IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 2355-01

 

THE STATE OF TEXAS

v.


MARY ELAINE REX, Appellee





ON DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
GILLESPIE COUNTY

Per curiam. Keller, P.J., concurred in the judgment



In October 1999, the appellee's ex-husband, Jan Bartlett Rex, approached Gillespie County Sheriff's Deputy Don Itry to discuss Rex's belief that the appellee was in possession of marijuana. Deputy Itry told Mr. Rex that before he could obtain a search warrant for the appellee's residence, he would need more information, which would have to be gathered by someone entering the house. At the time, Mr. Rex was on felony probation for committing aggravated assault against the appellee. A condition of his probation prohibited Mr. Rex from having any contact with the appellee, and the couple's divorce decree prohibited him from coming within 300 feet of the appellee's house. Despite these proscriptions, Mr. Rex later went to the appellee's house (when the appellee was not at home) and received permission to enter from the couple's 15-year-old son. Mr. Rex smelled marijuana and found a plastic bag of it. Using information provided by Mr. Rex, Deputy Itry obtained a search warrant, pursuant to which officers searched the residence and seized the marijuana.

The appellee was indicted for possessing marihuana in a useable amount of more than four ounces but not more than five pounds. She moved to suppress the marijuana under Code of Criminal Procedure article 38.23. The trial court held an evidentiary hearing and granted the appellee's motion. The State appealed. The clerk's record contains the trial court's written findings of fact and conclusions of law, but there is no reporter's record of the hearing and no request that one be included in the appellate record.

The State, represented by the district attorney, raised one point of error: "The trial court erred in granting the appellee's motion to suppress as the search was not invalid, because no evidence was obtained in violation of any provisions of the Constitutions or of any laws of either the State of Texas or the United States of America, such as to cause exclusion under Article 38.23 of the Texas Code of Criminal Procedure." (1)

The court of appeals affirmed the ruling, holding that suppression of the evidence was proper because Mr. Rex, acting as an agent of the State, obtained the information leading to the issuing of the search warrant in violation of the appellee's Fourth Amendment rights and the criminal trespass statute. State v. Rex, No. 04-01-00190-CR, 2001 Tex. App. LEXIS 7302 (San Antonio Oct. 31, 2001) (not designated for publication).

The State, represented by the State's Prosecuting Attorney, petitioned for review on three grounds, which we shall take up in this sequence:

(1) Did the Court of Appeals err in holding that article 38.23 requires suppression of evidence obtained in the course of a private party's violation of the criminal trespass statute?



(2) Does article 38.23 prohibit the use of information obtained in violation of law, where that information is not admitted in evidence against the accused at his trial? [Emphasis in original.]

 

(3) Was the search of the residence and seizure of the marijuana lawful pursuant to the good faith exception of article 38.23(b)?



We shall dismiss the petition as having been improvidently granted.

Criminal Trespass

We improvidently granted the State's ground, whether the court of appeals erred in holding that article 38.23 requires suppression of evidence acquired through a private party's violation of the criminal trespass statute, because that holding was not necessary to the court of appeals' decision. Before considering the criminal trespass statute, the court of appeals held that the Fourth Amendment was violated by Mr. Rex's acting as an agent of the State. That holding alone that would adequately support the court of appeals' decision that article 38.23(a) was violated.

The court of appeals said:

Article 38.23 of the Texas Code of Criminal Procedure provides that:



no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.



TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon Supp. 2001). Therefore, if we find that Mr. Rex's conduct violated any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States, we are to uphold the trial court's decision.

The Fourth Amendment to the United States Constitution guarantees individuals the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. This Fourth Amendment protection, however, proscribes only governmental action. United States v. Jacobsen, 466 U.S. 109, 113-14, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). Its protections are "inapplicable to any search and seizure, even wrongful and unreasonable ones, effected by a private citizen or individual not acting as an agent or instrument of the government or with the participation or knowledge of any governmental official." Id. The two factors that determine whether a person is acting as an agent or instrument of the government are: "(1) whether the State or its officials knew of and acquiesced in the intrusive conduct and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Bazan, 807 F.2d 1200, 1202-03 (5th Cir. 1986). Both of these factors lead us to conclude that the trial court did not err when it determined that Mr. Rex acted as an agent or instrument of the State, in turn, violating the Fourth Amendment rights of Mrs. Rex.

Here, the trial court heard live testimony from both Mr. Rex and Deputy Itry regarding the content of their conversation during October 1999. As the sole trier of fact and judge of the credibility of the witnesses, the trial court could accept or reject any of the witnesses' testimony and was free to resolve all conflicts in the evidence presented. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); State v. Fecci, 9 S.W.3d 212, 221 (Tex. App.-- San Antonio 1999, no pet.). Based on this testimony the trial court determined that Deputy Itry made "suggestions" that reasonably led Mr. Rex to believe that he needed to go inside Mrs. Rex's residence to obtain the information necessary for a search warrant. Furthermore, because Mr. Rex was following Deputy Itry's "suggestions" when he searched the residence for evidence, Mr. Rex was acting in the capacity of an agent or instrument of the State, therefore creating a Fourth Amendment violation. We agree.

Both prongs of the analysis for determining whether a private citizen acted as an agent or instrument of the State for Fourth Amendment purposes are satisfied in this case. First, the State knew of, and acquiesced in, Mr. Rex's intrusive conduct. According to the trial court, Deputy Itry personally informed Mr. Rex that the information needed to issue a search warrant could be obtained by "someone" going inside Mrs. Rex's residence. Based on his conversation with Mr. Rex, Deputy Itry knew or should have known that Mr. Rex was going to follow this "suggestion," yet he did nothing to deter him from doing so. Second, the record indicates that Mr. Rex intended to assist law enforcement efforts when he conducted his search. It is apparent from the record that one of the primary reasons for Mr. Rex entering the residence was to assist Deputy Itry in establishing probable cause for the issuance of a search warrant.

It is the State's contention that even if we find that Mr. Rex acted as an agent or instrument of the State, a warrantless search of Mrs. Rex's residence was permissible under the circumstances. We disagree.

The State argues that had an officer entered the residence with consent and smelled the odor of marijuana, a warrantless search could have occurred. Therefore, because Mr. Rex was acting as an agent or instrument of the State, he too could conduct a warrantless search of the residence if he smelled marijuana there. This may have been the proper analysis had Mr. Rex not been subject to both a probation order and divorce decree prohibiting him from having any contact with Mrs. Rex and her property. For this reason, we find that the State's argument is inapplicable to these facts. (2)



In other words, as we understand the court of appeals' opinion, consent was not available to Mr. Rex to authorize the search; if the State wants a private person to act as its agent in making a consent-search of premises, it should not appoint someone who is forbidden by a court order from entering the premises.

The decision that the State wants us to review, whether Mr. Rex violated a penal statute as well as the Constitution, came in the next paragraph of the opinion. (3) Whether that decision was correct or not (an issue on which we express no opinion), the earlier decision that the Fourth Amendment was violated would be sufficient to support the holding that the Mr. Rex obtained information in violation of Article 38.23(a).

"Use" of "Information" and Admission of Evidence under Article 38.23

Given that Mr. Rex, an agent of the State, violated the Fourth Amendment in obtaining the information on which a search warrant was based, the State asks, "Does article 38.23 prohibit the use of information obtained in violation of law, where that information is not admitted in evidence against the accused at his trial?" The court of appeals did not address, much less decide, this issue. The only semblance of a reference to it in the State's brief in the court of appeals was in one clause of a sentence in a paragraph that presented another argument. (4) The State does not argue to us that the court of appeals erred by not addressing this issue. This Court reviews decisions of courts of appeals; if there was no decision, there is nothing for us to review.

Good Faith

In its third ground for review the State contends that, even if article 38.23(a) requires suppression of the marijuana, the police officers' subsequent search and seizure of the evidence, pursuant to a warrant, was lawful under the "good faith" exception. (5) Although the State raised the issue in its single point of error in the court of appeals, the court did not address or decide this question, because it held that the ex-husband was not acting as a private person. This rendered moot an essential part of the State's argument. (6) There is no good-faith decision for us to review.

The petition is dismissed.

En banc.

Delivered June 11, 2003.

Do Not Publish.

1. Brief, at 6.

2. Slip op., at 3-5.

3. Section 30.05 of the Texas Penal Code states, in relevant part, that a person commits the offense of criminal trespass if he enters the property of another without effective consent and he had notice that entry was forbidden. TEX. PENAL CODE ANN. 30.05(a) (Vernon Supp. 2001). Mr. Rex was on felony probation for committing aggravated assault on his ex-wife at the time of his search. A term of Mr. Rex's probation instructed him not to have any contact with Mrs. Rex, either in person, by telephone, or other means of communication, directly or indirectly. In addition, Mr. Rex was subject to a divorce decree that prohibited him from coming within 300 feet of, entering, or remaining on the premises of the residence of his ex-wife. From the contents of his probation orders and divorce decree, Mr. Rex was on notice that any entry into her residence was strictly forbidden. Moreover, because the relevant sections of the probation order and divorce decree were so explicit in their language, Mr. Rex should have known that his son's consent would not excuse a violation of these orders at any time. Only a court could set aside Mr. Rex's obligations under these orders. Because his son's permission to enter the residence does not constitute "effective consent" for purposes of the criminal trespass statute, any subsequent search of the residence would be considered unlawful. See id.; State v. Hobbs, 824 S.W.2d 317, 318 (Tex. App.-- San Antonio 1992, pet. ref'd) (evidence obtained by law enforcement officials by virtue of their criminal trespass was subject to suppression under Article 38.23 of the Texas Code of Criminal Procedure).

Id., at 5-6.

4. "Nevertheless, the status of Mr. Rex, even if considered to be that of an agent of the police, is similar in effect as if Mr. Rex had been a police officer. Thus, if an officer entered the premises with the consent as described and smelled the odor of marihuana, [footnote omitted] a warrantless search could properly be conducted." Brief, at 14.

5. See Tex. Code Crim. Proc. art. 38.23(b).

6. See PDR, at 12 ("Neither the Constitution nor the plain language of art. 38.23 prohibit the inclusion of information in a warrant affidavit that was obtained by a private person in the course of that person's violation of the law") (footnote omitted) (emphasis added).