Ballard v. State

104 S.W.3d 372, 2003 Tex. App. LEXIS 4210, 2003 WL 21106266
CourtCourt of Appeals of Texas
DecidedMay 14, 2003
Docket09-01-397 CR
StatusPublished
Cited by11 cases

This text of 104 S.W.3d 372 (Ballard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ballard v. State, 104 S.W.3d 372, 2003 Tex. App. LEXIS 4210, 2003 WL 21106266 (Tex. Ct. App. 2003).

Opinions

OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted appellant of the offense of Manufacture of a Controlled Substance. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon Supp.2003). The jury further assessed punishment at confinement in the Texas Department of Criminal Justice — Institutional Division for a term of sixteen years and one day. Appellant represented himself at all phases of the trial. Appellate counsel now prosecutes the instant appeal on appellant’s behalf. We are presented with three appellate issues, the second of which will be dispositive of the appeal. It reads, “The search of the appellant’s home was performed illegally as the officers failed to knock and announce their presence prior to entry.”

The record reflects appellant filed numerous pretrial motions, one of which, a suppression motion, raised the “knock and announce” issue. The issue was vigorously litigated in a pretrial suppression hearing. At one point during testimony at the suppression hearing, the State orally stipulated to the fact that announcement of the presence of the police serving the search warrant at appellant’s house “was made at the same time the door was breached and entry was made[.]” Our careful examination of the record indicates that at both the pretrial hearing and at trial, the State did not contest the fact that the law enforce[374]*374ment officers serving the search warrant did not knock, announce their presence and wait for a response from the occupants of the dwelling before breaking the door in and entering. The authority for the “knock and announce” doctrine stems primarily from two cases out of the United States Supreme Court, both unanimous opinions: Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); and Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

APPLICABLE LAW

The purpose [of the Fourth Amendment’s requirement of reasonableness] is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted — even if a later, less virtuous age should become accustomed to considering all sorts of intrusions “reasonable.”

Minnesota v. Dickerson, 508 U.S. 366, 380, 113 S.Ct. 2130, 2138, 124 L.Ed.2d 334, 348 (1993) (Scalia, J., concurring). In Wilson, the Court began its discussion of the legal principles involved with the following:

The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. See California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991); United States v. Watson, 423 U.S. 411, 418-420, 96 S.Ct. 820, 825-26, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543 (1925). “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.

Wilson, 514 U.S. at 931, 115 S.Ct. at 1916, 131 L.Ed.2d at 980. Later in its opinion, the Court framed the holding, and its proper context, as follows:

Our own eases have acknowledged that the common law principle of announcement is “embedded in Anglo-American law,” Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958), but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment. We now so hold. Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure ....
This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announce[375]*375ment was never stated as an inflexible rule requiring announcement under all circumstances. See Ker v. California, 374 U.S. 23, 38, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726 (1963) (plurality opinion) (“[I]t has been recognized from the early common law that ... breaking is permissible in executing an arrest under certain circumstances”)!)]

Id. at 934, 115 S.Ct. at 1918, 131 L.Ed.2d at 982. (footnote omitted).

In Richards, the Court examined a holding by the Wisconsin Supreme Court to the effect that police are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. Richards, 520 U.S. at 387-88, 117 S.Ct. at 1417, 137 L.Ed.2d at 620. The Court disagreed with the Wisconsin Supreme Court’s felony drug investigation “blanket exception” to the Fourth Amendment’s knock and announce requirement. Id. The decision of the Wisconsin Supreme Court relied on numerous “criminal conduct surveys, newspaper articles, and other judicial opinions” indicating that felony drug crimes involve “an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police.” Id. at 390, 117 S.Ct. at 1419, 137 L.Ed.2d at 621-22 (citing to the Wisconsin Supreme Court’s opinion. See State v. Richards, 201 Wis.2d 845, 549 N.W.2d 218, 223-27 (1996)). The Court itself acknowledged as “indisputable” that felony drug investigations may frequently involve the threat of physical violence to the police and/or the likelihood that drug evidence will be destroyed if advance notice were given. Richards, 520 U.S. at 391, 117 S.Ct. at 1419, 137 L.Ed.2d at 622-23. Rejecting the Wisconsin court’s per se exception for felony drug investigations, the Court admonished:

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Ballard v. State
104 S.W.3d 372 (Court of Appeals of Texas, 2003)

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Bluebook (online)
104 S.W.3d 372, 2003 Tex. App. LEXIS 4210, 2003 WL 21106266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballard-v-state-texapp-2003.