*1 fired the (Tex. Tyco them. When Rand hired App. Comm’n liable to Tyco remained Gimpel employees, corpora A “successor holding approved). promised it had for the severance respect “corpo them normally used tion” is them, Because I rights trial court found. invested with the as the becoming rations judgment, of another cor trial court’s the burdens would affirm the assuming consolidation, by amalgamation, dissent. poration succession.” legal duly
or authorized Co., Drug 884 S.W.2d Foxmeyer
Procter v. writ). 1994, no (Tex.App.-Dallas
Furthermore, held that this has Court ... de has been term ‘successor’
“[t]he place ‘one who takes
fined as left, like part another has and sustains ” Cmty. Enchanted Estates or character.’ TURRUBIATE, Appellant, Marcos Ass’n, Improvement v. Timberlake Inc. Dist., (Tex.App.-Hous 832 S.W.2d writ). 1992, no Dist.]
ton [1st Texas, Appellee. STATE case, Rand did not be- In this Dresser No. 04-10-00744-CR. rights as- come invested with and/or Texas, Tyco by “amalgam- Appeals the burden of sume Court consolidation, ation, duly authorized Antonio. or San succession,” nor did it take the legal 15, 2012. Feb. Procter, Tyco. place of Discretionary Review Granted Instead, only bought assets from 861. June Indeed, within the context of Tyco. even employees, it did not hiring Gimpel id. Tyco. See
“assume burden” merely to hire agreed
Dresser Rand specifically It did not
Tyco’s employees. concerning these Tyco’s
take on burdens fact, spe- Rand Dresser
employees. liability for
cifically refused to assume and bonuses due
wages, salary, severance employees, as well as for Gimpel
to the under obligations arising duties plans or severance
any employee benefit Agree- Purchase
packages. See Asset 1.5(b) 4.1(d).
ment, Sections corpora- of a agreement part
An on the to an asset employees pursuant
tion to hire is not
acquisition corporation with a second becoming the “successor”
tantamount that, The fact is corporation.
that second Agree- Purchase
pursuant to the Asset itself, obligated to and did Tyco
ment once Dresser Gimpel employees
fire the
judge she would stated take the motion suppress under consideration and amake ruling by the end of June 2010. the record before this court does not con- tain of an express ruling on the No. County From Court at Law suppress. motion to Appellant’s case went Texas, County, Bexar Trial No. Court trial, trial court admitted the 817830; Godwin, H. George Judge Presid- confiscated as State’s Exhibit ing.1 Number 2. *4 juryA appellant, convicted Valdes, Law, Marcos Tur- M. Attorney Victor at San rubiate, possession marijuana of of an Antonio, TX, for Appellant. amount than more two ounces and less P. Yeary, Kevin Assistant Dis- Criminal than four ounces. The trial court sen- Antonio, TX, Attorney, Appel- trict San appellant year tenced one of pro- adult lee. bation a plus and assessed fine costs $400 prosecution in the amount of $1502.83. Justice, ANGELINI, Sitting: KAREN appeal, On appellant argues the trial court Justice, MARION, SANDEE BRYAN by denying pretrial erred a sup- motion to HILBIG, STEVEN C. Justice. press. agree, We and we reverse and remand. OPINION WAIVER MARION, BRYAN Justice.
SANDEE appeal On and on rehearing, opinion In an and No- judgment dated contends because the record 9, 2011, the trial vember we reversed before this does not court contain the trial on appellant’s sup- court’s order motion to court’s on the ruling motion to suppress, press and remanded the the trial cause to appellant his argument by waived failing proceedings. court for further The State preserve appellate it for review and this rehearing of Texas filed a motion for and may court find an In implied ruling. deny a appellant response. filed We response to the State’s motion for re motion; however, purpose State’s for the that, hearing, appellant days noted nine upon of waiv- expanding our discussion after the suppression hearing, the trial er, opinion judgment we withdraw our and judge parties stating sent letter to the 9, 2011, opin- of November this and issue denying she was motion to suppress. judgment place. Appellant ion and in its 6, charged by posses- May suppres- information with At the end of the marijuana in hearing, sion of an amount more than sion the trial court stated it would two ounces and less than four Be- take under in- ounces. the matter advisement and trial, appellant you fore moved to “I will send a let- suppress parties formed meantime, arguing it fruit of an ter. Mr. marijuana, was the Valdes [defense counsel], set this matter at illegal warrantless search. The trial we will for trial motion, June, ruling at and I hearing conducted on the and the end of will make a entry the trial then.” hearing, the conclusion between now and The docket Rodriguez presid- hearing, George 1. The Honorable Liza Honorable H. God- is win, guilt/in- ing judge County visiting judge, presided No. 8. over the Court at Law signed pre- phase of the trial and the final Honorable Karen Crouch nocence pretrial suppress judgment. over the sided motion to Applicable to Warrantless 14, B. Law “Deny reads: MTS for June TISH.” The let- Searches mailed KAC—letters “Please ter, June states: dated a resi A warrantless search of Motion denying I am advised that be Gu presumptively dence is unreasonable. 6,May heard on that was Suppress (Tex. State, 221 tierrez v. above reference to the numbered at When a defendant Crim.App.2007). is cause.” The letter addressed styled tempts based on suppress Assistant to both defense counsel seizure, warrantless search the State Attorney. We conclude District Criminal (1) proba has both: showing the burden the denial of his challenge to appellant’s the search ble cause existed the time for our suppress preserved motion to (2) made, review. requiring obtaining immediate made McNairy impracticable.
a warrant TO MOTION SUPPRESS (Tex.Crim.App. *5 1991). cause to search exists Probable issue, the appellant argues In his first “reasonably trustworthy where facts and by denying erred motion to trial court knowledge of circumstances within the suppress. a man of officer on the scene would lead that prudence reasonable to believe A. of Review Standard instrumentality of a or evidence of crime review the trial court’s denial of We If probable crime will be found.” Id. suppress under bifurcated motion to exists, exigent may State, v. 310 of review. Valtierra standard immediate, require warrantless 442, (Tex.Crim.App.2010). S.W.3d 447-48 “(1) are: police providing officers who aid First, of apply we an abuse discretion law en persons or assistance whom findings court’s of standard the trial reasonably are in forcement believes need Dixon, v. 206 S.W.3d 590 fact. State (2) assistance; protecting police officers (Tex.Crim.App.2006). When the trial reasonably they from whom be persons fact, findings does not as issue armed, present, dangerous; lieve to be case, findings that imply support this we (3) the destruction of evi preventing [or] ruling if the evidence the trial court’s Gutierrez, dence or contraband.” 221 (viewed in the most favorable to the light S.W.3d at 685. findings. v. ruling) supports those (Tex.Crim. police possible cite de 818-19 When Kelly, 204 S.W.3d as circum afford almost total defer struction of evidence an App.2006). We stance, implied State must demonstrate the findings, to the trial court’s ence reasonably have police those on an “could concluded especially based evaluation destroyed that would be or re credibility the witnesses’ and demeanor. Valtierra, Second, they obtain a search at 447. we moved before could S.W.3d at McNairy, de novo trial court’s warrant.” application review facts, consider five circumstances law to the and we will affirm Courts should by that to a reasonable determi “reasonably supported if it are relevant ruling is destroyed be theory might record and on of nation that evidence is correct Id. 447-48. removed:2 applicable law to the case.” Supreme decision in disagree after the U.S. Court’s 2. We with the dissent’s conclusion — -, Kentucky King, 131 S.Ct. longer apply no U.S. that the first and third factors (1) degree urgency involved and fully was made [resident] aware of necessary the amount of time to obtain a the fact that he could decline to consent (2) ...; prevent thus an warrant reasonable belief that immediate search of (6) the ... the contraband is about be removed whether the residence^] (3) ...; police purpose underlying possibility danger po- illegality was to obtain the consent. guarding lice officers the site of the contraband while a search warrant State, Brick v. 738 S.W.2d 680-81 (4) ...; sought indicating information (Tex.Crim.App.1987); accord Leal v. possessors of the contraband are 297 (Tex.Crim.App.1989) aware that the are on their trail (requiring analysis of the Brick factors to (5) ...; ready destructibility of determine “whether the taint stemming knowledge the contraband and the from the unlawful entry sufficiently dispose efforts to of narcotics and to attenuated” to render voluntary). consent are escape characteristic behavior of Analysis C. persons engaged in the narcotics traffic. In order to determine whether Rubin, (quoting Id. United States v. the State met its demonstrating burden of (3d Cir.1973)). F.2d both probable cause and exigent circum
Even when
do not con
stances, or, alternatively, voluntary con
search,
a lawful
voluntary
duct
consent to sent, we ordinarily are restricted to a re
given
illegal entry may
after an
still view of the record as it existed at the time
*6
render
the seized evidence admissible. of the suppression hearing. O’Hara v.
(Tex.
State,
813,
12
Reasor v.
S.W.3d
817
State,
551 (Tex.Crim.App.
Crim.App.2000).
2000)
But consent
to search
(stating evidence heard at trial but
given
illegal entry
after an
is not voluntary
relevant).
not at suppression hearing is not
unless the State can “prove by clear and However, the general
inapplicable
rule is
convincing evidence that the taint inherent where the State raises the suppression
illegality
in the
dissipated by
had
the time
issues at trial
objection
“either without
State,
given.”
consent
is
Stone v.
279
subsequent participation
with
in
inqui
the
(Tex.App.-Amarillo
State,
S.W.3d
ry by the defense.” Rachal v.
'd).
pet. ref We evaluate whether the taint
(Tex.Crim.App.1996).
In
case,
illegal entry
of an
dissipated using
may
has
the
such a
we
consider the relevant
Here,
testimony.
trial
Id.
the
ar
six Brick v. State factors:
gues
suppression
re-litigat
the
issues were
(1)
proximity
of the consent to the
objection.
ed at trial without defense
Re
(2)
[illegal entry;]
[illegal
whether
gardless, whether we consider the record
entry] brought
police
about
observation
only
suppression
as
existed at the
hear
particular object
they
of the
which
ing
entirety,
or in its
we conclude the State
(3)
search!;]
sought consent to
whether
failed to meet
demonstrating
its burden of
illegal [entry]
‘flagrant police
was
a lawful warrantless search.
(4)
misconduct’!;]
whether the consent
requested
case,
was volunteered rather
than
In this
as it
record
existed at
(5)
officers!;]
by
detaining
suppression hearing
whether
the time of the
(2011).
particularly scant. door, was opened apartment the trial contact- indicates all fore this court fresh strong ed after I odor of it at the time of the smelled court had before marijuana. was sup- [Appellant] sitting on appellant’s motion to hearing was testimony, living began the couch in the room and and the ar- press, appellant’s cry marijuana if in report. to when I asked was Appellant resting officer’s 11, 2010, pointed February apartment. [Appellant] to a testified that on Chris- [appellant] to investigator backpack blue next who topher Lopez,, an Child Services, premises. signed knocked on a consent to search appellant’s Protective Chavarria, Deputy [Appellant] backpack front while Santos then door marijuana] an County with the Bexar removed from [the sheriffs officer Office, from unsecured brown box witnessed sight [Lo- out of “hid[] Sheriffs Appellant pez]. crying stating ... peephole.” [Appellant] testified “barely [appellant] [appellant’s girl- is father of open that when he cracked ],” baby and doesn’t want Deputy “pushed [appel- Chavarria door[ friend's hand, girlfriend] charged way lant’s to be with pointing in with his his taser face, gun saying repeatedly to turn crime. stated my [Appellant] around put my belonged back.... my marijuana] [appellant] hands behind And [the put only. and sat At personal me handcuffs me down.” and was for use I recov- that point, appellant gave Dep- testified he took marijuana], [appellant] [the ered uty in a girlfriend] Chavarria consent blue custody [appellant’s Deputy backpack nearby.3 Chavarria shortly prior my departure. arrived the back- bag found a inside transported [appellant] to Frio S. pack placed appellant under arrest. [Appellant] for booking process. stated staying girl- been with [he] [his has which had burden of months friend] for about three but tem- search, entry and proving a lawful did porarily. [Appellant’s girlfriend] in- testify during call Chavarria *7 by [Lopez] who has terviewed issued only rather re- hearing, produced but his marijuana] case number. was [The port, following which contained the hand- N. placed at 200 into evidence Comal written statement: Property Room. I a dispatched standby was as civil to trial, possible presented narcotics At the State a more [Lopez] contact arrival, complete the events Upon portrait use at listed location. with both just Deputy Lopez’s testimony. had [Lopez] previously stated Chavarria’s and [he] Lopez apartment went to the apartment knocked on door listed to testified he girlfriend, Protective in- where his their appellant, conduct a and [Child Services] living were to vestigation [appellant’s girlfriend] six-month-old child order apartment. investigate marijuana that was report who resides at listed [Lo- being Lopez odor the home. When pez] strong marijuana smelled a used inside and County apartment and contacted Sheriffs arrived knocked on [Bexar door, opened speaking Hispanic appellant partially with a upon Office] and head out to opened poked male who the door. I followed door his answer. Lopez on himself and stated he was [Lopez] who knocked door of listed identified trial, gave backpack. Deputy search the blue 3. Later at Chavarria testified consent to appellant longer in when he was no handcuffs speak appellant’s with girlfriend. there handcuffs. Deputy Chavarria appel- asked him Appellant girlfriend told his was not lant if marijuana home, there was in the home and would be back later in the after- appellant and said there marijuana Lopez noon. if the asked child was in the present and it belonged to him. Appellant no, apartment, appellant and him told began crying. Deputy Chavarria asked girlfriend. child was with his appellant where was in the apartment, and appellant indicated a blue Lopez immediately- testified he left and backpack within his reach. Deputy Cha- supervisor report called his that he had varria asked appellant sign a consent to “very, very strong detected a smell of mar- form, ijuana” and coming apartment. appellant signed from the it. Lo- On Deputy pez then called the Bexar County request, Sheriffs Chavarria’s appellant Department to request opened that a sheriffs offi- the backpack, removed a brown accompany box, cer him back to apartment it, and revealing a plastic bag verify in order to whether the child was containing marijuana. Deputy Chavarria present. Deputy Chavarria escorted Lo- placed appellant under arrest. Appellant’s pez back to the apartment about an hour child was not present at the apartment. Lopez later. knocked on the door while Deputy Both testimony Chavarria’s and Deputy stood Chavarria out view of the report reflect that dispatched he was peephole. appellant door’s When cracked appellant’s residence to investigate “possi- open out, the door poked and his head ble narcotics use” and he strong smelled “a Lopez Deputy both Chavarria smelled marijuana” fresh odor of when appellant “strong” marijuana. odor of Deputy answered the door. We will assume there “[Appellant] opened Chavarria testified: cause for a search warrant door, I put my arm on the door to based on Lopez’s report of a “very, very it, him keep closing from I and walked strong marijuana” smell of coming from placed [appellant] ground on the the apartment. the record does Deputy handcuffed him.” Chavarria also support existence of cir- he displayed testified removed and his ta- requiring cumstances immediate gun ser while entering apartment “be- apartment point, obtaining cause at that without first compliance.” wanted why put Deputy When asked his arm on the warrant. Chavarria testified that door, explained: Chavarria “At he acted to prevent the destruction of mar- point, anwas *8 issue of destruction of ijuana inside the apartment, nothing but evidence, evidence. If there is if is there the record suggests that destruction of house, marijuana in I prevent the have to was evidence a risk under the circum- being destroyed it from I and have to Appellant willingly stances. answered the it, guess secure I for the actual offense and door both Lopez times knocked and did arrest, judicial the and the procedure.” any not make movement as if he were evidence, destroy by about to such as dart- Deputy Lopez Chavarria testified that ing away attempting from the door or to apartment then entered the Deputy while seeing close it after who knocking. was appellant Chavarria searched and the im- fact, Deputy because stood out Chavarria surrounding weapons. mediate area for of sight peephole Lopez the when Deputy Once appel- Chavarria determined time, nothing the there lant was unarmed knocked second is and did not have access reach, weapons ap- suggest to within arm’s he to was even aware of appellant sat pellant on the couch the any police and removed involvement when he demonstrating probable that both proof by did not testi- Deputy door.4 Chavarria
the justified to anything suggest cause he observed and fy that entry, removal of evi- the taint imminent destruction or the that warrantless rather, way the dence; his into by he forced any entry dissipated had the illegal appellant vol- immediately after apartment to gave time consent search. appellant untarily opened Accordingly, the door. we the trial court’s Accordingly, reverse did not meet its burden of dem- the State motion and re- suppress order on the to that and onstrating probable both to the court for fur- mand this case trial justified Deputy exigent circumstances opin- with this proceedings ther consistent entry appel- warrantless into Chavarria’s ion.5 residence.
lant’s Justice, HILBIG, STEVEN C. vol appellant gave
As to whether
dissenting opinion.
search,
again
the
untary consent to
Deputy
its
Neither
to meet
burden.
failed
original
majority
has
its
withdrawn
report con
testimony nor his
Chavarria’s
opinion
judgment
November
and
dated
convincing
clear and
tains
By way
opinion.
issued a new
any
by
illegality
dissipated
taint of
had
majority
its
denies the
opinion,
new
appellant
consent
search.
gave
the time
respectful-
I
rehearing.
motion for
State’s
record
much
It is unclear from the
how
ly
the motion
dissent from
denial of
entry
and the
elapsed
time
between
rehearing
majority’s opinion
and to the
Deputy
testified that
consent.
Chavarria
constitutional
judgment.
believe the
he
appellant gave
when
consent
requirements
cause and exi-
but
longer
no
in handcuffs
was “not
gent circumstances were satisfied when
detained,
he was
free to leave” because
Deputy
premises,
entered the
Chavarria
Deputy Chavarria had removed his
supports
the trial
the evidence
court’s
it in
gun
holding
and was
his hand
taser
implied finding
voluntarily
that Turrubiate
also testified
Deputy
the time.
Chavarria
gave
deputy.
Accord-
give
he did not
Miranda warn
appellant
trial
ingly,
judgment
appellant
and it is unclear whether
ings,
be affirmed.
should
he
fully
made
aware that
could decline
consent
to search. Based on these
Background
facts, the State
to demonstrate that
failed
opinion,
As
in the majority
set forth
illegality Deputy
taint of
Cha-
controversy in this case involves
central
entry
apartment
had dissi
varria’s
Deputy
and how
actions
Chavarria
gave
consent
pated
appellant
time
gained
access to Turrubiate’s residence.
to search.
entered the
Because
Chavarria
CONCLUSION
warrant,
residence without
above,
under
presumptively
con-
unreasonable
For the reasons stated
we
*9
Michigan v.
the State
not meet its burden of Fourth Amendment. See
clude
did
purpose
pellant’s girlfriend,
appellant
if
which was
4. Even
knew
Chavarria
door,
disagree
Lopez’s
on the other
we
was
side
initial visit to the residence.
appellant
that
with
dissent's conclusion
aware the
were “on
trail”
was
his
appellant's
5. We do not address
second issue
Appellant
opened
he
could
when
the door.
necessary
resolution
it is not
for
because
deputy
Lopez
have assumed
and the
were at
Tex.R.App.P.
appeal.
this
See
47.1.
investigating ap-
the purpose
the door for
—
Fisher,
U.S. -, -,
130 S.Ct.
fied that as soon
as Turrubiate
(2009);
door,
No
fact were
findings of
filed
a quick protective
ducted
sweep of the
trial court.
will imply findings
We
of fact
premises. After performing
protective
support
the trial court’s
long
decision as
sweep,
deputy
removed the handcuffs
findings
are
implied
supported by
as
began
question
Turrubiate.
the record.
Hereford
111, 118 (Tex.Crim.App.2011).
Turrubiate argues that smell alone does
provide probable
cause. He
on
relies
PRObable Cause
Steelman,
the statement
in State v.
majority
Because the
exi-
concludes no
108 (Tex.Crim.App.2002), that
existed,
gent
it simply
as-
alone,
odor of marijuana, standing
“[t]he
sumed without deciding Deputy Chavarria
does not authorize a warrantless search
probable
had
cause when he entered the
and seizure in a home.”
residence. Because I believe
cir-
explained
later
this
in
statement
Es-
existed, I
cumstances
will address the is-
trada:
probable
sue of
cause.
is, however,
There
a distinction be-
investigator
Child Protective Services
tween what
necessary
to establish
Christopher Lopez
testified went to the
cause,
probable
required
and what is
Turrubiate residence to
a com-
investigate
an officer to conduct a warrantless
plaint
marijuana
being
that
used in
search of an individual’s residence.
the presence
baby.
of a six-month old
Lo-
Steelman, we held that the odor of mari-
pez knocked on the door and Turrubiate
juana alone is not enough to allow offi-
answered. Although Turrubiate did not
cers to conduct a warrantless
search.
door,
fully open
Lopez
“very,
noticed a
This is because it is clear under both
very strong
marijuana coming
smell of
United States constitutional
law and
from the home.” When Turrubiate denied
Texas constitutional law that a warrant-
either the child or its mother
present
illegal
less search of a residence is
un-
home,
Lopez
left. He called his
probable
less
cause exists in combination
supervisor
reported
strong odor
with
circumstances.
marijuana.
supervisor
His
instructed Lo-
pez to call the sheriffs office and obtain its
790 they could destroyed or removed that the smell of have held
Many courts
before
cause in
a warrant.”
probable
constitutes
obtain
marijuana
automobiles. See
involving search of
cases
which have seemed rele-
Circumstances
(5th
McSween,
684, 686
53 F.3d
v.
U.S.
(1)
degree
include
the
of
vant to courts
denied,
874,
Cir.),
116 S.Ct.
516 U.S.
cert.
time
involved and the amount of
urgency
(1995) (“the
199,
133
smell of
133 L.Ed.2d
(2)
...;
warrant
necessary to obtain a
may
ground enough
be
marihuana alone
belief that the contraband is
reasonable
cause”);
v.
of
U.S.
finding
probable
for a
(3)
...;
possi-
be removed
the
about to
(5th Cir.1989)
161,
Marshall,
163
878 F.2d
guard-
officers
bility
danger
police
of
(“once
detected the odor of
the officer
while a
ing the site of the contraband
existed”);
cause
Razo
marijuana, probable
(4)
...;
sought
warrant is
infor-
(Tex.Crim.
709,
State,
S.W.2d
711
v.
577
indicating
possessors
the
of the
mation
marijuana pro
of
(holding smell
App.1979)
are aware that the
are
contraband
vehicle);
cause for search of
probable
vided
(5)
...;
ready
trail
on their
(Tex.
State,
610,
v.
96 S.W.3d
Dickey
and the
destructibility of the contraband
2002,
pet.)
no
App.-Houston
Dist.]
[1st
knowledge
dispose
that efforts to
of nar-
(same);
v.
Joseph
See also
are characteristic
escape
cotics and to
(Tex.
App.-Houston [14th
634-35
persons engaged
in the nar-
behavior
(smell
pet.)
no
Dist.]
cotics traffic.
for search and
probable
establishes
arrest).
may
probable cause for
establish
(Tex.Crim.App.1991)
probable
cause standard
Because
Rubin,
v.
474 F.2d
(quoting United States
the same whether we consider
should be
Cir.1973))
added).
(3d
(emphasis
vehicle, I
or of a
search of
residence
sig-
I believe this test has been
in this
probable
would hold
cause existed
nificantly
by
Supreme
altered
Court’s
case.1
holding King.
in
Exigent
King,
Supreme
States
United
Circumstances
whether the
cir-
Court considered
above, exigent circum-
As discussed
exception to the warrant
re-
cumstances
in
accompany probable cause
stances must
de-
quirement applies when the fear of
of a resi-
order for a warrantless search
prompted by
of evidence was
struction
the Fourth
dence to be reasonable under
police.
of the
bly exigency. created the Id. light Supreme Court’s reason-
The
Supreme
United States
ing,
Court
believe two of the McNairy factors
granted certiorari. The
recognized
Court
determining
the existence of exigent
that lower courts
developed
“po-
had
circumstances —the degree
urgency
in-
lice-created exigency” exception to the exi- volved
amount of time necessary
gent
warrant,
circumstances rule and discussed
to obtain a
and the possibility of
by
various tests devised
the courts to de- danger
police
to
guarding
officers
the site
termine if the exception applies.
Id.
the contraband while a search warrant
Supreme
1858-61. The
Court ulti-
is sought
not constitutionally re-
—are
mately
only
concluded the
relevant
quired
factor
applicable.
These factors in-
to
consider is whether
gained entry
volve weighing the risks of destruction of
premises “by
means of an actual
safety
evidence and
ver-
or threatened violation of the Fourth
sus the amount of time it takes
get
Amendment.” Id. at 1862.
it is warrant. The
analysis King
court’s
ob-
instructive to review the factors or tests
viates the need to consider these factors
rejected.
the court
These include whether
because the court held that law enforce-
the police acted in
faith
bad
to avoid the ment is not required to obtain a warrant as
warrant requirement, whether it was rea-
soon
probable
as
cause exists and is not
sonably
drug
foreseeable that
suspects
prohibited from knocking on a door once
attempt
destroy
would
Thus,
evidence be-
there is probable cause.3
in deter-
police apparently
2. The
wrong
requirement
chose
did not alter the
apartment. They later
entered the second
cause and
circumstances before
apartment
original suspect.
Contrary
majority's
and located the
without a warrant.
to the
assertion, my interpretation
application
ria’s report pretrial and the was admissible at the exigent circumstances cause and State, v. See Ford suppression hearing. did not violate seizure of (Tex.Crim.App. 535-541 . 305 S.W.3d Fourth Amendment. State, 2009); v. 307 S.W.3d Graves seen might I realize this result be ref'd); (Tex.App.-Texarkana pet. authorizing general some as (Tex. Vanmeter marijuana. the smell But only on based *14 ref'd). 2005, pet. App.-Dallas facts unique is based on the my conclusion existing precedents this case reasons, affirm For these I would logical Even when lead to this result. judgment. trial court’s circumstances to the any search is limited present, are Gutierrez, See
exigency. (holding that “full-blown” search
686-87 created by exigency not authorized
house while retriev drugs
when observed home, laptop from
ing stolen defendant’s ex
noting that “does
ception requirement warrant grant the unfettered discre In the ESTATE OF Edward W. action, any take however tion to course MELCHIOR, Deceased. perceived disproportionate may be to Here, did exigency”). Deputy Chavarria No. 04-11-00052-CV. of Turru- not conduct “full-blown” search Texas, of Appeals Court per residence. reaction to the
biate’s His San Antonio. safety exigency ceived to ensure his restraining and con by initially Turrubiate Feb. then remov ducting protective sweep, investigating handcuffs ing the by asking
smell Turrubiate if voluntarily an present. Turrubiate question consented to
swered
search that resulted in the seizure facts, we need
marijuana. Under these explore
not discuss or the limits place upon
Fourth Amendment would conducted into the after
home.
Confrontation Clause error, point Turrubiate
In his second right trial
contends the court violated hearing on the during
of confrontation suppress admitting Deputy
motion evidence, police report
Chavarria’s testi deputy present
when the was not