{"id":5539,"date":"2011-05-12T06:51:27","date_gmt":"2011-05-11T15:39:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-05-11T15:39:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5539","title":{"rendered":"TX4: Secluded mobile home owner whose property was not visible from road or other property had a REP in back yard from police"},"content":{"rendered":"

Appellant\u2019s property was way off the road and his yard was not visible from the road or any neighboring properties. Based on a CI of unknown reliability, officers decided to do a knock and talk, admitting that they did not get a warrant because of the unknown CI. Officers approached and defendant saw them from the window, but he did not come out. When defendant disappeared from the window, one officer went around to the back for \u201cofficer safety,\u201d but there was no indication that defendant was armed or dangerous\u2013he was in his mid-sixties. The defendant had a reasonable expectation in his back yard from the police entering on the property. Denial of motion to suppress reversed. Cooksey v. State<\/a>, 2011 Tex. App. LEXIS 3487 (Tex. App.\u2014San Antonio May 11, 2011):<\/p>\n

Here, although appellant\u2019s backyard is not enclosed by a fence, and we accept as true the sheriff\u2019s officers\u2019 testimony that there was not a \u201cno trespassing\u201d sign posted anywhere on the property, several factors support appellant\u2019s reasonable expectation of privacy in his backyard and back steps. First, as in Pool, appellant\u2019s home is located in a secluded, wooded area, and there are no neighbors within several hundred yards. Also, the mobile home is not visible from the main road, and appellant\u2019s backyard and back steps are not visible from the private driveway, from the front of the home, or from any neighboring properties. Because appellant\u2019s backyard and back steps would not be visible to anyone on the main road, on the driveway, or on the usual pedestrian pathway to the mobile home\u2019s front door, we believe appellant had a reasonable expectation of privacy in both. In addition, the back steps on which Deputy Isley observed the potted marijuana plants are physically attached to the mobile home. Therefore, we conclude appellant\u2019s backyard and back steps are curtilage of his home and constitutionally protected against unreasonable search. <\/p>\n

. . .<\/p>\n

As stated previously, the State argues the entry into appellant\u2019s backyard was justified to ensure \u201cofficer safety,\u201d but it is unclear whether the State argues \u201cofficer safety\u201d rose to the level of exigent circumstances or warranted a protective sweep. Turning to the State\u2019s first possible argument, the existence of exigent circumstances, we must first determine whether probable cause existed for entry into appellant\u2019s backyard. See McNairy, 835 S.W.2d at 106 (absent probable cause, exigent circumstances alone cannot justify a warrantless entry). At the time Deputy Isley entered appellant\u2019s backyard, the sheriff\u2019s officers had no information that appellant was engaged in any illegal activity, other than a confidential informant\u2019s tip, which was related through an officer from another jurisdiction. Lieutenant Hill testified he did not feel comfortable seeking a search warrant for appellant\u2019s home based exclusively on the word of the informant, whom he did not know and never spoke to. Also, it was not until appellant was about to reenter his home through the back door that Deputy Isley entered the backyard, and it was only after Deputy Isley entered appellant\u2019s backyard without appellant\u2019s consent that he observed the potted marijuana plants on the mobile home\u2019s back steps. According to Deputy Isley: \u201cI noticed [the plants] after [appellant] actually pointed [them] out to me[;] again, I was more focused on [appellant] than I was the contraband.\u201d Based on these facts, we conclude the sheriff\u2019s officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered in appellant\u2019s home or its curtilage. Therefore, the officers did not have probable cause to enter appellant\u2019s backyard.<\/p>\n

Even assuming probable cause existed, there also were not exigent circumstances such that obtaining a warrant was impracticable. …<\/p><\/blockquote>\n

Hat tip to a reader who sent this in.<\/p>\n","protected":false},"excerpt":{"rendered":"

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