Opinion
No. 05-10-00474-CR No. 05-10-00475-CR
08-10-2012
DYLESHIA L. WORDLAW, Appellant v. THE STATE OF TEXAS, Appellee
REVERSED and REMANDED; Opinion Filed August 10, 2012.
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F08-60584-M and F08-60585-M
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Dyleshia L. Wordlaw appeals the trial court's orders of deferred adjudication for the offenses of possession of cocaine in an amount of four grams or more, but less than two hundred grams, and possession of marijuana in an amount of five pounds or less, but more than four ounces. Wordlaw pleaded guilty to the offenses. In both cases, the trial court deferred Wordlaw's adjudication of guilt. In the possession of cocaine case, the trial court placed her on community supervision for a period of three years and assessed a fine in the amount of $1,500. In the possession of marijuana case, the trial court placed her on community supervision for a period of two years and assessed a fine in the amount of $500. In two issues, Wordlaw argues the trial court erred when it denied her motion to suppress because the warrantless entry of her residence violated the Fourth Amendment to the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure. We conclude the trial court erred. The orders of deferred adjudication are reversed and the causes are remanded to the trial court for further proceedings consistent with this opinion.
The statutory spelling of the substance is "marihuana." See Tex. Health & Safety Code Ann. §§ 481.002(26), .120, .121, .122 (West 2010); Smith v. State, 176 S.W.3d 907, 911 n.1 (Tex. App.-Dallas 2005, no pet.). The common spelling of the word is "marijuana." See Smith, 176 S.W.3d at 911 n.1. The common spelling is frequently used in trial court records. Smith, 176 S.W.3d at 911 n.1.
I. FACTUAL AND PROCEDURAL BACKGROUND
The police were patrolling an apartment complex after receiving a complaint from the property owner that drugs were being sold on the property. The apartment complex was located in a high crime area. While on foot patrol in the common area of the apartment complex, two officers smelled marijuana coming from one of the apartments. They approached the apartment's concrete- pad patio, which was not enclosed by a fence or other barrier. Through an open sliding glass door, the officers saw two baggies of marijuana on a table. The officers entered the apartment to seize the marijuana. Once inside the apartment, they saw a rifle lying on the kitchen table. Near the marijuana, they also saw a substance that appeared to be crack cocaine. At that point, the police announced their presence. They saw Wordlaw descending the stairs and arrested her. Then, they conducted a protective sweep, but did not find anyone else in the apartment.
Once they determined there were no other individuals in the apartment, the officers sought to obtain a search warrant. While waiting for the warrant, the officers waited with Wordlaw on the patio, but moved back inside the apartment when it started raining. After the warrant was procured, the police searched the apartment and found additional drugs.
Wordlaw was indicted for possession of marijuana and cocaine. She moved to suppress the evidence, in part, on the basis that her constitutional rights were violated. After a hearing, the trial court denied the motion. Wordlaw pleaded guilty to the offenses. In both cases, the trial court deferred Wordlaw's adjudication of guilt.
II. MOTION TO SUPPRESS
In issues one and two, Wordlaw argues the trial court erred when it denied her motion to suppress because the warrantless entry of her residence violated the Fourth Amendment to the United States Constitution and article 38.23 of the Texas Code of Criminal Procedure. She claims that the warrantless entry into her residence was not justified by either the exigent circumstances doctrine or the "emergency/community caretaking doctrine." The State responds that the police officers' initial entry was justified under the exigent circumstances doctrine because there was a significant danger the evidence would be destroyed. Also, the State argues the police officers' warrantless entry into Wordlaw's residence was justified under the exigent circumstances doctrine or the emergency doctrine because they reasonably believed a burglary was in progress or had just occurred.
The emergency doctrine is not the same as the community caretaking doctrine. Laney v. State, 117 S.W.3d 854, 861 ((Tex. Crim. App. 2003) (explained difference between doctrines). Both doctrines are based on the officer's reasonable belief in the need to act pursuant to his community caretaking functions. Laney, 117 S.W.3d at 861. However, under the emergency doctrine, the officer has an immediate, reasonable belief that he must act to "protect or preserve life or avoid serious injury" and primarily deals with warrantless entries of private residences. Laney, 117 S.W.3d at 861 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). On the other hand, under the community caretaking doctrine, the officer "might or might not believe there is a difficulty requiring his general assistance" and primarily deals with warrantless searches and seizures of automobiles. Laney, 117 S.W.3d at 861 (citing Cady v. Dombrowski, 413 U.S. 433, 437 (1973)). Although Wordlaw argues that the warrantless entry of her residence was not justified by the "emergency/community caretaking doctrine," this is not a community caretaking doctrine case, it is an emergency doctrine case. Accordingly, we review her arguments under the standards set forth regarding the emergency doctrine.
A. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard requires an appellate court to give almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Hubert v.. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). A trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
When the trial court makes explicit findings of fact, an appellate court determines whether the evidence, viewed in the light most favorable to the ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Then, the appellate court reviews the trial court's legal conclusions de novo and upholds the ruling so long as it is supported by the record and correct under any legal theory applicable to the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda v. State, 317 S.W.3d 903, 907-08 (Tex. App.-Houston [14th Dist.] 2010, no pet.).
B. Applicable Law
The Fourth Amendment to the United States Constitution and Article I, section 9, of the Texas Constitution guarantee the right to be secure against unreasonable searches. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Article 38.23 of the Texas Code of Criminal Procedure forbids the admission of evidence seized by any person or officer when that evidence has been obtained in violation of the federal or state constitutions or in violation of federal and state laws. See Tex.Code Crim. Proc. Ann. art. 38.23 (West 2005); Krause v. State, 243 S.W.3d 95, 103 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).
There is a strong preference for searches to be administered pursuant to a warrant. Guitierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Under the Fourth Amendment, a search conducted without a warrant issued on probable cause is per se unreasonable, unless it falls within one of the well-established exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Guitierrez, 221 S.W.3d at 685; Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).
1. Exigent Circumstances Doctrine
A warrantless search may be validated when it is objectively reasonable under the exigent circumstances doctrine, which is a recognized exception to the warrant requirement. See Guitierrez, 221 S.W.3d at 685; Laney v. State, 117 S.W.3d 854, 856, 861 (Tex. Crim. App. 2003). The exigent circumstances doctrine applies when the police are acting in their crime-fighting role. Laney, 117 S.W.3d at 861. To validate a warrantless search based on the exigent circumstances doctrine, the State must satisfy a two-step process. Guitierrez, 221 S.W.3d at 685. First, probable cause must exist to enter or search a specific location. Guitierrez, 221 S.W.3d at 685. Second, an exigency that requires immediate entry to a particular place without a warrant must exist. Guitierrez, 221 S.W.3d at 685. Three categories of exigent circumstances justify a warrantless intrusion by police officers: (1) providing aid or assistance to persons whom law enforcement officers reasonably believe 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. Guitierrez, 221 S.W.3d at 685. The same facts that give rise to probable cause may also be relevant to an analysis of exigent circumstances. See Parker v. State, 206 S.W.3d 593, 600-01 (Tex. Crim. App. 2006).
When evaluating whether exigent circumstances as to prevention of the destruction of evidence or contraband is supported by the evidence, an appellate court's review is guided by this principle, "Just as an officer, in the heat of the moment, will use all facts available to him in deciding whether to enter a home without a warrant, so must a reviewing court analyze each piece of evidence as part of the totality of information, as it relates to both the probable cause and the exigent circumstances determinations." Parker, 206 S.W.3d at 601. The State must present evidence that the police could have reasonably concluded that the evidence would be destroyed or removed before they could obtain a search warrant. McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991). Factors relevant in determining whether the warrantless entry was reasonable include: (1) the degree of urgency involved and the amount of time needed to obtain a warrant; (2) the reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a warrant is sought; (4) information indicating the alleged possessors of the contraband are aware the police are on their trail; and (5) the ready destructibility of the contraband and knowledge that efforts to dispose of it and to escape are characteristic behavior of persons engaged in narcotics trafficking. McNairy, 835 S.W.2d at 107 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973)). There must be some evidence that the police could have feared the destruction was imminent, not merely possible. See generally McNairy, 835 S.W.2d at 107; Turrubiate v. State, 365 S.W.3d 780, 787-88 (Tex. App.-San Antonio 2012, pet. granted).
The need to provide aid or assistance to persons whom law enforcement officers reasonably believe are in need of assistance may justify a warrantless entry and search. The possibility that a burglary is in progress or has been recently committed may provide officers with exigent circumstances to justify a warrantless entry. Barocio v. State, 158 S.W.3d 498, 499-500 (Tex. Crim. App. 2005). Evidence supporting the assertion the police had a reasonable belief they were investigating a burglary and that suspects might be inside the residence may include broken windows, indications of forced entry, and a stolen vehicle parked in front of the residence. See Barocio, 117 S.W.3d at 498 (pry marks on door lock and stolen vehicle parked in front of residence); Rothstein v. State, 267 S.W.3d 366, 374 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) (police received call reporting burglary in progress and saw that back door had been kicked in); see also Brown v. State, No. 14-05-01022-CR, 2007 WL 268377, *5 (Tex. App.-Houston [14th Dist.] Feb. 1, 2007, pet. ref'd) (mem. op.) (not designated for publication) (glass in front window of residence completely broken out).
2. Emergency Doctrine
Another recognized exception to the warrant requirement is the emergency doctrine. Mincey v. Arizona, 437 U.S. 385 (1978); Laney, 117 S.W.3d at 861 (Tex. Crim. App. 2003). The emergency doctrine should not be confused with the exigent circumstances doctrine. See Laney, 117 S.W.3d at 861. The emergency doctrine applies when the police act in their community caretaking role and is limited to the caretaking functions of protecting or preserving life or avoiding serious injury. Laney, 117 S.W.3d at 860-61; see also Shepard v. State, 230 S.W.3d 738, 742 (Tex. App.-Houston [14th Dist.] 2007, no pet.), aff'd, 273 S.W.3d 681 (Tex. Crim. App. 2008). The emergency doctrine provides that the "Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Laney, 117 S.W.3d at 860 (quoting Mincey, 437 U.S. at 392); see also Shepard, 230 S.W.3d at 742. Under the emergency doctrine, "we apply an objective standard based on the police officer's conduct and the facts and circumstances known to the officer at the time of the search." Shepard, 230 S.W.3d at 742 (police had reasonable belief someone inside residence needed immediate aid due to possible burglary, assault, or other injury when, after receiving call from neighbors, police found front door open, and neighbor informed police that door had stood open for period of time and resident did not respond when he called out resident's name). If the emergency doctrine applies, the police may seize evidence that is in plain view during the course of their legitimate emergency activities. Laney, 117 S.W.3d at 862 (citing Mincey, 437 U.S. at 393).
C. Application of the Law to the Facts
It is undisputed the police did not initially have a warrant permitting them to enter and search Wordlaw's residence. Also, Wordlaw does not contest that the officers had probable cause. On appeal, she contests the adequacy of the evidence supporting the exigent circumstances doctrine and the emergency doctrine.
In its brief, the State argued the subsequent warrant had a source independent from the illegal entry, and the cocaine and marijuana that form the basis of the prosecution were found during the search that was authorized by the warrant. However, the State withdrew this assertion during oral argument on appeal.
The trial court made findings of fact and conclusions of law. Specifically, the trial court made the following findings of fact:
The trial court's findings of fact and conclusions of law appear only in the clerk's record for trial court cause no. F-08-60585-SM (marijuana case). However, at the top of the trial court's findings of fact and conclusions of law, the cause number is listed as "F-08-60584-85." Accordingly, we conclude these findings of fact and conclusions of law apply to both cases before this Court on appeal.
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(1) The police were on foot patrol in an apartment/condo complex when they detected the smell of marijuana coming from [Wordlaw's] apartment.
(2)[The police] were in a common area of the apartment/condo complex at the that time[,] but approached [Wordlaw's] apartment, using a concrete pad which allowed them to see through an open sliding door two baggies of marijuana on a table in plain view.
(3) That the officers reasonabl[y] believed that either a burglary was in progress or had occurred and that the marijuana needed to be secured.
(4)That the door of [the] apartment and the sliding glass door were not enclosed by any kind of fence or other barrier.
(5) [The police] entered the apartment to seize the marijuana, about which time [Wordlaw] came downstairs.
(6)After conducting a protective sweep which uncovered nothing, [the police] secured the apartment and got a search warrant which, when executed resulted in the controlled substance made the basis of the prosecution being discovered.
The trial court made the following conclusions of law:
(1) That the police did not violate the curtilage of [Wordl aw's] apartment by approaching the open glass door of [Wordlaw's] apartment after they smelled marijuana and utilized the concrete pad to approach the door.
(2)That the sight of two baggies of what the officers['] reasonably believed was marijuana authorized them to enter the apartment and seize the marijuana to preserve it and to prevent its possible destruction.
(3)That this was an exigent circumstance.
(4)That the subsequent search warrant was based on probable cause.
The trial court's conclusions of law demonstrate that it determined there were exigent circumstances justifying the warrantless entry into Wordlaw's residence. It did not conclude that the emergency doctrine applied. Nevertheless, we must uphold the trial court's ruling so long as it is supported by the record and correct under any legal theory applicable to the case. See Iduarte, 268 S.W.3d at 548. Accordingly, we review whether the trial court's denial of Wordlaw's motion to suppress should be upheld pursuant to the exigent circumstances doctrine or the emergency doctrine.
1. Exigent Circumstances
Wordlaw argues the warrantless entry into her residence was not justified by the exigent circumstances doctrine. The State argues there was a significant danger the evidence would be destroyed while the police waited for a search warrant and the open patio door demonstrates the police officers had a reasonable belief that a burglary was in progress or had just occurred.
a. Prevent the Destruction of Evidence
Wordlaw argues the evidence is inadequate to support the claim that the warrantless entry into her residence was justified by the officers' need to prevent the destruction of the evidence. The State argues the circumstances surrounding the situation necessitated immediate police action to preserve the status quo and after the police secured the area, they waited for a search warrant.
To support its argument, the State points to testimony that it would have taken a "couple [of] hours" to procure a search warrant, if the police waited outside the residence until a search warrant was obtained, their presence would have been detected and the drugs destroyed, and the officers were at risk of significant danger because they were in a high crime area and weapons often accompany drugs. However, the record also shows the officers testified that they did not know if anyone was at the residence and the State did not adduce any evidence showing the police officers reasonably believed the destruction of the evidence was imminent, not merely possible. Further, there is nothing in the record suggesting that when the officers approached the residence any occupants of the residence were aware of their investigation. There must be some evidence the police reasonably believed the destruction was imminent, not merely possible. See generally, McNairy, 835 S.W.2d at 107.
Based on this record, we conclude the warrantless entry into Wordlaw's residence was not justified by the exigent circumstances doctrine on the basis that the police needed to prevent the destruction of evidence. To the extent Wordlaw's issues argue the warrantless entry into her residence was not justified on this basis, we decide them in her favor.
b. Burglary in Progress or Had Just Occurred
Wordlaw claims the evidence is inadequate to support the claim that the warrantless entry into her residence was justified by exigent circumstances based on a reasonable belief that a burglary was in progress or had just occurred. The State argues that because the police suspected a burglary was in progress or had just occurred it was reasonable for them to conclude that someone inside the residence might need assistance.
The trial court specifically found "[the police officers] entered [Wordlaw's] apartment to seize the marijuana." It did not find that the officers entered Wordlaw's residence because they believed a burglar was in progress or had just occurred. We give almost total deference to the trial court's determination of historical facts. See Hubert, 312 S.W.3d at 559. The trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra, 310 S.W.3d at 447; St. George, 237 S.W.3d at 725. Further, the cases concluding the exigent circumstances doctrine supported the warrantless entry into a residence on basis that the police had a reasonable belief they were investigating a burglary involved more than a door merely being left open. See Barocio, 117 S.W.3d at 498 (pry marks on door lock and stolen vehicle parked in front of residence); Rothstein, 267 S.W.3d at 374 (police received call reporting burglary in progress and saw that back door had been kicked in); see also Brown, 2007 WL 268377, at *5 (glass in front window of residence completely broken out).
We conclude the warrantless entry into Wordlaw's residence was not justified by the exigent circumstances doctrine on the basis that the police had a reasonable belief that a burglary was in progress or had just occurred. To the extent Wordlaw's issues argue the warrantless entry into her residence was not justified on this basis, we decide them in her favor.
2. The Emergency Doctrine
Wordlaw argues the warrantless entry into her residence was not justified by the emergency doctrine. Relying on Shepard, the State argues the police were justified in making a warrantless entry into Wordlaw's residence based on the emergency doctrine because they believed that a burglary was in progress or had just occurred. See Shepard, 230 S.W.3d 738.
In Shepard, a neighbor who lived across the street observed that Shepard's front door was open and his van was missing from the driveway. Shepard, 230 S.W.3d at 740. She became concerned about a possible burglary because Shepard usually used his garage door to enter and exit his residence, and he never left his front door open. Shepard, 230 S.W.3d at 740. She contacted Shepard's next-door neighbor who walked a few feet into Shepard's residence and called out for him. Shepard, 230 S.W.3d at 740. After receiving no response, the neighbors called the police. Shepard, 230 S.W.3d at 740. When the police arrived, the next-door neighbor told them that Shepard's door had stood open "for a period of time" and that he did not think anyone was home. Shepard, 230 S.W.3d at 740. The police approached Shepard's door and announced their presence. Shepard, 230 S.W.3d at 740. When they received no answer, they entered the residence with their weapons drawn, looking for possible burglars or injured persons. Shepard, 230 S.W.3d at 740-41. During their sweep of Shepard's residence, they saw a clear plastic bag containing what appeared to be marijuana in the living room. Shepard, 230 S.W.3d at 741. The police seized the marijuana and arrested Shepard when he returned to the residence. Shepard, 230 S.W.3d at 741. The Houston Court of Appeals for the Fourteenth District noted that the officers testified it is not normal for a person to leave the door wide open and, based on their experience, open-door calls can involve assault victims or injured persons. Shepard, 230 S.W.3d at 742. The court also noted that the neighbors expressed concern for Shepard and the trial court found them credible. Shepard, 230 S.W.3d at 743. As a result, the appellate court concluded the search was justified under the emergency doctrine because the police had a reasonable belief that someone inside the residence needed immediate aid and the police properly seized the marijuana, which was in plain view. Shepard, 230 S.W.3d at 743.
The facts in Shepard are distinguishable from this case. Unlike Shepard, the police in this case were patrolling Wordlaw's apartment complex because it had a reputation as a high crime area. The trial court specifically found that the police were on foot patrol, they smelled marijuana coming from Wordlaw's apartment before approaching her concrete pad patio, and they entered the apartment to seize the marijuana. The police officers' were not "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of criminal statutes"-they were acting in their crime-fighting role. See Laney, 117 S.W.3d at 862-63 (concluding emergency doctrine applied because officers "actions were totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of criminal statutes"). The emergency doctrine applies when the police are acting in their community caretaking role, not their crime-fighting role. See Laney, 117 S.W.3d at 860-61. Accordingly, based on the record before us, we conclude the emergency doctrine does not apply to this case. To the extent Wordlaw's issues argue the warrantless entry into her residence was not justified by the emergency doctrine, we decide them in her favor.
III. CONCLUSION
The trial court erred when it denied Wordlaw's motion to suppress.
The trial court's orders of deferred adjudication are reversed and the causes are remanded to the trial court for further proceedings consistent with this opinion.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100474F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DYLESHIA L. WORDLAW, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00474-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F08- 60584-M).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered August 10, 2012.
DOUGLAS S. LANG
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DYLESHIA L. WORDLAW, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00475-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F08- 60585-M).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered August 10, 2012.
DOUGLAS S. LANG
JUSTICE