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Click here for the full text of this decision FACTS:On Jan. 16, 2005, Wendi Mae Davidson reported that Michael Severance, her husband and an airman in the U.S. Air Force stationed at Dyess Air Force Base in Abilene, had been missing since the day before. She advised the security forces section at the Air Force base that he may have deserted his post, possibly fleeing to Canada, because he was scheduled to be deployed. Investigators with the Air Force Office of Special Investigations (AFOSI) began a missing persons/deserter investigation. Officer Dennis McGuire of the San Angelo Police Department began a parallel investigation into Davidson’s missing persons report and a report that there was a theft of money from Davidson’s veterinary clinic located in San Angelo. During the course of their investigation, AFOSI agents interviewed various family members and other friends and acquaintances of Davidson and her husband. Although Davidson told the agents that Severance had talked about deserting or leaving the service, Severance’s family members said that deserting would be uncharacteristic of him. The agents conducted a search of the vicinity of Davidson’s veterinary clinic. On Jan. 24, 2005, the agents met with representatives of various law enforcement offices to coordinate their efforts in the missing person investigation. They learned that Terrell Sheen, a local businessman, owned the building where Davidson’s veterinary clinic was located and knew Davidson and her family. AFOSI Special Agent Greg McCormick testified that, early on in the investigation, the agents learned that Davidson had “a horse on a ranch,” but they did not know the location of the ranch. The agents began researching Sheen’s properties to determine if Severance had access to them and might be found there. On Jan. 28, 2005, Air Force personnel conducted a ground search of a two-mile radius of the veterinary clinic. During the course of their investigation, AFOSI agents sought and received written approval from the Regional Commander at Langley Air Force Base in Virginia to place a mobile tracking device on Davidson’s vehicle, which displayed an Air Force sticker allowing entry onto the Air Force base. On Feb. 26, 2005, shortly after midnight, agents placed a tracking device on the exterior undercarriage of Davidson’s vehicle as it was parked in the parking lot of her veterinary clinic. The device tracked the whereabouts of Davidson’s vehicle on Feb. 26 and 27. The data retrieved from the device showed that on Feb. 27, 2005, Davidson’s vehicle traveled to a remote location, identified as ranch property owned by Terrell Sheen. The agents contacted Sheen on March 1, 2005. Sheen told the agents that Davidson and Severance had access to his ranch property and that Davidson kept a horse there. Sheen consented to the agents’ search of the property. Based on this additional information and Sheen’s consent, on March 3, 2005, Sheen gave the agents a tour of the entire ranch property. Sheen also told them that Severance had been to the property and had access to it. Sheen allowed the agents access to all the buildings on the property and showed them various ponds, including a large stock pond with a boat dock. The agents observed that the ranch was gated and locked with a combination lock. There was a lengthy road leading to a barn, mobile homes, fenced corrals and ponds. Sheen allowed the agents to walk through the mobile homes, barn and outbuildings. McCormick testified that the agents were looking for a missing person: “We went to every place that someone could possibly hide without going through the brush and looking under every rock.” On March 5, 2005, Texas Ranger Shawn Palmer and San Angelo Police Sergeant Jones interviewed Davidson at the veterinary clinic. During the interview, the officers asked about the Sheen property, the pond on the property, and about computer searches done on a computer at the clinic, including Internet searches on the subjects of polygraphs and “decomposition of a body in water.” When the officers asked about the pond, Davidson “became more abrupt in her answers . . . [and] got kind of defensive,” responding that her parents also had a pond on their property and that Sheen’s ranch had three ponds, not just one. After the interview, the officers met with AFOSI agents and other officers in the vicinity. When Palmer noticed Davidson’s vehicle was no longer parked at the clinic, he asked the AFOSI agents and a police officer to set up surveillance in the vicinity of Sheen’s ranch. Palmer testified: “After interviewing her and discussing this ranch and the pond, I became concerned that there was in fact something in the pond, possibly this missing person, if not evidence of some sort, but she definitely showed some interest in that pond.” When the officers arrived at the ranch, Davidson was present, attempting to enter the gate. A police officer instructed Davidson that she could not enter the property, because police were securing the premises for a search. After Davidson was denied access, she left. That same day, Marshall Davidson, Davidson’s brother, contacted San Angelo police officer McGuire, advising him of the possibility that Severance’s body could be found in one of the ponds on the Sheen ranch. Marshall Davidson then requested a meeting with San Angelo police. Wendi Davidson and her parents were also present at the meeting. McGuire and Palmer testified that, during the meeting, they heard Wendi Davidson say to her parents: “I didn’t kill him, but somebody did. I thought one of you did it, so I moved the body to protect you.” Upon searching the pond on Sheen’s property pursuant to Sheen’s consent, authorities located Severance’s body. Upon locating Severance’s body, AFOSI agents ceased their investigation. San Angelo police and Texas Rangers obtained an arrest warrant for Davidson and various search warrants for her clinic, home, computer and vehicle. Authorities indicted Davidson for the murder of Severance and for two counts of tampering with or fabricating physical evidence with intent to impair. Davidson moved to suppress all evidence resulting from the installation and monitoring of the tracking device on her vehicle. The trial court denied the motion. The court found that: “There was no search by law enforcement officials in monitoring the tracking device as there is no reasonable expectation of privacy in the observations of Defendant’s movements on a public thoroughfare, and therefore no violation of the United States Constitution or the Texas Constitution.” Davidson pleaded no contest to all charges. The trial court assessed punishment at 25 years of imprisonment for the charge of murder and 10 years on both of the tampering counts, with the sentences to run concurrently. An appeal followed. HOLDING:Affirmed. Davidson contended that the involvement of military personnel in the investigation violated the Posse Comitatus Act under 18 U.S.C. �1385. Davidson asserted that the involvement of AFOSI agents in the investigation of Severance’s disappearance “amounted to more than passively coordinating a military investigation with a civilian criminal investigation” and therefore violated the act. She urged that this violation triggers the application of Texas Code of Criminal Procedure Art. 38.23, requiring exclusion of any evidence seized as a result of a violation of law. The Posse Comitatus Act, the court stated, attempts to maintain the traditional separation between military and civilian law enforcement, but it does not prohibit all manner of cooperation or interaction between civilians and the military. First, the court stated, the use of military resources is authorized if there is an independent military purpose for their involvement. The independent military purpose in Davidson’s case, the court stated, was to locate a service member who had deserted, a crime under Uniform Code of Military Justice Art. 85. The code grants civilian authorities the power to apprehend deserters. Thus, there is express authorization for military authorities to investigate deserters as well as to coordinate their activities with civilian authorities. Second, the court found that the record did not support Davidson’s contention that the actions of the AFOSI agents amounted to more than passively coordinating a military investigation with a civilian criminal investigation. That the investigation evolved into a criminal investigation, the court stated, does not mean that it did not have an original military purpose or that it was a subterfuge for a civilian investigation. In any event, because Davidson set the military’s investigation in motion, Davidson was estopped from complaining that there was one. Moreover, the court stated that no violation of the Posse Comitatus Act occurred in the case. The trial court found that the military authorities were authorized to place the tracking device on Davidson’s vehicle and that it was placed on the vehicle in accordance with Air Force rules and regulations. No Texas statute governs the use of tracking devices by federal agents, the court stated. The court noted that even if military authorities had violated the Posse Comitatus Act, such a violation would not trigger the application of the exclusionary rule. Finally, Davidson acknowledged that she could not challenge the fact that the agents tracked her car while it was on public streets. Rather, Davidson argued that by tracking her vehicle “onto private land, not visible from the public road, and to which she had a reasonable expectation of privacy,” the AFOSI agents violated her constitutional rights. In response, the court held that Davidson failed to present any evidence during the suppression hearing to demonstrate that the monitoring of her vehicle implicated a reasonable expectation of privacy. The evidence at the hearing showed that the rural ranch property in question fell squarely within the definition of “open fields” in which Davidson was not entitled to an expectation of privacy. OPINION:Patterson, J.; Patterson, Puryear and Pemberton, JJ.

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