Kann v. State

• Decision Date: 22 May 1985
• Docket Number: 05-84-00025-CR,Nos. 05-84-00024-C,s. 05-84-00024-C
• Citation: 694 S.W.2d 156
• Parties: Merna Argovitz KANN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 156

694 S.W.2d 156

Merna Argovitz KANN, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-84-00024-CR, 05-84-00025-CR.

Court of Appeals of Texas Dallas.

May 22, 1985.

Mike Barclay, Roy L. Merrill, Jr., Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.

Before CARVER, ALLEN and HOWELL, JJ.

ALLEN, Justice.

Merna Argovitz Kann appeals her conviction in two cases for possession of marijuana and codeine. In two grounds of error, she maintains that the trial court erred in overruling her motion to suppress evidence because such evidence was seized pursuant to an illegal search in violation of: (1) the Fourth and Fourteenth Amendments to the United States Constitution; and (2) Article I, Section 9 of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure. In her third ground of error, she contends that the search warrant and supporting affidavit failed to show probable cause. We agree with appellant's second contention, that the TEX.CONST. art. I, § 9 and TEX.CODE CRIM.PRO.ANN. art. 38.23 (Vernon 1979) mandate the exclusion of the evidence in question and find that ground dispositive of this appeal. Accordingly, we reverse the judgment of the trial court.

Evidence developed at the pretrial hearing in support of appellant's motion to suppress evidence reflects that on September 27, 1982, Richardson Police Officer Melody Acord received a telephone call from an Irving police officer by the name of Myers. Officer Myers told Officer Acord that he had just received information from an informant that marijuana was growing in the back yard of a residence on Towne House Street in Richardson, and that the occupant's first name was Merna. Officer Acord then looked over the water log for the street in question, found the name Merna Kann and her address at 601 Towne House Street. The officer drove to the address and found the residence to be a single family town house. The officer proceeded to drive down the alley until she was behind the town house. She was unable to view appellant's back yard from the alley because a six foot wooden fence blocked her line of vision. Appellant's carport occupied the space between the alley and the fence. A closed gate in the fence was located at the rear of the carport. Acord walked the length of appellant's carport to the fence and by bending down near the fence and peering through a hole, was able to recognize marijuana plants growing in pots in appellant's back yard. Acord included what she had seen in an affidavit made for the purpose of procuring a search warrant.

The appellant contends that Officer Acord, before peeking through appellant's fence, did not have sufficient information to justify a search warrant. The only information Acord had before she peeked through the fence was a telephone call from an officer, who she did not know personally, that an anonymous tipster had reported that someone on Towne House Street named Merna was growing marijuana in her backyard. This information, without a doubt, falls short of establishing probable cause for a search. The only information contained in the affidavit which provided probable cause for the issuance of the search warrant on the appellant's premises was that Acord had seen marijuana growing in appellant's backyard. Appellant maintains that Acord's action in going into her carport and peering through her fence to see her backyard without a warrant constituted an illegal search and that through that search Acord obtained the essential information for her affidavit. Appellant further contends that since the search warrant was a product of the prior illegal search, the seizure of evidence incidental to the search warrant was also illegal and must be excluded. Thus, appellant argues that the warrant cannot justify admission into evidence of the seized contraband. We agree with appellant.

At the outset, we acknowledge that Article I, Section 9 of the Texas Constitution and the Fourth Amendment of the Federal Constitution are, in all material aspects, the same. Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, 346 (1944). Further, Article I, Section 9 of the Texas Constitution is to be construed in harmony with the Supreme Court's opinions interpreting the Fourth Amendment. Brown v. State, 657 S.W.2d 797, 799 (Tex.Crim.App.1983). We recognize, however, that states are free to accept or reject federal holdings and to set for themselves such standards as they deem appropriate so long as the state action does not fall below the minimum standards provided by federal constitutional protections. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In adherence to this principle, Texas has established its own exclusionary rule set forth in article 38.23. Brown, 657 S.W.2d at 799.

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, 184, 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, 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. ¹ 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, 104 S.Ct. at 1742; accord, Gonzalez v. State, 588 S.W.2d 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 S.W.2d 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, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970).

In addition to the numerous federal circuit cases, the Texas Court of Criminal Appeals has stated that a warrantless search of an individual's back yard may withstand constitutional scrutiny only when the State shows that an exceptional situation exists at the time of the search. Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979). 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. Gonzalez, 588 S.W.2d at 360.

In the present case, the State does not contend, nor do we find, that any exceptional circumstances existed at the time of the officer's intrusion onto appellant's curtilage. The burden of proving the reasonableness of a warrantless search is on the State. DeLao v. State, 550 S.W.2d 289 (Tex.Crim.App.1977); Hooper v. State, 533 S.W.2d 762 (Tex.Crim.App.1975). The evidence presented at the hearing on the motion to suppress is insufficient to discharge this burden. Therefore, we hold that the Officer's search of appellant's back yard violated Article I, Section 9 of the Texas Constitution and that the use of the information gained by the initial unlawful search was in violation of TEX.CODE CRIM.PROC.ANN. § 38.23 (Vernon 1979).

It appears to us that the search made of appellant's home under the search warrant was but a continuation of that illegal search which the officer instituted without any warrant when she entered upon appellant's premises and peeked through her fence. In any event, the necessary information contained in the affidavit for the search warrant was illegally obtained, and...