            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0590-13



                                   THE STATE OF TEXAS

                                                 v.

                        KIMBERLY CRYSTAL STORY, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTH COURT OF APPEALS
                           GUADALUPE COUNTY

               K ELLER, P.J., filed a dissenting opinion in which P RICE, J., joined.


       The State contends that the deputies lawfully entered an open field and developed probable

cause to arrest from this lawful entry. The Court says that the State cannot rely upon the “open

fields” doctrine because the issue was not raised in the trial court. But we have held that a State-

appellant may raise for the first time on appeal an issue, such as standing, on which the defendant

had the burden of proof at the suppression hearing.1 By bringing a Fourth Amendment claim,

appellee was on notice that she had the burden of establishing a privacy interest with respect to the


       1
        State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998); State v. Klima, 934
S.W.2d 109 (Tex. Crim. App. 1996).
                                                                              STORY DISSENT — 2

premises.2

        In the present case, the State did not even need the “open fields” doctrine; the record contains

no evidence that appellee had any ownership or possessory interest in the field in question. Without

such an interest, appellee cannot possibly have an expectation of privacy with respect to the deputies’

entry onto the field.3 But even if the State needed the “open fields” doctrine, that doctrine has been

construed to be part of the expectation-of-privacy inquiry upon which the defendant has the burden

of proof.4 Contrary to the Court’s position, the State had no burden to show that the deputies were

not trespassers or that the field in question was an open field.

        The Court further contends that the deputies lacked probable cause to arrest because appellee

was simply driving beside James Kuykendall in her car and because an anonymous call cannot be

the sole basis for an arrest. But before anyone was arrested, one of the deputies saw what appeared



        2
            Klima, 934 S.W.2d at 111.
        3
            See Rawlings v. Kentucky, 448 U.S. 98, 104 (1980) (defendant “bears the burden of proving
. . . that he had a legitimate expectation of privacy” in the subject of the search); Rakas v. Illinois,
439 U.S. 128, 131 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing
that his own Fourth Amendment rights were violated by the challenged search or seizure.”); United
States v. Salvucci, 448 U.S. 83, 86 (1980) (“it is entirely proper to require of one who seeks to
challenge the legality of a search as the basis for suppressing relevant evidence that he . . . establish,
that he himself was the victim of an invasion of privacy”) (ellipsis in Salvucci).
        4
          United States v. Jones, 132 S. Ct. 945, 953 (2012) (“Quite simply, an open field, unlike the
curtilage of a home is not one of those protected areas enumerated in the Fourth Amendment. The
Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—
is of no Fourth Amendment significance.”) (citations omitted); United States v. Mathis, 738 F.3d
719, 729-31 (6th Cir. 2013); United States v. Boyster, 436 F.3d 986, 991 (8th Cir. 2006); Fullbright
v. United States, 392 F.2d 432, 434-36 (10th Cir. 1968); Casey v. State, 87 Nev. 413, 415, 488 P.2d
546, 548 (1971). See also State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991) (“Federal law
places the burden on the defendant to establish a reasonable expectation of privacy in the area
searched in order to claim rights under the Fourth Amendment. Thus, under federal law, the open
fields doctrine is not generally treated as an exception to the warrant requirement.”).
                                                                             STORY DISSENT — 3

to be marijuana, in plain view, on the front passenger floorboard. Under the automobile exception,

an officer can enter and search a car if he has probable cause to believe the car contains contraband.5

The presence in plain view of what appeared to be marijuana gave the deputies probable cause to

enter the vehicle and ascertain that it was in fact marijuana.6 Once the item on the front passenger

floorboard was determined to be marijuana, the deputies had probable cause to search the remaining

portions of the front and back seat areas of the car to determine if more marijuana was present.7 It

was in the course of that search that the deputies stumbled upon the checks.

       I respectfully dissent.

Filed: October 15, 2014
Publish




       5
        United States v. Ross, 456 U.S. 798, 825 (1982) (automobile exception allows officers who
have probable cause to search a vehicle without a warrant); Keehn v. State, 279 S.W.3d 330, 331,
335-36 (Tex. Crim. App. 2009).
       6
          Texas v. Brown, 460 U.S. 730, 739-44 (1983) (when officer observed what appeared to be
a drug balloon inside the car, he was permitted to enter the car and seize it); Keehn, 279 S.W.3d at
336 (officer could enter van parked in suspect’s driveway and seize tank seen through van window
that, from officer’s experience, was likely to contain a precursor to methamphetamine)
       7
          See United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996) (“Tyrie’s discovery of the
marijuana gave him probable cause to continue to hunt within the passenger compartment for more
contraband.”); Meekins v. State, 340 S.W.3d 454, 467 & n.1 (Tex. Crim. App. 2011) (Johnson, J.,
concurring) (finding marijuana on the suspect’s person in a traffic stop would give rise to probable
cause to search the suspect’s vehicle).
