Fact Situation: "D.Crook" is hiding out in a ranch house on 300 acres of pristine South Texas land. There is a warrant from a northern state, in NCIC, and the northern state definitely wants D. Crook. The owner of the ranch HATES law enforcement of every type, and is the only one in the County who does not allow Border Patrol or anyone on his property, for any purpose. The ranch is fenced and prominently posted with warnings against trespass. The ranch owner may or may not know that D. Crook is a wanted fugitive. In any event, law enforcement is hesitant to contact the owner and get permission to search the ranch, the house, etc.

Question: Under the "open fields" doctrine, the Feds can obviously go onto the ranch and "scope the place out". Having decided that they can make entry without much of a fuss, I will assume, without arguing the same, that they can, under federal law, bust the door to the ranch house down and nab D. Crook. (I had a federal agent say it's no problem.)

Now - what about our fine State officers? I have read numerous opinions upholding the "open fields" doctrine, but there are some which forbid our State officers from doing what the Feds can because of 38.23, CCrP. Here, you have not one, but two trespasses. One, onto the property, and the second when the house is breached to extract D. Crook.

I don't see a way around the warrant requirement under State law, unless I want to at least argue that the Court of Criminal Appeals has not weighed in on the issue of trespass, 38.23, and open fields. So far, so good, for entering the property. But a warrantless extraction of D. Crook? How does the State get around that?

[In the case at hand, the feds handled everything (and in a comical twist, poor D. Crook peed his pants when they busted down the door.]

I see this coming up a LOT in the future. Our ranches in South Texas are being used for everything from human smuggling, to burial sites, to hideouts, to stash houses. Your input is greatly appreciated!

Your question seems to presume that the Fourth Amendment is not violated by the official conduct you describe (whether we are talking about state or Federal officers).

On that assumption, the Texas Constitution would not require that a warrant be secured so long as there was probable cause. "[T]he 'warrant requirement' that the Supreme Court has found the Fourth Amendment to embody . . . has nothing to do with article I, section 9 of the Texas Constitution which does not embody a warrant requirement." Laney v. State, 117 S.W.3d at 865 (Womack, J., concurring).

Of course, as you point out, there is no legitimate expectation of privacy arising merely from fencing or "posted" signs. E.g. Rosalez v. State, 875 S.W.2d 705. That should permit the officers to get to the curtilage of the house, and maybe even to the front door without committing an invasion of privacy. Of course, maybe United States v. Jones, 565 U. S.___ (2012)has changed this. But see Carroll v. State, 911 S.W.2d at 222.


Entry into the house might then be justified as a pursuit under art. 14.04 or under art. 14.05, and more assuredly under art. 15.24 and art. 15.25.

Scalia, J., foreshadowed in Jones that the property-right argument should not affect the open-fields doctrine, as I recall.

In any event, if you know D. Crook is on the ranch, get a search warrant to look for him to execute the arrest warrant.

That what I tried to preach. Feds won't listen, and State boys and girls want to follow their lead.

I am not worried about the constitutional ramifications as much as I am about the 38.23, CCrP ramifications........

The problem is that Jones may have changed the focus from the right of privacy to whether there is a violation of a property right for all search issues. Moreover, Jones could only be talking about the application of the Fourth Amendment to open fields, not necessarily whether a state (especially one with its own exclusionary rule) might consider notice that entry is prohibited as a basis to call the entry a criminal trespass. Of course, the law violated still has to have privacy as its purpose to create a problem under 38.23. Obtaining a search warrant to find the subject of the arrest warrant is certainly the safest approach.

See if Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) provides any help. In Miles the CCA explained only those acts that violate the defendant's privacy rights or property interests are subject to the state exclusionary rule (CCP 38.23).

Since D.Crook doesn't own the property and has no privacy interests (unless he's an invicted guest rather than a "mere" trespasser), it's at least arguable under Miles that Article 38.23 doesn't require exclusion. Cf. Roy v. State, 608 S.W.2d 645, 651 (Tex. Crim. App. [Panel Op.] 1980).

I like Miles. But the problem with these cases is never the guy you're there to arrest, but the 100 kilos of dope/dead body/small arsenal/kidnapped child that belong to the person that owns the ranch. Miles only helps you with D. Crook. Right?