Wheeler v. State
| Decision Date | 21 July 1982 |
| Docket Number | No. 2,Nos. 59804-59806,s. 59804-59806,2 |
| Parties | Teri D. WHEELER, Appellant, v. The STATE of Texas, Appellee. Carol GUYNN, Appellant, v. The STATE of Texas, Appellee. Charlie WHITE, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Gerald H. Goldstein and Mark Stevens, San Antonio, Bruce L. Sternberg, David Allan Smith, Austin, for appellant.
Arthur C. Eads, Dist. Atty. and Weldon Ralph Petty, Jr., Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.
Before DALLY, W.C. DAVIS and CLINTON, JJ.
These are appeals from convictions for the possession of more than four ounces of marihuana. The cases were consolidated for trial; punishment in each case was assessed at imprisonment for four years.
The sole ground of error advanced by the appellants is that the trial court erred in overruling a motion to suppress the evidence obtained under a search warrant; the appellants assert that the information showing probable cause to support the warrant was obtained by an unlawful warrantless search.
The search warrant was issued and executed on August 23, 1977, for the Wheeler property. These premises, located on a seventy-four acre tract of land in rural Lampasas County, included a greenhouse, a residence and a barn.
The affidavit supporting the warrant recited that the affiant, Deputy Sheriff Bob McClinton, had observed through a telescopic lens that there were marihuana plants growing in the greenhouse on the property.
To discuss the appellant's claim that this telescopic observation constituted an unlawful search, a brief discussion of the facts leading to the execution of the search warrant is necessary.
Lampasas County Deputy Sheriff Gordon Morris testified that he and other officers began surveillance of the Wheeler property in mid-July of 1977, prompted by information that no one was allowed to enter the fenced property without first telephoning, or being escorted from the gate, and that there was a large greenhouse within the fenced property which was surrounded by an additional fence.
Deputy Morris described the greenhouse as constructed "of clear plastic," and explained that in the sunlight he could see something green inside. He also testified that there was "a large louvered opening" on the west end of the greenhouse, approximately four feet square, and there was a fan inside the greenhouse on the other side of the louvered opening. The louvers of the opening were between four and six inches apart, and opened to permit ventilation of the greenhouse.
While on a public road about a mile away Deputy Morris looking with a pair of eight by fifty binoculars could see through the louvered opening in the greenhouse. He saw growing green plants but could not identify them. He returned various times to observe the greenhouse through the binoculars, but could form no definite conclusion about the type of plants he saw. Thereafter, with the permission of Mr. Maurice Garner, Deputy Morris and other officers observed the greenhouse with binoculars from the Garner property about 100 yards west of the greenhouse. Deputy Morris tentatively identified the plants he could see in the greenhouse as marihuana. He returned after dark to the Garner property, accompanied by Lampasas police officer Tim Angermann and Deputy Sheriff McClinton. They observed the greenhouse through a night vision telescope, but with the telescope were unable to see into the greenhouse. On August 23, 1977, a few days later, at between four and five o'clock p.m. Deputies Morris and McClinton returned to the Garner land accompanied by city patrolman Gilbert White and Lampasas detective David Romack. Using a 600 millimeter telephoto lens, they were able to see through the louvered opening in the greenhouse, and to positively identify the plants as marihuana. Believing that their surveillance had been detected by a man who came around the corner of the greenhouse, Deputy McClinton returned to the Sheriff's Department, drafted an affidavit, and obtained a search warrant which was executed that night. Testimony concerning the marihuana found on the premises was admitted.
The greenhouse was approximately two hundred yards from the house, and was connected to the house by a well-traveled road. The photographs of the premises admitted into evidence show that fences around the greenhouse and the property were of wire. A chain-link gate to the property was posted with two signs: "Beware of dogs" and
The appellants, relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), contend that the telescopic observation of the greenhouse was an unconstitutional search. In Katz the Supreme Court made clear that Accord, Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973); Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975). Rejecting the argument that a physical intrusion into a given enclosure is necessary to find a search, the Court held that the proper focus is whether the government's activities violated the privacy upon which the defendant justifiably relied.
The Court in Smith concluded that the installation and use of a pen register which recorded the telephone numbers that the defendant dialed on his home telephone did not constitute a search. The Court found that even if the defendant had some subjective expectation that the numbers he dialed would be private, he could not claim a "legitimate expectation of privacy" in the numbers because he had voluntarily conveyed the information to the telephone company. He assumed the risk that the information he had "exposed" would be revealed.
Appellants argue that under a Katz and Smith analysis they had a reasonable expectation of privacy in the contents of the greenhouse. They say that the opacity of the greenhouse, the double enclosure, the signs on the locked gate of the outer fence, all show appellants' subjective expectation that the contents of the greenhouse would remain private, and "objectively, it is equally clear that the actions of Appellants were recognized by the police as efforts to maintain privacy." The appellants contend that the use of the telephoto lens to observe the contents of the greenhouse was an unconstitutional invasion of this reasonable expectation of privacy.
We disagree. For reasons which will be stated, we conclude that the telescopic observation of the greenhouse was not a search under the Fourth Amendment.
In Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App.1971), the police acting on an anonymous tip went to the defendant's apartment. They knocked on the door, and when no one answered, they looked into a window through a two inch gap between partially drawn draperies, and saw what appeared to be stolen merchandise. A search warrant was obtained on the basis of this observation. The Court rejected the contention that the window observation was a search, stating:
"Under this set of facts, we cannot say that appellants could 'reasonably assume that they were free from uninvited inspection through the window' and we must hold that no search protected by the Fourth Amendment occurred."
In Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973), a police officer investigating a tip that marihuana was being used in the defendant's house looked through a window and saw the defendant and two other persons smoking a pipe filled with what appeared to be marihuana. The Court noted that there were apparently no blinds or curtains on the window, and that the officer had made his observation from the premises next door. Under the Katz rationale, the Court refused to find that a search had taken place, stating "[i]t is not a search to observe that which is open to view." The Court noted that
In Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975), a sheriff and deputy had gone to a house on rural property in Wise County to inquire about suspicious aircraft flights from the property. They knocked but received no response, so they continued around the house to return to the car. Through an open uncurtained window they felt a blast of heat, detected a strong marihuana odor, and saw a fan and heater and a substance covering the floor and stacked around the walls. The Court, quoting with approval from Turner, found that this...
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