Marcos Turrubiate v. State
415 S.W.3d 433
Tex. App.2013Background
- CPS investigator Lopez visited Marcos Turrubiate’s apartment after a report of marijuana use where the occupant’s girlfriend and six‑month‑old child might live; Lopez smelled a strong odor of marijuana at the door.
- Lopez left, called his supervisor expressing concern he did not know if the child was present, and was told to contact law enforcement to verify the child’s safety.
- About an hour later Lopez and Bexar County Officer Chavarria returned; when Turrubiate cracked the door Chavarria smelled marijuana, placed his arm on the door, entered, handcuffed Turrubiate, searched for weapons, and questioned him about drugs.
- Turrubiate admitted the drugs were his, signed a consent to search, and officers found marijuana in a backpack; the child was not present.
- At the suppression hearing the State presented only the police report; at trial Lopez and Chavarria testified. The trial court denied the motion to suppress; this court reversed on appeal for lack of probable cause and exigency; the Court of Criminal Appeals remanded to decide whether child‑safety exigency was argued at trial or can be raised on appeal.
- On remand the Fourth Court considered whether exigent circumstances based on child safety independently justified the warrantless entry and concluded the record does not support that theory; it reversed and remanded to the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Did the State argue at trial that child‑safety exigency justified warrantless entry? | The State relied at trial primarily on destruction‑of‑evidence exigency; referenced child safety only in closing as background. | Turrubiate contended the State did not present a child‑safety exigency argument at trial. | Held: The State did not meaningfully argue child‑safety exigency at trial. |
| 2) May the appellate court consider a child‑safety exigency theory not argued at trial? | State: under Alford, an appellate court may affirm on any legal theory raised on appeal by the prevailing party in suppression ruling. | Turrubiate: objections to new theory might preclude affirmance on alternate grounds. | Held: Court may consider the child‑safety exigency theory on remand (Alford governs), but must still evaluate the record. |
| 3) Did exigent circumstances based on child safety exist to justify the warrantless entry? | State: CPS concern about possible child in apartment and strong marijuana odor justified immediate entry to protect child. | Turrubiate: No evidence Chavarria knew a child might be inside or communicated urgency about the child before entry; Chavarria’s testimony focused on preserving evidence. | Held: No — the record lacks evidence Chavarria knew of a child‑safety emergency at the time of entry; entry not justified on that basis. |
| 4) Did destruction‑of‑evidence exigency justify the entry? | State: odor of marijuana and risk evidence would be destroyed if officer left to obtain a warrant. | Turrubiate: odor alone plus officer’s presence does not establish exigency to enter without warrant. | Held: Previously held insufficient; Court of Criminal Appeals agreed that odor + officer announcement did not justify warrantless entry for evidence preservation. |
Key Cases Cited
- Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007) (framework for probable cause and exigent‑circumstances exceptions to warrant requirement)
- Parker v. State, 206 S.W.3d 593 (Tex. Crim. App. 2006) (exigent‑circumstances determination based on information known at time of entry)
- Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013) (court of appeals may affirm on any legal theory raised on appeal by prevailing party)
- Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) (scope of record considered when State raises suppression issues at trial)
- Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) (bifurcated standard of review for suppression rulings)
- Mincey v. Arizona, 437 U.S. 385 (U.S. 1978) (warrantless searches must be strictly circumscribed by exigencies)
- Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) (officer testimony supporting both officer‑safety and evidence‑preservation exigencies may justify entry)
- Turrubiate v. State, 365 S.W.3d 780 (Tex. App.—San Antonio 2012) (appellate reversal of conviction for deficient showing of probable cause and exigency)