*1 Silvеrman, Houston, Ap- Norman J. for BAROCIO, Xavier Hernandez pellant.
Appellant, DA, Houston, Kugler, Eric Mat- Assist. Paul, Austin, Attorney, for thew State’s State. The STATE of Texas.
No. PD-1980-03. OPINION Court of Criminal of Texas. HERVEY, J., delivered the KELLER, PJ., the Court which 9, March MEYERS, WOMACK, and KEASLER COCHRAN, JJ., joined.
After the trial court denied his motiоn suppress, appellant pled no contest to mis- marijuana. possession demeanor We and exi- probable address whether cause gent circumstances existed police entry into warrantless home, police saw the during which marijuana in plain view. suppression The evidence from the hear- shows that two sheriffs Kirsch) (Wyatt ongoing burglary possible, appellant’s home. Barocio v. (Tex.App.-Houston 2003) (Guzman, J., and at 32-34 [14th Dist] depu- dissenting). patrol, on these While car, its illegаlly parked ties noticed an with keys in the open door and the driver’s in front of a home. See id. ignition, they the home inves- approached on the front tigate, they marks camera aimed door lock and a surveillance at the front door. See id. The id. knocked on the front door. See While door, waiting for someone to answer they heard a lot of noise inside marijuana. id. burnt smelled that, in it experience, his burglars not unusual for would marijuana in home that smoke minutes la- burglarizing. See id. Several door, ter, and the appellant opened stronger. odor of burnt became *2 search and not authorize a warrantless deputies repeatedly requested See id. The home”) Steelman, 93 quoting id. in a appellant’s idеntification. See seizure Appeals of also at 108. The Court S.W.3d point, testimony depu- At the of the this that, a home police can enter decided while id. testified ties conflicted. See they burglary progress, investigate to a provide idеntifi- appellant that refused to detaining the sole may not do so “after on appellant cation and that he detained original). (emphasis id. suspect.” See porch the while Kirsch entered the home authority discretionary our Wе exercised and to “protective sweep” to conduct a grounds The three to review this decision. marijuana.” investigate “the smell of See granted discretionary re- upon which we appellant id. Kirsch testified that eventu- view statе: ally indicated that his identification was 1) one-judge published plurality ap- told
inside the
See id. Kirsch
failed to
the evidence
opinion below
view
id.
pellant
get his identification. See
trial
light
in the
most favorable to the
appellant
Kirsch аnd
followed
when
ruling
suppress
court’s
on the motion to
the home.
id. Kirsch
went inside
trial court’s
incorrectly
that he followed
to in-
reviewed the
marijuana
pos-
ruling
the
a de
standard when
vestigate
odor and the
under
novo
burglary.
many
gave
sible
Seе id. Once inside the
who
there were
witnesses
home,
marijuana
testimony
the
saw the
that
conflicting or inconsistent
plain
They eventually
view. See id.
the
for the trial
could have been
basis
belonged
appel-
learned that the home
ruling.
cоurt’s
lant
burglar
and that
was not a
2)
one-judge plurality
published
appellant’s wife
and identi-
when
arrived
opinion
incorrectly applied
below
State
appellant.
fied
(citation omitted),
v.
in revers-
Steelman
ing the trial court’s denial of a motion to
Appeals accepted
dep
The Court of
the
suppres-
evidence at the
suppress where
testimony
they
uties’
that
the
entered
that
the officers
hearing
sion
showed
investigate
home to
the odor of burnt mar
that
in-
reаsonably believed
ijuana
possible
and a
burglary. See Baro
a
and that other
vestigating
(“decision
cio, 117
at 23
case
this
suspects might be inside the residence.
does not turn on
credibility
the
or demean-
3)
published one-judge plurality
or of the
[dеputies’]
witnesses because the
believed,
incorrectly held that
the
testimony,
entirely
even if
is in
below
had waived the issue of attenua-
justify
entry
sufficient to
the warrantless
State
home”).
that
by allegedly failing
argue
tion
into
The Court of Ap
hearing
during
supрression
issue
peals
accepted
also
that the
had
in favor of the
when the trial court ruled
probable
cause to believe that
hearing.
State at that
burglarizing
the home when
de
on
Baro
tained
initially
is distin-
note
this case
We
ciо,
at
117 S.W.3d
24-25.
because, unlike
guishable from Steelman
Steelman,
Relying
on this
decision in
entered
Court’s
State
Steelman,
just
odor of
(Tex.Cr.App.
home
on more than
93 S.W.3d
based
2002),
marijuana. They
Appeals
the Court of
decided that
burnt
also
ongoing
bur-
possiblе,
the odor of burnt
alone did not
exigent circumstances allowed
entry
glary
the warrantless
into the
Barocio,
at 24
to enter the home without warrant
home. See
them
And,
(“odor
alone,
further.
marijuana, standing
investigate
does
the situation
because others were
we do not
with the decision of the
struction
evidence
police may
justified
not enter
warrantless
present
Court
home).
investigate
possible burglary
a home to
entry and search of
detaining
ultimately turns out
after
what
ground
second
We sustain the State’s
*3
burglary.
to
sole
in the
be the
unnecessary
which makes it
to address the
Barocio,
at 24-25. We
S.W.3d
grounds,
third
which we dismiss.
first and
analysis
dissenting opinion
with the
of the
The
of the
is
judgment
Court
Appeals:
in the Court of
of the trial
judgment
reversed and the
investigat-
Kirsch testified that he was
court is affirmed.
ing
possible burglary
appellant’s
J.,
PRICE,
opinion concurring
filed an
home when he made the warrantless
judgment,
in the
in which JOHNSON and
entry.
possibility
that a
is
HOLCOMB, JJ., joined.
progress
recently
been com-
has
exigent
mаy provide
mitted
officers with
PRICE, J.,
concurring
opinion
filed an
to
a warrantless
circumstances
judgment,
in the
in which
and
JOHNSON
(Citations
omitted).
entry.
and footnote
HOLCOMB, JJ., joined.
may still be
suspects
Because
or victims
residence,
an
in the
and because therе is
majority
I
that the trial
agree with the
urgent
protect
immediate and
need to
denying
appellant’s
court did not err
the
property,
the
and his
the war-
resident
to
suppress.
separately
motion to
write
justified
police entry may
rantless
аs
explain my reasons.
cir-
exigent depending upon
specific
the
suppress
to
filed a motion
For example,
cumstances of the case.
tangible
and
evidence obtained
statements
police may properly enter to look for
by a
that he claims was obtained
warrant
Indeed,
perpetrators
other
or victims.
and Texas
in violation of the United States
observed,
as
federal court has
it
one
Specifically, the
Constitutions.
“defy reason” to forсe officers to
would
his
claimed that sheriffs
entered
possible burglary-in-
the
of a
leave
scene
applied
home without a warrant and then
thereby
progress to obtain a warrant
information ob-
for a warrant based on
“leaving
putative burglars
the
free
illegally
were
his
tained while
(cita-
complete their crime unmolested.”
omitted).
tion
hearing on the
The trial court held a
Barocio,
(Guzman, J.,
App.2005) (police that suppress motion to showed activity occurring criminal on the believe that on, in front of the Wyatt parkеd a car home based found inside the defendant’s parked partially It appellant’s trailer. among things, other the odor of wrong roadway heading and the from the defen- the emanating from the was wide friends, The driver’s door cir- direction. dant аnd from her Wyatt discovered cumstances, open, upon stopping, prevent need to the de- the record, spelled Monfort. porting warrant is spelled the search In the the name is Monford. sup- signature affidavit The name and Wyatt that he and di- igni- Kirsch testified keys to the car were the his go get inside to rected the up. He called for back tion. and that followed identification call for responded Wyatt’s Wyatt. Kirsch followed appellant and up, back and the two went in what was called door to find out knock on trailer, that he foyer of Kirsch said about the car. The noticed kitchen counter. marihuana on the there were marks on the front door. to the was taken outside that, at he could point, this car, performed protec- and Kirsch patrol of noise in smell marihuana and heard lot anyone if else was sweep tive to see that he did the trailer. Kirsch testified trailer. *4 not hear noises and that he smelled no trailer, Monfort, not at the who was point. They at that saw both He said that obtained the search warrant. pointing cameras at the front surveillance Wyatt told him that he had the mari- seen in front the trailer. porch and the street the trailer on standing huana while outside in- аlong This with the other deputies knocked on the door and appeared the incident formation about ap- waited minutes before the two five supporting the affidavit the warrant. pellant came to the door. When the door opened, strong was Kirsch smelled a odor The trial court denied the motion of marihuana for the first time and that the smell of suppress. It concluded than stronger said that he smelled it be- circumstances provided exigent marihuana deputies questioned fore. One of the deputies to allow the to enter the appellant about the car. The not have the benefit of The trial court did deputies told them that it was his. The Steelman,2 when it our State also asked the for identification. so, if the trial ruling. made its Even uncooperative ap- any theory of court’s decision is correct on peared to be nervous. case, to the the decision will applicable law sustained.3 ap- testified that he detained the thаt, The Court of concluded pellant porch and that Kirsch went Steelman, the facts holding under our if anyone inside to see else was give exigent did not rise to circumstances inside, trailer. he While exigent in this case.4 It also held lying some marihuana loose on the kitchen regarding a circumstances did not exist plastic bag. Wyatt counter near a had because the possible that he never entered the trailer until the custody.5 sole had obtained and that search warrant been anyone He Fourteenth told that he had. Under the Fourth and never Amendments, war- a or seizure conduct- talked to Monfort to obtain a search search without a warrant issued rant. ed the home 19, (Tex. Steelman, 102, (Tex. 24 4. Barocio v. 117 S.W.3d 2. State v. 2003). Crim.App.2002) (holding that the smell of App.-Houston [14th Dist.] burning marihuana alone does not authorize in a the warrantless search and seizure 5. Ibid. home). Ross, (Tex. 3. State v. Crim.App.2000). particularly not
upon probable presumptively cause is un- were relevant the find- еxigent of a exigent reasonable.6 When circumstances circumstances because exist, however, potential burglary. the warrantless search of But do Exigent circum- supported probable home is authorized.7 these facts cаuse for a stances are found when there is some dan- search on the basis that there warrant victims, or an ger to the officer increased drugs inside the trailer. apprehending suspect, likelihood of comments, these I concur in the With рossible destruction of evidence.8 judgment. Court’s during conceded the hear- ing on the motion for new trial that the cause to obtain
warrant to search the trailer marihuana. The
because the smell of
only circum- question is whether permit
stances existed to enter before obtained the warrant. VODOCHODSKY, Appellant, Kenneth that a car in the The rеcord shows *5 v. open keys street was left with the ignition. Wyatt and Kirsch found of Texas. The STATE marks on the front door of the trailer No. AP-74129. car heard a parked. where the standing lot of noise while he was Appeals of Texas. Court of Criminal long front toоk a 16, 2005. March time to come to the door after the door, knocked. he came to the uncooperative appeared to be ner-
vous. The either was unable to produce
or refused to his identification
showing that he owned the car and was an gave
occupant of the trailer. These facts that a
rise believe going place had taken or was still officer police
on. A reasonable with could have con-
knowledge these facts perpetrators potential
cluded that other or the trailer. These facts
victims were inside
support the conclusion that cir-
cumstances existed for the potential suspects the house for
search
victims. smell of want make clear cameras
marihuana and surveillance Id., (Tex. McNairy 8. at 107.
6. Crim.App.1991). Ibid.