St. Mary's Law Journal


In State v. Hobbs, the Texas Fourth Court of Appeals held a warrantless intrusion by police onto private property to obtain evidence constitutes criminal trespass under Section 30.05 of the Texas Penal Code. The resulting evidence falls within the exclusionary rule and this article considers whether this protection, which goes beyond constitutional guarantees, is necessary or desirable. The first part of this paper reviews existing federal and state constitutional protections against unreasonable searches. Next, the paper analyzes the history and purpose of criminal trespass and the exclusionary rule in Texas. Finally, the paper considers a question the court of appeals did not address in Hobbs: should evidence obtained as a result of a violation of the Texas Criminal Trespass Statute be excluded in all situations? The conclusion is in the negative. The purpose of the Texas Criminal Trespass Statute is to protect private property as well as privacy. The purpose of the Texas exclusionary rule statute is to prevent abuse of police power. The interrelationship of the two statutes should not have effects which do not serve either of those goals. Those unwelcome ramifications, however, are a possibility. Failure of the Criminal Trespass Statute to provide an exception for law enforcement in situations where their duty requires them to enter onto lands protected by the Statute could frustrate the law’s objective. Law enforcement officers performing official duties under exigent circumstances should be exempted from the restrictions of the Criminal Trespass Statute. The same exceptions to the constitutional warrant requirement should apply in a statutory analysis. There is no operative policy reason to impose more stringent restrictions on law enforcement activity than those imposed by the Constitution. Police acting within the parameters of the Constitution should not be stopped at the fence line.


St. Mary's University School of Law