Ebarb v. State

CLINTON, Judge,

concurring.

That Sheriff Maddox drove his unit onto and he and some six more officers “more or less surrounded” appellant’s car in a private driveway was largely undisputed. Let us ponder, then, the matter of curtilage.

Since Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) created an invisible shield against warrantless electronic surveillance of one’s telephonic conversations in a public booth, we are all wont to say, with Mr. Justice Stewart, that “the Fourth Amendment protects people, not places.” 1 Yet, like Katz in the telephone booth, where a person is still has some bearing on his expectation of privacy. For notwithstanding its own lofty expression 2 *851 the Supreme Court itself is often fussy about whether a warrantless arrest is made in a “public place,” e. g., United States v. Watson, 423 U.S. 411 , 96 S.Ct. 820 , 46 L.Ed.2d 598 (1976), or as a consequence of observations from an “open field,” Hester v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (1924) and Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 , 94 S.Ct. 2114 , 40 L.Ed.2d 607 (1974), or a seizure is on a public street, in a parking space or about other open areas, G. M. Leasing Corp. v. United States, 429 U.S. 338 , 97 S.Ct. 619 , 50 L.Ed.2d 530 (1977). For its part from Wolf v. State, 110 Tex. Cr.R. 124, 9 S.W.2d 350 (1928) through Worth v. State, 111 Tex.Cr.R. 288 , 12 S.W.2d 582 (1928) to Cantu v. State, 557 S.W.2d 107 (Tex.Cr.App.1977) this Court has regarded “curtilage” as descriptive of a protected area. Thus, though the concept of “constitutionally protected areas” may not “serve as a talismanic solution to every Fourth Amendment problem,” Katz, supra, 389 U.S. at 351, n. 9 , 88 S.Ct. at 511 n. 9, surely it may not be ignored in resolving them.

By what right, power and authority, then, did Sheriff Maddox penetrate the curtilage of the residence here in driving his motor vehicle up to the side of the car in which appellant was a passenger, alighting from it and accosting her without so much as a “by your leave”? Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) addressed, in its own words, “serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances,” id. at 4 , 88 S.Ct. at 1871, 3 so neither it nor its progeny supports the proposition that law enforcement officer is privileged to come onto private property on the strength of an amorphous report from an unremembered person attending a festive event. 4 If, as we now are permitted by Payton v. New York,-U.S. -, 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) to state with confidence, a policeman is prohibited from making a warrantless and nonconsensual entry into a home in order to make a routine felony arrest 5 —perforce, he has no business being within its curtilage for that forbidden purpose 6 —surely it is anomalous to say that the citizen is afforded less than full protection “against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528 , 87 S.Ct. 1727, 1730 , 18 L.Ed.2d 930 (1967), when the policeman enters his curtilage with less than probable *852 cause to arrest but still questing for enough to do so. A lawman to whom doors remain closed until he produces an arrest warrant 7 must be otherwise authorized to take the first step off the public right of way without one. 8 It is not a matter of greater or lesser intrusion or weighing competing interests, judgmental calls often made by the Supreme Court in making Fourth Amendment law, but an understanding of existing constitutional and common law. 9 In Pay-ton, supra, the Supreme Court finds that Fourth Amendment “has drawn a firm line at the entrance to the house;” in Texas, the bar is at the boundary of the curtilage. The posse comitatus led by the Sheriff invaded a constitutionally protected area to confront appellant. 10

On this additional ground I join in overruling the State’s Motion for Rehearing.

. Less familiar is the rejoinder from Mr. Justice Harlan: “The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place’,” Katz v. United States, supra, at 361, 88 S.Ct. at 516.

. For example, near the end of his opinion Mr. Justice Stewart proclaims, “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” (All emphasis is supplied through *851 out by the writer of this opinion unless otherwise indicated.)

. In Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968) the officer observed Sibron in public places but had him step outside for the confrontation; Peters was apprehended in an apartment building, it is true, but by an officer who resided there and saw the suspicious movements from his own apartment, and incident to a lawful arrest searched Peters; the pistol in Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) was taken from one in the front seat of a car parked on a public street; Mimms in Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) was directed to get out of his motor vehicle after it had been stopped for a traffic violation.

. As the panel opinion on original submission suggests, Sheriff Maddox did not reveal just how his informant came by his information. Thus, the tip did not describe criminal activity in sufficient detail for the trial court to know that the report was something more substantial than a casual rumor or accusation based merely on the general reputation of appellant. See Spinelli v. United States, 393 U.S. 410, 416 , 89 S.Ct. 584, 589 , 21 L.Ed.2d 637 (1969).

. A matter not so clearly stated by the Court on motion for rehearing in Moore v. State, 149 Tex.Cr.R. 229 , 193 S.W.2d 204, 207 (1946).

. A similar analysis was employed by the Court also on rehearing in Taylor v. State, 120 Tex. Cr.R. 268, 49 S.W.2d 459,461 (1932) in which it was written:

. . If, however, they were in his yard unlawfully at the time they discovered the commission of the offense, the arrest of the appellant and the search of his residence cannot be upheld, and the evidence of his guilt obtained by virtue of an illegal entry into his yard would be inadmissible .

But, finding that the officers were armed with a search warrant, the Court concluded that Taylor “was not in a position to complain of the reception of evidence which was obtained through a legal entry of his curtilage by virtue of a search warrant . .”

. In Payton, supra, the Supreme Court concluded:

“. . . It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”

. A proposition considered so fundamental in Delaporte v. State, 471 S.W.2d 856 (Tex.Cr.App.1971) that without citation of authority an arrest outside an apartment was held invalid because “[tjhere was no testimony to show that prior to the time Officer Keeton pushed open the apartment door either of the officers saw a crime being committed in their presence” nor was there evidence of a “disturbance” that purportedly brought them to the place, id. See Articles 14.01, 14.03 and 14.04, V.A.C.C.P. for general statutory authority for a warrantless arrest by a peace officer without a verbal order from a magistrate pursuant to Article 14.02, id. “[I]t is state law and not federal law that governs the legality of a state arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures,” Milton v. State, 549 S.W.2d 190, 192 (Tex.Cr.App. 1977).

. Prior to the exclusionary rule one remedy for wrongful arrest was a civil damage action for trespass, Payton v. New York, supra,-U.S. at-, 100 S.Ct. at 1383 . The common law action is trespass quare clausum fregit — “trespass wherefore he broke the close,” close being “the real or imaginary structure inclosing the land,” Black’s Law Dictionary (Rev. Fourth Ed.) 1675; 2 Waterman on Trespass 219. Though common law forms are extinct, that an action may be brought against a peace officer for trespass or, if he actually seizes the person, for false imprisonment has been the rule in Texas since at least Hubbard v. Lord, 59 Tex. 384 (1883) and still is, Moody v. Kimball, 173 S.W.2d 270, 274-275 (Tex.Civ.App. 1943) no writ history. The fact that one is a policeman does not make him any less a trespasser into the curtilage. People v. Ross, 19 Cal.App. 469 , 126 P. 375 (1912); Commonwealth v. Eyre, 1 Serg. & R. 347 (Pa.); cf. Clannan v. Chaplain 136 Va. 1 , 116 S.E. 445, 499 (1923).

.The “automobile exception” to the constitutional requirement that a warrant be obtained was first enunciated in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). The core of the exception, as Mr. Justice White painstakingly explained in Chambers v. Maroney, 399 U.S. 42, 48-51 , 90 S.Ct. 1975, 1980 , 26 L.Ed.2d 419 (1970), is preexisting probable cause for the seizing officer to believe that the contents of the automobile he stops offend against the law, Carroll, supra, 267 U.S. 155 -156, 158-159, 45 S.Ct. at 285-286, 287 . Compare Scher v. United States, 305 U.S. 251 , 59 S.Ct. 174 , 83 L.Ed. 151 (1938). Here, while the State has not communicated its views to the Court through a brief, the record makes clear that in the court below the State did not contend Sheriff Maddox approached the appellant’s car with requisite probable cause, but sustained seizure of the pistol on its understanding of the “plain view” doctrine. The panel opinion on original submission demonstrates clearly that Sheriff Maddox was without preexisting probable cause. Thus, that appellant and others were still in her car when the officers accosted them does not invoke the Carroll automobile exception.