Stewart v. State

STEWART, Aрpellant, Randolph Lewis Texas, Appellee. STATE

No. B14-83-203-CR. Texas, Appeals Dist.). (14th

Houston

Oct. 1984. fine. The conviction was affirmed

$4000 justices this a dissent two of court and Appellant was written Justice Ellis. rehearing, timely filed a motion for en banc, granted. which was co-defendant, Green, Appellant and a separately were tried were con both manufacturing methampheta of victed appeal, On Green’s mine. conviction was State, reversed. Green v. 666 S.W.2d (Tex.App. 1983, no [14th Dist.] - Houston pet.). opinion The Green concluded the stipulation of evidence was invalid as it signature of the judge, lacked trial entry justified was warrantless under doctrine. the first Stew opinion, art concluded an existed, “emergency” therefore a warrant- justified, less search was and the introduc tion into evidence of contraband seized was proper. lawful and error, Appellant grounds raises five of ground however our treatment of first dispositive Appel- of error is of this case. complains ground lant one error that court in holding trial erred that entry agree, ground We lawful. of error one is sustained. Yock, Houston, appellant. Bradford for “emergency” Before reach the Hartmann, Atty., Calvin Asst. Dist. issue, important we feel respond it to the

Houston, appellee. position Appellant State’s that com cannot

plain about the introduction of evidence Appellant “Stipulation becаuse executed a thereby agreed of Evidence” and that the OPINION ON MOTION FOR guilt finding court could its base REHEARING EN BANC Appellant innocence on this evidence. The stipulation handled trial and the cor SEARS, Justice. rectly, as he followed instructions Rehearing, Banc, On Motion En State, in Zappas this court S.W.2d original opinion judg- is withdrawn and the (Tex.App. Dist.] [14th - Houston ment of Trial Court is reversed re- pet. granted). It must be understood that manded. “Stipulation agree Evidence” is not question This case involves the of wheth- testimony is ad ment that by police er a warrantless into the truthful. testimony missible that the private apartment Appellant justi- merely agreement It is to waive cross- “emergency fied under doсtrine.” agree examination of witnesses and convicted, in Appellant testimony a trial their is the written version of court, manufacturing methamphetamine. they present same as would be Further, case, probated He received sentence and the courtroom. couple report- the fol Stipulation of Evidence contained then called H.P.D. and lowing language: ether, suspicion dope the smell of ed parties responded, and related that H.F.D. agree the Defendant right complain

does not waive found no them to advised legality of the search or warrant in H.P.D. of H.P.D. re- call Officer this cause. ether, strong sponded, smelled a odоr narcotics, experience his past and from Appellant com- It is clear that at all times laboratory. suspected methamphetamine overruling plained of the court’s error in admitting Suppress Shirley investigated apart- Motion to and the and discovered pursuant to the unlawful evidence seized of A ment 69 to be the source the ether. It is Appellant’s into patio seen on of “cloud” ether was the the court the State also clear that and apartment appeared emanate the and to right agreed Appellant’s to understood and apart- doors and/or windows ruling appeal to of the court. that is not cleаr at this ment 69. The record Stipulation of Evi- to the Shirley addition some point whether other dence, contains statement record County officer called the Harris District to hearing on facts from the the Motion However, Attorney’s office. someone tape recording conver- Suppress and attorney who talked to assistant district Department sations with the Houston Fire Shirley him to call H.F.D. Officer advised Department (H.F.D.) Houston Police and this time H.F.D. from the com- at called a resi- (H.P.D.). that The record establishes apartment, Key. plainant’s and talked to called the apartment dent of an complex to min- Key Shirley advised that ten fifteen complaining “gas- at a.m. of a H.F.D. 8:59 investigated utes earlier he had the ether Key, an in the area. Mark eous odor” emergency situation. odor and found no H.F.D., responded eight year veteran Shirley the odor much stated that unit, complex was with a discovered the stronger now 69 was and electrical, pos- and out the completely ruled that, if the odor Key the source. advised sibility gas Key talked a natural leak. Shirley strong,” “that should knock on complaint couple who made with apartment, door of the and no one by this they had been and learned bothered answers, apart- air to enter and out the past Key week. determined order H.P.D., reported ment. thеn called ‍‌​‌‌‌‌​‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‍ether, but the odor was a walk-around ether, locating stated the source of and complex to the source. failed locate going to check it Shir- “we’re inside out.” any problems Key never encountered 69, proceeded ley then re- responded any emergency calls door, and knocked on the waited ten min- recognized garding He the odor be- ether. opened door. Appellant before utes purchased it at an previously cause he had stronger smell were The “cloud” and the He parts used on his car. auto store and it opened Shirley im- the door was when dispatcher, reported called the H.F.D. Aрpellant, mediately past entered rushed through the of ether all “a definite smell consent, opened apartment without complainant apartments.” reported the He plain meth- “in view” a windows saw suspected every night and “smelled it laboratory. Appellant and amphetamine requested making dope.” He someone was arrest, placed under other offi- Green of action on what course instructions scene, a search called to the cers were the chief dispatcher talked with take. The obtained, and the evidence call people warrant dispatcher advised that who said, thing to do is “The best was seized. H.P.D. and end, it on (complainant) let him handle appeal, For of this purposes nothing we can really tell him there’s is to deal unnecessary it couple to call Key told the do about it.” find subsequent warrant. search suance fire station H.P.D. returned good entry was either emergency existed. confident bad in it justify law instant was made. the introduction into evidence of the 581, Re, v. Di 68 items seized. United States 332 U.S. 222, (1948). Therefore, L.Ed. S.Ct. originated doctrine subsequent war issuance of opinion in dictum in Justice Jackson’s justify previous unjustifiable cannot rant 333 U.S. Johnson United and make act evidence admissible that is (1947): L.Ed. otherwise inadmissible. A “search” occurs exceptional circumstances in “an еxpectation privacy

when that socie which, balancing the need for effec- ty prepared is to consider reasonable against right law tive enforcement - infringed.” Jacobsen, United States privacy, may mag- be contended that a -, 104 S.Ct. may istrate’s warrant for search dis- be pensed with. expanded The U.S. on the ap must approach We first foregoing by establishing an ex- emergency peal viewpoint with the any ception help a cry when an officer hears judicial process, conducted outside and demands entrance in the name of the approval prior judge mag without aof or States, v. law. McDonald United U.S. 335 istrate, per is se unreasonable under 191, 451, (1948). 69 93 L.Ed. S.Ct. 153 Fourth Amendment to the Constitution of time, emergency Since that doctrine States, the United States. Katz v. United applied in many varying has been circum- 347, 507, 389 U.S. 88 S.Ct. 19 576 L.Ed.2d stances, they however all fall into of one (1967). look specific We next to exceptions categories: three to the above rule to if determine our facts (1) to render aid or assistance within fall these well exceptions. delineated persons to whom they reasonably be- exceptions There are three under lieve to or be distress need warrantless search and seizure can be held assistance.1 (1) justified: (2) doctrine, “Plain view” (2) prevent to the destruction of evidence “consent,” (3) “emergency” or doctrine. or contraband.2 Gauper, (8th Root v. 438 F.2d 361 Cir. (3) protect to the officers from other sus- 1971). “plain view” doctrine carries pects persons they or whom reason- requirement with it the that the officers ably may present, believe be right they have the to be where are when so, they reasonably be may believe they first in question. “view” evidence dangerous.3 armed and 234, Harris v. United 390 U.S. 992, (1968). S.Ct. 19 L.Ed.2d 1067 This applying the facts of this case exception apply will only if we find that categories to the foregoing Shirley right in Appellant’s to be exceptions, immediately can eliminate apartment place. in the first (2) (3). is noth Shirley Officer tеstified that ing in the record to show that the lab any had no reason believe Appellant or apartment. visible from outside the Fur contraband, and, disposing one else was ther, exception help the “consent” cannot there is no evidence in the record to indi State because there Shirley cate that anyone believed there was support a that Appellant any dangerous claim one apartment. armed and in the Therefore, Shirley’s entry Appel else consented to in order for officer apartment. lant’s We therefore left Appellant’s apart into “emergency with the exception justified, doctrine” ment be officer must only protect as the avenue to the State to occupants available have entered to Ohio, Hayden, ..Terry ... Warden v. 294, 1. U.S. 87 S.Ct. 3. . 392 U.S. 88 S.Ct. 1, 1868, (1967). (1968). 1642, 18 L.Ed.2d 782 L.Ed.2d 889 Louisiana, ... Vale v. 2. 1969, 26 L.Ed.2d 409 (8) get pass key from harm or to render aid He failed to from the reasonably guard apartment manag- security

and assistance if he believed apart- immediately them to be distress. er and enter ment 69. objective An as to the reason- standard ‍‌​‌‌‌‌​‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‍(9) inquire Appellant if He failed officer’s belief was estab- ableness in need of aid or assistance Ohio, he was Terry lished in 392 U.S. 88 S.Ct. entering the apartment. before (1968): justifying particular intrusion the (10) any to determine if other He failed point able to police officer must be persons which, specific and articulable facts tak- aid or need of assistance before together en rational inferences from entering facts, reasonably in- those warrant that (11) anyone in There is no evidence that trusion_ making inAnd that assess- complex the entire was in need imperative ment it is facts be is no aid or assistance and there judged against objective standard: anyone reasonable belief that was. the facts available to officer at notify He failed to H.F.D. search, the moment of the seizure emergency that threatened the lives reasonable warrant man of caution complex. residents of the ap- action taken the belief that the Key time he he was The first called propriate? advice, call seeking and the second standard the in- Applying the above finding report dope a labora- was to case, stant we conclude the action of Shir- tory. by any ley justified emergency not was (13) notify any life He failed to H.P.D. of response leading Shirley, in a condition. threatening he emergency, instead State, question testified that his suspected dope he told them safety for the of the primary concern was going in. was inside 69 and the resi- people (14) any precautions to take He failed However, apartments. his dents of all the any assistance tо remove seek following alleged mo- actions contradict potential danger any persons from a tives: zone. (1) Shirley suspected ether and smelled (15) immediately to respond He did not laboratory. methamphetamine emergency what he claimed (2) to call have He took the time situation. County the Harris Dis- someone call gist dealing The all of the case law Attorney’s pri- office for advice trict exception need emergency is the entering apartment. or to pos- immediately, negating to act thus (3) an assistant district On the advice of The sibility obtaining a search warrant. attorney called H.F.D. he excep- justification only reasonable (4) him to enter the H.F.D. advised such per tion to unreasonableness of se no one answered emergency of intrusion is the a warrantless door. do not The actions situation. (5) have entered He he would testified reasonably he be- lead us to believe what apartment regardless of if he Even emergency lieved an existed. H.F.D. advised. thought were over- Appellant and others (6) call H.P.D. and He time to took the apartment, and en- come ether enter- dispatcher advise the assistance, this aid and give tered them ing Appel- the minute “emergency” terminated The contains opened the door. record apart- lant the door of He knocked were Appellant or Green no evidence that 10 minutes ment 69 and waited cannot, or assistance. We in need of aid the door. open Appellant to retrospect, reasonably any exigencies even in conclude that “the of the situation made imperative.” any other residents were in “immediate” that course McDonald v. 456, danger. 335 U.S. at 69 S.Ct. at United 193. The has failed in this burden. State appeal very this The facts in similar of the State, judgment Trial is re- Bray to those in v. 597 S.W.2d 763 for a new trial. cases, versed and remanded (Tex.Crim.App.1980). per- In both specially sons trained to handle “emer- ROBERTSON, Justice, dissenting. gency” on the to the prior scene arriv- In police. al of the both cases the trained Believing majority opinion does persons emergency concluded no existed authorizing correctly apply law a war- and left In the scene. both cases the exigent upon rantless based circum- requested could to enter case, have consent undisputed stances to the this In unjusti- failed to do so. both cases I respectfully dissent. was, part,

fied at least in motivated appellant Both and the have state briefed by the belief crime had been committed. argued upon case basis of The Bray court noted: whether facts created circum- rendering a difference between emergenсy authorizing stances and an pos- investigating aid and agree, Since I warrantless search. without emergency.' sibly criminal cause of the do, my question, they discussion justifies doctrine for- assumes there was a search. Not ad- mer, justify the lat- always it does not but by any parties dressed or the court ter. is the issue of whether this an emer- intrusion, Gauper, gency opposed See v. also Root 438 F.2d 361 for as to an emer- gency similar fact situation. search as enunciated in ‍‌​‌‌‌‌​‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‍cases of James, 309, Wyman v. 400 U.S. 91 S.Ct. State, (Tex. Provost 631 S.W.2d 173 381, (1971), Cady L.Ed.2d App. pet. ’d), ref [1st Dist.] - Houston Dombrowski, 413 U.S. emergency justified the State contended an (1973). Wyman, entry a warrantless into a home. The supreme government court hеld that a in- appeals rejected court of that contention purpose trusion for a other than criminal because immediately, the did not act investigation simply is not a search at all they: (1) but telephoned instead the Dis totally inap- and the fourth amendment is (2) Attorney, telephoned trict the fire de plicable. Cady supreme the court over- partment, and waited ten minutes be challenge ruled a to a entering. fore ground on the purpose the physical entry The unauthorized of police perform was to “communi- intrusion person’s against a home is evil the chief functions, ty caretaking totally divorced wording which the of Fourth the Amend detеction, from investigation, acqui- ment is directed. United States United relating sition of evidence violation Court, 297, States U.S. District 407 92 of a Bacigal, criminal statute.” See: 2125, (1972). Payton S.Ct. 32 L.Ed.2d 752 Exception Emergency to the Fourth York, v. New S.Ct. (1975). Amendment U.Rich.L.Rev. (1980), Boyd see also hearing lengthy Prior to trial was held 616, 6 United 116 U.S. appellant’s on motion suppress, but be- L.Ed. 746 motion, ruling judge fore trial summation, trial, appears only died. When this case was called for appellant plead guilty not valid test determine the reasonableness and entered into lengthy stipulation to balance the of of officer actions is written evidence against constitutionally consisting typewritten legal of some six neеd to enter evidence, by pages, agreeing intrusion. sized protected right violated such that that along proof is on State to show with the evidence the court of heard burden suppress, very strong on the motion to would be the 69 and smelled a provide factual odor of ether” with he familiar evidence “and basis for which was guilt and knew “extremely the court’s determination of the which he to be flam- [sic], being able” and “concerned innocence of the Defendant.” safety the inhabitants entire of difficulty understanding I have the ma- apartment complex,” added) (emphasis jority’s My statement the evidence. approximate- on the door knocked аnd after gives complaint that the undue door; ly appellant opened ten minutes consideration to minor details and inconsist- opened when door was he “de- testimony developed encies the live at stronger tected an even odor flamable suppress apparently the motion to and nev- 69;” ether inside and [sic] stipulation er considers the written of evi- immediately opened that he entered and However, my dence introduced at trial. “to maximum windows afford opinion, appellant closed the door to Shirley, Once ventilation.” inside Officer argument to whether over facts as an previously who in the had worked narcotics рersonally existed when he division and observed clandestine labo- signed, along attorney, the stipula- ratories for the of metham- manufacture agreeing tion “that the be- phetamine, “immediately recognized in called, low-named witnesses were sworn plain apparati, view a collection of chemical questioned, give that they and testi- which, combined with the ether odor Shir- mony case as set out below.” For this ley ingredient knew was essential upon rely I this reason am content many drugs, manufacture of narcotic led stipu- “find” written the evidence amphetamine to believe that [sic] lation, appropriate, supplemented, where being stipulation manufactured.” The hearing suppression testimony only occupants further recites that two stipulation. reflected in the written Addi- female, apartment, appellant and a testify tionally, appellant did not at either placed under arrest and search Therefore, suppress motion trial. arrest warrant obtained. facts dispute I find the basic finding exigent form the basis As under the war- a result the search circumstances. including pieces glassware rant “18 Since the lawfulness of the search de- beakers, flasks, jars, methylamine upon pends whether there were (which Shirley raw knew was a material emergency authorizing circumstances or neсessary to the manufacture metham- apartment, a warrantless into the thermometers, funnels, heating phetamine), must the trial court be set out before stirring devices, clamps, tubing stipulation This in some detail. written liquid powder substances” were recovered that Houston Police Officer evidence shows stipulation from The fur- the dispatched large apart- a Shirley was opinion ther that in “the recites 2800 T.C. Jester in complex ment at West glass in instru- manner which the various complaints city regarding the of Houston assem- and beakers and flasks were ments that was mak- strong “a chemical odor heating and various instruments of bled on ill;” personally that ing physically them designed mixing fоr the manufacture were determined “a inspected area and the addition, Shirley methamphetamine.” ether” was com- strong chemical aroma of apartment the “a series of recovered from 69. ing apartment containing typed handwritten notes and that stipulated further shows Shir- that stipulation The chemical formulae.” It was Key of the Houston Captain testify the would that these notes ley chemist contacted by manu- “step step guide “who was alarmed the Department a Fire which, methamphetamine, if fol- he returned to facture of Shirley’s report;” that lowed, manu- gaseous result in successful would the and “observed apartment 69 and which patio methamphetamine, facture of emanating from the door cloud require majority opinion the use of items The clear the various law is recognizes objective (glassware, that standard of supply tubing of chemical assessing reasonableness must be used in mantles) heating and chemical substances an officer’s that warrantless belief (methalymine [sic], lye) apartment found in justified by exigent circumstances. stipulation provided 69.” The further that (8th Gauper, v. 438 F.2d Root Cir. liquid methampheta- the chemist recovered 1971), citing approval applying mine, stage “an intermediate manu- adopted by this standard the United States methamphetamine” pow- facture оf Ohio, Supreme Terry in methamphetamine apart- dered from the 88 S.Ct. to a ment. search under the doctrine. The Appellant at as trial introduced “Defend- appeals court of criminal has likewise rec transcript ant’s Exhibit No. 1” ognized State, Bray this standard. sup- testimony adduced on his motion to (Tex.Crim.App.1980). S.W.2d press. transcript additionally From this fallacy opinion lies the “reportees,” occupants learn that recognizes “objec- the fact that while it nearby apartment first called the fire test, apply tive standard” it refuses to it. department at morning 3:59 a.m. on the fact, majority opinion states: “Shir- question. They complained of an odor ley, response leading question to a making sick; they them that had smelled state, primary his testified that concern days; the same odor for several safety people was for inside department responded Cap- fire and Fire apartment and the of all residents Key tain determined the com- all, apartments.” stipulated First of plex “total electricity” not did Shirley was “concerned service; gas have that he detected “faint safety of the inhabitants of the of ether” odor but could not find the source Second, apartment complex.” entire if an and returned to his fire station. The evi- objective applied, test is it wouldn’t matter was, dence reportees primary further shows that what concern or other- wise, for the reason this is police department subjective, then called the and Offi- objective. As court said in United cer arrived at the com- Callabrass, (2nd States v. 607 F.2d 559 plex approximately at 4:20 a.m. and that Cir.1979): see, however, “We do not how odor, investigating after source Cassidy’s subjective intention controls the Captain Key. he called question of whether there were It Key’s testimony is unclear from toas justifying circumstances the warrantless Shirley regarding his instructions to enter- entry.” Court, Term, last ing however, apartment, appellant in- came a similar conclusion as the D.C. transcription troduced into еvidence a deciding Circuit did in when Callabrass tape Key recorded conversations between safety” “public exception to Miranda dispatcher (made a.m., and his at 5:22 on warnings, The Court stated: morning question Key when kaleidoscopic In a situation such as the apartment complex) returned to confronting officers, one these where Key dispatcher informed his “I told spontaneity rather than adherence to a hazard,” them that was a and acknowl- necessarily manual the order of edged (the dispatcher to his that “it’s smell day, application exception the the of the ether) strong.” Finally, additional two recognize today whiсh we should not be (1) Shirley facts for are: consideration tes- depend post findings made to hoc a on at just tified he was to kick that about the suppression hearing ‍‌​‌‌‌‌​‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‍concerning the sub- knock; appellant in his door when answered jective arresting motivation of the offi- (2) being extremely in addition to flamma- officers, Undoubtedly, cer. most ble, “puts you showed ether to placed position, evidence if in Kraft’s Officer sleep.” different, would act out of a host of Callabrass,

instinctive, fact largely mo- 607 F.2d at that and unverifiable safety of safety, own tives—their some hours for the the officers waited four to others, perhaps the desire and as well experienced an narcotics arrival of officer incriminating from the obtain finding that exigent did not detract from a suspect. Similarly circumstances existed. United - U.S. -, Brock, (9th Quarles, F.2d 1311 Cir. York v. New States 1982), had there been visual surveillance methamphetamine suspected lab a mobile further, However, compound error to Later, “throughout the after afternoon”. “ac- majority opinion then lists fifteen observed, activity an alleged certain unusual was mo- contradict his tions [which] single following “ac- one of these officer and dis Not other arrived tives.” tions”, first one except part the first of the for ten min cussion between the officers ether) to do (Shirley anything has utes, smelled exigent the officers decided circum A emergency an existed. with whether occupants existed stances and ordered on each of these “actions” brief comment appeals, en out and searched. The court finding of majority to defeat a used banc, found an existed and the appropriate. emergency is denied certio- States United finally “action”, And States the ma rari. United Wil first numbered

In the Cir.1980), liams, (9th suspected a F.2d find Shirley that jority points out exact laboratory. exigency This a motor methamphetamine ing of to search home bearing on held to fact has been have made hours after the arrests were was five exigent issue оf circumstances. Calla agents need of justified, based on the brass, it should F.2d at 559. Likewise explosiveness on to check enter bearing in this case. have no chemicals. (3), (4), (5) (2), and numbered In actions (10) (9) and the ma- In actions numbered Shirley took (6) majority points that out jority points out the officer “failed attorneys office the district time to contact appellant anyone else determine” Department, Fire the ad- the Houston in need of assistance he received from each vice opinion in entering. The before these “facts” intent. None of subjective looking only the “needs” of error in bearing upon an emer- whether have his to find appellant companion as- majority apparently gency existed. pointed ap- out above circumstances. As Shirley determined an sumes that the agreed stipulation pellant he on the scene. when arrived existed safety was “concerned for officer It support conclusion. facts do the entire the inhabitants of door in appellant opened the only after complex.” finally knocking that it was to his response (12), (13) (11), Finally in actions that moment—that determined—at majority points to lack of evidence that stipulated Appellant emergency existed. apartment complex anyone opened facts to be when fаilure of the stronger assistance and the even need of door, Shirley “detected an These is- ether inside to take certain actions. flamable officer odor of [sic] “to totally and that entered It was incum- apartment 69” immaterial. sues opening specific maximum ventilation” point afford upon the officer “to bent which, together windows. taken and articulable facts facts, from these rational inferences (7), (8), (15) majority In actions reasonably warrant a man reasonable points the officer knocked out that the action was in the belief that caution minutes, get failed some ten door for to weigh judge The trial appropriatе.” or “re- immediately enter pass key and against standard. objective these majority places immediately”. The spond do the must same. upon element. We weight the time undue volatile, extremely highly an methamphetamine laboratory Ether is has been liquid flammable derived from distilla- causing explosion blamed for fire ethyl sulphuric with tion alcohol acid.- damage one in excess of million dollars Indeed, Grecian root word which large apartment complex not far removed ignite,” derived means “to “ether” is “to apartment complex in in distance from the Collegiate blaze.” Webster’s 9th Diction- agree question, I cannot with the state- judging ary. point- аrticulable opinion majority ment that “we can- officer, by out neither trial ed court not, reasonably retrospect, even in con- eyes reality. this can its nor court close clude other residents were immedi- upon by majority The test relied com- danger.” ate While this is not material we apply mands that “man of reason- test, the answer under the to this state- Burg- caution” test. As Chief able Justice is that Officer ment Shir- opin- er stated in an Court aeriating appellant’s ley’s action by sitting ion authored him while on the apartment may prevented have an ex- well Appeals for the D.C. Circuit: plosion simply or fire. This court is appraisal circumstances positiоn speculate might as to what surrounding .... forcible entries without happened emergency have exist- presents a search warrant difficult and Only being ed. a divine could know what problems. delicate These cases do not the eventual outcome would have been. pervades arise in the calm court- short, question present library. They room or I consider rarely are if ever by except simple seen courts in eases ed to be a where one. The burden is activity by criminal has been uncovered prove entry the state to that a warrantless challenged police They actions. emergency fell within the doctrine. McD by not matters resоlved meditation and onald U.S. United reflection of participants. (1948); State, S.Ct. at 191 Janicek v. likely events are to be emotion-charged, (Tex.Crim.App.1982). S.W.2d 687 tension, filled with at- frequently ready determining can be no test for rea grave tended risks. Neither the Con- by balancing sonableness other than stitution, judicial statutes or decisions against entry need to enter the invasion the have made home in an ab- inviolable Court, Municipal entails. Camara v. Collectivelythey solute sense. have sur- 523, 87 S.Ct. great protection rounded the with home apply When these rules of law protection qualified by but which is facts, undisputed stipulated to the I liberty needs of ordered in a civilized Thus, an emergency conclude that existed. society. Breaking into a home force was authorized. illegal is not if is reasonable in the may The fact that the officer have sus- preserve circumstances.... The need to pected illegal manufacture metham- injury justification life or avoid serious is is, phetamine in my opinion,totally illegal immate- what be otherwise ab- exigency emergency is sent an ... rial. What is material whether the con- policemen, When public firemen or other centration aof combustible substance was officers are confronted large such as to create an in a prudent which would lead a and reason- Likewise, аpartment complex. the failure pro- able official to see a need act to captain more fire to make a thor- property, they life tect are authorized ough investigation determine information, to act on that even if ulti- whether, himself he should have entered mately found erroneous. inconsequential. Appellant’s argument U.S., (D.C. Wayne v. 318 F.2d 205 Circuit logical taken to its conclusion would result 1963). incapacity in an to find an among opinion there was a In view of the fact that while this case difference of all, pending illegal present Key been has court those at the scene. After given stipulated the facts admitted that

by appellant, existed. DEARY, Appellant, Jimmie Lee ap- are that was material facts it a.m.; proximately 4:30 concentra- Texas, Appellee. STATE enough tion of to make ether intense No. C14-83-778CR. gaseous coming visible a cloud Texas, patio apartment; Appeals door of the that the offi- Court (14th Dist.). extremely cer Houston knew ether be flammable activity occurring and that this in a Oct. 1984. large city apartment complex Houston. When knock on the door was

answered he found the concentration stronger.

ether even He entered to aeriate apartment. exigent Whether ‍‌​‌‌‌‌​‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌​‌‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‍an is determined articula- authorized entry is

ble facts at the time of authorized being ulti-

rather than affected what is

mately found inside. upon

I hold that then officer,

possession of the he was

justified entering without warrant

ventilate the Once inside eyes not required

wa& to close his to those recognized being

items he as used

illegal methamphetamine. manufacture of

He was to use those therefore authorized securing

facts as war- a basis search

rant to seize the appellant. to convict

evidence used question that the United can be recognizes explicitly

States may circumstances some justify require

instances Surely it privacy.

official intrusion into precisely providing toward for such present that the

circumstances as are here

court doctrine. formulated not, difficult, indeed, to of a

If it is think applied. could

case ever be respectfully

I dissent. PRESSLER,

Paul CANNON JJ.,

DRAUGHN, concur.

Case Details

Case Name: Stewart v. State

Court Name: Court of Appeals of Texas

Date Published: Oct 4, 1984

Citation: 681 S.W.2d 774

Docket Number: B14-83-203-CR

Court Abbreviation: Tex. App.