James Alfred Harmon, Jr. v. The State of Texas--Appeal from 102nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00181-CR
______________________________
JAMES HARMON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd Judicial District Court
Bowie County, Texas
Trial Court No. 05F291-102
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

A Bowie County jury found James Harmon, Jr., guilty of possession of more than 400 grams of a controlled substance and assessed an enhanced punishment of ninety-nine years' imprisonment. On appeal of that conviction, he complains of the process by which Bowie County deputies entered his property, viewed and smelled signs of methamphetamine production, and, as a result, obtained a search warrant. Harmon contends that a "No Trespassing" sign was posted near a gate that blocked access to his property on the day the deputies entered and represents an express order to not enter his property. Therefore, he argues, the officers could not legally conduct a "knock and talk" and, since their presence was unlawful, the information they obtained while on his property could not form the basis of a lawful search warrant. He argues that the trial court should have granted his motion to suppress the evidence seized pursuant to the search warrant.

I. Standard for Reviewing Denial of Motion to Suppress

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Malone v. State, 163 S.W.3d 785, 795 (Tex. App.--Texarkana 2005, pet. ref'd). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Malone, 163 S.W.3d at 795. But when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

II. No Express Orders Prohibiting Entry Onto Harmon's Property

Harmon maintains that, on the day the deputies came to his house, there was a "No Trespassing" sign affixed to a crosstie fence adjacent to a metal gate, a gate which barred access to his property. He asserts that the presence of the sign at the gate to the entrance of his property provided notice that the officers were not authorized to enter upon his property in order to conduct a "knock and talk" interview. In other words, the presence of the sign at his gate moved the allowed entry of the deputies for the purpose of a "knock and talk" back from the door of his house to the gated entry onto his property. Accordingly, he characterizes the deputies' entrance onto his property that day as a warrantless search which yielded evidence seized in violation of federal and state constitutional rights. See U.S. Const. amend. IV; Tex. Const. art. I, 9; see also Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005) (providing that no evidence obtained in violation of state or federal laws shall be admitted as evidence against the accused in any criminal case).

In this situation, the deputies had received an anonymous tip that Harmon was in the process of manufacturing methamphetamine on his property. They testified that they went to Harmon's house on July 22, 2004, to knock on the door in order to talk with him about that information, but that Harmon was not then present. While on the front porch to Harmon's mobile home, the deputies saw a table saw upon which sat an apparatus consisting of two large jars connected by a tube; one jar contained what appeared to be a bi-layered mixture of rock salt and muriatic acid. Deputy Lance Hall testified that such an apparatus was "common" in the methamphetamine manufacturing process. The deputies also noticed an odor with which they were familiar, a smell commonly associated with methamphetamine production. While Deputies Joe Langhennig and Joe Vasquez waited at the property, Deputy Hall left to obtain a search warrant based on these facts. Harmon came to his property while Langhennig and Vasquez were present, turned his vehicle around, and left. About thirty minutes later, he returned. This time, when Deputies Langhennig and Vasquez attempted to stop Harmon, Harmon accelerated in his truck toward the deputies, forcing them to fire their guns at his vehicle. When Deputy Hall returned with the search warrant, the deputies entered the residence and seized a variety of ingredients, precursors, and solutions necessary to the manufacture of methamphetamine.

We first determine whether the deputies were lawfully on Harmon's property on the day in question. A "knock-and-talk" procedure begins with police knocking at a suspect's door; when the suspect answers, the police identify themselves as police officers and explain to the person that the interviewee is a suspect in a narcotics investigation. See Gale v. State, 998 S.W.2d 221, 223 n.2 (Tex. Crim. App. 1999). The officers then advise the suspect of his constitutional rights and ask the suspect for consent to search his residence and/or further discuss the allegations against him. See id. Absent an express order from a person in possession of property not to trespass, (1) the police are not prevented from approaching and knocking upon the front door of a residence for the purpose of asking questions of the occupant. See Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995); Duhig v. State, 171 S.W.3d 631, 635 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd); Nored v. State, 875 S.W.2d 392, 396-97 (Tex. App.--Dallas 1994, pet. ref'd).

Here, the trial court heard directly conflicting evidence on whether there was a sign prohibiting entrance onto Harmon's property. Harmon produced pictures of a "No Trespassing" sign attached to the fence in front of the road or drive leading onto Harmon's property. Harmon's mother testified that the gate and sign had been posted there since 2003 and, therefore, was present on July 22, 2004. Harmon's neighbor, Arvis Hines, also testified that the gate was there prior to July 22, 2004, and that the "No Trespassing" sign was in existence at the gated entrance on that day. In contrast to this evidence, each of the three deputies who went to conduct a "knock and talk" testified that there was no such sign posted at the entrance on the day in question.

Whether the sign was present on July 22, 2004, is an issue of historical fact, the resolution of which we afford almost total deference to the trial court. The trial court did not abuse its discretion by the factual finding in the face of conflicting evidence that there were no express orders (such as a "no trespassing" sign) prohibiting entry onto Harmon's property on July 22, 2004. Applying the law to these facts, we conclude that nothing prohibited the deputies from entering onto Harmon's property to conduct a "knock and talk." On this record, the deputies' entry onto Harmon's property (which put them into the physical proximity of the house, enabling them to make observations) did not constitute an illegal search. We overrule Harmon's contention to the contrary.

III. Observation of Items in Plain View

Having found that the deputies were not prohibited from entering Harmon's property, we now turn to Harmon's arguments regarding Deputy Hall's observations recited in his affidavit in support of the search warrant. To this, the State replies that the deputies were in a lawful position and could use the evidence in plain view as a basis for the search warrant.

We begin by noting that "[a]n officer's entry onto the curtilage or approach to the entrances of a residence does not necessarily rise to the level of a search as contemplated by the Fourth Amendment." Rodgers v. State, 162 S.W.3d 698, 709 (Tex. App.--Texarkana 2005), aff'd, 205 S.W.3d 525 (Tex. Crim. App. 2006). For instance, the observation of property in plain view involves no invasion of privacy. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000); Duhig, 171 S.W.3d at 636. "Because entry is impliedly authorized, there exists no reasonable expectation with regard to things observed by those on the pathway to the house." Washington v. State, 152 S.W.3d 209, 214 (Tex. App.--Amarillo 2004, no pet.) (citing Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App.1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)).

In order for the plain view doctrine to apply, first, the officer must make the initial intrusion lawfully or otherwise properly be in a position from which he can view the contraband. Walter, 28 S.W.3d at 541; Keehn v. State, No. 02-06-00047-CR, 2007 Tex. App. LEXIS 310, at *9-10 (Tex. App.--Fort Worth Jan. 18, 2007, no pet. h.). Next, it must be "immediately apparent" to the officer that the items observed may be evidence of a crime, contraband, or otherwise subject to seizure. Walter, 28 S.W.3d at 541; Keehn, 2007 Tex. App. LEXIS 310, at *12. That is, there must be probable cause to associate the item with criminal activity. Walter, 28 S.W.3d at 541; Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).

Since, as we have concluded, the evidence before the trial court supports its finding that the deputies did not illegally enter Harmon's property, the deputies stood in a lawful vantage point. Further, Deputy Hall testified that, based on his years of experience and advanced training in the investigation of the manufacture of methamphetamine, he recognized the two-jar apparatus and its bi-layered contents as common elements of a methamphetamine laboratory, opining further that the apparatus and contents could serve no other legitimate purpose. He also testified that he recognized the chemical smell on the premises as that associated with the manufacture of methamphetamine. The record supports the finding that, from the deputies' lawful positions on the front porch, it was immediately apparent that the two-jar apparatus was associated with criminal activity. (2)

On similar facts, our sister courts have likewise held that the plain view doctrine applied. Keehn, 2007 Tex. App. LEXIS 310, at *1. In Keehn, the Fort Worth court upheld the trial court's denial of a motion to suppress based on a similar application of the plain view doctrine to the issue of the reasonableness of the warrantless seizure of a tank containing anhydrous ammonia. See id. at *16. As an officer approached the front door of Keehn's house to conduct a "knock and talk," the officer noticed a propane tank with bluish-green discoloration near its valve in plain view in the back of a van parked on the property. See id. at *1. The Fort Worth court concluded that the evidence showed the officer to be in a lawful position and also showed that, since the officer immediately believed the propane tank to be associated with criminal activity, the plain view doctrine applied.

Similarly, in Duhig, the Fourteenth District Court of Appeals affirmed the trial court's denial of a motion to suppress by relying on the application of the plain view doctrine. Duhig was convicted of possession of methamphetamine with the intent to deliver. Duhig, 171 S.W.3d at 633. At issue in Duhig was the seizure of evidence pursuant to a warrant based on the officer's affidavit outlining his observation of drug-related evidence from the front and back of Duhig's house. Id. at 634.

In much the same way as the deputies here, the deputies in Duhig went to the house to conduct a "knock and talk" regarding information received by them that there were narcotics at the house. See id. at 633. After knocking on the door several times, one of the deputies stood on his tiptoes to look through the window on the front door and saw a digital scale, a bong or hookah, and what appeared to be marihuana. See id. After no one answered the repeated knocks at the front door, the deputies decided to go to the back of the house (3) where the deputy saw, through a partially-open glass patio door, a clearer view of the drug-related evidence and, through a broken, partially-covered window, also saw a marihuana-growing laboratory. See id. at 633-34. The deputy also smelled marihuana coming from an air conditioning unit. See id. at 634. Since the deputy was in a lawful position when he made the observations and since it was immediately apparent to him that the items observed were involved in criminal activity, the plain view doctrine applied. Id. at 638. Therefore, his observations were not searches within the meaning of the Fourth Amendment and the trial court did not err by denying suppression of the evidence seized pursuant to the search warrant supported by these observations. See id. at 639.

The record in this matter supports the finding that the deputies were not prohibited from entering Harmon's property. Their entry onto the front porch and their observation from that place of items in plain view and with which the deputies immediately associated criminal activity did not constitute a search as contemplated by the Fourth Amendment. That said, the observations made while on the front porch were not fruits of an illegal search and could serve as the basis of a search warrant. (4) We overrule Harmon's contentions.

We affirm the trial court's judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: March 27, 2007

Date Decided: May 18, 2007

 

Do Not Publish

1. A person commits a criminal trespass if he enters or remains on property of another without effective consent and he had notice that the entry was forbidden or received notice to depart but failed to do so. Tex. Penal Code Ann. 30.05(a) (Vernon Supp. 2006). A sign posted on the property that is reasonably likely to come to the attention of intruders and that indicates that entry is forbidden constitutes notice. Tex. Penal Code Ann. 30.05(b)(2)(C) (Vernon Supp. 2006).

2. To the extent Harmon's contention raises the issue of whether the items were in plain view, we note that Deputy Hall testified that the two connected jars were visible from the porch and that the smell was blown toward them from a fan acting as a sort of exhaust, blowing air from inside the house outside the window onto the front porch. Deputy Hall testified that the table saw and jars were less than ten feet away to the left of the porch and were visible from the porch. Harmon's cross-examination of the deputies suggested that the table saw on which the two tanks were sitting was behind the mobile home and that the officers would have been forced to leave the porch and walk around to its rear to have seen it. The deputies denied this. This is a matter on which again we afford deference to the trial court's finding of fact. It had before it both testimonial and photographic evidence that the methamphetamine production tanks were visible from the porch.

3. The evidence was disputed on whether there was a fence blocking access to the side and backyard. See Duhig, 171 S.W.3d at 638. The Fourteenth District Court of Appeals gave deference to the trial court's determination that there were no fences restricting access to the backyard. See id. The court also concluded that the record supported the finding that there were no signs or any other directives prohibiting the deputies from going to the back. See id. at 636. Under proper circumstances, the law will allow officers conducting a "knock and talk" to approach the back of the house after first attempting to contact an occupant at the front door. See id. at 637 (citing Gonzalez v. State, 588 S.W.2d 355, 357-60 (Tex. Crim. App. 1979); Long v. State, 532 S.W.2d 591, 593-95 (Tex. Crim. App. 1975); Watts v. State, 56 S.W.3d 694, 700-01 (Tex. App.--Houston [14th Dist.] 2001, rev'd on other grounds, 99 S.W.3d 604 (Tex. Crim. App. 2003)); see also Buchanan v. State, 129 S.W.3d 767, 772 (Tex. App.--Amarillo 2004, pet. ref'd). Once again, we give deference to the trial court to determine this factual dispute.

4. We emphasize that Harmon does not challenge the sufficiency of the affidavit using these observations in support of the issuance of the search warrant and, therefore, we do not address the issues raised in Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006). Again, Harmon argues that the deputies illegally searched his property and that their observations were fruit of the poisonous tree and, therefore, could not serve as the basis for the search warrant.