                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 CRISTINA MUNOZ,                                               No. 08-09-00160-CR
                                                §
                       Appellant,                                   Appeal from
                                                §
 v.                                                             384th District Court
                                                §
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                §
                       Appellee.                               (TC # 20070D00426)
                                                §

                                         OPINION

       Cristina Munoz appeals her conviction of possessing more than 50 pounds but less than 2,000

pounds of marihuana. Appellant waived her right to a jury trial and entered a negotiated plea of

guilty. The trial court, in accordance with the plea agreement, assessed Appellant’s punishment at

imprisonment for a term of two years. For the reasons that follow, we affirm.

                                    FACTUAL SUMMARY

       Appellant filed a motion to suppress complaining that marihuana and other evidence was

unlawfully seized during a warrantless search of her property. Detective Gerald Humphry testified

at the suppression hearing that he is employed by the El Paso Police Department and is assigned to

the narcotics division. On the afternoon of January 22, 2007, Humphry conducted surveillance on

a house in El Paso County and videotaped the activity occurring. He observed several individuals

carrying large bales of what he believed to be marihuana. Humphry admittedly could not see the

substance in the bales because they were wrapped in brown paper and covered with white plastic,

but he had often seen marihuana packaged in this manner during his ten years in the narcotics

division. Humphry saw individuals removing the bales of marihuana from a green van and carrying
them into the house through the side door.1 He continuously relayed what he saw to other police

officers who were in the area. A woman, later identified as Appellant, was among those seen

unloading the bales of marihuana. About twenty minutes later, Humphry saw the same individuals

carrying what appeared to be bales of marihuana wrapped in black plastic out of the house and into

the van. Humphry believed the bales carried into the house earlier had been repackaged in black

plastic. Humphry stopped videotaping and went to assist the other detectives and police officers

from his unit who had approached the house for the purpose of conducting a knock-and-talk.

         Kyle Summers, a sergeant in the narcotics division, was one of the officers who approached

the house. The house was surrounded by a chain-link fence but the officers entered a front gate to

the driveway which was “wide open.” Detectives approached the front door of the house while

Summers and DEA Agent Jason Hoff2 walked further down the driveway to the side yard where

Humphry had seen people unloading marihuana. The green van could be seen from the front gate

and the driveway. As he proceeded down the driveway toward the side yard, Summers could see

bundles of marihuana in the van in plain view. He watched a male carry a bundle and place it into

the van. Based upon the strong odor and his own training and experience, Summers believed the

bundle was marihuana. He also saw three females by the side door and a small child who was

pushing a bundle of marihuana. Summers, who was dressed in plain clothes, attempted to show his

police identification to the individuals but one of them, later identified as Maria Alfaro, walked into

the house. Summers could see two men inside of the house who had been about to exit but they



         1
            Photographs show that the driveway is located along the entire front of the house and curves around the left-
hand side of the house. W itnesses, including Humphry, referred to the door as the rear door but photographs reflect that
the door is actually located on the left-hand side of the house. The green van was visible to any member of the public
standing in the driveway. The opinion will refer to this door as the side door and to this portion of the yard as the side
yard.

         2
             Hoff is assigned to work with the El Paso Police Department’s stash house task force.
turned and walked further inside of the house when they spotted Summers. Worried that the

individuals who had retreated into the house were retrieving weapons or destroying evidence,

Summers identified himself as a police officer and walked into the back of the residence. He also

called for other officers to assist him which they did by securing the two men who had stopped in

an open living area. Summers walked down a hallway in an effort to find Alfaro and found a puppy

sitting in front of a closet door and wagging its tail. Summers called out “police” and told Alfaro

to open the door and come out. Alfaro complied and he had her walk to the kitchen where detectives

were talking to the other individuals.

          Detective Frank Gutierrez is also assigned to EPPD’s narcotics division.             Gutierrez

approached the residence and knocked on the front door while other officers went to the rear and

sides of the house. Gutierrez explained that during a knock-and-talk, two detectives would usually

make contact at the front door while other officers covered the sides and rear of the house to watch

for fleeing suspects, dogs, or potential threats to the officers’ safety. Given that the officers knew

there were five or more people at the house, their concerns about safety were elevated. Gutierrez’s

approach at the front occurred simultaneously with Summer’s approach to the side door. Waiting

by the front door, Gutierrez could hear a “lot of activity” inside of the house and then Sergeant Pena

opened the door from inside. Gutierrez entered and approached a group of eight people in the

kitchen. He identified himself as a policy officer and asked who lived in the house. Appellant and

two other women stated they lived in the house. Gutierrez advised the women of their rights and

asked them for consent to search the house for drugs. Each of them, including Appellant, consented

to a search of the house. Officers seized more than 1,000 pounds of marihuana as a result of the

search.

          Appellant testified at the suppression hearing that there was a fence surrounding her property,
but she admitted that the gate to the driveway was open on the day of the search and she had not

posted any “no trespassing” signs on the property. At the conclusion of the hearing, defense counsel

argued that the police officers entered onto the curtilage of the property without a warrant and the

consent to search was not obtained until after the officers had illegally entered onto the property.

The trial court denied the motion to suppress. Appellant waived her right to a jury trial and entered

a negotiated guilty plea. The trial court followed the plea bargain and assessed Appellant’s

punishment at imprisonment for a term of two years.

                                LEGALITY OF THE SEARCH

       Appellant challenges the search and seizure by two related issues. In Issue One, she contends

that her motion to suppress should have been granted because the officers breached the curtilage of

the property by their initial entry. In Issue Two, Appellant maintains that the officers’ warrantless

entry through the side door violated the Fourth Amendment and rendered her subsequent consent to

search invalid.

                                        Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard

of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955

S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to a trial court’s rulings on

questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn

on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex.Crim.App. 2005).

       When the trial court has not made a finding on a relevant fact, we view the evidence in the

light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
fact supported by the record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007). We

will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).

                                   Officers Initial Entry onto the Property

         Appellant’s first issue challenges the officers initial entry onto the property through the gate.

She argues that because the yard was enclosed with a fence, the officers could not enter through the

open gate without a warrant.

         The Fourth Amendment protects a person against unreasonable searches and seizures

provided that the individual has a reasonable expectation of privacy in the thing searched.3 Oliver

v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984). The

Fourth Amendment does not protect the merely subjective expectation of privacy, but only those

expectations that society is prepared to recognize as reasonable. Oliver, 466 U.S. at 177, 104 S.Ct.

at 1741. Thus, the litmus for determining the existence of a legitimate expectation of privacy as to

a particular accused is twofold: first, did he exhibit by his conduct an actual subjective expectation

of privacy; and second, if he did, was that subjective expectation one that society is prepared to

recognize as reasonable? Chapa v. State, 729 S.W.2d 723, 727 (Tex.Crim.App.1987), citing Smith

v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1987). A defendant seeking

to suppress evidence under the Fourth Amendment must show that he had a reasonable expectation

of privacy that the government invaded. Luna v. State, 268 S.W.3d 594, 603 (Tex.Crim.App. 2008).

         The Fourth Amendment’s protection includes a home. Oliver, 466 U.S. at 180, 104 S.Ct. at

         3
            In Issues One and Two, Appellant also relies on Article I, Section 9 of the Texas Constitution, but she has
not raised the argument in a separate issue or provided argument explaining why the Texas Constitution provides greater
protection than the Fourth Amendment. State and federal constitutional claims should be argued in separate grounds,
with separate substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W .2d 238, 251-52
(Tex.Crim.App. 1993); Heitman v. State, 815 S.W .2d 681, 690-91 n.23 (Tex.Crim.App. 1991). Because the argument
based on Article I, Section 9 is inadequately briefed, we will restrict our analysis to the Fourth Amendment.
1742; Porteous v. State, 259 S.W.3d 741, 745-46 (Tex.App.--Houston [1st Dist.] 2007), pet.

dismissed as improvidently granted, 253 S.W.3d 288 (Tex.Crim.App. 2008)(per curiam);

Washington v. State, 152 S.W.3d 209, 214 (Tex.App.--Amarillo 2004, no pet.). The curtilage, which

is the land immediately surrounding and associated with the home, warrants the same Fourth

Amendment protections that attach to the house. Oliver, 466 U.S. at 182 n.12, 104 S.Ct. at 1743

n.12; Bower v. State, 769 S.W.2d 887, 896 (Tex.Crim.App. 1989), overruled on other grounds,

Heitman, 815 S.W.2d at 685.

       The protection afforded the curtilage is not unlimited. Washington, 152 S.W.3d at 214.

Absent express orders from a person in possession of property not to trespass, a law enforcement

officer, like any other member of the public, has the right to enter on residential property and knock

on the front door for the purpose of contacting the occupants. Cornealius v. State, 900 S.W.2d 731,

733-34 (Tex.Crim.App. 1995); Bower, 769 S.W.2d at 897; Duhig v. State, 171 S.W.3d 631, 635

(Tex.App.--Houston [14th Dist.] 2005, pet. ref’d); Washington, 152 S.W.3d at 214. Because entry

is impliedly authorized, there is no reasonable expectation of privacy with regard to things observed

by those on the pathway to the front door. Bower, 769 S.W.2d at 897; Washington, 152 S.W.3d at

214. While a law enforcement officer can enter upon the curtilage of a house in an effort to contact

its occupants, the authorization may not exist if the occupant has manifested his intent to restrict

access to the area. Washington, 152 S.W.3d at 215, citing Bower, 769 S.W.2d at 897; Nored v. State,

875 S.W.2d 392, 397 (Tex.App.--Dallas 1994, pet. ref’d). Two examples of restricting access are

locking a gate or posting signs advising that the entry is not welcome. Washington, 152 S.W.3d at

215.

       It is undisputed that the officers entered the property through the open gate. Appellant did

not have any signs posted on the property which would indicate any intention to prohibit access to
the property. Under these circumstances, the officers’ initial entry onto the property was permissible

because any member of the public could have accessed the property in this same fashion. We

overrule Issue One.

                          Warrantless Entry of the Side Yard and House

       In her second issue, Appellant maintains that even if the initial entry through the gate was

permissible, the officers violated the Fourth Amendment by proceeding down the driveway to the

side door and by entering the house without a warrant. We will first address whether the officers

violated the Fourth Amendment by going into the side yard.

       Citing State v. Peyrani, 93 S.W.3d 384 (Tex.App.--Houston [14th Dist.] 2002, pet. ref’d),

Appellant contends that the officers could approach the side door only after making an unsuccessful

attempt to contact the occupants at the front door. In Peyrani, the police received a tip that large

quantities of marijuana were being stored at and transported from a house in Harris County. The

police began conducting surveillance but they could not see any activity in the backyard because it

was surrounded by a wooden privacy fence. At one point, the police observed a car arrive at the

house. Two men exited the car and carried a heavy-looking bag to the backyard. They later returned

with two brick-like packages which appeared to be marihuana. After the men left the house, police

stopped their car at a nearby restaurant and found more than eleven pounds of marihuana. The police

did not attempt to obtain a search warrant but instead attempted to gain consent to search the house.

Two officers walked through the open front gate at the driveway and down the front walkway. As

they approached the front door, they saw a man walking beside the house from the backyard. The

officers stepped off the front walkway, onto the grass, and approached the man. After determining

the man was not the homeowner, the officers proceeded to the backyard because they could hear

voices and they knew from their earlier surveillance that people were in the backyard. When they
rounded the back corner of the house, they saw the defendant and several other men loading bundles

of marihuana into a vehicle. Both officers testified that they walked into the backyard only to obtain

consent to search and did not expect to find marihuana, despite their observations throughout the

day. The trial court granted the defendant’s motion to suppress and the State appealed. The

Fourteenth Court of Appeals affirmed, holding that the officers’ entry into the backyard violated the

Fourth Amendment because they deviated from the path to the front door. Peyrani, 93 S.W.3d at

387. The instant case is distinguishable for two reasons: first, because the green van could be seen

from the open gate and the side yard was partially visible from the path to the front door, and second,

some officers went to the front door while the officers in question proceeded simultaneously to the

side door. Thus, Peyrani is inapplicable.

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

State counters that the Fourth Amendment is not violated where officers simultaneously approach

the front and side or rear doors of a residence in an effort to make contact with the occupants. In

Atkins, police officers went to a residence to investigate after receiving an anonymous tip that

cocaine and heroin were being sold from the residence. One officer went to the front door where

people were seated outside and a second officer walked around the side of the house toward the back

door. When the second officer turned the corner he saw the defendant exit the back door. Upon

seeing the officer, the defendant dropped two baggies of heroin and re-entered the house. The officer

seized the heroin, followed the defendant inside, and arrested him for possession of heroin. The

defendant urged on appeal that because the second officer violated the curtilage by being in the back

yard without a warrant, the subsequent seizure of the heroin was unlawful. The court of appeals held

that the evidence supported an inference that the second officer was making a joint initial attempt

to contact the inhabitants of the house as sanctioned in Long. Atkins, 882 S.W.2d at 913.
       Here, the green van in which the marihuana was being loaded could be seen by the officers

and any member of the public from the open driveway gate and the front of the house. Through

surveillance, the police had just observed people carrying bundles believed to be marihuana from

the green van into the house. Summers and Hoff approached the green van and side yard by going

from the open gate down the driveway which ran parallel to the front of the house. The driveway

was the obvious path to the side yard. We conclude that the officers did not violate the Fourth

Amendment by approaching the side yard and door as the evidence supports a reasonable inference

that they were making a joint initial attempt to contact the occupants of the house who had just been

seen in that area. See Atkins, 882 S.W.2d at 913. Furthermore, the officers did not go to the side

yard and door for the purpose of conducting a search but to provide security for the officers engaging

in the knock-and-talk at the front door and to ensure that none of the occupants fled out of the side

door. See Valdez v. State, No. 08-02-00215-CR, 2003 WL 361294, *4 (Tex.App.--El Paso February

20, 2003, no pet.)(where police officers went to a residence to investigate a loud noise complaint and

saw through the uncovered windows that several minors were drinking, one officer went to front

door and other officer went to side door to cover the exit; when one individual opened side door to

flee, the second officer observed the defendant in the kitchen concealing a plastic bag of cocaine in

a kitchen cabinet; held that initial intrusion of curtilage was lawful because the second officer was

not conducting a search but was covering the exit).

       We turn now to address whether Summers’ warrantless entry into the house violated the

Fourth Amendment. The State argues that Summers had probable cause to suspect criminal activity

and had exigent circumstances to justify his warrantless entry into the house.

       Exigent circumstances is one of the recognized exceptions to the Fourth Amendment’s

warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003), citing Minnesota
v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Under the exigent

circumstances doctrine, the State may justify a warrantless search or entry of a specific location if

it makes a two-step showing. First, the State must show that probable cause existed to enter or

search the specific location at the time the search was made. Gutierrez v. State, 221 S.W.3d 680,

685 (Tex.Crim.App. 2007). In the context of warrantless searches, probable cause exists when

reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene

would lead a man of reasonable prudence to believe that the instrumentality or evidence of a crime

will be found. Id. at 685; Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App. 2005). Second,

the State must show the existence of exigent circumstances which required an immediate entry into

a particular place without a warrant. Id. at 685. The Court of Criminal Appeals has identified three

categories of exigent circumstances that justify a warrantless intrusion by law enforcement officers:

(1) providing aid or assistance to persons whom law enforcement reasonably believes are in need

of assistance; (2) protecting police officers from persons whom they reasonably believe to be present,

armed, and dangerous; and (3) preventing the destruction of evidence or contraband. Id. If the State

does not adequately establish both probable cause and exigent circumstances, a warrantless entry will

not withstand judicial scrutiny. Id. at 685-86.

       We will first examine whether probable cause existed to believe that evidence of a crime

would be found in the residence. The officer conducting surveillance, Detective Humphry, observed

several individuals--including Appellant--carrying bundles of what Humphry believed to marihuana

from the green van into the house. A short while later, Humphry observed bundles being loaded

back into the van. Humphry believed the marihuana bundles had been repackaged. As Summers

approached the side yard, he could see bundles of marihuana in the van in plain view and he could

smell a strong odor of marihuana coming from the van. He also saw a man loading a bundle of
marihuana into the van and a child by the door pushing a bundle. Based on his training and

experience, Summers believed the substance in the bundles to be marihuana. Based on the totality

of the circumstances Summers had probable cause to believe that a criminal offense was being

committed and evidence or contraband, specifically marihuana, would be found inside of the house.

       The only remaining issue is whether exigent circumstances justified the warrantless intrusion

by the officers. The State asserts that a warrantless entry was justified to prevent the destruction of

evidence and to protect the police officers from individuals believed to be armed and dangerous.

With regard to the possible destruction of evidence as an exigent circumstance, the State must show

that the police could have reasonably concluded that evidence would be destroyed or removed before

they could obtain a search warrant. McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991).

Relevant factors include: (1) the degree of urgency involved and the amount of time necessary to

obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility

of danger to police officers guarding the site of the contraband while a search warrant is sought; (4)

information indicating the possessors of the contraband are aware that the police are on their trail;

and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of

narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. Id.,

citing United States v. Rubin, 474 F.2d 262, 268 (3rd Cir. 1973).

       The officers observed marihuana being loaded into the van thereby permitting an inference

that the marihuana was in the process of being removed from the house. Given that Summers

approached the people at the side door where marihuana was being loaded into the van and identified

himself, the occupants were aware that the police had knowledge of the marihuana. After Summers

identified himself, one of the women standing at the side door went inside of the residence and two

men who had been about to exit turned and walked back further into the house. Summers
specifically testified that he followed the individuals who went into the residence because he was

concerned that they might try to destroy evidence. This was a reasonable conclusion under the

circumstances. See Estrada, 154 S.W.3d at 610 (evidence supported conclusion that warrantless

entry was justified to prevent destruction of evidence where two minors told officer that they drank

alcoholic beverages and smoked marijuana at defendant’s residence, defendant smelled of marijuana,

officer heard people inside defendant’s residence but no one answered door when he knocked, and

when officer returned later to investigate he observed people attempting to leave the residence).

         This same evidence, combined with the officers’ knowledge that there were more than five

people present at the residence, also supports a conclusion that the Summers’ warrantless entry was

justified because of a concern that the individuals who retreated into the house could be securing a

weapon and would pose a threat to the other officers on the scene. See Estrada, 154 S.W.3d at 610

(exigent circumstances existed where officer had received information from the defendant’s friends

that there were a number of people inside the house, and he wanted to be able to see and identify

them for his safety as he investigated the situation). Because the State established the exigent

circumstances exception to the warrant requirement, the officers’ warrantless entry into the house

did not violate the Fourth Amendment. We overrule Issue Two and affirm the judgment of the trial

court.



October 20, 2010
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
