McNairy v. State

• Decision Date: 19 June 1991
• Docket Number: No. 1407-89,1407-89
• Citation: 835 S.W.2d 101
• Parties: Raymond McNAIRY, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 101

835 S.W.2d 101

Raymond McNAIRY, III, Appellant, v. The STATE of Texas, Appellee.

No. 1407-89.

Court of Criminal Appeals of Texas,

En Banc.

June 19, 1991.

Rehearing Denied Aug. 26, 1991.

Charles O. Grigson (court appointed), Austin, for appellant.

Ronald Earle, Dist. Atty., and Robert Smith and Dayna Blazey Baird, Asst. Dist. Attys., Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of aggravated possession of more than 28 grams but less than 400 grams of a controlled substance, namely methamphetamine. Tex.Rev.Civ.Stat. art. 4476-15 § 4.03 (repealed and reenacted as Tex.Health & Safety Code § 481.112). After a pretrial hearing on his motion to suppress evidence, in which the trial court denied appellant's motion, appellant entered a plea of guilty and was sentenced to six years imprisonment. Appellant's plea of guilty did not waive his right to later complain of error in the trial court's ruling at the pretrial hearing. Tex.R.App.P. 41(b).

The Third Court of Appeals affirmed appellant's conviction, finding that the search of appellant's trailer home was justified because the police could reasonably believe that appellant's landlord had the apparent authority to grant access to the mobile home. McNairy v. State, 777 S.W.2d 570, 574 (Tex.App.--Austin 1989). Appellant filed a petition for discretionary review in this Court raising four grounds for review. We granted appellant's petition for discretionary review, pursuant to TEX.R.APP.P. 200(c)(2), in order to determine (1) whether the court of appeals erred in holding that a landlord can give consent to search a tenant's premises; (2) whether the court of appeals erred in holding that appellant did not properly preserve error; (3) whether there was no probable cause for the warrantless search and seizure of appellant's home; and (4) whether the affidavit in support of the search warrant was facially invalid and whether the search pursuant to the warrant amounted to a continuation of a prior invalid search. We will affirm the judgment of the court of appeals.

In his motion to suppress evidence, appellant claimed that the search of his residence and seizure of evidence was made without probable cause, and in violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, art. 1 §§ 9 and 10 of the Texas Constitution, and Tex.Crim.Proc.Code arts. 1.05, 38.22, [sic] and 38.23. At the pretrial hearing on the motion to suppress, the State called two witnesses. Appellant did not call any witnesses. We will rely on the court of appeals' statement of the facts as established at the pretrial hearing.

On February 2, 1988, Dan Hinkle, Travis County Deputy Sheriff, assigned to the Organized Crime Unit, responded to a call from fellow officers that they had been called to a disturbance involving burning vehicles at a residence at 8104 Linden, Del Valle, and had found a quantity of drugs and paraphernalia. Upon arriving, Hinkle acquired the written voluntary consent of Rhonda Reynolds, an owner, to search the house at 8104 Linden and all outbuildings upon the 10-acre tract involved. The search at 8104 Linden uncovered a methamphetamine lab and other drug-related items.

The officers then began to search the land in back of 8104 Linden. As Deputy Hinkle and Sgt. Gideon [Austin Police Department] walked down a well-defined path through tall weeds they came within 50 feet of one of the outbuildings, a mobile trailer house, when they both smelled the strong odor of methamphetamine emanating from the trailer. As they proceeded, Hinkle heard the back door of the trailer "thrown open" and heard people running into the nearby brush, but he could not see the individuals because of the tall weeds. Gideon went to the front of the trailer and Hinkle went to the rear where he opened the back door to see if anyone else was present. At this point he observed chemicals associated with the manufacture of methamphetamine stacked just inside the doorway. He secured the trailer and began to ask questions of Rhonda Reynolds, who was present, and learned for the first time that the trailer had been rented to appellant McNairy and an Edward Fancher and learned the address was 16202 Fagerquist. Hinkle decided at this point to secure a search warrant before proceeding further. Hinkle acquired a search warrant from a magistrate and returned to the scene. During his testimony, the written consent to search executed by Rhonda Reynolds and the search warrant and the affidavit upon which it was based were admitted into evidence without objection.

Sgt. Ruben Fuentes, Austin Police Department, was called to the scene, and waited there with Sgt. Gideon for Hinkle to obtain the search warrant, and when Hinkle arrived with the warrant he participated in the search as the "seizing officer." He listed the numerous items of methamphetamine, chemicals and equipment found in the trailer during the search pursuant to the warrant. It was this methamphetamine that was the basis of appellant's conviction. (footnote omitted)

McNairy v. State, 777 S.W.2d at 571-72. ¹

The court of appeals applied the so-called apparent authority doctrine to uphold the initial search of appellant's home and thus, affirm his conviction. The court of appeals explained that the apparent authority doctrine originated in People v. Gorg, 45 Cal.2d 776, 291 P.2d 469 (1955), and, simply put, states that when officers have acted in good faith upon the consent given by an owner in conducting a search, the evidence seized cannot be excluded merely because the officers made a reasonable mistake as to the extent of the owner's authority. See also Nix v. State, 621 P.2d 1347, 1349-50 (Alaska 1981). ² The court of appeals then concluded that in the instant case, the police officers could have reasonably believed that appellant's landlord had authority to consent to search all of the outbuildings on the ten acre tract. The court noted that when ambiguous circumstances arose, the officers immediately stopped, made necessary inquiries, and obtained a search warrant. Furthermore, the court concluded that opening the door of appellant's trailer home after smelling the chemicals and hearing people running away did not constitute an "invalid warrantless search or taint the subsequent search." McNairy, 777 S.W.2d at 574.

In his first ground for review, appellant asserts that the court of appeals erred in holding that appellant's landlord could give consent to search his premises. Although we agree with the ultimate result reached by the court of appeals, we find their wholesale application of the apparent authority doctrine is unnecessary to resolve the instant case.

We first note that this Court has never adopted the apparent authority doctrine. In the instant case, the apparent authority doctrine is of some value, in that we can use the doctrine to determine if Hinkle and the other officers were justified in being where they were, when they smelled the odor of the methamphetamine laboratory emanating from appellant's trailer home and heard people running away (i.e., when probable cause and exigent circumstances to conduct the initial warrantless search of the trailer might have arisen). The testimony from the pretrial hearing indicates that Hinkle, accompanied by other officers and appellant's landlord, was approximately fifty feet away from appellant's trailer home when he first smelled the suspicious odors, and only a few steps closer when he heard people exiting the trailer. Nothing in the record indicates that, at this point, Hinkle had any reason to believe that the landlord's consent to search the premises did not extend to his present location on the ground.

Under the apparent authority doctrine, an officer conducting a consent search must make reasonable inquiries when "ambiguous circumstances" arise. See United States v. Heisman, 503 F.2d 1284 (8th Cir.1974). Thus, when confronted with a situation that does not reasonably appear to be included within the consent obtained, the searching officer must stop and make inquiries as to the continued effectiveness of the consent. See Nix v. State, 621 P.2d at 1349 (The apparent authority doctrine "does not mean that the police may proceed without inquiry in ambiguous circumstances or that they may reasonably proceed based on the consenting party's assertions of authority if those assertions appear unreasonable"); see and compare Illinois v. Rodriguez, supra note 2 (where neither the circumstances or the assertions of the consenting party were ambiguous).

In the instant case, Hinkle's testimony indicates he was not aware that appellant's trailer home had a separate address and was occupied as a rental unit, until after the initial warrantless search. Furthermore, nothing in the record indicates that appellant's rental arrangement covered anything more than the trailer home and its immediate environs. Thus, it appears that Hinkle and the other officers were reasonably justified in believing that the consent given by appellant's landlord was effective, at least to the point where they first smelled the odor from the laboratory and heard people running away. ³ We further conclude, however, that the court of appeals erred in holding that the officers were reasonably justified in searching appellant's residence based on the apparent authority of appellant's landlord. We adhere to the general rule that a landlord cannot normally give effective consent to allow a search of a tenant's premises. See Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

In his third ground for review, appellant asserts that there was no probable cause and no exigent circumstances to justify the initial warrantless search and seizure of his home. Appellant argues that the mere odor of an illegal substance does...