                                  NO. 07-02-0502-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 MARCH 3, 2004
                         ______________________________


                               DENZEL R. BUCHANAN,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2001-438,166; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        ________________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

      Appellant Denzel R. Buchanan appeals his convictions for manufacturing of at least

400 grams or more of methamphetamine and for possession with intent to deliver less than

four grams but at least one gram of the same controlled substance. In doing so, he alleges

that 1) the trial court erred in overruling his motion to suppress evidence purportedly

garnered during a search and seizure and 2) he was denied the effective assistance of

counsel. We affirm the judgment of the trial court.
                                       Background

       On October 8, 2001, Sergeant Roy Pierce of the South Plains Regional Narcotics

Task Force received a phone call from an anonymous female who told him that there was

a methamphetamine lab in operation in the vicinity of 94th Street and Avenue P in Lubbock.

The woman also stated that a man associated with the lab was named “Denzel” and that

Officer Jonny Hutson would know the person. Upon talking to Hutson, Pierce learned that

the person in question was probably appellant. Furthermore, appellant’s address was

determined to be at 1339 92nd Street, approximately two blocks away from the location

mentioned by the anonymous caller.

       As a result of the call and at about 3:30 p.m., Investigators Dwayne Gerber and Billy

Koontz went to appellant’s address to investigate. Upon their arrival, they briefly observed

the property. It consisted of a one-half acre lot. In front stood a house. The officers

discovered it to be empty after approaching it and knocking on the door. When no one

answered, they peered into its uncovered windows and noticed building materials therein.

       Immediately behind the house and enclosing the remainder of the lot stood a fence

built with wooden slats. In the picture of the fence tendered into evidence, one can see a

sign stating “keep out” hung next to a chain-link gate. Whether the sign was so located

when Koontz and Gerber arrived at the scene was disputed; appellant and his father

testified that it was there while Gerber stated that he did not remember seeing it out there.

Nevertheless, the chain-link gate was not only open but also stood approximately 10 to 12

feet wide. And, through the opening there lay a well-defined dirt driveway leading to a

building at the back of the lot. The officers noticed what appeared to be a junkyard or the

like. So too did they see someone back there working on a truck. Consequently, the two

                                             2
policemen walked through the gate down the dirt driveway towards the individual “to talk

to him to see if he lived there . . . [or] if he knew who owned the house . . . .” The police

later determined that appellant both lived in the building at the back of the lot and operated

an auto mechanic’s garage or business of like ilk out of it. According to appellant, he

“work[ed] on cars, and . . . had some people’s cars out there [he] was working on . . . .”

       As previously mentioned, the officers saw someone working on a truck by the house

and approached the individual. In the air at the time was the “odor of ether.” Moreover, the

two officers smelled it when they were about 30 to 35 yards from the building and

associated the aroma with the manufacture of methamphetamine. “[T]he closer we got,”

said one of the two, “the stronger [the smell] became.” At that point, the person they

originally saw “approached and began speaking to” them. His name was Larry Ward.

       The officers identified themselves to Ward and told him about the complaint received

from the anonymous caller. Ward stated that they would have to talk to appellant about the

matter since Ward did not live there. Appellant then exited the building accompanied by

several other persons. When he did, one officer approached and “told [him] about the

complaint.” According to the officer, appellant did not respond to it. Instead, he went “off

on another subject talking about different things, wouldn’t really talk . . . about the complaint

. . . .” Additionally, it was during this exchange that a noise was heard coming from the

“east side of that building.” The other officer then “went around . . . to find out what the deal

was, and . . . found a subject climbing out of the window with a backpack.” Someone

attempting to “sneak out a window” was of concern, according to the policemen. He further

stated that “[t]here [were] two of us there, . . . at that point, [and] . . . five individuals, so

[they were] outnumbered a little bit . . . .”

                                                3
       The person attempting to crawl out of the window was Eric Jope. The officer

stopped him and began questioning him. As he did, the officer again smelled ether. But,

this time the strong odor came from the opened window. At that point, Jope told the officer

that there was a methamphetamine lab in the building. As a result of Jope’s statement, the

officers detained all of those present. Then, at least one of the two policemen entered the

building.    Entry was made because the officers knew that the processing of

methamphetamine could result in an explosion or the emission of vapors potentially “fatal

to humans.” So they wanted to assure “that the lab wasn’t cooking,” that “no one else was

inside destroying evidence,” and to search for other persons who might be armed. During

their entry into the building, the presence of the laboratory described by Jope was

confirmed.

       Next, Gerber and Koontz secured the building and called for the help of another

officer “who was lab certified.” This individual, named Watts, purportedly had instruments

to assess the dangerousness of the fumes and vapors. Watts arrived and “went into the

house to check on the lab to take some readings.” By that time, other policemen also

began to appear at the scene. The decision to obtain a search warrant was made, and

apparently two officers left to get it. The record discloses that everyone waited outside the

building for the arrival of the search warrant once Watts “determined that nothing was going

to explode, [and] that there weren’t dangerous vapors . . . going to be dangerous to us and

other people.”

       An officer returned with the warrant several hours later. It was executed. The

premises were searched. And, contraband was found and seized.



                                             4
                       Issues One, Two, and Three - Illegal Search

       In his first three issues, appellant argues that the trial court erred in denying his

motion to suppress the evidence of the contraband discovered and seized. He believes

himself entitled to that relief because the officers “conducted a warrantless search of [his]

home,” entered the curtilage of his home without consent,” and lacked “probable cause to

search and . . . were not faced with exigent circumstances necessitating a search.” We

overrule the issues.

       Standard of Review

       The standard of review is one of abused discretion, as described in Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), Benitez v. State, 5 S.W.3d 915, 921

(Tex. App.–Amarillo 1999, pet. ref’d), and LaSalle v. State, 923 S.W.2d 819, 823 (Tex.

App.–Amarillo 1996, pet. ref’d). Furthermore, when no findings of fact are executed as

here, we must view the evidence in the light most favorable to the trial court’s ruling. State

v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Villareal v. State, 935 S.W.2d 134,

138 (Tex. Crim. App. 1996).

       Applicable Authority

       While both our federal and state constitutions protect one against unreasonable

searches and seizures, that protection exists only if the individual has a reasonable

expectation of privacy in the thing searched. Oliver v. United States, 466 U.S. 170, 177,

104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984) (stating that the “touchstone of . . .

analysis” has been whether a person has a “constitutionally protected reasonable

expectation of privacy”); Villareal v. State, 935 S.W.2d at 138 (stating that the purpose of

both the Fourth Amendment of the United States Constitution and art. I, §9 of the Texas

                                              5
Constitution is to safeguard an individual’s legitimate expectation of privacy from

unreasonable governmental intrusions). If there is no such expectation, there is no

constitutional protection. See Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.–Dallas

1993, pet. ref’d) (stating that because there is no reasonable expectation of privacy

attaching to an open field, no Fourth Amendment protection extends to such an area).

Furthermore, the burden lies with the accused to establish this expectation. Villareal v.

State, 935 S.W.2d at 138.

        Next, it is beyond dispute that one has such an expectation of privacy in his home.

Oliver v. United States, 466 U.S. at 178, 104 S.Ct. at 1741-42, 80 L.Ed.2d at 224. So too

is it indisputable that this expectation extends to the curtilage surrounding the home.1 Yet,

the restriction against intruding upon one’s curtilage has its limits. For instance, it does not

prevent a police officer from approaching and knocking upon the front door of a home.

Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995). This is so because

the police have the same right as any other person to enter onto residential property and

walk up to the front door. Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App.), cert.

denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds

by Heitman v. State, 895 S.W.2d 681 (Tex. Crim. App. 1991); Watts v. State, 56 S.W.3d

694, 699-700 (Tex. App.–Houston [14th Dist.] 2001, reversed on other grounds, 99 S.W.3d

604 (Tex. Crim. App. 2003); Nored v. State, 875 S.W.2d 392, 396 (Tex. App.–Dallas 1994,

pet. ref’d). Indeed, sidewalks, pathways, common entrances or similar passageways



        1
         Curtilage is define d as the area a roun d the hom e to which the activity of hom e life extend s. Oliver
v. United States, 466 U.S. 170, 182 n.12, 104 S.Ct. 1735, 1743 n.12, 80 L.Ed.2d 214, 226 n.12 (1984);
Ro salez v. State, 875 S .W.2d 705 , 713 (Te x. App .–Da llas 1993 , pet. ref’d).

                                                        6
impliedly authorize the public to enter. Bower v. State, 769 S.W.2d at 897, quoting

Lorenzana v. Superior Court, 9 Cal. 3d 626, 511 P.2d 33 (1973). And, because entry is

impliedly authorized, there exists no reasonable expectation of privacy with regard to the

things observed by those on the pathway. Id. Yet, neither this authorization to enter or

prerogative to observe may exist if the occupant made manifest his intent to restrict access

to the area. Id.; see Nored v. State, 875 S.W.2d at 396-97 (stating that if the person in

possession of the property has not made express orders prohibiting any form of trespass,

and if the police follow the usual path to the front door, then the police have not violated the

person’s Fourth Amendment rights).

       Of further note is that precedent extending the authority to approach one’s door and

knock to include the back door. For instance, in Long v. State, 532 S.W.2d 591 (Tex. Crim.

App. 1975), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 179 (1976), the sheriff

first went to the front door to inquire about private aircraft flights in the area. When no one

answered the knock, he and his deputy walked around to the back door and knocked.

Again, no one answered. At that point the two decided to leave. Walking back around the

house, they felt a blast of hot air and smelled marijuana coming from an open window.

Furthermore, the window blinds were also open, and the officers looked into the room and

saw marijuana on the floor and stacked around the walls. The Court of Criminal Appeals

affirmed the trial court’s refusal to suppress the evidence discovered because the acts

described did not constitute a search. Id. at 594-95. A like conclusion was reached in

Atkins v. State, 882 S.W.2d 910 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d). There, two

officers proceeded to the appellant’s residence to investigate an anonymous tip. One went

to the front door and the other to the back door in effort to contact the occupant. To arrive

                                               7
at the back door, the officer had to pass through a fence. He did so and spotted appellant

leave the house, observed him (the officer), dropped an object, and thereafter re-entered

the abode. The officer picked the object up, recognized it as contraband, and entered the

house to arrest appellant. Because both officers were attempting to contact the occupant

and nothing indicated that the officer’s view of the back yard was blocked by the fence, “the

officer’s viewing of appellant’s conduct was not a search” according to the court of appeals.

Id. at 913.

       One other case is of import to our resolution of the case at bar. Though not

involving an attempt to contact appellant via the back door of his house, Nored provides

guidance in assessing whether an occupant has a reasonable expectation of privacy.

There, several officers went to the appellant’s apartment to talk to the occupants about a

stolen bicycle. They discovered the apartment surrounded by an eight-foot high privacy

fence. Yet, the fence contained a gate which was unlocked and could be opened by

pushing down on the handle. One of the two officers not only opened the gate and walked

through it but also walked across the patio and up to the front door. Because the gate was

not locked, because no signs cautioned against trespassing or otherwise informed the

public to keep out, and because the path taken by the officer was the usual one used to

approach the door, the appellate court held that no reasonable expectation of privacy was

violated when the officers passed through the gate towards the door of the apartment.

Nored v. State, 875 S.W.2d at 396-97.

       From Nored, Atkins, Long, and the other precedent mentioned, we learn that an

officer can enter the curtilage of a house in effort to contact its occupants. So too may he

open gates in a privacy fence to fulfill that purpose, so long as 1) the occupant has not

                                             8
manifested his intent to prohibit or restrict their access by locking the gate or by posting

signs informing them that they are not invited or 2) the officer does not deviate from the

normal path of traffic. With this said, we turn to the case before us.

       Application of Authority

       As illustrated by his brief, appellant complains of the officers’ initial entry through the

fence and into the area behind it. He believes that constituted an unreasonable search in

violation of his constitutional rights. Yet, evidence shows that the officers appeared at the

location in response to an anonymous tip about the manufacture of methamphetamine.

They sought to investigate the matter and inform the occupant of the abode about the

complaint. When no one responded to their knock on the front door, they decided to go

around back in effort to contact the resident. To do so, they had to pass through what one

could consider a privacy fence. Nevertheless, their passage was not physically restricted

because next to the house was a rather large, open gate.

       Though some evidence indicates that a sign informing third parties to “keep out” was

posted by the gate, question arose as to whether it was in existence when the officers

appeared at the site. The officers informed the trial court that they did not see it. Given

this, the trial court was free, under Guzman, to determine as a matter of fact whether or not

the sign actually existed at the time the officers passed through the gate. And, to the extent

that the trial court denied the motion to suppress and entered no findings of fact, we must

not only view the evidence in a light most favorable to that decision but also presume that

it concluded that no such sign existed. See State v. Ross, 32 S.W.3d at 855 (stating that

when no findings of fact are executed, the reviewing court must assume that the trial court



                                               9
made explicit findings to support its ruling as long as the implicit finding enjoys evidentiary

support).

        Yet, irrespective of whether such a sign actually existed, it is undisputed that the

chain-link gate was open and through it appeared a well-defined path of travel. Also

undisputed is that this path, upon which the officers walked, led to the area wherein

appellant operated a business working on cars belonging to third parties. One can

reasonably infer that those members of the public wishing to engage appellant’s services

not only had but also were authorized to pass through the gate and travel down the dirt

driveway to his place of work.2 Indeed, nothing appears of record suggesting that appellant

required them to leave their vehicle outside the gate and that only appellant or his designee

was entitled to drive the vehicle into the lot. This is of import because, as previously stated,

appellant had the burden to establish the existence of a supposed expectation of privacy.



        Though not identical to those in Nored, Long, and Atkins, these circumstances lead

to the same conclusion reached in those cases. The time of day, the presence of no one

outside the fence with whom the officers could speak, the large open gate, the presence

of a well-defined dirt driveway leading through the gate to a building behind the empty

house, appellant’s operation (behind the gate) of a business involving vehicles owned by

third parties, the reasonable inference not only that third parties passed through the gates

to obtain appellant’s mechanical services but also that they were authorized to do so during

normal business hours, the lack of any evidence illustrating that only appellant or certain


        2
          How viable can a business be if those to whom the busine ss ow ner cate rs were barred from coming
onto or into the place where business is conducted?

                                                    10
designated individuals could drive their cars through the gate, the presence of a third party

actually working on his vehicle inside the fenced lot, and the officers confining themselves

to the well-defined dirt driveway are indicia upon which a trial court could reasonably find

that appellant had no legitimate expectation of privacy in the dirt driveway behind the fence

and that which could be perceived from it. Thus, no search occurred when the officers

passed through the gate while utilizing that path and smelled the ether. Nor can we say

that the trial court abused its discretion in refusing to find that the entry violated appellant’s

constitutional rights.3

                    Remaining Issues – Ineffective Assistance of Counsel

         In his remaining issues, appellant contends that his counsel was ineffective. His

argument is premised upon the belief that counsel waived, at trial, his complaint about the

legitimacy of the search and seizures discussed above. Because we conclude that the trial

court did not err in denying the motion to suppress, we find that any purported waiver of the

complaint at trial did not prejudice appellant. Accordingly, these issues are overruled as

well.

         The judgment of the trial court is affirmed.




         3
           As mentioned earlier in this opinion, we read appellant to be attack ing the initial entry of the officers
into the lot behind the fence. To the extent he may also question the legitimacy of the ensuing detention and
search, we wo uld still find no error in the trial cou rt’s decision. That the officers smelled ether in the air, that
they associated the smell with methamphetamine, that appellant gave them evasive answers, that Jope was
seen escaping through the window, that the strong odor of ether came from the window, and that Jope
volunteered information about the presence of the methamphetamine laboratory inside the b uilding were
circumstances upon which a trial court could rationa lly find that the office rs had rea son able suspicion to
temporarily detain and probable cause to arrest appellant. Furthermore, the officer’s knowledge abo ut the
dangerousness of a m eth lab and the fum es it emanated we re evidence of exigent circumstances warranting
intrusion into the building, or a trial co urt could so have rea son ably h eld. Mc Na iry v. State, 835 S.W.2d 101,
107 (Tex. Crim. App. 1991) (holding that exigent circum stance s include factors pointing to som e da nge r to
officers or victim s).

                                                         11
                Brian Quinn
                  Justice

Publish.




           12
