Gonzalez v. State, 03-04-00005-CR.

• Decision Date: 28 October 2004
• Docket Number: No. 03-04-00005-CR.,03-04-00005-CR.
• Citation: 148 S.W.3d 702
• Parties: Mario GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

148 S.W.3d 702

Mario GONZALEZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00005-CR.

Court of Appeals of Texas, Austin.

October 28, 2004.

Rehearing Overruled December 2, 2004.

John C. Kuhn, Kuhn, Doyle & Kuhn, P.C., Austin, for appellant.

C. Bryan Case, Jr., Asst. District Atty., Austin, for appellee.

Before Justices KIDD, B.A. SMITH and PEMBERTON.

OPINION

BEA ANN SMITH, Justice.

After the trial court denied his motion to suppress, Mario Gonzalez pleaded guilty to the offense of possession of a controlled substance in an amount more than four grams but less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2003). The trial court sentenced him to four years' imprisonment. In his only issue in this out-of-time appeal,¹ Mario Gonzalez contends that the trial court erred by overruling his motion to suppress the fruits of a warrantless search of his apartment. Because the initial search of Mario Gonzalez's apartment was not justified under the emergency doctrine, we reverse the trial court's judgment of conviction and remand for further proceedings.

BACKGROUND

Mario Gonzalez and his brother Alexander Gonzalez lived together in apartment 114 at 1221 Barton Hills Drive in Austin. In his motion to suppress, Mario Gonzalez challenged the warrantless search of the apartment after Austin police officers responded to a 911 call and found Alexander Gonzalez bleeding from a stab wound. Mario Gonzalez was not present when the police arrived or at the time of the search. We will summarize the events leading up to the search because they form the basis of our determination that the entry of the apartment was not justified under the emergency doctrine.

Alexander Gonzalez called his friend Arleen Aleman in the early morning hours of July 26, 2000, asking for help. He directed her to his apartment while talking on a mobile phone, and she discovered him bleeding in a common area of the apartment complex. Aleman called 911 for help. Austin police officer Tom Owens arrived before EMS personnel. He was told by the dispatcher that the 911 call originated from apartment 114. As he approached the closed door of the apartment, he heard voices around the corner and found Alexander Gonzalez and Aleman standing together in the courtyard. Both had blood on their clothes.

Officer Owens testified at the suppression hearing that Alexander Gonzalez and Aleman were evasive in answering his questions about what happened. Once EMS personnel arrived, the officer spoke directly with Aleman who informed him that Alexander Gonzalez had been stabbed on the left side of his chest. Soon after the EMS personnel arrived, Austin police officer Gerald Wines arrived to assist Owens. Both officers continued to question Alexander Gonzalez and Aleman about what happened. Alexander Gonzalez did not answer questions about what happened, and Aleman explained that she did not know.² Both officers described Alexander Gonzalez's behavior as agitated and requiring their attention.

Before he was transported to the hospital, Alexander Gonzalez gave Aleman his keys and asked her to lock his apartment door. Aleman complied and when she returned, Officer Wines demanded the keys. He explained that he needed to check the apartment to make sure no one else was hurt or injured and that, if she did not give him the keys, she would be interfering with his duties. Officer Wines then grabbed the keys from Aleman's hand.

Officer Wines approached the Gonzalez apartment and looked in the window. He did not see anyone inside. After obtaining approval from his supervisor, he unlocked the apartment door, announced his presence, and entered. Inside the apartment, Officer Wines found blood on one of the chairs and discovered a bloody knife in the kitchen sink. He then went into one of the bedrooms and observed a scale, powder, and a straw on top of a dresser. He looked into an open dresser drawer and observed a plastic bag containing a white powdered substance. Officer Wines informed his supervisor of what he found, then left the apartment and locked the door. The police obtained a search warrant based on Officer Wines's discovery and seized the evidence which formed the basis of the charge against Mario Gonzalez.

DISCUSSION

In his only issue on appeal, Mario Gonzalez contends that Officer Wines's initial warrantless search of the apartment was not justified under the emergency doctrine. Therefore, the trial court erred by overruling his motion to suppress because the warrant obtained by the police was based on information learned through Officer Wines's illegal search. See Nilson v. State, 106 S.W.3d 869, 872 (Tex.App.—Dallas 2003, no pet.) (where illegal warrantless search provides basis for search warrant evidence obtained pursuant to search warrant suppressed); State v. Guo, 64 S.W.3d 662, 668 (Tex.App.—Houston [1st Dist.] 2001, no pet.).

In reviewing a ruling on a motion to suppress we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law that does not turn upon credibility and demeanor de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Hayes v. State, 132 S.W.3d 147, 151 (Tex.App.—Austin 2004, no pet.). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Id. We must affirm the trial court's ruling on a motion to suppress if it can be upheld on any valid theory of law applicable to the case-even if the trial court did not base its decision on that theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App.2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex.Crim.App.1990).

It is a cardinal principle of Fourth Amendment law that the search of a residence without a warrant is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Roth v. State, 917 S.W.2d 292, 299 (Tex.App.—Austin 1995, no pet.). The reverence for an individual's right to privacy in his house is embedded in the Anglo-American law and was well established prior to the adoption of the Fourth Amendment. Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); see Payton, 445 U.S. at 601, 100 S.Ct. 1371 ("the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic"); Janicek v. State, 634 S.W.2d 687, 690 (Tex.Crim.App.1982) (physical entry of home is chief evil against which Fourth Amendment was directed).³ This presumption applies to all searches conducted outside of judicial process, "subject only to a few specifically established and well-delineated exceptions." Mincey, 437 U.S. at 390, 98 S.Ct. 2408; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The general requirement of a warrant is not to be dispensed with lightly, and it is the burden of those seeking an exception to show the need for it. United States v. Robinson, 414 U.S. 218, 243, 94 S.Ct. 467 38 L.Ed.2d 427 (1973); see Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986); Janicek, 634 S.W.2d at 691; Roth, 917 S.W.2d at 299.

There is no dispute that the initial search in this case was conducted without a warrant. The State contended at the suppression hearing that the search of the Gonzalez apartment fell within the emergency doctrine exception to the general requirements of the Fourth Amendment. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Mincey, 437 U.S. at 392, 98 S.Ct 2408; Janicek, 634 S.W.2d at 691. The court of criminal appeals noted in Janicek that it seems to be generally accepted that the Fourth Amendment protections do not prohibit warrantless entries and searches when police reasonably believe that a person within is in need of immediate aid. Id. at 691.

The court more recently discussed the emergency doctrine in Laney v. State as an aspect of the police's community caretaking function. See 117 S.W.3d 854, 861-62 (Tex.Crim.App.2003). Under the emergency doctrine, an officer's warrantless search is permissible if the officer has an immediate, reasonable belief that he must act to protect or preserve life or avoid serious injury. Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Laney, 117 S.W.3d at 861. When the police come upon the scene of a homicide, they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Mincey, 437 U.S. at 392, 98 S.Ct. 2408.

Although police may seize evidence found in plain view when they enter a residence pursuant to the emergency doctrine, see Brimage v. State, 918 S.W.2d 466, 501 n. 5 (Tex.Crim.App.1996), the motivation for the entry must be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Laney, 117 S.W.3d at 860 (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)); see also Corbin v. State, 85 S.W.3d 272, 281 n. 7 (Tex.Crim.App.2002) (Cochran, J., concurring) (emergency search must not be primarily motivated by intent to arrest and seize evidence, and it is essential that courts be alert to possibility of subterfuge). The scope of the search must also be strictly circumscribed by the emergency which justified its initiation. Mincey, 437 U.S. at 393, 98 S.Ct. 2408; Laney, 117 S.W.3d at 862.

We apply an objective standard of reasonableness, taking into account all of the facts and circumstances known to the police at the time of the search,...