Beaver v. State

• Decision Date: 03 April 2003
• Docket Number: No. 01-02-00382-CR.,01-02-00382-CR.
• Citation: 106 S.W.3d 243
• Parties: Scott BEAVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

106 S.W.3d 243

Scott BEAVER, Appellant, v. The STATE of Texas, Appellee.

No. 01-02-00382-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 3, 2003.

COPYRIGHT MATERIAL OMITTED

Jim M. Medley, Houston, TX, for Appellant.

Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.

OPINION

SHERRY RADACK, Chief Justice.

Appellant, Scott Beaver, pleaded guilty to possession of marihuana after his pretrial motion to suppress evidence was denied. Appellant was sentenced by the trial court to 180 days' confinement. In a single point of error, appellant argues the trial court erred in denying his motion to suppress evidence.

We affirm.

Facts

On December 22, 2000, Houston Police Officer Dutch Lane set up a surveillance of appellant's apartment for the purpose of investigating alleged marihuana sales. After watching the apartment for about five minutes, Lane observed a truck stopping at the apartment. Lane testified that he went up the stairs and knocked on the apartment door while two other Houston Police Officers waited at the bottom of the stairs. Appellant answered the door, and, as Lane asked him if anyone else was inside, another man, Robert Porter, appeared behind appellant and announced his presence. Lane testified that, as he was standing in the doorway, he could smell burnt marihuana and he could see a device known as a "water pipe," a device used to smoke marihuana, on top of the refrigerator.

Lane told appellant and Porter to go down the stairs with one of the other police officers. While Lane was still in the doorway, he saw a hand-rolled cigarette on top of the coffee table that he believed was the source of the burnt marihuana odor. Lane did not have a warrant to enter the apartment, but he testified that, not knowing if anyone was in the apartment, he entered it to make a sweep.¹ While Lane was inside the apartment during the initial entry, he found two potato chips cans, one containing marihuana seeds, and the other containing partially smoked marihuana cigarettes. Lane also found marihuana residue on a weight scale in the closet, marihuana wrapped in plastic that was within brown paper bags, and marihuana in a drawer that Lane opened.²

Lane testified that, after the initial entry, he obtained the verbal consent of appellant to search the apartment, and, after a second search, he found small plastic boxes containing marihuana and marihuana seeds, photographs of marihuana being grown in various places, a handgun underneath the mattress, and some marihuana that was in a jar in the kitchen.

The record indicates that appellant was outside of the apartment while Lane was conducting his searches. Appellant testified that, at the time the written consent was obtained, he was already in handcuffs in the patrol car.

Lane obtained appellant's written consent to search the apartment and a van outside of the apartment after his second entry into the apartment. Lane testified that he started to "collect the evidence" after his initial sweep, but upon further questioning, he stated that it was after obtaining consent and after making a second entry that he "got the [evidence] I already [sic] seen in the protective sweep." All of the searches conducted by the officers were performed without a warrant.

Standard of Review

Generally, a trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). Determinations of probable cause should be reviewed de novo on appeal. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). If the issue involves the credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court's ruling on that issue. Id. The amount of deference that a reviewing court should give to a trial court's ruling on a motion to suppress will depend upon whether the trial court is in a better position to decide the issue before it. Id. If the issue is one of application of law to facts, and the ultimate resolution of that issue does not turn on an evaluation of credibility and demeanor of a witness, then the reviewing court may review that issue de novo. Id. at 89.

Discussion

In his sole point of error, appellant argues that the trial court erred in denying his motion to suppress evidence because the warrantless search of his apartment was unreasonable.

The Texas Constitution provides that:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. TEX. CONST. Art. I, § 9. Federal and Texas state courts have held that a police search of a home without a warrant is presumptively unreasonable. Roth v. State, 917 S.W.2d 292, 299 (Tex.App.-Austin 1995, no pet.) (citing United States v. Karo, 468 U.S. 705, 715, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984)). The burden of proof is on the State to justify the warrantless search of a residence. Brimage v. State, 918 S.W.2d 466, 482 (Tex.Crim.App.1994). In order for a warrantless search to be justified, the State must show that it had probable cause at the time the search was made, and that there were exigent circumstances that made it impracticable to procure a warrant. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). Exigent circumstances justifying a warrantless entry include (1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; (2) preventing the destruction of evidence or contraband; and (3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous. Id. at 107 (citing Stewart v. State, 681 S.W.2d 774 (Tek.App.-Houston [14th Dist.] 1984, pet. ref'd)). Protective sweeps, used in situations similar to the third circumstance listed in McNairy, may be conducted to protect the safety of police officers or others, and may also justify a warrantless entry. Reasor State, 12 S.W.3d 813, 815 (Tex.Crim.App. 2000). Probable cause or exigent circumstances are not required to justify a warrantless entry where consent has been validly obtained. Id.

We now determine whether the police officers in this case were justified in entering and searching appellant's apartment based on the exigent circumstance of preventing the destruction of evidence.

Prevention of the Destruction of Evidence

An entry into a house without a warrant may be justified if (1) the police have probable cause, and (2) there is an exigent circumstance that makes the procurement of a warrant impracticable. McNairy, 835 S.W.2d at 107. In McNairy, the officers had discovered drugs and paraphernalia at a residence located on a 10 acre plot of land. Id. at 103. On the same plot of land, the officers began walking on a path towards a mobile home, and, as they were within 50 feet of it, they smelled the strong odor of methamphetamine coming from the home. Id. As they proceeded closer, the officers heard the back door of the mobile home "thrown open," and they heard people running away through the brush. Id. The officers also observed chemicals used to manufacture methamphetamine stacked inside of the doorway. Id. An officer entered the mobile home to "see if anybody was still in the trailer." Id. at 107. Having found that no one was in the trailer, the officers obtained a search warrant from a magistrate before they proceeded to search the mobile home. Id. at 106. The court held that the officers had probable cause to believe that methamphetamine was in the mobile home. Id. at 106. The court further held that the officers could have reasonably believed that one or more persons remained in the trailer, that any persons remaining in the trailer would have known of the presence of the police, and that the evidence inside could have been quickly destroyed.³ Id. at 107. The court concluded that the officers were justified in "entering appellant's trailer to check for suspects who might have so destroyed evidence." Id. at 107.

Appellant stipulated at the pretrial hearing that there was probable cause to search his apartment. The issue remaining is whether exigent circumstances existed that justified an entry without a warrant.

Appellant argues that McNairy does not control in this case because the police officers manufactured the exigent circumstances. Appellant directs us to the Fifth Circuit Court of Appeals decision of U.S. v. Richard for support. 994 F.2d 244 (5th Cir.1993). In Richard, the officers were conducting surveillance of a hotel room occupied by suspects. Id. at 246-47. The officers approached the door, knocked, and announced that they were police officers. Id. at 247. The officers heard the sound of people talking softly, heard doors or drawers slamming, and footsteps moving about. Id. The officers kicked the door open and entered the room without a warrant. Id. Although the officers claimed that they did not have probable cause to obtain a warrant, the government conceded on appeal that the officers did have probable cause. Id. at 248. The court held that the officers could have secured the area around the room while they waited for a warrant, but because they did not, the officers had created the exigent circumstances that they wanted to rely on to justify their warrantless entry. Id. at 249-50.

In this case, the officers did not yet have probable cause when they knocked on the door of the apartment, and, thus, did not have the alternative of approaching with a warrant. Probable cause in this case developed only after the door was open and Officer...