                                   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.
Concurring opinion                                                               04-10-00424-CR


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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