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JEFFERY ALAN RICHIE

THE STATE OF TEXAS

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Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion

A jury found appellant Jeffrey Alan Richie guilty of possession of a controlled substance, cocaine, and based upon enhancement findings, assessed his punishment at thirty years imprisonment. In his sole issue, Richie argues that the trial court erred in failing to suppress evidence obtained during a warrantless search of Richie's person while Richie was on private property. In response, the State argues that the police officers were lawfully present on Richie's property and were authorized to arrest Richie without a warrant because he committed a crime in their presence and within their view. We agree with the State, and affirm Richie's conviction.

In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. See State v. Ross, 2000 Tex. Crim. App. LEXIS 101 *6 (November 29, 2000); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court may accept or reject any or all of a witness's testimony. See Ross, 2000 Tex. Crim. App. LEXIS 101 *6-7; Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).

In the absence of findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Ross, 2000 Tex. Crim. App. LEXIS *7-8. We review the trial court's decision on the motion to suppress in this case through a bifurcated standard of review: we will give almost total deference to the trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. See id.

On September 10, 1999, Sergeant Terry Stamphill, a narcotics investigator with the El Campo Police Department, received two separate tips from individuals who claimed that crack cocaine was being sold from appellant's backyard. These tips were consistent with other confidential tips received by Stamphill, and further comported with twenty to thirty private complaints that Stamphill had received about appellant's residence over several months. Stamphill had personally seen convicted drug dealers and users frequenting this location. Therefore, Stamphill drove past Richie's residence to observe any potential activity.

As he drove by Richie's residence, Stamphill saw a car pull into Richie's driveway and into the backyard, and saw an individual in the backyard approaching the car. Based on his experience working undercover and the information he had received, Stamphill believed this activity to be consistent with narcotics trafficking. At this juncture, Stamphill returned to the police department and recruited the assistance of other officers to help conduct a "knock and talk," which consists of confronting a suspect with the accusations against him and asking him for his version of events. Stamphill did not obtain a search warrant because he did not believe his information was sufficient for probable cause. Stamphill and three other officers returned to Richie's residence in an unmarked car and pulled into Richie's driveway and into the backyard.

When they drove into the driveway, there was a car parked in the driveway, and Richie and two other men were in the backyard. The two individuals with Richie testified that the police jumped out of their vehicle, ordered them to place their hands on the car, and rushed directly to Richie and began struggling with him. In contrast, Stamphill testified that he had begun talking to one of the individuals about the complaints of drug trafficking when he saw Richie place a rock of crack cocaine in his mouth and begin eating it. Stamphill attempted to stop Richie but was unable to do so. Stamphill and another officer saw that Richie had more crack cocaine in one of his hands. The officers arrested Richie for possession, at which point they discovered a $5.00 bill in one of Richie's hands and a plastic auto fuse box containing crack cocaine in his other hand.

Both the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution forbid unreasonable searches and seizures. See Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978). This concept is so fundamental that the law imposes a duty to exclude evidence seized in such illegal invasions, both to discourage lawless police conduct, and because courts may not endorse lawless invasions of citizen's constitutional rights by permitting the government unhindered use of the fruits of such invasions. See Terry v. Ohio, 392 U.S. 1, 12-13 (1968). This protection extends to both the home and curtilage thereof. Oliver v. United States, 466 U.S. 170, 180 (1984); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979).

The term "curtilage" has been defined as "the area around the home to which the activity of home life extends." Oliver, 466 U.S. at 182 n.12. Determining whether a particular area is included within the curtilage of a home is determined by whether appellant had a reasonable expectation of privacy in the area. Bower v. State, 769 S.W.2d 887, 896 (Tex. Crim. App. 1989). Factors considered are: the proximity of the area to the home; whether the area is included within an enclosure surrounding the home; the nature of the use to which the area is put; and the steps taken to protect the area from observation by passers by. United States v. Dunn, 480 U.S. 294, 301 (1987). There is no reasonable expectation of privacy if the activity viewed by an officer is visible from the street, or the curtilage is open to the public. Bower, 769 S.W.2d at 897. Similarly, it is axiomatic that a law enforcement officer has the same right as any common citizen to walk up to and knock on the front door of a residence with the honest intent of asking questions of the occupant. See Cornealius v. State, 900 S.W.2d 731, 734 (Tex. Crim. App. 1995); Davis v. State, 905 S.W.2d 655, 661 (Tex. App.--Texarkana 1995, pet. ref'd).

The State does not contest whether the officers were in the curtilage of the house when they viewed appellant eating the substance. Our analysis assumes that the police were present in the curtilage.

Appellant claims that suppression of the evidence is mandatory because the police officer's entry onto the property constituted trespass. See, e.g., State v. Hobbs, 824 S.W.2d 317 (Tex. App.--San Antonio 1992, pet. ref'd)(officers entering property and conducting a search for marijuana constituted illegal warrantless search); Kann v. State, 694 S.W.2d 156,160-61 (Tex. App.--Dallas 1985, pet. ref'd)(illegal search where officer entered suspect's carport and peered through a hole in defendant's fence to see marijuana).

However, the officers' entry onto Richie's property did not constitute an illegal search. See Bower v. State, 769 S.W.2d 887, 899 (Tex. Crim. App. 1989)(no illegal search where evidence seen in public view and officers did not deviate from public pathway); Gonzalez v. State, 588 S.W.2d 355, 359 (Tex. Crim. App. 1979)(no illegal search where officers approached front and back doors of residence in an attempt to contact residents); Long v. State, 532 S.W.2d 591, 594-95 (Tex. Crim. App. 1976)(no illegal search where sheriff knocked on front and back doors of residence to investigate suspicious activity and discovers scent of marijuana emanating from window); Davis v. State, 905 S.W.2d 655, 661-62 (Tex. App.--Texarkana 1995, pet. ref'd)(no illegal search where officer followed suspect from street to front door of suspect's residence and there saw a bag of marijuana in suspect's mouth); Atkins v. State, 882 S.W.2d 910, 913-14 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd)(no

illegal search where officer approached back door of residence to investigate complaints of narcotics trafficking and there saw defendant dropping bags of heroin); Nored v. State, 875 S.W.2d 392, 396-97 (Tex. App.--Dallas 1994, pet. ref'd)(no illegal search where officers entered gated yard surrounded by privacy fence and walked through yard and patio to defendant's door to investigate stolen property); De Los Reyes v. State, 853 S.W.2d 684, 689 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd)(no illegal search where officer walked up driveway and smelled marijuana emanating from garage).

Viewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court did not abuse its discretion in denying Richie's motion to suppress. The police did not violate Richie's reasonable expectation of privacy by entering his property. The back yard was not enclosed by a fence, and was plainly visible from the street. The officers were attempting to contact the residents of the property to investigate complaints of drug trafficking. The officers approached the individuals in the back yard through the same route taken by others--by driving into the backyard from the driveway. Although the record indicates that some "no trespassing" signs may have been posted on Richie's property, the evidence suggests that they were not visibly posted in the area where the officers entered, and the officers testified that they did not see the signs before entering Richie's property.

Finding no error, we affirm the trial court's judgment.

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 29th day of December, 2000.