The odor of marihauna alone is sufficient to constitute probable cause to search a defendant's person, vehicle, or objects within the vehicle. See, e.g., Isam v. State, 582 S.W.2d 441, 444 (Tex.Crim.App. [Panel Op.] 1979) (odor of marijuana provides sufficient probable cause to justify search of automobile); Moulden v. State, 576 S.W.2d 817, 819-20 (Tex.Crim.App. [Panel Op.] 1978) (odor of burnt marihuana in automobile constitutes sufficient probable cause to search overnight bag on floorboard in front of defendant, who was a passenger in the vehicle); Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App. 1972) (odor of marihauna on defendant's person creates sufficient probable cause to search defendant's pockets); Hernandez v. State, 867 S.W.2d 900, 907 (Tex.App. — Texarkana 1993, no pet.)
When a witness invokes her Fifth Amendment right against self-incrimination on the advice of the witness's counsel, the trial court is not obligated to make any further determination. See Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App. 1972); Boler v. State, 177 S.W.3d 366, 371 (Tex. App.-Houston [1st Dist] 2005, pet. ref'd). Further, if the trial court was not requested to compel the witness to testify, a defendant may not claim for the first time on appeal that the witness waived her Fifth Amendment privilege.
7, 413 (Tex.Crim.App. 1991)). It has long been recognized that, given their inherent mobility, automobiles present different analytical problems under search and seizure principles. Moulden v. State, 576 S.W.2d 817, 819 (Tex.Crim.App. 1978). This "exigent" circumstance countervails our constitutional preference for warrants and is premised on the assumption that an on-the-stop warrantless search is a lesser intrusion on the individual's privacy expectations. Id. (citing Carroll v. United States, 267 U.S. 132 (1923)); see also generally Chambers v. Maroney, 399 U.S. 42 (1970). The smell of marihuana is sufficient probable cause to search an individual when the record demonstrates that the officer was trained to recognize the scent of burnt marihuana. See Moulden, 576 S.W.2d at 819 (police officers had probable cause to search car validly stopped for traffic violation when, within their lawful authority, they encountered aroma of burnt marihuana emanating from vehicle); Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App. 1972); see also Hitchcock v. State, 118 S.W.3d 844, 851 (Tex.App.-Texarkana 2003, pet. ref'd). Application
The appellant now raises one issue for our review. Finding that the Court of Appeals reached the correct conclusion, but that it did so using an incorrect standard from one of our prior cases, we affirm the judgments of the lower courts and overrule our earlier opinion in Ross v. State.486 S.W.2d 327 (Tex.Cr.App.1972) 4. Id.
'Realizing the affirmative link which the State must show between appellant and the contraband, the State will review prior decisions of this honorable Court which have demonstrated the link and then compare them with the facts in the case at bar. 'In Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App.1972): "Appellant's third contention (was) that the evidence (was) insufficient to show that appellant knew that the substance found in the pipe and in the cigarette butts was contraband.
The trial court did not err in refusing to force his testimony. See Ross v. State, 486 S.W.2d 327 (Tex.Cr.App. 1972); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App. 1972). The appellant urges that the witness William Brown waived his Fifth Amendment privilege not to give self-incriminating testimony and that the trial court erred in not requiring him to testify.
Brown v. State, No. 05-90-01556-CR, 1993 WL 460047, at *12 (Tex. App.—Dallas Nov. 10, 1993, pet. ref'd) (mem. op., not designated for publication) (citing Norwood v. State, 768 S.W.2d 347, 349 (Tex. App.—Corpus Christi 1989), pet. dism'd as improvidently granted, 815 S.W.2d 575 (Tex. Crim. App. 1991)); see Autry v. Estelle, 706 F.2d 1394, 1402 (5th Cir. 1983) (recognizing that Texas law gives prosecutor, not trial judge, right to initiate grants of immunity). A trial court does not have the authority to grant immunity to a witness over the State's objection or to order the State to do so. Norwood, 768 S.W.2d at 349-50; see Ross v. State, 486 S.W.2d 327, 328-29 (Tex. Crim. App. 1972), overruled on other grounds by Walters v. State, 359 S.W.3d 212 (Tex. Crim App. 2011) (holding that trial court could not have granted immunity to witness without joinder of State); see also United States v. Chagra, 669 F.2d 241, 258 (5th Cir. 1982) ("[A] district court does not possess the statutory, common law, or inherent authority either to grant use immunity to a defense witness over the government's objection or to order the government to do so."). Here, the prosecutor declined to grant Lafferty immunity.
Consequently, several courts have concluded that officers' may rely on an odor of marijuana, coupled with other circumstances, to justify warrantless searches of residences and persons. SeeParker v. State, 206 S.W.3d 593, 600 (Tex.Crim.App. 2006) (sufficient to establish probable cause for a warrantless entry into a residence to investigate further); Estrada, 154 S.W.3d at 609–10 (odor of marijuana supported search of a house); Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App. 1972), overruled on other grounds byWalters v. State, 359 S.W.3d 212 (Tex.Crim.App. 2011) (odor of marijuana provided probable cause to search a defendant's person). Once again, in considering the various factors at play here, which included the neighborhood call that the group of students were seen smoking marijuana in the area, the fact that the responding officers immediately detected the odor of marijuana lingering in the area upon approaching the students, the fact that the area was a known location for marijuana use, and the fact that Officer Stevens detected the smell of marijuana emanating from the pill bottle when being examined, we conclude that the trial court had sufficient evidence from which to find that there was probable cause to believe that V.G. had committed, or was committing, the offense of possession of marijuana, thereby justifying this search and seizure of the pill bottle.
In addition, the odor of marihuana provides probable cause to search a defendant's person. Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App.1972), overruled on other grounds byWalters v. State, 359 S.W.3d 212 (Tex.Crim.App.2011); Small v. State, 977 S.W.2d 771, 774 (Tex.App.–Fort Worth 1998, no pet.); Hitchcock, 118 S.W.3d at 851; Hernandez v. State, 867 S.W.2d 900, 907 (Tex.App.–Texarkana 1993, no pet.). In this case, not only did Glenn smell of burnt marihuana, there were other facts and circumstances that would lead a reasonable person to believe Glenn had committed, or was committing, a crime.
When a witness invokes his Fifth Amendment right against self-incrimination on the advice of the witness's counsel, the trial court is not obligated to make any further determination. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); Chennault v. State, 667 S.W.2d 299, 302 (Tex. App.-Dallas 1984, pet. ref'd). In this case, appellant sought to question West about the relationship of the parties, Stephenson's assault of appellant at the Red Blood Club one month prior, and the events leading up to the assaults on the evening in question. West, acting under the advice of counsel, invoked her Fifth Amendment right to not testify on the ground that to do so might incriminate her.