                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00195-CR


                     STEVEN ROCKWELL LOWERY, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 320th District Court
                                   Potter County, Texas
              Trial Court No. 64,196-D, Honorable Don R. Emerson, Presiding

                                    January 29, 2015

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Steven Rockwell Lowery appeals his conviction for possession of

marijuana and resulting sentence of confinement in a state jail for six months, fine of

$1,500, and restitution of $140. Through a single issue appellant challenges the trial

court’s order overruling his pretrial motion to suppress evidence. We will affirm.
                                           Background


          The Amarillo Police Department received an anonymous tip that marijuana was

growing in the area of a residential address in Amarillo. Officers were dispatched to

investigate.


          Reaching the address, the officers found a manufactured home with a shed to

the rear. They parked their vehicles in front of the property next door. An officer saw

appellant walking from the back of the manufactured home toward the back of the shed.

Believing appellant was a resident of the manufactured home, the officers approached

him to make contact. He stood near growing plants. As the officers reached appellant

they recognized some of the plants were marijuana. Appellant volunteered that the

marijuana plants were his.


          It developed that appellant lived in the shed.1 Appellant received the Miranda2

warnings and gave consent to search the shed. An officer found marijuana at several

locations in the shed. Police seized items found in the shed along with six marijuana

plants.


          Appellant filed a pretrial motion to suppress evidence which the trial court denied

after a hearing. Findings of fact and conclusions of law were filed. Appellant plead

guilty to the charged offense, retaining the right to challenge the trial court’s suppression




          1
              Other individuals occupied the manufactured home.
          2
              Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


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ruling on appeal.3    The court then assessed punishment according to the parties’

bargained recommendation. This appeal followed.


                                         Analysis


      Through his sole issue on appeal appellant asserts the trial court reversibly erred

by failing to grant appellant’s motion to suppress because the officers were trespassing

when they contacted appellant and discovered the marijuana plants.


      Our review of an order denying a motion to suppress is under the abuse of

discretion standard. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008)

(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In so doing, we

afford “almost total deference to a trial court’s express or implied determinations of

historical facts [while] review[ing] de novo the court’s application of the law of search

and seizure to those facts.” Id. We view the evidence in the light most favorable to the

ruling of the trial court. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007)

(quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).




      3
         Concerning preservation of appellant’s complaint, the record does not contain a
signed order denying appellant’s motion to suppress. However, based on the trial
court’s detailed findings of fact and conclusions of law, a docket sheet entry concerning
the motion that states “motion denied,” and the trial court’s certification of appellant’s
right to appeal matters raised by a “written motion filed and ruled on before trial,” we
conclude appellant’s motion was implicitly denied and the complaint thus preserved.
See TEX. R. APP. P. 33.1(a); Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App.
2006) (holding trial court “implicitly” ruled on motion to suppress under appellate rule
33.1(a) as record indicated trial court took motion to suppress under advisement, docket
sheet stated “appeal preserved as to issues presented,” and notice of appeal contained
trial court’s certification of defendant’s right to appeal on matters “raised by motion and
ruled on prior to trial”); Flores v. State, 888 S.W.2d 193, 196 (Tex. App.—Houston [1st
Dist.] 1994, pet. refused) (holding signed docket entry evidenced trial court’s ruling on
motion to suppress and was sufficient to preserve error).

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      Based on the substance of appellant’s motion to suppress and the arguments of

the parties to the trial court, the issues for determination at the suppression hearing

were whether the officers trespassed on the curtilage of appellant’s residence and

whether appellant had a reasonable expectation of privacy in the location of the growing

marijuana.   Because the officers did not first obtain a search warrant, the State

assumed the burden of proof at the suppression hearing as to appellant’s Fourth

Amendment complaint.     Sieffert v. State, 290 S.W.3d 478, 484 & n.8 (Tex. App.—

Amarillo 2009, no pet.) (citing Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App.

2002)).


Trespassory Invasion of a Constitutionally Protected Space


      The Fourth Amendment provides “[t]he right of people to be secure in their

persons, houses, papers and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. CONST. amend. IV. In United States v. Jones, 132 S.Ct.

945, 181 L.Ed.2d 911 (2012) the Supreme Court explained that the “reasonable

expectation of privacy” formulation of Fourth Amendment protection stated in Katz v.

United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) adds to, and

does not provide a substitute for, that Amendment’s protection against governmental

trespasses. Jones, 132 S.Ct. at 952. It reiterated this precept in Florida v. Jardines,

133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013); see State v. Granville, 423 S.W.3d 399,

407 n.22 (Tex. Crim. App. 2014). The Court in Jardines found a Fourth Amendment

violation because a sniff by a drug dog occurred on the front porch of a residence, a

location within the curtilage of the home. “[The curtilage] enjoys protection as part of

the home itself . . .when it comes to the Fourth Amendment, the home is first among

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equals.” Jardines, 133 S.Ct. at 1414. “Curtilage is the area to which extends the

intimate activity associated with the sanctity of a man’s home and the privacies of life.”

Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).


       Extent-of-curtilage questions are generally analyzed under the factors expressed

in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326

(1987) (considering the proximity of the area to the home; the inclusion of the area

within an enclosure surrounding the home; the nature of the uses of the area; and steps

taken by the resident to protect the area from observation by passersby). However,

“these factors are useful analytical tools only to the degree that, in any given case, they

bear upon the centrally relevant consideration—whether the area in question is so

intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of

Fourth Amendment protection.” Dunn, 480 U.S. at 301.


       The Dunn analysis of the area the officers entered to encounter appellant is

complicated by several factors, among them the fact appellant’s “house” actually was

the shed. The trial court’s findings of fact do not include findings thoroughly addressing

the Dunn factors. There was no complaint in the trial court or on appeal of the court’s

failure to address those factors. Omitted findings of fact are implied in favor of the trial

court’s ruling if the evidence supports the implied findings. See Gutierrez v. State, 221

S.W.3d 680, 687 (Tex. Crim. App. 2007).          Given the state of the record we are

presented, and the “almost total” deference we must give the trial court’s implied

determinations of historical fact, we conclude its ruling on this issue was within its

discretion.



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Appellant’s Reasonable Expectation of Privacy


        “[P]roperty rights are not the sole measure of Fourth Amendment violations”

Jardines, 133 S.Ct. at 1414; Katz, 389 U.S. at 353 (“[T]he reach of that [Fourth]

Amendment cannot turn upon the presence or absence of a physical intrusion into any

given enclosure”).    Specifically, “[t]he Katz reasonable-expectations test has been

added to . . . the traditional property-based understanding of the Fourth Amendment[.]”

Jardines, 133 S.Ct. at 1417 (discussing Katz) (internal quotation marks and italics

omitted). We next consider then whether appellant had a reasonable expectation of

privacy in the location of the growing marijuana plants. The touchstone of the Katz

privacy-based analysis is whether a person has a “constitutionally protected reasonable

expectation of privacy.” Oliver, 466 U.S. at 177. The analysis is two-part: whether the

individual manifested a subjective expectation of privacy in the object of the challenged

search and whether society is willing to recognize that expectation as reasonable.

California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Katz,

389 U.S. at 361 (Harlan, J., concurring). Thus, “[a] ‘search’ occurs when an expectation

of privacy that society is prepared to consider reasonable is infringed.” United States v.

Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see Illinois v.

Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) (“If the inspection

by police does not intrude upon a legitimate expectation of privacy, there is no

‘search’. . . .”).


        Here appellant was growing marijuana in a location the trial court found was

“clearly visible” from a public alley. Based on the trial court’s findings, we find appellant

could have no legitimate expectation of privacy in the location of his marijuana-growing

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endeavor. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth Amendment protection”); Id. at

361 (Harlan, J., concurring) (“Thus a man’s home is, for most purposes, a place where

he expects privacy, but objects, activities, or statements that he exposes to the ‘plain

view’ of outsiders are not ‘protected’ because no intention to keep them to himself has

been exhibited”); McCall v. State, 540 S.W.2d 717, 720 (Tex. Crim. App. 1976) (“What a

person knowingly exposes to the public is not subject to Fourth Amendment

protection”); see also Wilkerson v. State, 644 S.W.2d 911, 912 (Tex. App.—Fort Worth

1983, pet. refused) (holding defendant could have no reasonable expectation of privacy

in backyard marijuana plants visible from the street); State v. Paulson, 98-1854 (La.

App. 1st Cir. 5/18/99), 740 So.2d 698, 701 (holding defendant had no legitimate

expectation of privacy in marijuana plants whose cultivation was visible from the non-

gated driveway of his home); State v. Curto (1991), 73 Ohio App. 3d 16, 18, 595 N.E.2d

1038, 1040 (holding defendant had no legitimate expectation of privacy in marijuana

plants growing in his backyard when tops of plants were visible from a public sidewalk

and public street).


Trespassing as a Violation of Law under Article 38.23


       Appellant makes passing reference in his brief to the Texas statutory

exclusionary rule, article 38.23 of the Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. art. 38.23(a) (West 2005). But he does not present a clear and concise

argument explicating his apparent contention that the officers committed a criminal

trespass, or possibly a common-law civil trespass, requiring suppression of any



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evidence seized under article 38.23. The argument was thus waived. TEX. R. APP. P.

38.1(i).4


       Moreover, even had the issue been adequately briefed, we would be unable to

sustain it. Assuming that a finding the officers committed a violation of the criminal

trespass statute would have required the exclusion of the evidence eventually seized, a

holding we do not reach, it was appellant’s burden, as the movant for an order

suppressing evidence obtained in violation of the law under article 38.23, to produce

evidence demonstrating the statutory violation. State v. Robinson, 334 S.W.3d 776,

779 (Tex. Crim. App. 2011) (citing Pham v. State, 175 S.W.3d 767, 774 (Tex. Crim.

App. 2005)). As applied here, proof of a criminal trespass requires proof the violator

entered or remained on residential land without effective consent and had notice that

entry was forbidden or received notice to depart but failed to do so. TEX. PENAL CODE

ANN. § 30.05(a),(1),(2) (West Supp. 2014).          “Notice” means: (A) oral or written

communication by the owner or someone with apparent authority to act for the owner;

(B) fencing or other enclosure obviously designed to exclude intruders . . . ; (C) a sign or

signs posted on the property or at the entry to the building, reasonably likely to come to

the attention of intruders, indicating that entry is forbidden; (D) identifying paint marks

on trees or posts; or (E) the presence of a crop grown for human consumption that is

under cultivation, being harvested, or marketed. The officers approached appellant

from the front of the property and did not notice his marijuana plants until they contacted

       4
         Appellant relies heavily on a statement of one of the officers to the effect he
assumed the man he was approaching in the area behind the manufactured home was
its resident because otherwise the man had no reason for being there. According to
appellant the officer described himself as a trespasser at that location, presumably
because he was not a resident. The trial court was not required to agree with
appellant’s characterization of the officer’s testimony.

                                             8
him and saw the contraband.         The officers’ movement toward appellant was not

prevented or deterred by fencing, signs, or communication. The record thus does not

demonstrate the officers had notice their entry onto the property was forbidden or were

notified to depart but failed to do so. Further, a common law or civil trespass is not a

violation of law for the purposes of article 38.23. Floyd v. State, No. 07-99-0299-CR,

2001 Tex. App. LEXIS 2818, at *7-10 (Tex. App.—Amarillo Apr. 30, 2001, no pet.) (not

designated for publication).    Appellant has not demonstrated a violation of the law

requiring exclusion of the challenged evidence under article 38.23.


                                        Conclusion


         We overrule appellant’s sole issue on appeal and affirm the judgment of the trial

court.




                                          James T. Campbell
                                              Justice


Do not publish.




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