Barocio v. State

• Decision Date: 19 June 2003
• Docket Number: No. 14-01-00944-CR.,14-01-00944-CR.
• Citation: 117 S.W.3d 19
• Parties: Xavier Hernandez BAROCIO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

117 S.W.3d 19

Xavier Hernandez BAROCIO, Appellant, v. The STATE of Texas, Appellee.

No. 14-01-00944-CR.

Court of Appeals of Texas, Houston (14th Dist.).

June 19, 2003.

Rehearing Overruled October 2, 2003.

Norman J. Silverman, Houston, for appellant.

Eric Kugler, Houston, for appellee.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

PLURALITY OPINION

CHARLES W. SEYMORE, Justice.

Following the denial of his motion to suppress, appellant Xavier Hernandez Barocio pleaded no contest to possession of marijuana. He contends on appeal that the trial court should have suppressed the marijuana because police discovered it after entering his home without a warrant. We find that the trial court should have suppressed the marijuana. Accordingly, we reverse and remand.

Background

While on patrol, Harris County Deputy Wyatt noticed a car parked on the road, facing the wrong direction, with its driver's door open, and the keys in the ignition. He and Deputy Kirsch approached the home nearest the car to investigate. As they approached the front porch, they saw pry marks on the front door and a surveillance camera aimed at the front door.

Deputy Wyatt testified that they knocked and waited several minutes before Barocio answered. He testified that he could smell burnt marijuana as he stood outside the door. According to Deputy Wyatt, when Barocio opened the door, the marijuana odor became stronger. They asked for identification, but Barocio refused to provide it. Thus, Deputy Wyatt testified that he detained Barocio on the porch while Deputy Kirsch entered the home to conduct a protective sweep and investigate the odor of marijuana. Deputy Wyatt further testified that when they asked for identification, they were investigating only the odor of marijuana.

Deputy Kirsch's version differed in some respects to Deputy Wyatt's testimony. He testified that he first smelled marijuana when Barocio opened the door. Deputy Kirsch stated that he told Barocio to step outside and asked for his identification. Barocio indicated that his identification was inside the home. Deputy Kirsch testified that he then instructed Barocio to retrieve the identification. According to Deputy Kirsch, when Barocio entered the home, he and Deputy Wyatt followed without consent. Once inside, Deputy Kirsch could see a bag of marijuana lying on the kitchen counter. At that point, Deputy Kirsch conducted a protective sweep of the remainder of the home. He testified that "the principle reason" he entered the home "was the strong odor of burning marijuana inside." The "secondary reason" was to obtain identification in connection with his suspicion that Barocio was a burglar.

Finally, Barocio testified that the deputies asked him to step outside to see his driver's license and insurance card. As he stepped onto the porch, he closed the front door behind him. He testified that Deputy Kirsch nonetheless entered the home without permission. When Barocio protested and grabbed his cellular telephone to call his lawyer, Deputy Wyatt took away the telephone and handcuffed him. He further testified that he never entered his home with the officers. Barocio admitted that the marijuana was lying on the kitchen counter, but testified that it was not visible from the front door. Barocio further admitted that he had smoked some of the marijuana the night before.

After discovering the bag of marijuana in the kitchen, the deputies obtained a search warrant through Deputy Kevin Montford. Because of statements by Deputy Wyatt, Deputy Montford averred that the officers first saw the marijuana in plain view while standing outside the home. However, this line of sight was later proved impossible, and Deputy Wyatt testified at trial that he did not see the marijuana until after the search warrant was issued. Further, Deputy Wyatt testified that it was Deputy Kirsch who provided the information about the bag of marijuana to Deputy Montford for the search warrant.

Standard of Review

We review a trial court's ruling on a motion to suppress for abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim.App.1993). Accordingly, we give great deference to the trial court's determination of historical facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same amount of deference to the trial court's rulings on "mixed questions of law and fact," such as the issue of probable cause, if the resolution of those ultimate questions turns on evaluation of witnesses' credibility and demeanor. Id. If a mixed question of law and fact does not turn on an evaluation of credibility and demeanor, we review the ruling de novo. Id. Thus, "[w]hen faced with an issue of mixed law and fact, the critical question under Guzman is whether it `turns' on an evaluation of credibility and demeanor." Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App. 1998). A question "turns" on an evaluation of credibility and demeanor where the testimony of one or more witnesses, if believed, is enough to establish what is needed to decide the substantive issue. Id.

The decision in this case does not turn on the credibility and demeanor of the witnesses because the testimony, even if entirely believed, is insufficient to justify the warrantless entry into appellant's home. Therefore, we review the trial court's ruling de novo.

Warrantless Search

The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution forbid unreasonable searches and seizures. "`(P)hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Spring v. State, 626 S.W.2d 37, 41 (Tex.Crim.App. 1981) (quoting United States v. United States Dist. Court for E. Dist. of Mich., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)); see State v. Steelman, 16 S.W.3d 483, 488 (Tex.App.-Eastland 2000), aff'd, 93 S.W.3d 102 (Tex.Crim. App.2002) (a private dwelling is a sacrosanct place in search and seizure law). Thus, the Fourth Amendment draws a firm line at the entrance to the house. Green v. State, 78 S.W.3d 604, 608-09 (Tex.App.-Fort Worth 2002, no pet.) (citing Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). No evidence obtained in an unreasonable search and seizure may be admitted at trial. See TEX.CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon Pamph.2003). A warrantless search is per se unreasonable, subject to a few specifically established exceptions. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000). These exceptions are "jealously and carefully drawn." Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Jones v. United States, 357 U.S. 493, 497, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958).

One such exception is a search conducted with probable cause and exigent circumstances, which make obtaining a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). "Probable cause to search 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 of a crime or evidence of a crime will be found." Id. On appellate review, a warrantless search based on probable cause may require evidence of a more "judicially competent or persuasive character" than a search based upon a magistrate's determination of probable cause. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus, facts which might constitute issuance of a warrant for probable cause do not necessarily validate a search made without a warrant. Id. "Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the [Fourth] Amendment to a nullity and leave the people's homes secure only in the discretion of police officers." Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (holding that odor of burning opium did not excuse necessity of obtaining a warrant to search).¹

In keeping with this rationale, the Texas Court of Criminal Appeals has recently held that "[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home." State v. Steelman, 93 S.W.3d at 108. In Steelman, police received a tip that drug dealing was taking place at the defendants' residence. The police knocked on the door and, when one defendant opened the door, smelled the odor of burnt marijuana. Id. at 103. As with Barocio, the defendant who answered the door stepped outside. As with Barocio, the police asked the defendant for identification. As with Barocio, when he turned and entered the home, the police entered the home behind him without consent. Id. at 104. Once inside, the police arrested the defendant and the other occupants of the home. The court held that the odor of marijuana did not give police probable cause for the arrest. Id. at 108. Similarly, in applying Steelman to this case, we hold that the odor of marijuana alone did not provide probable cause for the warrantless entry into Barocio's home.

The dissent engages in lengthy commentary about the plain smell of marijuana, citing cases from New Jersey, Wisconsin, Ohio, and California. We acknowledge the academic and judicial debate about the "plain smell" doctrine.² Nonetheless, it is merely an academic exercise for an intermediate court to initiate such a debate when the issue has been decided by our state's highest criminal court.

Further, the dissent devises both probable cause and exigency by pairing the marijuana odor with suspicions that Barocio was a burglar.³ Certainly, police can enter a home to investigate a burglary-in-progress. See In re J.D., 68 S.W.3d 775 (...