Goehring v. State

• Decision Date: 27 January 1982
• Docket Number: No. 1,No. 60754,60754,1
• Parties: Lloyd GOEHRING, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 159

627 S.W.2d 159

Lloyd GOEHRING, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 60754.

Court of Criminal Appeals of Texas, Panel No. 1.

Jan. 27, 1982.

Gary J. Cohen, Brady S. Coleman, Austin, for appellant.

Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ROBERTS, DALLY and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

This is an appeal from a conviction for the offense of possession of more than four ounces of marihuana. A jury determined appellant's guilt, assessed his punishment at seven years' imprisonment and a $5,000 fine, and recommended that imposition of the sentence be suspended and that appellant be placed on probation. The trial court accordingly placed appellant on seven years' probation, but required that the $5,000 fine be paid as a condition of probation. ¹

In two grounds of error, appellant contends that the trial court erred in overruling his motion to suppress the marihuana that was seized by law enforcement officers because there was (1) a warrantless "aerial search" of the property where the marihuana was located, and (2) a warrantless, non-consensual "ground entry" search and seizure mission was made by law enforcement agents on what is hereinafter described as the Jarvis Ranch property, after which marihuana plants were chopped down and hauled away by the law enforcement officials.

Initially, we note that the marihuana plants which were seized by law enforcement agents, and which resulted in the instant prosecution, were first viewed as a result of an inadvertent byproduct of a separate and unrelated investigation. The record reveals that on October 7, 1977, two Department of Public Safety ² helicopter pilots, Joe Herring and Wesley Hord, ³ were requested by their supervisor, Roy Sweetnam, to fly a D.P.S. helicopter to a location near Wimberly in Hays County, where a camper pickup truck loaded with marihuana had been abandoned by two men who had fled on foot into the countryside. ⁴ Herring and Hord's instructions were simply to assist the "ground officers" in their search for the two unidentified men, who incidentally were never found by the search party. While searching for the two suspects, in an area five to six miles from the abandoned camper vehicle, at an altitude of 50 to 75 feet, Herring and Hord visually observed from the air a field of growing marihuana plants, at least one acre in size, ⁵ in which sprinklers were running, one man was working with a hoe, and another, older man, was "walking out into the patch." Herring and Hord each identified appellant and his co-defendant, Jarvis, ⁶ as the men they saw in the field of marihuana plants.

Herring testified that while watching the two men from the air, he observed the younger man, apparently referring to appellant, ⁷ walk to and get into a red colored Dodge pickup truck, and drive to a house some undisclosed distance from the growing marihuana plants. The older man was seen to converse with appellant before his departure, and was later seen walking along a nearby creek.

Herring and Hord contacted by radio D.P.S. narcotics agents, David Prater and Richard Madden, who were also investigating the abandoned camper pickup truck and the whereabouts of the two missing suspects.

Herring and Hord thereafter landed their D.P.S. helicopter and picked up Prater and Madden. After becoming airborne, they made one additional pass over the field of growing marihuana plants, which field was by this time unoccupied. They thereafter landed the helicopter across the main road from the entrance to what one officer had recognized as the "Jarvis Ranch." They were met by several law enforcement vehicles containing other D.P.S. officers, Hays County Sheriff's deputies, and Department of Parks and Wildlife game wardens.

The ground motor vehicles containing the law enforcement officers were driven through an unlocked wiremesh metal type gate which was apparently open, and proceeded down a private road toward the Jarvis Ranch, where they subsequently encountered an outer perimeter of the Jarvis Ranch property, which was marked by a second gate, that was locked. The record does not reflect whether there was a fence on either side of that gate, or whether there were any "posted" or "no trespassing" signs on the property. Deputy Sheriff Cary Young testified that law enforcement officers lifted the gate off its hinges, in order to gain entry to the Jarvis Ranch property. Some of the officers then proceeded toward the location of the growing marihuana crop, and others went to a house, which was located one quarter to one half mile from where the second gate was situated. Interestingly, the marihuana crop was also located one quarter to one half mile from the house, but in a different direction from the second gate.

The record does not show whether the above house was the same house to which appellant had driven earlier, as there were at least two residences on the Jarvis Ranch. The officers were unable to locate anyone, including Jarvis and appellant, on the property at this time, although they did find an unoccupied red colored pickup truck parked near one of the residences.

Approximately 20 law enforcement officers were present during the subsequent seizure of the growing marihuana plants. A flatbed truck was used to transport the marihuana plants, which totaled approximately 1600 pounds, to the City of Austin.

It appears that after the seizure of the marihuana plants was complete, all of the law enforcement personnel then left the Jarvis Ranch, although there is evidence in the record that at least two of the officers returned that night, at which time Jarvis was present and questioned by them. The record does not show that appellant was present on the ranch premises at that time, nor does it show the content of the conversation the officers had with Jarvis. No arrests were made at that time. Arrest warrants for Jarvis and appellant were subsequently obtained on October 9, 1977, and Jarvis was apparently arrested at his home by law enforcement agents on that date. There is no testimony in the record as to when or where appellant was arrested.

In addition to the foregoing evidence, the trial court heard stipulated evidence, upon which the jury reached its verdict, before ruling on appellant's motion to suppress the marihuana obtained from the Jarvis Ranch. The only stipulation of evidence which sheds any additional light on the issues now under consideration is the following:

... that officers of the Hays County Sheriff's Office determined that W. C. Jarvis owned the premises in question and lived there; that Lloyd Goehring lived in a separate house on the premises.

Appellant appears to contend on appeal that because Herring and Hord intentionally flew Prater and Madden, whom appellant claims were "trained narcotics agents," over the field of growing marihuana plants, their flight constituted an illegal intrusion. This "primary and initial illegal intrusion," argues appellant, therefore rendered any seizure thereafter of the marihuana plants illegal. Appellant also appears to contend that as Prater and Madden and the other law enforcement officials went on the premises of the Jarvis Ranch property without either consent or a search warrant, this constituted further illegal activity.

We first note that a warrantless search is per se illegal. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

However, we do not find under the above facts that the above aerial observation of the marihuana plants falls within a protected area of the Fourth Amendment, but in fact find the observation of the marihuana plants was without any protected area and actually falls within the confines of the open fields doctrine. Compare, however, J. Clinton's concurring opinion in Ebarb v. State, 598 S.W.2d 842, 851 (1980), and J. T. Davis' discussion in Cantu v. State, 557 S.W.2d 107, 109 (1977), regarding the term curtilage.

It also appears by the record that the discovery and seizure of the growing marihuana plants, by the law enforcement agents cutting the plants down and thereafter taking possession of same, occurred in an open field not near the residences of Jarvis or appellant.

Appellant, in the arguments he makes in his brief, appears to contend that the fact that the law enforcement officers may have committed a technical warrantless trespass over and on the premises of the Jarvis Ranch automatically makes any subsequent search and seizure of the marihuana illegal.

We note that the Fourth Amendment to the Constitution protects people and not simply places or areas. It protects the citizen, whether innocent or guilty, against every unjustifiable intrusion by the government upon his privacy, and it has been said that this amendment confers on the citizen, as against the government, "the right to be let alone." Kroska v. United States, 51 F.2d 330, 332 (8th Cir. 1931).

In this cause, under the unique facts presented in this appeal, we are actually confronted with two doctrines of law, i.e., the open fields doctrine and the doctrine of standing. ⁸ Concluding that it makes little or no difference which doctrine we first discuss, we will now discuss the open fields doctrine.

Under the open fields doctrine, no warrant was necessary for the police to enter onto the Jarvis Ranch property, and the fact of a technical trespass is irrelevant because an open field is usually not a constitutionally protected area. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); United States v. Brown, 473 F.2d 952 (5th Cir. 1973); Ochs v. State, 543 S.W.2d 355 (1976); Melton v. State, 121 Tex.Cr.R. 195, 49 S.W.2d 803 (1932).

The term or phrase, "open fields," ordinarily means a specified unoccupied location within a broad, level, and open expanse of land, which may or may not have agricultural type crops growing thereon.

The open fields doctrine was explicated by ...