately adjacent
to a house and readily identifiable as part and parcel of the house).11 Equally clear is that these
officers entered into the curtilage, without a warrant. Under the circumstances of this case, then,
the only possible exception12 to the warrant requirement would be the “plain view” doctrine.
11
An enclosed backyard is “unquestionably” part of the curtilage. United States v.
Struckman, 603 F3d 731 (9th Cir. 2010); Kahn, supra; Gonzales v. State, 588 SW2d 355, 360
(Tex. Cr. App. 1979) (Curtilage is land immediately surrounding and associated with a home).
12
Not really an “exception,” as such, since not an unreasonable “search or seizure.”
Texas v. Brown, 460 U.S. 730, 738 (1983).
6
In order to justify a warrantless search and seizure under the plain view doctrine, the
observing officer must not have violated the Fourth Amendment to get to the place from which
he viewed. Horton v. California, 469 U.S. 128, 136 (1990); Walter v. State, 28 SW3d 538 (Tex.
Cr. App. 2000). In other words, did the officer have “a right to be where he was”? Walter,
supra, , at 541. It is urged here that these officers did not have a right to enter the backyard.
Thus, anything they observed , searched for, or seized was inadmissible, and the trial court erred
in failing to suppress that evidence.13
In Bower v. State, 769 SW2d 887 (Tex. Cr. App. 1989), the Court of Criminal Appeals
quoted extensively from this Court’s opinion in Kahn, supra, at 694 SW2d 159-160). Burnett
likewise does:
Since the decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 19 L. Ed. 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. 170 184, 104 S. Ct. 1735, 1740 50
L. Ed. 214 (1984); Smith v. Maryland, 442 U.S. 735, 740-741, 99 S. Ct. 2577, 2580-2281, 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, 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
13
See, Keehn v. State, 279 SW3d 330, 335 (Tex. Cr. App. 2009)(plain view, in the
absence of exigent circumstances, “can never justify a search and seizure without a warrant when
law enforcement officers have no lawful right to access an object.” Citing, Horton v. California,
supra, n. 7). It is urged that “right to access an object” encompasses “right to be where it was
observed.” See, Ebarb v. State, 598 SW2d 842 (Tex. Cr. App. 1979); Cooksey v. State, 350
SW3d 177 (Tex. App.- San Antonio 2011)(after unlawful encroachment onto curtilage
subsequent consent to search was invalid).
7
expectations. United States v. Williams, 581 F. 2d 451, 453 (5th Cir. 1978).
Curtilage is “the land immediately surrounding and associated with home” and warrants
the same Fourth Amendment protections that attach to the home. Oliver v. United States, 104 S.
Ct. at 1742; accord, Gonzalez v. State, 588 SW2d 355, 360 (Tex. Crim. App. 1979). On the
other hand, no legitimate expectation of privacy extends to an open field, which may be defined
as “any unoccupied or underdeveloped area outside the curtilage” of a dwelling. Hurwitz v.
State, 673 SW2d 347, 349 (Tex. Crim. App. 1984), (quoting Oliver v. United States at 104 S. Ct.
at 1742 and n.11).
Following the definition of curtilage set out in Oliver, we hold that the curtilage
surrounding appellant’s home encompassed her carport. See, Woodbury v. Beto, 426 F.2d 923,
927 (5th Cir 1970). The carport was adjacent to appellant’s back yard and was separated from it
by only a fence with a gate in it. The fence blocked view of the back yard from the alley.
Moreover, appellant owned the land on which the carport was situated and maintained control
over the use of the carport. She had personal belongings in the carport. Therefore, Officer Acord
invaded appellant’s curtilage when she crossed the carport to peer through a small hole in
appellant’s fence.
Whenever government agents enter into the curtilage they necessarily intrude upon the
individual’s reasonable expectation of privacy. United States v. Jackson, 588 F. 2d 1046, 1053
(5th Cir. 1979); Williams, 581 F. 2d 451. 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.” United States v. Williams, 581 F.
2d 451, 453 (5th Cir. 1978); see also, United States v. Van Dyke, 643 F. 2d 992.993 (4th Cir.
1981); United States v. Jackson, 585 F.2d 653, 660 (4th Cir. 1978)(dictum); United States v.
Davis, 423 F.2d 974, 976-77 (5th Cir.), cert. denied, 400 U.S. 836, 9 S. Ct. 74, 27 L. Ed 2d 69
(1970).
As noted above, Burnett’s backyard was part of the curtilage surrounding his dwelling.
The issue is whether the officers lawfully encroached into the curtilage to view something that
would not have been visible absent that encroachment. Burnett asserts that they did not.
First, the State made no effort at all to establish the legal significance of the
“information” that precipitated the intrusion. There was no showing (1) when the information
was obtained or from whom. For all is shown here, it could have been months old. While the
officers claimed to have conducted “surveillance” of the premises, the did not say when that
occurred and, more importantly, no suspicious activity was observed.
8
“For a warrantless search onto curtilage to be justified, the State must prove that there
was probable cause at the time the search was made, and that there were exigent circumstances
that made it impractical to procure a warrant.” Pool v. State, 157 SW3d 36, 42 (Tex. App.-Waco
2004, no pet.)14
Moreover, the officers made no attempt to contact any occupant by the front door, which
is the place the general public would perceive to be the main or usual entrance to premises, but
not the backyard. See, Gonzalez v. State, supra; Quintana v. Commonwealth, 276 SW 3d 753
(Ky. 2008) (backyard is not normally an area that would be perceived as a public area); Nikolas
v. City of Omaha, 605 F3d 539 (8th Cir. 2010) (it is permissible to go up a driveway that leads to
the front door); Trimble v. State, 842 NE2d 298 (Ind. 2006)(permissible to approach the back
door if that is the main entrance to the premises); United States v. Garcia, 997 F2d 1273 (9th Cir.
1993) (back door is principal entrance).15
Police have a right to approach and knock on the front door. However, when the “enter
into the curtilage they necessarily intrude upon an individual’s reasonable expectation of
privacy,” and “once an officer deviates from the usual route for the purpose of knocking on the
front door, the officer loses his status as an invitee.” State v. Peyrani, 93 SW3d 384, 387 (Tex.
14
Burnett urges that the PCP smell would not have been sufficient alone to justify a
warrantless search, c.f. Burton v. State, 339 SW3d 349 (Tex. App.-Texarkana 2011), because the
officers had already encroached onto the curtilage. Regardless, they deliberately chose not to
seek a warrant.
15
It is noted that here the front door had burglar bars, but so did so many homes on the
neighborhood. That alone is no reason to assume that the back door is the main entrance to the
premises.
9
App.-Houston [14th] 2002, pet. ref’d)16 (citing, Cornelius v. State, 900 SW2d 731 (Tex. Cr. App.
1995); Nored v. State, 875 Sw2d 392 (Tex. App.-Dallas 1994, pet. ref’d); and Bower v. State,
supra.) While entry into the backyard to seek consent to search may not violate the Fourth
Amendment, Atkins v. State, 882 SW2d 910 (Tex. App.-Houston [1st] 1994, pet. ref’d), there is
no evidence of that here. The officers clearly were going to investigate criminal activity, based
on their claim that the backyard is “commonly” used by the public (RRII: 21) so that “there’s a
pathway of commonality where we know individuals go and receive information (sic)” (RRII:
35).
The problem with this claim is that they did not “know” anything but only had a vague
information, clearly not confirmed by surveillance, that people drove or walked up the long
driveway to buy drugs. All they really knew was that a visitor had parked way back in the
driveway, many yards from the street. They had either proof or even reasonable suspicion that
the one vehicle they saw was not there by invitation.
Nor is it significant that the gate to the fence was not closed. As noted in Pool, supra, the
courts are (and ought to be) “loathe to hold ... that residents failing to erect a complete enclosure
around their backyard no longer enjoy Fourth Amendment protection in their backyard.” (157
SW3d at 41.) See also, Cooksey v. State, supra.
This record reveals that:
(1) Officers had vague and uncorroborated information, age unknown, of drug activity.
(2) Surveillance, also age unknown, revealed no suspicious activity.
16
In Peyrani, police eschewed an attempt at the front door also. Suppression was
affirmed.
10
(3) They chose not to do a controlled buy, otherwise attempt corroboration, or get a
warrant. Instead they rounded up others for a “raid.”
(4) They saw a vehicle parked at the back of the long, secluded driveway, and simply
assumed there was drug activity afoot.
(5) They made no effort to approach the front door which had, as was common for the
area, burglar bars on the door and windows.
(6) The driveway was very long, narrow, and bordered by the house and dense shrubbery.
The photographs, in particular Defendant’s Exhibit 7, hardly show an open, obvious, or inviting
public access.
(7) Although they observed no illegal activity, they proceeded up the driveway through
the open gate in the fence dividing the driveway from the backyard.
(8) Only after they went several feet into the backyard through the fence were they able to
observe what they assumed was illegal activity.17 It was not visible from outside the backyard.
Not only do these facts not sustain the State’s burden to prove a lawful search, they
actually demonstrate an encroachment into the curtilage that violates Fourth Amendment
protections. The trial court erred in failing to grant Burnett’s Motion to Suppress. Reversal is
required.18
17
Burnett assumes under this record, but does not concede, that observation of the
miniature vial, plus the odor along the driveway, was “immediately apparent” as contraband.
Walter v. State, supra.
18
If the evidence should have been suppressed, the harm in failing to do so is obvious.
Rule 44.2 (a), Tex. R. App. P.
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PRAYER
Burnett asks this Court the reverse the judgment and remand to the trial court for a new
trial.
Respectfully submitted,
/s/ Robert T. Baskett
______________________________
ROBERT T. BASKETT
State Bar No. 01871000
2612 Boll Street
Dallas Texas 75204-1002
214/965-0900
214/880-0443
CERTIFICATE OF SERVICE
I certify that a true copy of the Appellant’s Brief was mailed to the District Attorney’s
Appellate Division, 133 N. Riverfront Blvd., Dallas, Texas 75207, on this 19th day of December,
2011.
/s/ Robert T. Baskett
ROBERT T. BASKETT
12