State of Texas v. Gonzales

• Decision Date: 15 January 1968
• Docket Number: No. 24715.,24715.
• Citation: 388 F.2d 145
• Parties: The STATE OF TEXAS et al., Appellants, v. Salvador GONZALES, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

388 F.2d 145 (1968)

The STATE OF TEXAS et al., Appellants, v. Salvador GONZALES, Appellee.

No. 24715.

United States Court of Appeals Fifth Circuit.

January 15, 1968.

Robert E. Owen, Lonny F. Zwiener, Asst. Attys. Gen., Crawford C. Martin, Atty. Gen. of Texas, George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. Lattimore, Howard M. Fender, Asst. Attys. Gen., Austin, Tex., for appellants.

Joel Jay Finer, Stanford, Cal., for appellee.

Before JONES, WISDOM and THORNBERRY, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal from the granting of habeas relief to a state convict presents another opportunity for judicial construction of the fourth-amendment guarantee against unreasonable search and seizure. See generally, Landynski, Search and Seizure and the Supreme Court (1966). On June 27, 1964 at 8 P.M. Lieutenant Gann of the Austin Police Department summoned three other police officers to 206 Elkhart Street, Austin, Texas, and established a surveillance of the residence immediately to the north at 208 Elkhart Street. Their purpose was to ascertain if narcotics were being peddled and they intended to raid the house. Gonzales was a guest in the house. Lieutenant Gann had information that narcotics were being peddled there and that Louis Selvera, the occupant, had that day picked up a small package in the alley across the street and taken it inside the house. Further, Selvera had admitted to Gann two weeks before that he was a narcotics user. The officer's search warrant was admittedly invalid under Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. However, the State contends that Gann established probable cause to arrest in another fashion and therefore did not have to depend on the validity of the search warrant.

These additional factors present the basis for the controverted issues on appeal. While the officers were watching the house, Gann saw Selvera pull into the driveway and enter the house. Gann waited about thirty minutes and then crossed the yard and peered through a window on the south side. Having seen nothing, he proceeded around the backyard to a window on the northwest side of the house. Peering through it, he observed what appeared to be three pairs of male legs under a table. He concluded that the men were either eating or capping heroin and returned to his partners next door. Another thirty minutes elapsed before Gann again crept across the yard to his viewing position. This time a gentle breeze parted the curtains and he could see a box marked "powdered sugar" and a gelatin capsule box on the table. He concluded that the men were indeed capping heroin and returned for his partners. The next trip was made by all the officers. Two of them hid in Selvera's garage while Gann and another returned to the window. This time Gann stood on a drainpipe and peered into the north window. He saw a woman entering the room and three men seated around a table with knives in their hands working with a white powder in a plate. When the woman approached the window, Gann ducked down, then climbed up again for a better look. He then returned to the garage and gathered his men for a raid on the house. The officers went to the west door, "hollered police and hit the door," breaking it down. After a short skirmish, they arrested Gonzales and the others. Heroin and narcotics paraphernalia were seized.

The district court granted Gonzales' application for writ of habeas corpus, reasoning that the conduct of the officers constituted an unreasonable search and seizure and thus that the evidence seized should have been excluded from the trial. The State has prosecuted this appeal on two grounds: That Gonzales lacks standing to question the validity of the search and seizure; and that the conduct of the officers was merely in investigatory procedure that uncovered additional information needed to formulate probable cause for appellee's arrest. We affirm the district court. The State's argument that Gonzales lacks standing to challenge the search and seizure deserves no discussion because it is clearly rejected by the decisions. See Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 2d 697; Monnette v. United States, 5th Cir. 1962, 299 F.2d 847, 849.

The issue of whether the police conduct amounted to an illegal search and seizure deserves more treatment. It is well settled that the fourth amendment embodies a comprehensive right of privacy against unwarranted governmental intrusions. See Cooley, Constitutional Limitations 623 (8th ed. 1927); Griswold, The Fifth Amendment Today 1 (1955); Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79 (1937); Beaney, The Constitutional Right to Privacy in the Supreme Court, 1962 Supreme Court Rev. 212; Symposium on the Griswold Case and the Right to Privacy, 64 Mich.L.Rev. 197 (1965). In determining whether the search is reasonable, courts must strike a balance between this right to privacy and the government's need to secure evidence of guilt. Numerous courts have solved the problem of searching residences and outlying buildings by resort to the common-law concept of the "curtilage." United States v. Mullin, 4th Cir. 1964, 329 F.2d 295; Weaver v. United States, 5th Cir. 1961, 295 F.2d 360; Polk v. United States, 9th Cir. 1961, 291 F.2d 230; Hobson v. United States, 8th Cir. 1955, 226 F.2d 890; Walker v. United States, 5th Cir. 1955, 225 F.2d 447; Roberson v. United States, 6th Cir. 1948, 165 F.2d 752. Apparently this concept helps set the fourth-amendment boundaries which the police cannot invade without probable cause. The district court held that the officer's conduct in trespassing on the property and peering in the window amounted to an invasion of the curtilage without probable cause to arrest or search. A more relevant issue also considered by the district court enables this Court to avoid the fictional question of where the curtilage begins and ends.

The paramount reason for affirmance in this case is that the conduct of Officer Gann constituted an illegal search because his three trips to the window were made at a time when he lacked probable cause to think that narcotics were possessed in the home. The State's objection to this conclusion is that since the eye cannot commit the trespass condemned by the fourth amendment, Gann's observations cannot constitute a search. This contention is foreclosed by Brock v. United States, 5th Cir. 1955, 223 F.2d 681. There we held that standing on a man's premises and peering in his window constituted a search and in that case violated his "right to be let alone" as guaranteed by the fourth amendment. Id. at 685. See Davis v. United States, 9th Cir. 1964, 327 F.2d 301; People of State of California v. Hurst, 9th Cir. 1963, 325 F.2d 891; United States v. Lewis, S.D.N.Y.1964, 227 F.Supp. 433. These decisions conform to the purposes of the right of privacy¹ and correspond to the growth of that right.² The landmark decision of Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, first articulated...