Opinion
NUMBER 13-17-00043-CR NUMBER 13-17-00044-CR
02-08-2018
JORDAN MCNEIL, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 21st District Court of Lee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
After the trial court denied his motion to suppress evidence, appellant Jordan McNeil entered pleas of guilty to the second-degree felony offense of possession of four grams or more but less than 200 grams of methamphetamine, see TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2017 1st C.S.), and the third-degree felony offense of unlawful possession of a firearm by a felon. See TEX. PENAL CODE ANN. § 46.04(a) (West, Westlaw through 2017 1st C.S.). McNeil was convicted and sentenced to thirteen years' and five years' imprisonment for the respective offenses, with the sentences ordered to run concurrently. On appeal, he argues that the trial court erred by denying his motion to suppress. We affirm.
Appellate cause number 13-17-00043-CR.
Appellate cause number 13-17-00044-CR.
This appeal was transferred from the Third Court of Appeals in Austin pursuant to an order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
I. BACKGROUND
At a suppression hearing, Steven Spencer of the Giddings Police Department testified that he was surveilling McNeil's residence on the morning of July 10, 2015, based on information he previously received that illegal drugs were being sold at the residence and that there were firearms in the residence. Spencer stated he was doing surveillance by himself in an unmarked police car and had another officer "do some traffic stops of the vehicles leaving the residence." At some point, Spencer observed a person get out of a vehicle, approach the residence, then return to the vehicle shortly thereafter; another officer later made a traffic stop of that vehicle but no arrest was made. Later, Spencer observed another vehicle come up to the residence, then drive away after a minute or two. Believing that the vehicle belonged to McNeil, Spencer requested the assistance of David Jessup, a Lee County Sheriff's Deputy.
Jessup testified that he followed the vehicle for less than five minutes when he observed it "veer off towards" a vehicle that was going in the opposite direction, which Jessup considered to be reckless driving. Jessup activated his emergency lights, and the vehicle turned back onto the street of McNeil's residence and backed up into the driveway. Jessup approached the vehicle and determined that McNeil was the driver. While speaking to McNeil, Jessup observed a plastic baggie containing marijuana on the driver's side floorboard; he then placed McNeil under arrest for possession of marijuana.
On cross-examination, Jessup conceded that the oncoming vehicle did not need to change its path in order to avoid McNeil's vehicle.
Spencer testified that he approached the residence after Jessup informed him that McNeil had been detained. He noticed that there were several surveillance cameras set up around the outside of the house. Spencer knocked several times on the door, but no one answered. As he was walking away, another officer alerted him that a female had opened the door, so Spencer returned "to explain to the female what was going on." Spencer stated:
I wanted to at least make an attempt at the residence to find out was there any, you know, family members, friends, you know, anybody with—that could have been inside to use any of the firearms that were inside. I wanted to make notice that we were the police, we were there, we had a lawful stop, we were taking him to jail and didn't want any adversarial situations to happen outside the residence.
The woman who had opened the front door was McNeil's wife, Tiffany. As Spencer approached Tiffany, he detected the odor of marijuana coming from inside the residence. Spencer asked Tiffany for consent to search the residence, but she refused. Spencer then informed Tiffany that he would need to apply for a search warrant and so he would need her "to exit the residence" in order to "secure the residence." Spencer explained: "We want to eliminate the ability of anybody in there to destroy any evidence or get rid of or discard anything that—of evidence that would lead to the reason for the request of the search warrant." Spencer stated that Tiffany "did not want to come out of the residence" and so she had to be handcuffed and forcefully removed.
Tiffany McNeil was a co-defendant at the suppression hearing. She is not a party to this appeal.
At some point, Tiffany advised Spencer that her infant son was in the back bedroom of the residence. Spencer agreed with the prosecutor that this constituted "exigent circumstances" for him to "go inside to make sure that the baby was taken care of." Spencer explained: "I knew the time period that it would take me to draft a search warrant, two to three, possibly four hours, was not a safe point for an infant child to stay in the residence by itself." Spencer then re-entered the residence with Tiffany in order to remove the child. As Spencer and several other officers walked through the house doing a "protective sweep," they observed several items in plain view, including a pistol, a shotgun, plastic baggies, drug paraphernalia, jars of marijuana, and a crystal-like substance which Spencer believed to be methamphetamine. Spencer testified that Tiffany "was placed under arrest based on the items that were seen in plain view inside the residence."
The child was later released to a family member.
Spencer conceded on cross-examination that his incident report did not mention that the officers performed a "protective sweep." He also agreed that he "had no reason to believe that there was a likelihood of gunplay coming down" and that he did not observe anyone attempting to destroy evidence. Jessup testified that Spencer did not inform him that there might be firearms in the house.
Spencer then drafted an affidavit recounting all of these events and submitted it as part of an application for a search warrant, which was granted. Police then returned to the residence later that day to execute the search warrant, and they recovered the items they had previously observed, among other things.
The trial court denied McNeil's motion to suppress the evidence recovered via the search warrant. Subsequently, McNeil pleaded guilty to and was convicted of the two offenses as set forth above. The trial court certified McNeil's right to appeal. See TEX. R. APP. P. 25.2(a)(2).
II. DISCUSSION
In his motion to suppress, McNeil argued that the evidence recovered from his home should be suppressed because the affidavit upon which the search warrant was based was "improperly executed" and did not establish probable cause. On appeal, he contends that the evidence should have been suppressed because (1) the information set forth in the affidavit was obtained from a prior warrantless search and (2) that prior warrantless search was illegal under the United States and Texas Constitutions and inadmissible under article 38.23 of the Texas Code of Criminal Procedure. See U.S. CONST. amend IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw through 2017 1st C.S.) (providing that "evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America" is inadmissible in a criminal case).
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
We review the trial court's decision for an abuse of discretion. Id. "We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement." State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The trial court's ruling will be upheld if it "is reasonably supported by the record and is correct on any theory of law applicable to the case." Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). However, a trial court has no discretion in determining what the law is or applying the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).
When, as here, no findings of fact or conclusions of law are requested or filed, we assume the trial court made all findings in support of its ruling that are consistent with the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); cf. Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (holding that, when the issue is voluntariness of a confession, a trial court must file findings of fact and conclusions of law "whether or not the defendant objects to the absence of such omitted filing"); State v. Cullen, 195 S.W.3d 696, 700 (Tex. Crim. App. 2006) ("[U]pon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings.").
B. Applicable Law
The United States and Texas Constitutions protect against unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. "The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a search warrant without first finding 'probable cause' that a particular item will be found in a particular location." Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). "Probable cause exists when, under the totality of the circumstances, there is a 'fair probability' that contraband or evidence of a crime will be found at the specified location." Id. (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)); see Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (noting that, in the context of warrantless searches, 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"). The test for probable cause is an objective one, unrelated to the subjective beliefs of the officer, and it requires a consideration of the totality of the circumstances facing the officer. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
Even if there is probable cause, searches conducted without a warrant are generally deemed unreasonable for constitutional purposes unless the situation presents an exception to the warrant requirement. Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). The State shoulders the burden to prove that an exception to the warrant requirement applies. Gutierrez, 221 S.W.3d at 685. One such exception applies when exigent circumstances require immediate entry to that location without a warrant. Id.; see Kirk v. Louisiana, 536 U.S. 635, 638 (2002). The Texas Court of Criminal Appeals has identified three situations where warrantless police intrusions may be justified on this basis: (1) to provide aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; (2) to protect officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) to prevent the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 685 (citing McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991)).
C. Analysis
McNeil does not dispute on appeal that Jessup had reasonable suspicion to stop him to investigate a traffic offense. See TEX. TRANSP. CODE ANN. § 545.401(a) (West, Westlaw through 2017 1st C.S.) ("A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property."); Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013) (noting that, because trial judges are uniquely situated to observe first-hand the demeanor and appearance of a witness, they are the sole arbiter of questions of fact and of the weight and credibility to give testimony at a suppression hearing). McNeil also does not dispute on appeal that, having observed a baggie of marijuana on the driver's side floorboard of the car McNeil was driving, Jessup had probable cause to arrest McNeil for possession of that marijuana. The only question presented for our consideration is whether Spencer acted lawfully when he first entered McNeil's house without a warrant and observed drugs and firearms, which observations were later made a part of Spencer's affidavit supporting the search warrant.
On appeal, McNeil argues that Spencer acted unlawfully because (1) there was no probable cause to believe that evidence of a crime would be found in the house, and (2) there were no exigent circumstances requiring immediate entry into the house. McNeil notes that there was no evidence that the infant child who was in the back bedroom of the house was in distress, nor was there any indication that police needed to enter the home to prevent evidence from being destroyed. The State argues that Spencer was justified in entering the house to retrieve the infant child because, otherwise, the child would be left alone and in danger. The State cites case law establishing that police, in exercising their "community caretaking functions to protect and preserve life and prevent substantial injury," may enter and search a private residence without a warrant or probable cause "for the limited purpose of serving those functions when it is objectively reasonable." Laney v. State, 117 S.W.3d 854, 855, 863 (Tex. Crim. App. 2003) (holding that police lawfully entered a trailer to retrieve a child where, "[a]lthough there was no immediate threat to the child's safety or well-being, had the boy been left alone in the trailer while deputies took appellant away, there would have been a substantial risk of harm to the child").
We observe that the presence of the infant in the home may have constituted an exigent circumstance, allowing warrantless entry into the residence, only if there was probable cause for Spencer to arrest Tiffany. That is because there would have been no need for police to retrieve the child if Tiffany had not been arrested. Neither the State nor McNeil address this issue in their appellate briefs.
The prosecutor argued at the hearing that it was "standard police procedure" to "secure the area" after drugs are found so that "no one else inside the residence could basically do away with whatever drugs were in there, flush them down the toilet or anything else." However, the State does not cite any authority on appeal establishing that such practice is "standard" or that it is necessarily permissible under the Fourth Amendment.
In any event, we need not decide whether there were exigent circumstances to allow warrantless entry into McNeil's residence, or whether there was probable cause to arrest Tiffany, because the facts in Spencer's affidavit—excluding those obtained pursuant to the warrantless entry—were sufficient to establish probable cause to search the home. "A search warrant may not be procured lawfully by the use of unlawfully obtained information." State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015); Pitonyak v. State, 253 S.W.3d 834, 848 (Tex. App.—Austin 2008, pet. ref'd). But when a search warrant is issued on the basis of an affidavit containing unlawfully obtained information, the evidence seized under the warrant will still be admissible if the warrant "clearly could have been issued on the basis of the untainted information in the affidavit." Cuong Phu Le, 463 S.W.3d at 877; see Pitonyak, 253 S.W.3d at 848 (noting that "[i]f the tainted information was clearly unnecessary to establish probable cause for the search warrant, then the defendant could not have been harmed by the inclusion of the tainted information in the affidavit").
Here, immediately prior to the time Spencer arrested Tiffany and first entered McNeil's house, the following objective facts were known to police: (1) an anonymous informant had advised Spencer that illegal drugs were being sold at McNeil's residence and that there were firearms in the residence; (2) McNeil had just been arrested for possessing marijuana in his car, which he had backed into the driveway of the residence; and (3) Spencer detected the odor of marijuana coming from the residence. Even without Spencer's subsequent observations of methamphetamine, drug paraphernalia, and firearms in the house, these facts would have been sufficient to support the search warrant.
We note that, while an anonymous tip alone is generally insufficient to support a warrant, it is "nevertheless a circumstance to be considered, along with all of the other circumstances, in the determination of whether probable cause existed." Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010).
McNeil relies on State v. Steelman, in which the Texas Court of Criminal Appeals found that the odor of burnt marijuana emanating from a residence, coupled with an anonymous tip that drug dealing was taking place at that residence, did not give police officers probable cause to believe that the person who opened the door of the residence had committed an offense in the officers' presence, thereby allowing the officers to enter and arrest everyone inside the home. 93 S.W.3d 102, 103-04 (Tex. Crim. App. 2002). The Steelman Court noted that neither the odor of marijuana nor an anonymous tip, taken alone, authorizes a warrantless search and seizure in a home. Id. at 108.
Steelman, however, is distinguishable for two reasons. First, unlike in Steelman, officers in this case found McNeil—the owner of the residence which they sought to search—in actual possession of marijuana in the driveway of the residence. Second, the question in this case is whether there was probable cause to search the residence, not whether there was probable cause to arrest an individual as in Steelman. In Parker v. State, the court of criminal appeals explained how the standards for the two probable cause inquiries differ:
[To make an arrest u]nder Texas law, a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make that arrest. . . . There is, of course, a significant difference between the notion that there is probable cause to believe that someone has committed an offense and probable cause to believe that this particular person has committed an offense. Probable cause to arrest must point like a beacon toward the specific person being arrested. . . . On the other hand, when the question is probable cause to cross the threshold of a private residence, probable cause may point to the location, but not necessarily a specific person. . . . Probable cause that points like a beacon toward the location (but not necessarily any particular person) is [sufficient].Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App. 2006). The Steelman Court determined that the odor of marijuana plus an anonymous tip was insufficient to establish that a particular person was engaged in criminal activity such that an arrest warrant was supported. 93 S.W.3d at 108. But, as the Parker Court explained, Steelman does not stand for the proposition that such evidence is necessarily insufficient "to establish probable cause to believe that someone had committed or was then committing" the offense of possession of marijuana. Parker, 206 S.W.3d at 598 (citing Steelman, 93 S.W.3d at 108); see Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005) (concluding, despite Steelman, that there was probable cause to search a house when officers detected the odor of marijuana emanating from the house and observed minors under the influence of alcohol).
Assuming, but not deciding, that Spencer acted unlawfully when he arrested Tiffany and first entered McNeil's house, we nevertheless conclude that the objective facts known to police prior to that action would lead a person of reasonable prudence to believe that there was a fair probability that evidence of a crime would be found within the house. See Rodriguez, 232 S.W.3d at 60; Gutierrez, 221 S.W.3d at 685. Accordingly, the search warrant was valid and the trial court did not err by denying McNeil's motion to suppress.
III. CONCLUSION
The trial court's judgments are affirmed.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of February, 2018.