dissenting.
I respectfully dissent. I fail to see adequate justification for Escalon’s warrant-less and illegal entry into the ranch and for the search resulting from the entry. A warrantless search is per se unreasonable. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The burden is on the prosecution to establish the validity of a warrantless search or arrest. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1969); Gonzales v. State, 588 S.W.2d 355 (Tex.Crim.App. 1979). A warrantless search must be strictly circumscribed by the exigencies which justify its initiation. Bass v. State, 732 S.W.2d 632 (Tex.Crim.App.1987).
At trial, Escalón stated he proceeded without a warrant because he was concerned that if the arrest of the driver of the Trans-Am had been seen, the narcotics could be being destroyed. He stated that by his information, 1000 pounds of marihuana were to be at the ranch, and only about 80 pounds had been seized from the Trans-Am. However, he also testified that he had participated in burning 1000 pounds of marihuana, and it took 2-4 hours. He also testified that after the arrest of the driver of the Trans-Am, he sent an officer to observe at the gate of the ranch. When his backups had arrived and he went to the gate, this officer informed him that no one had come or gone and no activity had been observed on the ranch. Escalón conceded that at that time, he had no reason to believe marihuana was being destroyed. Nevertheless, he then entered the ranch by force.
Escalón testified that the events occurred on February 1, 1985 (a Friday), and that appellant was arrested before noon. He also testified that it was about 5 miles to the magistrate’s office in Mercedes, and that magistrates were also in Edcouch and in Weslaco, 8 to 10 miles away.
The mere presence of destructible, incriminating evidence does not create exi*909gent circumstances. United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986). Moreover, the “exigent circumstances” urged by Escalón were clearly of his own making. Thus, he cannot rely on them to avoid obtaining a warrant. See United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983).
In his second point of error, in addition to complaining that the search was illegal under the United States and Texas constitutions, appellant contends that the evidence was obtained “in violation of state law.” In his argument, he cites Tex.Code Crim. Proc.Ann. art. 38.23, as well as both United States and Texas constitutional provisions.
The “open fields” doctrine argued by the State and approved by the majority has no application in this case. Without regard to whether the trailer which was the focus of the search was part of the “curtilage” or part of the “open fields,” the actions of the peace officers in gaining entry to the premises were clearly in violation of the laws of the State of Texas.
Tex.Penal Code Ann. § 30.05(a)(1) (Vernon Supp.1987) provides that a criminal trespass occurs if a person enters or remains on property without effective consent of the owner and he has notice that entry was forbidden. “Notice” includes fencing or other enclosure obviously designed to exclude intruders or to contain livestock. Tex.Penal Code Ann. § 30.-05(b)(2)(B) (Vernon Supp.1987). See Johnson v. State, 672 S.W.2d 621, 623-24 (Tex. App. — Corpus Christi 1984, no pet.). Escal-ón testified that on the right-hand side of the gate, right where he cut the chain securing the gate, was a sign stating “Keep Out,” and at the opposite end of the wire gap another sign said “No Trespassing.” Clearly, Escalon’s entry upon the small ranch was more than a “technical trespass;” it was a clear violation of Texas’ criminal trespass statute.
A “technical trespass” is a forseeable and harmless violation of civil or common law, not a violation of criminal law.
Tex.Code Crim.Proc. art. 38.23 provides: “No evidence obtained by any officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”
This statutory exclusionary rule has been the law of the State of Texas since June, 1925. See Brown v. State, 657 S.W.2d 797, 802-07 (Tex.Crim.App.1983) (Clinton, J., concurring); Howard v. State, 617 S.W.2d 191 (Tex.Crim.App.1979); Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743 (Tex. Crim.App.1927); Dees v. State, 722 S.W.2d 209 (Tex.App. — Corpus Christi 1986, pet. filed).
United States v. Dunn, — U.S. -, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), cited by the majority, is not applicable in this instance because it is a case arising under federal law in a Federal District Court using Federal Rules of Procedure. State law, not federal law, governs the legality of arrests and searches so long as that law does not violate federal constitutional protections. See Ker v. California, 374 U.S. 23, 81, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963); Milton v. State, 549 S.W.2d 190, 192 (Tex.Crim.App.1977); Pope v. State, 695 S.W.2d 341, 343 (Tex.App. — Houston [1st Dist.] 1985, pet. ref'd).
As to the seizure of appellant, Escalón testified that, when he viewed the transaction on the ranch before entering, he could not distinguish the actors’ characteristics sufficiently to identify them.
I further do not believe that the State met its burden of proving voluntary consent so as to validate the initial illegal intrusion. Rather, the intrusion was a coercive factor in obtaining the consent. Es-calón stated that about five officers, presumably armed, with a marked vehicle, entered, and that the place was “secured” in about five minutes. Appellant signed the consent after having been given Miranda warnings and while in a police vehicle. Es-calón admitted that appellant was in custody, and that he told appellant that the place would be searched whether he consented or *910not. Neither he nor the other officers said anything about a search warrant.
Where the validity of a search rests on consent, the State has the burden of proving by clear and convincing evidence that the consent was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Meeks v. State, 692 S.W.2d 504, 509-10 (Tex.Crim.App.1985).
Whether consent was voluntary is determined from the totality of the circumstances. If appellant concluded a search was inevitable with or without his consent, this would render the consent invalid even if the consent were not tainted by the illegality of the initial entry and resulting seizure of appellant. See Daniels v. State, 718 S.W.2d 702, 707 (Tex.Crim.App.1986). I would hold that the contraband should not have been admitted into evidence and the trial court should have granted appellant’s motion to suppress the evidence.