Nos. 05-08-00553-CR, 05-08-00554-CR
Opinion issued April 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause Nos. 004-86269-07, 004-86270-07.
Before Chief Justice THOMAS and Justices FITZGERALD and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant Samuel Andrew Stern and Scott Andrew Bach were arrested on July 25, 2007 for the misdemeanor offenses of possession of alprazolam (Xanax), a controlled substance, in an amount less than twenty-eight grams, and possession of marihuana in an amount of two ounces or less. Each filed a pretrial motion to suppress. After a suppression hearing and allowing the attorneys to file written briefs, the trial court denied each motion. The trial court filed written findings of fact and conclusions of law in support of its decision. Subsequently, each defendant pleaded guilty and was placed on six months' deferred community supervision. Each now appeals. The issue we must resolve is whether the trial court erred by denying appellant's motion to suppress evidence because, appellant asserts, the police entered his apartment without a warrant, without probable cause, and without justification from exigent circumstances. Concluding no reversible error is shown, we affirm.
The possession of alprazolam offense is a class A misdemeanor. Tex. Health Safety Code Ann. § 481.117(b) (Vernon 2003). The possession of marihuana offense is a class B misdemeanor. Id. at § 481.121(b)(1).
Except for the respective case styles and numbers, the briefs filed are identical.
Background
At approximately 7:45 p.m. on July 25, 2007, a police dispatcher received an anonymous call complaining of marihuana odor coming from a specific apartment, a situation described by the caller as an "ongoing problem." Acting on this information, Plano police officers Michael Bodacki and James Endsley went to the apartment. Both officers were in uniform. As they approached, they saw two males talking inside the apartment and they heard music or the television. The officers smelled the odor of marihuana coming from a crack in the apartment door. Endsley knocked on the door but covered the peephole with his finger. He believed the occupants would not open the door to the police. In a few moments "it got quiet." "Eventually" a male voice inside the apartment yelled "why is your [expletive] finger on the peephole"? Endsley replied, "Dude, somebody is breaking into your car." While Endsley was standing there with his finger still over the peephole, "the subject flew the door open and took a step towards [him]. He asked, `What's going on with my car.'" The male who opened the door was later identified as appellant. The aggressive action startled both uniformed officers. Endsley stated he was not expecting somebody to come running up to him like he wanted to fight. When appellant saw the officers, he took a step back into the apartment while the door was still open. At this point the officers described the odor as "a stronger odor of marihuana" and as "freshly burning marihuana" coming from inside the apartment. While the door was open, Endsley saw another person, identified as Bach, sitting on the couch. When Bach saw the officers, "it looked like he was rummaging through something at the time by the-on the couch." The officers could not see Bach's hands. Bodacki stepped onto the threshold of the door to prevent appellant from closing the door. Bodacki saw beer cans and a marihuana "bong" in plain sight inside the apartment. The officers asked the two persons not to move. The officers testified that initial entry into the apartment was made for the safety of the officers and to prevent the destruction of evidence. Officers Bodacki and Endsley had many years of experience as police officers. Officer Endsley was specifically asked whether he was familiar with narcotics and knew what marihuana smelled like; he responded in the affirmative. Upon entry, the officers saw beer and liquor bottles all over "like they just had a party"; the officers were concerned others were in the apartment. One officer did a fast sweep of the apartment searching for people who might have been armed while the other officer stayed with appellant and Bach. A bag containing white pills and a green, leafy substance was in plain view on the couch. The officers believed the green, leafy substance to be marihuana. More marihuana was in plain view on the kitchen table. If the officers had not seen the marijuana in plain view, they would have obtained a search warrant before searching further. Appellant and Bach were arrested only after the officers discovered the marihuana in plain view. Standard of Review
A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The evidence is considered in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Almost total deference is given to the trial court's determination of historical facts when the determination is based on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court abuses its discretion "when the trial judge's decision is so clearly wrong it lies outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). We will uphold a trial judge's decision as long as it is right for any reason. Powell v. State, 898 S.W.2d 821, 827 n. 4 (Tex.Crim.App. 1994). Whether the trial court properly applied the law to the facts is reviewed de novo. Guzman, 955 S.W.2d at 89. We review the issue of probable cause de novo on appeal. Id. at 87. This is so because "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Id. There is a strong preference for searches to be administered pursuant to a warrant. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007). The search of a residence without a judicially authorized warrant is presumptively unreasonable. Id. Article 14.05 of the Texas Code of Criminal Procedure provides that an officer making an arrest without a warrant may not enter a residence to make the arrest unless there is consent or exigent circumstances. Tex. Code Crim. Proc. Ann. art. 14.05 (Vernon 2005). And in order to justify a warrantless entry and search under the exigent circumstances exception, the State must show that probable cause existed at the time the search was made and exigent circumstances existed that made the procurement of a warrant impractical. Estrada v. State, 154 S.W.3d 604, 608 (Tex.Crim.App. 2005); see also State v. Steelman, 93 S.W.3d 102, 107-08 (Tex.Crim.App. 2002). Probable cause 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 or evidence of a crime will be found. Gutierrez, 221 S.W.3d at 685; McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991). Three categories of exigent circumstances justify a warrantless intrusion by police officers: (1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 685. In written findings of fact and conclusions of law, the trial court found the police officers to be credible witnesses and accepted as true their testimony of their basis for arresting and searching appellants.Application
To support a warrantless search, probable cause, in combination with exigent circumstances, must exist. McNairy, 835 S.W.2d at 106. Reviewing the evidence de novo, we examine the facts evident to the officers prior to the officers' entry, and we consider that evidence in the light most favorable to the trial court's ruling. The odor "of an illegal substance" is a factor officers may use in making their determination "whether there is probable cause that an offense has been or is being committed." Estrada, 154 S.W.3d at 609; Steelman, 93 S.W.3d at 108. In this case, the officers smelled freshly burning marihuana coming from the apartment, independently corroborating a prior anonymous complaint. The officers saw two individuals listening to music or the television in the apartment. A few moments after the officers knocked on the door, it became quiet in the apartment. After some delay, one male asked why the peephole was covered. When the front door was opened, the odor became stronger and the officers observed a second male sitting on the couch, making furtive movements indicating he was "rummaging through something . . . on the couch." Neither officer could see his hands. Further, the officers had reason to believe the occupants were smoking marihuana, but they did not know how many individuals were in the apartment or whether they were armed. It is undisputed appellant startled the officers when he jerked the door open and came "running up [on the officers] like [he] wanted to fight" and that appellant immediately asked about his car. But appellant's jerking open the door and his verbal response about his car were generated by the officer who admittedly fabricated a story to encourage him to open the door. Thus, his response, even if aggressive, was not, under these facts, an unreasonable response to the officer's statements that someone was breaking into his car. However, there was no entry or search at this juncture. It is clear under both United States and Texas constitutional law that a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances. Estrada, 154 S.W.3d at 608 (citing McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003)). The trial court expressly found that the officers' entry into the apartment was based on probable cause and exigent circumstances. The record reflects and the trial court found the officers entered believing officer safety and prevention of the destruction of evidence were paramount. Under these circumstances, we hold the officers had sufficient probable cause to enter the apartment. We next examine the issue of whether exigent circumstances existed to support a warrantless search of the apartment. When the officers first arrived at the apartment complex, they had information that there was a marihuana problem at a specific apartment. They corroborated this information when they arrived at the apartment and smelled marihuana emanating from the apartment doorway and then detected a stronger smell after appellant opened the front door. The combination of the odor of freshly burning marihuana, the fact it became quiet a few moments after the officers knocked, the delay in responding to the knock on the front door, Bach's furtive movements on the couch with his hands out of the officers' sight, and the need to determine that appellant and any other occupant in the apartment did not have a weapon and were not destroying evidence provided exigent circumstances for the officers to enter the apartment to conduct a protective sweep to secure the scene for officer safety and to prevent the destruction of evidence. We conclude the trial court did not abuse its discretion in finding that both probable cause and exigent circumstances were present under the facts of this case for the officers to enter and conduct a protective-sweep search of the apartment. Thus, we conclude the trial court did not err in denying appellant's motion to suppress. We affirm. [7] Apparently, Officer Michael Bodacki's name is misspelled in the trial court's findings inasmuch as he testified his name was spelled B-o-d-a-c-k-i. No complaint is made of the obvious typographical error.