TX4: Secluded mobile home owner whose property was not visible from road or other property had a REP in back yard from police

Appellant's property was way off the road and his yard was not visible from the road or any neighboring properties. Based on a CI of unknown reliability, officers decided to do a knock and talk, admitting that they did not get a warrant because of the unknown CI. Officers approached and defendant saw them from the window, but he did not come out. When defendant disappeared from the window, one officer went around to the back for "officer safety," but there was no indication that defendant was armed or dangerous-he was in his mid-sixties. The defendant had a reasonable expectation in his back yard from the police entering on the property. Denial of motion to suppress reversed. Cooksey v. State, No. 04-10-00424-CR (Tex. App.-San Antonio May 11, 2011): Here, although appellant's backyard is not enclosed by a fence, and we accept as true the sheriff's officers' testimony that there was not a "no trespassing" sign posted anywhere on the property, several factors support appellant's reasonable expectation of privacy in his backyard and back steps. First, as in Pool, appellant's home is located in a secluded, wooded area, and there are no neighbors within several hundred yards. Also, the mobile home is not visible from the main road, and appellant's backyard and back steps are not visible from the private driveway, from the front of the home, or from any neighboring properties. Because appellant's backyard and back steps would not be visible to anyone on the main road, on the driveway, or on the usual pedestrian pathway to the mobile home's front door, we believe appellant had a reasonable expectation of privacy in both. In addition, the back steps on which Deputy Isley observed the potted marijuana plants are physically attached to the mobile home. Therefore, we conclude appellant's backyard and back steps are curtilage of his home and constitutionally protected against unreasonable search. . . . As stated previously, the State argues the entry into appellant's backyard was justified to ensure "officer safety," but it is unclear whether the State argues "officer safety" rose to the level of exigent circumstances or warranted a protective sweep. Turning to the State's first possible argument, the existence of exigent circumstances, we must first determine whether probable cause existed for entry into appellant's backyard. See McNairy, 835 S.W.2d at 106 (absent probable cause, exigent circumstances alone cannot justify a warrantless entry). At the time Deputy Isley entered appellant's backyard, the sheriff's officers had no information that appellant was engaged in any illegal activity, other than a confidential informant's tip, which was related through an officer from another jurisdiction. Lieutenant Hill testified he did not feel comfortable seeking a search warrant for appellant's home based exclusively on the word of the informant, whom he did not know and never spoke to. Also, it was not until appellant was about to reenter his home through the back door that Deputy Isley entered the backyard, and it was only after Deputy Isley entered appellant's backyard without appellant's consent that he observed the potted marijuana plants on the mobile home's back steps. According to Deputy Isley: "I noticed [the plants] after [appellant] actually pointed [them] out to me[;] again, I was more focused on [appellant] than I was the contraband." Based on these facts, we conclude the sheriff's officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered in appellant's home or its curtilage. Therefore, the officers did not have probable cause to enter appellant's backyard. Even assuming probable cause existed, there also were not exigent circumstances such that obtaining a warrant was impracticable. …

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