Opinion
14-18-00886-CR
08-03-2021
RAMON RIOS, III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1491213
DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION
Margaret "Meg" Poissant, Justice
I respectfully dissent from this court's denial of en banc reconsideration and join Section A of Justice Hassan's dissent in that the officers in this case failed to articulate specific and articulable facts upon which they could have reasonably believed that anyone other than Rios was present inside the house or that anyone concealed posed a danger to their safety. Absent such facts, the protective sweep in this case was unreasonable and invalid under the Fourth Amendment. See Maryland v. Buie, 494 U.S. 325, 334 (1990); Reasor v. State, 12 S.W.3d 813, 81617 (Tex. Crim. App. 2000).
I also agree with Section B.1 of Justice Hassan's dissent that the officers therefore did not have a legitimate reason to be present in the house, negating the majority's opinion that the drugs found during the initial search were in plain view. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (citations omitted); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1198 (1997) (citing State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991); Stoker v. State, 788 S.W.2d 1, 9 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 (1990)).
En Banc Panel consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. (Hassan, J., dissenting, joined, in part, by Poissant, J.).