

CONCURRING OPINION
 
No. 04-10-00424-CR
 
Lance William COOKSEY,
Appellant
 
v.
 
The STATE of
Texas,
Appellee
 
From the 216th
Judicial District Court, Kerr County, Texas
Trial Court No. A07334
Honorable N. Keith
Williams, Judge Presiding
 
Opinion by:   Sandee Bryan Marion, Justice
Concurring Opinion by:  Marialyn Barnard, Justice
 
Sitting:          Sandee Bryan
Marion, Justice
                     Rebecca
Simmons, Justice
                     Marialyn
Barnard, Justice
 
Delivered and
Filed:  May 11, 2011
 
Although I concur with the majority’s analysis in reversing the trial court’s ruling
on Cooksey’s motion to suppress, I write separately because I find it troubling
that efforts were not made in this case to obtain a search warrant based on the
information provided by the confidential informant.  The Fourth Amendment is
very specific in its admonition that unreasonable searches and seizures are
forbidden:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
 
U.S. Const. Amend. IV; see also Tex. Const. Article I, § 9.  I
recognize that exceptions to the Fourth Amendment’s warrant requirement exist
and exist for good reason.  I also recognize that the Fourth Amendment does not
prohibit the initial “knock and talk” approach used in this case.  However,
obtaining a search warrant when the information is available would appear to be
more consistent with the intent of the Fourth Amendment than attempting to rely
on an exception to the warrant requirement.  Where exceptions are relied upon
to justify a warrantless search, even when there is an opportunity to obtain a
search warrant, a danger exists that the exceptions may swallow the rule.  
 
Marialyn Barnard,
Justice
 
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