Xаvier Hernandez BAROCIO, Appellant, v. The STATE of Texas, Appellee.
No. 14-01-00944-CR
Court of Appeals of Texas, Houston (14th Dist.)
June 19, 2003
Rehearing Overruled Oct. 2, 2003
117 S.W.3d 19
CHARLES W. SEYMORE, Justice.
Eric Kugler, Houston, for appellee.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
PLURALITY OPINION
CHARLES W. SEYMORE, Justice.
Following the denial of his motion to suppress, appellant Xavier Hernandez Barocio pleaded no contest to possession of marijuana. He contends on appeal that the trial court should have suppressed the marijuana because police discovered it after entering his home without a warrant. We find that the trial court should have suppressed the marijuana. Accordingly, we reverse and remand.
BACKGROUND
While on patrol, Harris County Deputy Wyatt noticed a car parked on the road, facing the wrong direction, with its driver‘s door open, and the keys in the ignition. He and Deputy Kirsch approached the home nearest the car to investigate. As they approached the front porch, they saw pry marks on the front door and a surveillance camera aimed at the front door.
Deputy Kirsch‘s version differed in some respects to Deputy Wyatt‘s testimony. He testified that he first smelled marijuana when Barocio opened the door. Deputy Kirsch stated that he told Barocio to step outside and asked for his identification. Barocio indicated that his identification was inside the home. Deputy Kirsch testified that he then instructed Barocio to retrieve the identification. According to Deputy Kirsch, when Barocio entered the home, he and Deputy Wyatt followed without consent. Once inside, Deputy Kirsch could see a bag of marijuana lying on the kitchen counter. At that point, Deputy Kirsch conducted a protective sweep of the remainder of the home. He testified that “the principle reason” he entered the home “was the strong odor of burning marijuana inside.” The “secondary reason” was to obtain identification in connection with his suspicion that Barocio was a burglar.
Finally, Barocio testified that the deputies asked him to step outside to see his driver‘s license and insurance card. As he stepped onto the porch, he closed the front door behind him. He testified that Deputy Kirsch nonetheless entered the home without permission. When Barocio protested and grabbed his cellular telephone to call his lawyer, Deputy Wyatt took away the telephone and handcuffed him. He furthеr testified that he never entered his home with the officers. Barocio admitted that the marijuana was lying on the kitchen counter, but testified that it was not visible from the front door. Barocio further admitted that he had smoked some of the marijuana the night before.
After discovering the bag of marijuana in the kitchen, the deputies obtained a search warrant through Deputy Kevin Montford. Because of statements by Deputy Wyatt, Deputy Montford averred that the officers first saw the marijuana in plain view while standing outside the home. However, this line of sight was later proved impossible, and Deputy Wyatt testified at trial that he did not see the marijuana until after the search warrant was issued. Further, Deputy Wyatt testified that it was Deputy Kirsch who provided the information about the bag of marijuana to Deputy Montford for the search warrant.
STANDARD OF REVIEW
We review a trial court‘s ruling on a motion to suppress for abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). Accordingly, we give great deference to the trial court‘s determination of historical facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court‘s rulings on “mixed questions of law and fact,” such as the issue of probable cause, if the resolution of those ultimate questions turns on evaluation of witnesses’ credibility and demeanor. Id. If a mixed question of law and fact does not turn on an evaluation of credibility and demeanor, we review the ruling de novo. Id. Thus, “[w]hen faced with an issue of mixed law and fact, the critical question under Guzman
The decision in this case does not turn on the credibility and demeanor of the witnesses because the testimony, even if entirely believed, is insufficient to justify the warrantless entry into appellant‘s home. Therefore, we review the trial cоurt‘s ruling de novo.
WARRANTLESS SEARCH
The
One such exception is a search conducted with probable cause and exigent circumstances, which make obtaining a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). “Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.” Id. On appellate review, a warrantless search based on probable cause may require evidence of a more “judicially competent or persuasive character” than a search based upon a magistrate‘s determination of probable cause. Aguilar v. Texas, 378 U.S. 108, 111 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1983). Thus, facts which might constitute issuance of a warrant for probable cause do not necessarily validate a search made without a warrant. McNairy, 835 S.W.2d at 106. “Any assumption that evidence sufficient to support a magistrate‘s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the [Fourth] Amendment to a nullity and leave the people‘s homes secure only in the discretion of police officers.” Johnson v. United States, 333 U.S. 10, 13-14 (1948) (holding that odor of burning opium did not excuse necessity
In keeping with this rationale, the Texas Court of Criminal Appeals has recently held that “[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.” State v. Steelman, 93 S.W.3d at 108. In Steelman, police received a tip that drug dealing was taking place at the defendants’ residence. The police knocked on the door and, when one defendant opened the door, smelled the odor of burnt marijuana. Id. at 103. As with Barocio, the defendant who answered the door stepped outside. As with Barocio, the police asked the defendant for identification. As with Barocio, when he turned and entered the home, the police entered the home behind him without consent. Id. at 104. Once inside, the police arrested the defendant and the other occupants of the home. The court held that the odor of marijuana did not give police probable cause for the arrest. Id. at 108. Similarly, in applying Steelman to this case, we hold that the odor of marijuana alone did not provide probable cause for the warrantless entry into Barocio‘s hоme.
The dissent engages in lengthy commentary about the plain smell of marijuana,2 citing cases from New Jersey, Wisconsin, Ohio, and California. We acknowledge the academic and judicial debate about the “plain smell” doctrine.3 Nonetheless, it is merely an academic exercise for an intermediate court to initiate such a debate when the issue has been decided by our state‘s highest criminal court.
Further, the dissent devises both probable cause and exigency by pairing the marijuana odor with suspicions that Barocio was a burglar. Certainly, police can enter a home to investigate a burglary-in-progress. See In re J.D., 68 S.W.3d 775 (Tex. App.-San Antonio 2001, pet. denied) (two teens with a rifle seen entering yard from alley; police see signs of burglary at home and hear people within, though no one responded to police‘s shouts). However, in none of the dissent‘s cases did the police enter to investigate a burglary after detaining the sole suspect.4 If the officers had articulatеd facts reasonably showing other persons were in Barocio‘s home, whether victims or accomplices, no doubt the State would have argued on appeal the emergency doctrine, which is the basis of the cases cited by the dissent.5
See Brimage v. State, 918 S.W.2d 466, 500-01 (Tex. Crim. App. 1994).6 The dissent‘s stance also ignores the State‘s concession at trial that investigation of a possible burglary did not provide officers justification to enter Barocio‘s home.7 Coupling odor and burglary suspicions, when the sole suspect has been detained, is simply a red herring.8
Finally, the dissent finds exigency in the “likelihood” that the marijuana would have been destroyed if police left to obtain a warrant. Having held there was no probable cause for the warrantless search, we need not address exigency. However, we note that preventing the destruction of evidence or contraband can be an exigent circumstance. McNairy, 835 S.W.2d at 107. To show such exigency, there must be evidence that “the police cоuld have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant.” Covarrubia v. State, 902 S.W.2d 549, 553 (Tex. App.-Houston [1st Dist.] 1995, pet. ref‘d). The dissent reasons that Barocio became aware of police presence when he emerged from his home and might of then disposed of the marijuana if they left to obtain a warrant. We note, however, that
The dissent has valiantly attempted to factually distinguish Steelman and Johnson. However, attempting to factually distinguish Steelman from the instant case
INEVITABLE DISCOVERY
Although the bag of marijuana was discovered during the officers’ improper entry, the State nonetheless contends that it was seized in good faith reliance on a facially valid search warrant issued by a neutral magistrate based on probable сause. See
The inevitable discovery doctrine is an exception to the federal exclusionary rule by which evidence is admissible if the prosecution can establish that it inevitably would have been discovered by lawful means. Price v. State, 93 S.W.3d 358, 370 (Tex. App.-Houston [14th Dist.] 2002, pet. ref‘d). However, there is no inevitable discovery doctrine under the Texas exclusionary rule. State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 1996). “Once the illegality and its causal connection to the evidence have been established, the evidence must be excluded.” Id. at 270. We thus decline to apply the inevitable discovery doctrine here.
ATTENUATION OF THE TAINT
Lastly, the State contends that any taint caused by the initial, warrantless entry was attenuated by the subsequently procured search warrant. See Johnson v. State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994) (permitting attenuation doctrine under Texas exclusionary rule). The State did not argue the attenuation doctrine at the suppression hearing. It cannot raise this theory for the first time on appeal. Steelman, 93 S.W.3d at 106-07; see Sedani v. State, 848 S.W.2d 314, 318-21 (Tex. App.-Houston [1st Dist.] 1993, pet. ref‘d).
CONCLUSION
Following Steelman, we hold that the odor of marijuana did not give deputies probable cause for warrantless entry into Barocio‘s home. Because the bag of marijuana was the fruit of an illegal search, the trial court should have suppressed evidence of it. See Wong Sun v. United States, 371 U.S. 471, 488 (1963) (holding that under the “fruit of the poisonous tree” doctrine, evidence derived directly or indirectly from illegal governmental activity is excluded as trial evidence). Further, evidence about the bag of marijuana may not be admitted under inevitable discovery or attenuation-of-the-taint doctrines. Accordingly, we sustain Barocio‘s issues, reverse his conviction, and remand to the trial court for further proceedings consistent with this opinion.
EDELMAN, J. concurs in result only.
GUZMAN, J. dissenting.
Though the plurality labors mightily to force this case into the Johnson/Steelman framework, those cases stand for the proposition that thе odor of illegal narcotics, standing alone, does not constitute probable cause to conduct a warrantless search. Here, the plurality refuses to consider the odor of contraband in conjunction with other factors tending to establish probable cause. Because here the odor of illegal narcotics does not stand alone, and all the evidence taken together constitutes probable cause and exigent circumstances sufficient to justify the warrantless entry, I would affirm the decision of the trial court.1 Accordingly, I respectfully dissent.2
I. ANALYSIS
In support of its holding, the plurality places significant reliance on the Court of Criminal Appeals’ recent decision in State v. Steelman, in which the court stated that “the odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.” 93 S.W.3d 102, 108 (Tex. Crim. App. 2002); see also Dickey v. State, 96 S.W.3d 610, 613 (Tex. App.-Houston [1st Dist.] 2002, no pet.). In Steelman, the court was called upon to decide whether the odor of burnt marijuana emanating from a residence accompanied by an anonymous tip constituted probable cause to believe that “the person who opened the door of the residence had committed an offense in the officers’ presence and thus permitted the officers to enter and arrest everyone inside the home.” 93 S.W.3d at 103-04. In that case, after receiving an anonymous tip that drug dealing was taking place, the Abilene Police Department sent three officers to Ian Steelman‘s residence to investigate. Id. at 104. At the scene, officers peered through a window and observed four men sitting together in the living room of the residence. Id. They did not observe any criminal behavior. Id. The officers then knocked on the front door, whereupon Ian “opened the door, stepped outside, and closed the door behind him.” Id. When the door was opened, the officers immediately detected the smell of burnt marijuana. Id. Responding to the officers’ request for identification, Ian told them he would have to return inside to retrieve it. Id. At that point, he “opened the doоr, walked back through it, and attempted to close it behind him.” Id. The officers prevented Ian from closing the door, entered
The trial court, after noting some of the officers’ testimony to be “incredible,” granted the defendant‘s motion to suppress. Id. at 111 (Cochran, J., concurring).3 Agreeing with both the trial court and the Eastland Court of Appeals, a majority4 of the Court of Criminal Appeals found that any evidence resulting from unlawful police conduct should have been suppressed. Id. at 110. The court held that “the mere odor of burning marijuana did not give the officers probable cause to believe Ian had committed the offense of possession of marijuana in their presence.” Id. at 108. In coming to its conclusion, the Steelman majority relied on Johnson v. United States, in which the Supreme Court held that an untested and uncorroborated tip, coupled with the odor of burning narcotics, did not alone permit officers to enter and search a private residence without a warrant. 333 U.S. 10, 12-15 (1948);5 see also Chapman v. United States, 365 U.S. 610, 613-15 (1961); Pineda v. City of Houston, 124 F. Supp. 2d 1057, 1073 (S.D. Tex. 2000). Like Steelman, the Johnson court confronted “whether it was lawful, without a warrant of any kind, to arrest petitioner and to search her living quarters.” Johnson, 333 U.S. at 11.6
In Johnson, the authorities learned from an informant that individuаls were smoking opium in a hotel room. Id. at 12. Upon arriving at the scene, officers recognized the “distinctive and unmistakable” odor of burning opium. Id. The officers knocked on the door, and after a delay and some “shuffling” noises, they demanded entrance. Id. at 13.7 Finding the subsequent search
The trial court in this case did not have the benefit of the Court of Criminal Appeals’ opinion in Steelman, as it was released well after the hearing on the motion to suppress and indeed, after the case was submitted to this court. In his brief, appellant invokes the Eastland court‘s opinion in Steelman, and at the hearing on the motion to suppress, he invoked Johnson, saying it “squarely decided this issue.” However, as discussed below, both Johnson and Steelman are factually distinguishable. Here, because the odor of marijuana did not stand alone, but was accompanied by other suspicious facts providing both probable cause and exigent circumstances, I would find the warrantless entry constitutionally permissible.
II. PROBABLE CAUSE
This court has observed that an unauthorized entry into a person‘s home is the chief evil against which the wording of the
This does not mean that the Fourth Amendment requires police officers “to simply shrug [their] shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972). To show that a warrantless entry is constitutional, the State must demonstrate probable cause existed at the time the search was made and that exigent circumstances existed which made the procurement of a warrant impracticable. See McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991); see also Payton v. New York, 445 U.S. 573, 589 (1980). The Texas Court of Criminal Appeals has expressed the probable cause standard as follows:
[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the laminated total. In dealing with probable cause, ... as the very name implies, we are dealing with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.
Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1982) (quoting Smith v. United States, 358 F.2d 833, 835 (D.C. Cir. 1966) and Brinegar v. United States, 338 U.S. 160, 176 (1949)) (quotations and citations omitted).
A. ODOR OF MARIJUANA
In the case at bar, both officers detected the odor of marijuana. Deputy Kirsch testified he immediately smelled the “strong odor” of marijuana. Deputy Wyatt testified he smelled the marijuana before the door opened, stating:
It‘s not necessarily what I observed so much as what I smelt. [W]hile outside you could smell some marijuana but when the defendant opened the door you could smell more marijuana from emitting from inside the house.
Although appellant testified he immediately shut the door upon stepping onto the porch, both dеputies testified that the door remained open.
Though its presence alone does not rob a citizen of the constitutional protection against an unreasonable search, law enforcement officers “may rely on a distinctive odor as a physical fact indicative of possible crime.” See Taylor v. United States, 286 U.S. 1, 6 (1932). Through the sense of smell, individuals “draw factual conclusions about (their) surroundings.” State v. Moore, 90 Ohio St. 3d 47, 734 N.E.2d 804, 808 (2000); see also United States v. Kaplan, 89 F.2d 869, 870 (2d Cir. 1937) (“[s]mell is indeed a sense like any other, and ... it remains one of the means by which we apprehend the outside world.“). Certainly, a law enforcement officer‘s use of his sense of smell is no less reliable and indeed, can sometimes be more reliable than the other senses. See United States v. Borkowski, 268 F. 408, 412 (S.D. Ohio 1920) (“Sight is but one of the senses, and an officer may be so trained that the sense of smell is as unerring as the sense of sight.“); People v. Bock Leung Chew, 142 Cal. App. 2d 400, 298 P.2d 118, 119 (1956) (finding “no logical distinction ... between something apparent to the sense of smell, and the same thing apparent to the sense of sight or to the sense of hearing.“).
In the identification of contraband, the sense of smell can be vital to trained investigators. See Seldon v. State, 151 Md. App. 204, 216-18, 824 A.2d 999 (Md. Ct. Spec. App. May 29, 2003) (“Knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of an officer.“). Here, the sense of smell is of particular import because marijuana produces a remarkably unique odor. See United States v. Pond, 523 F.2d 210, 213 (2d Cir. 1975) (“It cannot be disputed that marijuana has a distinctive pungent odor.“); Mendez v. People, 986 P.2d 275, 281 (Colo. 1999) (emphasizing that “the smell of burning marijuana is sufficiently distinctive as to be readily identifiable to a trained police officer“); State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, 391 (Wis. 1999) (noting that marijuana produces an “unmistakable” odor). Significantly, shortly after Steelman, the Court of Criminal Ap-
The law certainly does not require an officer to ignore an odor that clearly suggests the commission of a crime. See United States v. Kronenberg, 134 F.2d 483, 483 (2d Cir. 1943) (finding that “it would be absurd to hold, that the sense of smell was not to be relied upon at all“); Commonwealth v. Stoner, 236 Pa. Super. 161, 344 A.2d 633, 635 (1975) (noting that it would have been a “dereliction of duty for [an officer] to ignore the obvious aroma of an illegal drug which he was trained to identify.“). The smell of marijuana creates an inference of both its immediate presence and its recent use. See State v. Judge, 275 N.J. Super. 194, 645 A.2d 1224, 1228 (App. Div. 1994). Thus, it prompts a reasonable belief that a controlled substance has been or is being possessed or delivered, or both, and, consequently, that a violation of law has occurred or is occurring. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440, 441-42 (1997).
In Steelman, the Texas Court of Criminal Appeals did not hold that the plainly apparent odor of illegal contraband is a nullity to be disregarded by officers standing at the threshold of a private residence. The court simply held that the odor of burnt marijuana, coupled with an anonymous tip of drug dealing, did not give officers probable cause to believe that the person who opened the door had committed an offense in the officers’ presence, thereby permitting them to enter and arrest everyone in the residence. See Steelman, 93 S.W.3d at 103-04. Taken into consideration with other facts and circumstances, the odor of marijuana may be considered by officers and the courts in a probable cause analysis.8 Indeed, the odor of an illegal substance may provide an element of probable cause for a search. Chavez v. State, 769 S.W.2d 284, 287-88 (Tex. App.-Houston [1st Dist.] 1989, pet. ref‘d). Although the odor standing alone does not provide officers with probable cause or exigent circumstances to justify a warrantless entry, the plain smell of marijuana certainly provides officers with probable cause to believe contraband or evidence of illegality may be found. State v. South, 885 P.2d 795, 798-99 (Utah Ct. App. 1994), rev‘d on other grounds, 924 P.2d 354 (Utah 1996); State v. Decker, 119 Ariz. 195, 580 P.2d 333, 336 (1978) (“The odor of burned marijuana was sufficient to provide probable cause to believe that an occupant of the room was smoking marijuana.“); see also Cameron v. State, CR-01-1845, 2003 WL 569713, at *4 (Ala. Crim. App. Feb. 28, 2003) (holding that “the strong and overwhelming smell of marijuana emanating from the house, combined with [officer‘s] testimony regarding his ability to idеntify the distinctive odor of marijuana, established the existence of [officer‘s] probable cause to believe that contraband was present inside the residence“). Here, the odor of illegal contraband does not in and of itself provide officers with probable cause, however, it is certainly an element of the analysis.
B. SUSPICIOUS CIRCUMSTANCES
Kirsch and Wyatt accumulated more evidence than that which was detected through their sense of smell. See Kaplan, 89 F.2d at 870.9 According to Kirsch‘s testimony, they were in appellant‘s subdivision on “an unrelated burglary investigation” when they “observed a suspicious vehicle.” Kirsch described the scene as follows:
The vehicle was parked illegally facing the wrong way on the roadway. The front door or the driver‘s side door was standing wide open. [We] [a]pproached the vehicle and observed the ignition keys were still inside the ignition.
Together, the deputies approached the nearest residence-appellant‘s home. Therе, they observed both a surveillance camera trained upon the entrance way as well as “pry marks on the door near the locking mechanism.” Suspicious of possible criminal activity, the deputies knocked on the door, and for several minutes, there was no response. Wyatt testified he “heard a lot of noise in the residence.” When the door finally opened, appellant emerged, whereupon he refused to present identification after repeated requests. Appellant ultimately indicated that his identification was inside the home. Kirsch then directed appellant to enter the home. He testified that he was still investigating a possible burglary, and accordingly, followed appellant into the home.
Here, the probable cause analysis is controlled by the Court of Criminal Appeals’ decision in McNairy, which the plurality does not see fit to analyze in any significant detail. 835 S.W.2d at 106. In that case, the authorities made a warrantless entry into thе defendant‘s trailer home after detecting the odor of a methamphetamine laboratory and hearing people running out the back door of the trailer. Id. at 103. In challenging the constitutionality of the search, the appellant asserted that odor alone could not justify such a warrantless search. Id. at 105. In finding probable cause existed at the time of the warrantless entry, the Court of Criminal Appeals examined a host of suspicious factors, including, but not limited to:
- the “unmistakable” odor of a methamphetamine laboratory emanating from appellant‘s trailer home;
- the sound of the back door of the trailer flying open and persons running through the brush into a nearby wooded area; and
- the presence of another methamphetamine laboratory on the same ten acre tract.
Id. at 106. The court also looked to the officers’ specific training and familiarity with previous methamphetamine laboratory raids. Id. Thus, the odor of narcotics, coupled with other facts and circumstances tending to provide probable cause, were sufficient to justify the warrantless entry. Id.
Here, Deputies Kirsch and Wyatt encountered suspicious circumstances separate and apart from the unmistakable odor of marijuana, including the unattended vehicle facing the wrong direction with the keys still in the ignition and door ajar, the pry marks on the locking mechanism of the front door, the investigation of another burglary in the subdivision, and a suspect who repeatedly refused requests to provide information. In addition, Kirsch testified that in his experience it “wouldn‘t be too unusual” for burglars to smoke marijuana while in the house they were burglarizing. Taking these facts and circumstances together, the officers had sufficient
III. EXIGENCY
If probable cause is present, the inquiry becomes whether exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry into appellant‘s home. McNairy, 835 S.W.2d at 107. The United States Supreme Court has observed:
[N]o amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971), overruled in part on other grounds, Horton v. California, 496 U.S. 128, 136-41 (1990).
Thus, probable cause must be supported by exigent circumstances to justify the warrantless entry. The Texas Court of Criminal Appeals recognizes two exigent circumstances where an immediate search without a warrant is permissible: (1) where there is a threat to someone‘s health or safety, (no warrant necessary when police action is to protect or preserve life); and (2) where police reasonably conclude that evidence would be destroyed before they could obtain a search warrant. McNairy, 835 S.W.2d at 107; Torrez v. State, 34 S.W.3d 10, 15 (Tex. App.-Houston [14th Dist.] 2000, pet. ref‘d). In determining whether exigent circumstances exist, the appellate court does not look solely at the subjective reasoning of the officer, but uses an objective standard of reasonableness. Torrez, 34 S.W.3d at 15.
A. POSSIBLE BURGLARY
Kirsch testified that he was investigating a possible burglary of appellant‘s home when he made the warrantless entry. The possibility that a burglary is in progress or has recently been committed may provide officers with exigent circumstances to justify a warrantless entry. Brimage v. State, 918 S.W.2d 466, 501 (Tex. Crim. App. 1994) (citing United States v. Johnson, 9 F.3d 506, 509-10 (6th Cir. 1993)); see also In re J.D., 68 S.W.3d 775, 780 (Tex. App.-San Antonio 2001, pet. denied); Medina v. State, No. 04-98-00696-CR, 1999 WL 1020266, at *4, (Tex. App.-San Antonio Nov. 10, 1999, no pet.).10 Because suspects or victims may still be in the residence, and because there is an immediate and urgent need to protect the resident and his property, the warrantless police entry may be justified as exigent depending upon the specific circumstances of the case. For example, police may properly enter to look for other perpetrators or victims. Indeed, as one federal court has observed, it would “defy reason” to force officers to leave the scene of a possible burglary-in-progress to obtain a warrant thereby “leaving the putative burglars free to complete their crime unmolested.” United States v. Singer, 687 F.2d 1135, 1144 (8th Cir. 1982).
Also, accompanying a burglary in progress is the possibility of additional perpetrators or resident victims. The plurality notes that the officers had not articulated “facts reasonably showing other persons were in Barocio‘s home” and summarily concludes that “[c]oupling odor and burglary suspicions, when the sole suspect has been detained, is simply a red herring.”11 However, the deputies had no confirmed belief that appellant was the “sole suspect,” and thus, it was “appropriate for them to act on the basis of the kinds of risks burglaries normally present.” In re Sealed Case 96-3167, 153 F.3d 759, 767 (D.C. Cir. 1998).12 Importantly, any failure of the officers to testify to concerns of resident safety or other possible suspects cannot dictate the plurality‘s holding, as we look to objective standards of reasonableness and not the subjective reasoning of an officer in an analysis of exigent circumstances. Objectively, a reasonable officer would have been aware of the danger and the need to immediately go into the house to eliminate the possibility of other suspects and ensure that no residents were in jeopardy. Cf. Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (noting that courts employ “an objective standard of reasonableness in determining whether a warrantless search is justified, taking into account the facts and circumstances known to the police at the time of the search“).
Balancing the interests of the people to be free from unjustified governmental intrusion against society‘s need to have law enforcement protect citizens from predators, I would find that the evidence of a possible burglary in progress provided officers with exigent circumstances to conduct a warrantless entry. See United States v. Erickson, 991 F.2d 529, 533 (9th Cir. 1993) (“In a wide variety of contexts, this and other circuits have upheld warrantless searches conducted during burglary investigations under the rubric of exigent circumstances.“); see also People v. Duncan, 42 Cal. 3d 91, 227 Cal. Rptr. 654, 720 P.2d 2, 5-6 (1986).
B. DESTRUCTION OF EVIDENCE
In addition to the exigency supplied by the officers’ belief of a possible burglary, the likelihood of the destruction of evidence in this case also provided officers with exigent circumstances. The need to invoke the exigent circumstances exception to the warrant requirement is particularly compelling in narcotics cases because narcotics can be so quickly destroyed. See United States v. Santa, 236 F.3d 662, 669 (11th Cir. 2000); Moore, 734 N.E.2d at 809 (“Because marijuana and other narcotics are easily and quickly hidden or destroyed, a warrantless search [of vehicle] may be justified to preserve evidence.“). To avail itself of this exception, the State must show the police could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant. McNairy, 835 S.W.2d at 107; see also United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir. 1995); Williams v. State, 937 S.W.2d 23, 29-30 (Tex. App.-Houston [1st Dist.] 1996, pet. ref‘d) (en banc) (Mirabal, J., concurring). Factors bearing upon the reasonableness of a warrantless entry premised upon this exception are:
- the degree of urgency involved and the amount of time necessary to obtain a warrant;
- the reasonable belief that the contraband is about to be removed;
- the possibility of danger to police officers guarding the site of the contraband while a warrant is sought;
- information indicating the possessors of the contraband are aware the police are “on their trail“; and
- the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics trafficking.
Covarrubia v. State, 902 S.W.2d 549, 554 (Tex. App.-Houston [1st Dist.] 1995, pet. ref‘d).
In the instant case, Kirsch testified that “it became evident that there was marijuana recently smoked inside the residence.” An odor of marijuana may indicate that evidence of a crime is in the process of being burned and thereby destroyed. See Mendez, 986 P.2d at 282; Decker, 580 P.2d at 336 (“The smell in this case alone indicated the contraband was being destroyed.“); Vaillancourt v. Superior Court, 273 Cal. App. 2d 791, 78 Cal. Rptr. 615, 619 (1969) (noting that the odor of burning marijuana “would also indicate that the evidence was in fact disappearing” suggesting the “imminent destruction of the contraband.“).
The mere presence of contraband, however, does not give rise to exigent circumstances. United States v. Rivera, 825 F.2d 152, 156-57 (7th Cir. 1987); cf. Price v. State, 93 S.W.3d 358, 368 (Tex. App.-Houston [14th Dist.] 2002, pet. ref‘d).13 Nevertheless, while the odor of contraband standing alone might not provide officers with exigent circumstances, the smell of marijuana coupled with appellant‘s knowledge of the officers’ presence creates the sufficient exigency under the specific facts of this case. When appellant emerged from his home, he became aware of the presence of police. He knew, or could reasonably suspect, that the officers had detected the odor of illegal and easily destroyable contraband. See Haggard v. Commonwealth, No. 2002-CA-000334-MR, 2003 WL 1948881, at * 1 (Ky. Ct. App. Apr. 25, 2003) (not designated for publication) (finding exigent circumstances justified officer‘s warrantless entry of residence under destruction of evidence exception when occupants were aware of officer‘s presence and knew he suspected drug activity). At that point, had the officers left to obtain a warrant to search the home, appellant might have anticipated their return and acted quickly to dispose of any incriminating evidence.14 Under the facts of this case, an officer could reasonably cоnclude that a suspect would attempt to dispose of the evidence before the police could return with a warrant. See United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991). Appellant‘s awareness of the authorities, coupled with the ease with which small amounts of narcotics can be destroyed, establishes the exigency necessary to predicate a warrantless entry. People v. Baker, 813 P.2d 331, 333-34 (Colo. 1991) (noting that defendant‘s awareness of the officers’ detection of the odor of marijuana should be considered in exigency analysis); see also United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (finding exigent circumstances where the officers could reasonably conclude from defendant‘s behavior that they were “either aware or afraid that someone was watching them [and] [d]estruction or removal of ... the narcotics was therefore a possibility“).
CONCLUSION
Because I find that both probable cause and exigent circumstances justify the warrantless entry in this case, I respectfully dissent.
EVA M. GUZMAN
JUSTICE