Porter Jr., Hubert Ray v. The State of Texas--Appeal from Co Crim Ct at Law No 9 of Harris County

Affirmed and Opinion filed July 11, 2002

Affirmedand Opinion filed July 11, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00687-CR & 14-01-00688-CR

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HUBERT RAY PORTER, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9

Harris County, Texas

Trial Court Cause Nos. 1016538 & 1019865

O P I N I O N

Appellant, Hubert Ray Porter, Jr., was convicted of possession of marijuana in a useable quantity under two ounces, and theft of property with a value of over $500 and under $1,500. In two points of error, he contends the trial court should have granted his motions to suppress because the affidavit given in support of a search warrant contained information that was obtained illegally, and omitted information which would have made that illegality evident. We affirm.

On August 20, 1999, appellant pleaded guilty to two state jail felony thefts and was placed on four years deferred adjudication community supervision. On August 15, 2000, deputies Pierce, Thomas, and Stake of the Harris County Sheriff=s Department, while investigating an aggravated assault of a peace officer, went to what they believed to be appellant=s address, opened a closed automatic gate of a fence that surrounded the property, and knocked on the front door for five or ten minutes. Their knocks went unanswered. Pierce, aware that appellant was on community supervision, contacted Javed Syed, his community supervision officer. Syed indicated that appellant had violated a term of his community supervision if he lived at that address because he had failed to provide notification of a change in his residence.

The following day, between 11:00 and 11:30 a.m., Syed and another probation officer, along with deputies Pierce, Thomas, and Fondren, and Rebel, a narcotics detection dog, returned to the residence to investigate whether appellant lodged there. When they arrived, the gate was slightly ajar, but Pierce opened it further to permit access. The deputies and probation officers knocked on the front door of the residence. Although again no answer was forthcoming when the deputies and probation officers knocked on the front door of the residence, Rebel alerted to the odor of a controlled substance emanating from within. Based in large part on this response, Pierce believed he had probable cause to obtain a search warrant. Thereafter, Pierce instructed a deputy to completely open the front gate in case a vehicle or ambulance was needed while serving the search warrant he shortly expected to receive. The deputy did so with a wrench by taking the chain of the automatic gate off its motor, without breaking the chain. No one entered the residence, however, at that time.

Deputy Kleindienst, after having been telephoned by Pierce from the scene, undertook to get a search warrant for appellant=s residence. In support thereof, Kleindienst filed an affidavit relating Pierce s probable cause. The warrant issued at approximately 1:00 p.m., whereupon the deputies entered the property and discovered the stolen items and marijuana with which we are here concerned.

Appellant filed pretrial motions to suppress evidence, waived trial by jury, pleaded not guilty, and tried the cases to the court in a joint proceeding with a hearing on his motions to suppress. The trial court denied appellant s motions to suppress, found him guilty as charged, and assessed punishment at confinement for a period of 180 days for each offense.

On appeal, appellant challenges the denial of his motions to suppress because the affidavit given in support of the search warrant contained information that was illegally obtained and omitted information which would have made the illegality evident. Appellant contends that if his motions to suppress had been granted, there would have been no evidence of the crimes alleged and thus no convictions of the misdemeanor offenses. In addition, appellant argues that even if the arrest warrants were issued before the deputies entered his property=s curtilage, they did not comply with Article 15.25 of the Texas Code of Criminal Procedure, thereby rendering the deputies= presence on the property illegitimate. Therefore, appellant argues that the alert by the drug-sniffing dog was illegally obtained as if there had been no arrest warrants.

In reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court=s express or implied determination of historical facts and reviewing de novo the court s application of the law of search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Where the trial court did not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court=s ruling, assuming that the court made implicit findings of fact supported in the record that buttress its conclusion. Id. at 328. Moreover, at a suppression hearing the trial court is the sole trier of fact and may choose to believe or disbelieve any or all of a any witness=s testimony. Ross, 32 S.W.3d at 855; Daniels v. State, 999 S.W.2d 52, 54 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

To determine whether the facts alleged in a probable cause affidavit sufficiently support a search warrant, we examine the totality of the circumstances. Id. at 54-55. The allegations are sufficient if they would justify a conclusion that the object of the search is probably on the premises. Id. at 55. The court is permitted to draw reasonable inferences from the facts and circumstances alleged in the affidavit. Id.

Appellant contends (1) the deputies violated his Fourth Amendment rights by entering his property through the gate; (2) the canine sniff was a search in violation of his Fourth Amendment rights; (3) noncompliance with Article 15.25 of the Code of Criminal Procedure invalidated the search; and (4) the omission from the affidavit as to the deputy s removal of the chain from the automatic fence gate mechanism rendered the warrant invalid.

A condition of appellant s community supervision was that he must permit his supervision officer to visit him at his home or elsewhere. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 11(a)(5) (Vernon Supp. 2001). Nonetheless, because, on August 15, 2000, the deputies had to walk through a gate before knocking on his front door, appellant contends they improperly trespassed on his property. The Fourth Amendment protects a subjective expectation of privacy only if society recognizes that expectation as reasonable or justifiable. Oliver v. United States, 466 U.S. 170, 177 (1984). Probationers (and parolees) do not enjoy the absolute liberty to which other citizens are entitled. United States v. Knights, 534 U.S. 112, ___, 122 S. Ct. 587, 591 (2001). For example, they do not enjoy the same level of Fourth Amendment protection accorded defendants only suspected of a crime and probable cause is not necessary for their arrest or search. Ballard v. State, 33 S.W.3d 463, 466B67 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d). Rather, evidence substantiating a reasonable belief that a probationer violated a condition of probation is sufficient to adequately protect his rights under the United States Constitution. Garrett v. State, 791 S.W.2d 137, 141 (Tex. Crim. App. 1990) (holding the parolee s rights under the United States Constitution were adequately protected because the State presented evidence supporting the reason to believe the conditions of parole were violated); Ballard, 33 S.W.3d at 468 (holding supervising court was provided sufficient factual basis to issue a capias to arrest probationer based on belief he violated probation conditions). Therefore, appellant was entitled to a lesser expectation of privacy in the curtilage of his home than other citizens.

While under the terms and conditions of community supervision, appellant remained in the constructive custody of the court. See Ex parte Canada, 754 S.W.2d 660, 666 (Tex. Crim. App. 1988) (holding a parolee is in legal constructive custody of the state); also Tex. Code Crim. Proc. Ann. art. 11.21 (Vernon 1977) (defining constructive custody as any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits. ). Accordingly, we find that because appellant was on community supervision, he could not bar law enforcement officers from entering the curtilage of his home by the erection of fences, gates, or other physical barriers.

Here, the deputies took the normal route to appellant=s front door to knock on the door. They were legitimately at appellant=s home to determine whether appellant had changed his address. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 11(a). Therefore, the deputies did not violate appellant s Fourth Amendment rights by walking through the gate to get to appellant=s front door.

Appellant next contends the search warrant was invalid because Rebel s positive alert at the front door did not provide probable cause to search the house. A canine sniff is not a search under the Fourth Amendment of the United States Constitution or under Article I, section 9 of the Texas Constitution.[1] Josey v. State, 981 S.W.2d 831, 845 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). Further, a trained canine=s alert is sufficient to provide probable cause for a search. Id.;Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.CHouston [1st Dist.] 1987, pet. Ref d).

As aforementioned, when the deputies and probation officers knocked on the door of the residence, no one answered. Rebel, however, detected the odor of a controlled substance coming from a crack in the door seal at the bottom right-hand corner of the front door and alerted the deputies by displaying a very aggressive scratch and bark. Based on this alert, Pierce believed he had probable cause to obtain a search warrant.[2] Therefore, because Rebel and the deputies were legitimately on the property and the trained dog alerted to drugs, probable cause existed for the search.

Appellant further contends noncompliance with Article 15.25 of the Texas Code of Criminal Procedure invalidated the search. Article 15.25 states:

In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose.

Tex. Code Crim. Proc. Ann. art. 15.25 (Vernon Supp. 2002). Appellant asserts, without citation of authority, that noncompliance with Article 15.25 renders any search conducted in connection with the execution of an arrest warrant violative of the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution. Because we have determined the officers had probable cause to obtain the search warrant independent of any arrest warrant for appellant, we need not address this contention.

Appellant finally avers a material omission from the search warrant affidavit invalidated the search. Appellant contends the failure to include information in the affidavit about the officers taking the chain off the fence invalidated the warrant. When a defendant complains of an omission from the affidavit, our duty is to examine the record of the suppression hearing to determine whether appellant proved by a preponderance of the evidence that the omission was made intentionally or with a reckless disregard for the accuracy of the affidavit. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). If appellant carried that burden, we must determine whether, if the omitted material had been included in the affidavit, the affidavit would still be sufficient to establish probable cause for the search. Id. The court is required to suppress the evidence seized under the warrant only if the affidavit would not have been sufficient had the omitted material been included. Bernard v. State, 807 S.W.2d 359, 367 (Tex. App.CHouston [14th Dist.] 1991, no pet.). Negligent omissions will not undermine the affidavit. Martin, 615 F.2d at 329.

The omission of the opening of the gate was not fatal because even if the omission had been included in the affidavit, the affidavit would still have established probable cause for the search. Because we find no basis for invalidating the search, we overrule appellant s points of error.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed July 11, 2002.

Panel consists of Justices Hudson, Fowler, and Duggan.*

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Appellant relies on United States v. Thomas, 757 F.2d 1359, 1366 (2d Cir. 1985), for the proposition that a dog sniff at the front door of a residence was a search under the Fourth Amendment because of the appellant=s heightened expectation of privacy in his residence. Thomas has been rejected by other federal circuits and this court because it conflicts with the Supreme Court=s determination in United States v. Place, 462 U.S. 696 (1983), that a canine sniff is not a search no matter where the sniff takes place. See, e.g., United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998); Middleton v. State, 9 S.W.3d 428, 432 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

[2] The affidavit in support of the search warrant also indicates that: appellant=s mother told Pierce that appellant was living at a different address; Pierce spoke with a person living next door to the different address, Joyce DeGeorge, who told Pierce that appellant resided there; and, Pierce learned that appellant was under community supervision and contacted his community supervision officer, Syed, who told him that if appellant was residing at the different address, this was a violation of his probation because he had given no notification of the change of address.

* The Honorable Lee Duggan, Jr., Retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.