Has anyone researched whether the portion of a private driveway that spans the bar ditch/public right-of-way is public?
My SO deputy came across a running car parked on the portion of the driveway between the road and the gate to the property (in the bar ditch). When he activated his lights for a community caretaking contact the car proceeded to drive over the locked gate and onto the private property. This all occurred on a rural county road at night.
Is observation of the defendant driving on the right-of-way portion of his driveway sufficient for the public place element?
I've been looking at Fowler v. State and cannot find a definitive answer given our facts.
I think you are o.k. Check out the cases in my case law update on pages 73 and 74. You can download and print the most current version of the update (July 19, 2017) by going to my website. www.richardalpertlaw.com. In particular check out State v Gerstenkorn and Texas DPS v Castro on page 74
Posts: 261 | Location: Fort Worth, Texas | Registered: February 21, 2001
I JUST had this case this week (got a guilty - yay!).
Fowler v. State is a good contrasting case since the vehicle in that case was a 1/4 mile up the private gravel drive, whereas in your case they are right by the road.
Also see Crouse v. State 441 S.W.3d 508 (Dallas COA 2014) excerpt "At 1:30 a.m. on May 4, 2011, officers George White and Jennifer Larue spotted appellant's red Toyota sitting in a field with the lights on. Appellant began to drive around in a circle, as if he did not know where he was going. The car then left the field and continued into a parking lot for an industrial building. There were eighteen-wheelers and other work vehicles parked in the parking lot. The officers turned on their lights to initiate a traffic stop, but appellant's car continued through another portion of the field and onto a gravel road leading to the highway. Officer White pulled the police car in front of appellant's car to block his path. Although it was not raining, appellant had his windshield wipers on, as well as, his turn signal." <-- never went onto the public road, but got close via a gravel road --> Court found it was still a public place
The key phrase as I'm sure you've found is: accessible to the public. In closing I reminded my jurors that if a person gets a flat and has to pull over, can/will they pull over at that spot. In my case they certainly would and it sounds true in your case as well. I also made the argument that they were on the public side of the fence/gate. What is the purpose of a fence, who is it meant to keep out? the general public, therefore everything up to that point is accessible to the public.
And of course whatever Richard Alpert says...
Posts: 3 | Location: Cass County, TX | Registered: December 18, 2015
Great info! I'm anticipating a motion to suppress any day now so Crouse will come in handy. If it goes to trial I hope you don't mind me borrowing some of your closing.
quote:
Originally posted by NR: I JUST had this case this week (got a guilty - yay!).
Fowler v. State is a good contrasting case since the vehicle in that case was a 1/4 mile up the private gravel drive, whereas in your case they are right by the road.
Also see Crouse v. State 441 S.W.3d 508 (Dallas COA 2014) excerpt "At 1:30 a.m. on May 4, 2011, officers George White and Jennifer Larue spotted appellant's red Toyota sitting in a field with the lights on. Appellant began to drive around in a circle, as if he did not know where he was going. The car then left the field and continued into a parking lot for an industrial building. There were eighteen-wheelers and other work vehicles parked in the parking lot. The officers turned on their lights to initiate a traffic stop, but appellant's car continued through another portion of the field and onto a gravel road leading to the highway. Officer White pulled the police car in front of appellant's car to block his path. Although it was not raining, appellant had his windshield wipers on, as well as, his turn signal." <-- never went onto the public road, but got close via a gravel road --> Court found it was still a public place
The key phrase as I'm sure you've found is: accessible to the public. In closing I reminded my jurors that if a person gets a flat and has to pull over, can/will they pull over at that spot. In my case they certainly would and it sounds true in your case as well. I also made the argument that they were on the public side of the fence/gate. What is the purpose of a fence, who is it meant to keep out? the general public, therefore everything up to that point is accessible to the public.
Suppression wouldn't be proper regardless. Public Place is an element of the offense and they can't have a motion to suppress on whether you can prove one of the elements of the offense.
