NO.

THE STATE OF TEXAS			§           IN THE ____________COURT
												§

V.						§	OF
						§

JOHN DOE					§	___________COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT: 
	DEFENDANT, JOHN DOE, submits the following in support of the Defendant’s Motion to Suppress Evidence, which was respectfully submitted to this Court on November 19, 2002.
Procedural History
	The Defendant allegedly committed the offense which is subject of Cause No.________ on July 30, 2002.  The Defendant was arrested as a result of this offense, and was indicted for the offense of Manufacture and Delivery of a Controlled Substance on October 2, 2002.
Statement of Facts
	On July 30, 2002, members of the Lubbock County narcotics Unit, along with members of the Texas Department of Public Safety Narcotics Unit received information from a confidential source that there was a methamphetamine lab in the back of a pickup located at 1308 42nd Street.  The officers responded to the residence to investigate the information.  The officers approached a pickup that was parked in the driveway which matched the description given by the confidential source.  As they approached the pickup, they could smell ether and muriatic acid.  Upon looking into the bed of the pickup, and opening the duffle bags contained in the bed, they observed what appeared to be a methamphetamine lab.  The officers then forced entry into the house and placed everyone present in handcuffs for officer safety.  The Defendant was sleeping on the couch in the front room at the time.  Once everyone was handcuffed, Lubbock County Sheriff’s Investigator Thomas Bostwick questioned the Defendant about the contents of the pickup.  After being denied consent to search the residence, the officers obtained a search warrant.  The subsequent search of the house revealed drugs, narcotics, a merchandise scanner, and miscellaneous papers.
Argument
I.  The initial search of the Defendant’s pickup was illegal as it violated his rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas, in that the officers conducted a warrantless search of the curtilage of the home without having probable cause and therefore all evidence seized as a result is inadmissible under Article 38.23 of the Texas Code of Criminal Procedure

	The initial search of the Defendant’s truck was illegal as it was on the curtilage of a home and was searched without a warrant or probable cause.  Due to the illegality of that search, all evidence sized as fruits of that search must be suppressed under article 38.23 of the Texas Code of Criminal Procedure.  
	Both the United States Constitution and the Texas Constitution provide that people have the right to be free from unreasonable searches and seizures.  See U.S. Const. Amend. IV; Tex. Const. Art. I, § 9.  That protection extends to the curtilage of a home.  See Oliver v. United States, 466 U.S. 170, 177 (1984); United States v. Dunn, 480 U.S. 294, 300 (1987).  Curtilage is the area around and associated with the home, and is determined by considering the proximity of the area to the home, whether the area is enclosed within the same area as the home, the uses to which the area is put, and the steps taken to protect the area from observation by passers-by.  Dunn 480 U.S. at 301.  All of those factors are looked at when determining the central question of whether the particular area is “so intimately tied to home itself” that it should be placed under the protection of the Fourth Amendment of the United States Constitution and article I, Section 9 of the Texas Constitution.  Id; Rosalez v. State, 875 S.W.2d 705, 713 (Tex.App.–Dallas 1993, pet. ref’d).  
	In Emiliano v. State, the Corpus Christi Court of Appeals held that a plain-view search of a detached garage by police officers violated the appellant’s Fourth Amendment rights.  840 S.W.2d 102, 105 (Tex.App.–Corpus Christi 1992, pet. ref’d).  In that case, the officers went to the appellant’s house and asked for permission to search.  Id.  After being refused permission to search the house, the officers walked into the driveway and looked into an open garage.  Id.  The garage was detached from the house by a few feet, and was farther from the street than the back wall of the house.  Id.  
	In the case at bar, the officers walked onto the curtilage of the home to search for a reported methamphetamine lab.  They looked into the bed of Defendant’s pickup, and opened duffle bags which contained a methamphetamine lab.  The driveway in which the Defendant’s pickup was parked is within the area surrounding the home.  This area is so intimately tied to the home that it should fall under the protection against unreasonable searches and seizures.

II.  The warrantless forced entry and subsequent seizure of both the home and the Defendant’s person violated the Defendant’s right to be free from unreasonable searches and seizures under the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas and any evidence seized as a result is inadmissible under Article 38.23 of the Texas Code of Criminal Procedure.

	The forced entry and seizure of both the home and the Defendant’s person was illegal as the officers did not have a warrant or probable cause and the entry does not fall under any of the exceptions to the warrant requirement.  Because of the illegal entry, any and all evidence seized pursuant to the illegal search and seizure must be suppressed under Article 38.23 of the Texas code of Criminal Procedure.  
	The Defendant has standing to challenge the illegal entry based on the unreasonable seizure of his person under the Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas.  In Tu Minh Trinh v. State, 974 S.W.2d 872, 874 (Tex.App.–Houston [14th Dist.] 1998, no pet.), the Court stated, in reference to a challenged vehicle stop, that “a defendant who challenges the validity of the initial stop of a vehicle in which he was a passenger questions infringement of his own Fourth Amendment rights, regardless of whether he has an expectation of privacy in the place to be searched.”  (Emphasis added).  If that protection exists in vehicles, it would surely extend to a home in which the Defendant was a legitimate guest.  In Clemons v. State, the Court of Criminal Appeals stated that the Fourth Amendment protection extends to give “standing to anyone legitimately on premises when a search occurs.”  501 S.W.2d 92, 93 (Tex.Crim.App. 1973)(citing Jones v. United States, 362 U.S. 257 (1960) (overruled on other grounds)).
	Warrrantless searches and seizures are presumed to be invalid.  See Fancher v. State, 659 S.W. 2d 836, 839 (Tex.Crim.App. 1983).  The State has the burden to prove the reasonableness of the search and seizure.  See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim. App. 1986).  The State has the burden of showing that not only did the officers have probable cause to enter the home, but also exigent circumstances that made obtaining a warrant impracticable.  Newhouse v. State, 53 S.W.3d 765, 769 (Tex.App.–Houston [1st Dist.] 2001, no pet. h).  
	In the case at bar, when the officers found the methamphetamine lab in the pickup, they had no other information which would lead them to reasonably believe that there were drugs or other evidence inside the residence.  Without any further information, the most they had was a reasonable suspicion that criminal activity was occurring inside the residence.  Because the officers lacked probable cause to believe criminal activity was afoot, their warrantless entry into the residence is illegal and all evidence found as a result is inadmissible.
III. The initial oral statement made by the Defendant to Lubbock County Sheriff’s Investigator Bostwick is inadmissible under Article 38.22 of the Code of Criminal Procedure.

	The statement made by the Defendant to Lubbock County Sheriff’s Investigator Bostwick is inadmissible under article 38.22 of the Code of Criminal Procedure.  The statement was a product of custodial interrogation, was not electronically recorded, and was made prior to receiving any statutory warnings.  
	Article 38.22 of the Code of Criminal Procedure provides that oral statements made as a result of custodial interrogation are inadmissible unless electronically recorded with the statutory warnings being contained in the recording.  Tex. Code Crim. Pro. art. 38.22.   See also Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996).  To invoke the protections afforded by article 38.22, the statements must have been made during “custodial interrogation.”  “If statements do not derive from custodial interrogation, the requirements of Miranda and article 38.22 do not apply.”  Gregory v. State, 56 S.W.3d 164, 174 (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d).  
	Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Id. (quoting Miranda v. Arizona, 384 U.S. 46 [1966]).  Courts are directed to determine whether a suspect is “in custody” on a case by case basis.  Id.  In making that determination, the court should consider “whether (1) an officer had probable cause to arrest a suspect and did not tell him that he was free to leave; (2) the officer manifested this knowledge to the suspect; and (3) a reasonable person in the suspect’s position would have believed he was under restraint to the degree associated with an arrest.”  Id.  “However, a formal arrest is not required.”  Id.  See also, Zavala v. State, 956 S.W.2d 715, 723 (Tex.App.–Corpus Christi 1997, no pet.).  
	The Fort Worth Court of Appeals held in State v. Stevenson that statements made to police officers concerning the location of a weapon used in a shooting were inadmissible because they were given during custodial interrogation.  784 S.W.2d 143, 144 (Tex.App.–Fort Worth 1990, no pet.).  In Stevenson, the officers responded to a radio dispatch that a shooting had occurred.  Id.  Upon arrival at the scene, the officers saw two bodies lying on the ground, and the elderly defendant.  Id.  The first officer on the scene asked the defendant where the gunman was so that he could secure the scene and allow the ambulance crew to tend to the victims.  Id.  The defendant then reluctantly told the officer that he was the shooter, and that he had thought the victims were burglars.  Id.  At that point, the defendant explained that he had heart trouble, asked to sit down, and was allowed to sit on the porch.  Id.  A second officer arrived, and was asked by the first officer to watch the man on the porch as he was the shooter.  Id.  The second officer then asked the defendant where the gun was, and he told him the location.  Id.  
	The Court in Stevenson held that the defendant “was in police custody at the time of his statements concerning the location of the gun because he was restrained in his freedom of movement to the degree associated with a formal arrest.”  Id.  In reaching that decision the Court examined the factors with regards to the specific facts of the case.  Id.  The factors they looked at were whether probable cause to arrest existed, whether the defendant was the focus of the investigation, the subjective intent of the officers, and the defendant’s subjective belief.  Id.
	In the case at bar, the officers had secured the residence and handcuffed everyone in the house when Investigator Bostwick asked the Defendant about the methamphetamine lab in the pickup.  At the time of the questioning, the Defendant, and any reasonable person in his position, believed he was under restraint to the degree associated with an arrest.  The officers had probable cause to arrest him after finding the methamphetamine lab in the back of his pickup, and the officers manifested this belief by making the Defendant aware that they had discovered the lab.  Due to the custodial nature of this interrogation, any statement made by the Defendant in response to the questioning is inadmissible under Article 38.22 of the Code of Criminal Procedure.
	IV.  The Defendant has standing to challenge the seizure.
	The Defendant has standing to challenge the seizure of the home in which he was sleeping.  “An accused has standing, under both constitutional provisions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded.”  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.App. 1996).  In order to show standing, the accused must normally show that by his conduct, he exhibited an actual subjective expectation of privacy, and that circumstances exist under which society will recognize that expectation as objectively reasonable.  Id.  
	The Court of Criminal Appeals laid out several factors that are relevant to the determination of whether the defendant had a subjective expectation that society is willing to recognize as objectively reasonable.  Id.  They include whether the accused had a property or possessory interest in the place invaded, whether he was at the place legitimately, whether he had complete control and the right to exclude others, whether he took normal precautions customarily taken by those seeking privacy, whether he put the place to a private use, and whether his claim of privacy is consistent with historical notions of privacy.  Id.  
	In the case at bar, the Defendant had a possessory interest in the home because he was given permission to sleep over with unrestricted access.  The Defendant was legitimately on the premises because he was given permission to be there.  He demonstrated his right to exclude others by not allowing in the officer who was knocking on the door.  The Defendant took the normal precautions customarily taken by those seeking privacy by closing the door to exclude others.  The fact that the Defendant was sleeping in the residence demonstrates that he was putting the place to a private use.  And finally, the Defendant’s claim of privacy is consistent with historical notions of privacy which have always been associated with the sanctity of the home.  Due to all of the facts and circumstances surrounding the Defendant’s use of the property, it is clear that he has standing to challenge the search.
	For the foregoing reasons, the Defendant respectfully asks this court to find that the search and seizure of both the Defendant’s pickup, and the house illegal and suppress all evidence gained as a result of that illegality.
	
Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on ____________, 200__, a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress was delivered to the Criminal District Attorney of_________ County, Texas.

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