Pair v. State

• Decision Date: 05 January 2006
• Docket Number: No. 2-04-494-CR.,2-04-494-CR.
• Citation: 184 S.W.3d 329
• Parties: Frankie Dean PAIR, Jr., Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

184 S.W.3d 329

Frankie Dean PAIR, Jr., Appellant, v. The STATE of Texas, State.

No. 2-04-494-CR.

Court of Appeals of Texas, Fort Worth.

January 5, 2006.

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Tracey L. Jennings, Bowie, for Appellant.

Tim Cole, Dist. Atty., and Jack A. McGaughey, Asst. Dist. Atty., Montague, for the State of Texas.

PANEL F: DAUPHINOT, WALKER, and McCOY, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Pursuant to a plea bargain, Appellant Frankie Dean Pair, Jr. pleaded guilty to the offense of manufacture of more than 400 grams of methamphetamine, and the trial court sentenced him to five years' confinement. In two points, Pair complains that the trial court erred by denying his pretrial motion to suppress. We will affirm.

II. FACTUAL BACKGROUND¹

Around 10:00 p.m. on February 28, 2003, deputies with the Montague County Sheriff's Department attempted to serve a felony arrest warrant on Kathy McWilliams in Sunset, Texas. Deputy Dwayne Schelsteder and two other deputies approached a single-story house and knocked on the front door, but no one answered. A strong odor of ether emanated from the interior of the house, and the deputies thought they heard something — a person or an animal — moving around inside of the residence. The deputies then walked around to the rear of the house and knocked on the back door; again, no one answered.

Concerned with the odor emanating from the house, one of the deputies contacted Deputy Dan Jordan, a lieutenant investigator for the sheriff's department. Deputy Jordan instructed the deputies to watch the house and make sure nobody left until he arrived. Deputy Jordan contacted Department of Public Safety Trooper Marshall Thomas and informed him that while attempting to serve an arrest warrant, deputies noticed a strong either-like odor commonly associated with methamphetamine coming from inside of the residence, that no one answered the door despite their repeated knocks, and that people were moving around inside. Another deputy had noticed "a pitcher of white powder on the back porch" that was thought to contain methamphetamine or methamphetamine by-products. Familiar with the residence because of information previously received that a methamphetamine lab possibly existed there, Trooper Thomas advised Deputy Jordan and the other officers to enter the residence in order to prevent the destruction of any possible evidence of drug activity. Trooper Thomas further advised the deputies to remove the occupants from inside the house but to not perform a search of the premises.

Deputy Jordan arrived at the residence with additional officers and entered the house. Although deputies did not search the house, those persons discovered inside were taken outside, patted down for weapons, handcuffed, and placed in patrol cars. One individual was discovered in a bathroom pouring liquid into the toilet; officers detained him before he could flush the toilet. Pair was among those removed from the house.

Trooper Thomas obtained a search warrant in the meantime and arrived at the residence thereafter. Officers searched the residence and collected the white powder substance in the pitcher located on the back porch, the liquid from the toilet, and three syringes — one found in a kitchen drawer, one found in a coat on the couch, and another found on top of the oven — containing a clear liquid. Officers also found pseudoephedrine pills still in blister packets, clear liquid in an acetone container in the kitchen, and a baggie of white powder on top of the oven. Subsequent analysis of the seized items showed that the white powdery substance in the pitcher found on the back porch, two of the syringes, the clear liquid from the toilet, and the baggie holding white powder all contained methamphetamine.

In his motion to suppress evidence, Pair argued that both "the actions of the Texas Department of Public Safety Narcotics Service" and his warrantless arrest violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution. Deputy Schelsteder and Trooper Thomas were the only two witnesses to testify at Pair's suppression hearing. The trial court signed an order denying Pair's motion to suppress on October 5, 2004; it made no findings of fact or conclusions of law. Pair appeals from this pretrial ruling.

III. SEARCH, STEELMAN, AND ADMISSIBILITY OF EVIDENCE

In his first point, Pair argues that the trial court improperly denied his motion to suppress because he was illegally arrested. The State, however, maintains that the trial court correctly denied Pair's motion to suppress because the officers' initial entry and subsequent search of the residence was lawful.

A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim. App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Therefore, we give almost total deference to the trial court's ruling on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Best, 118 S.W.3d at 861-62. However, we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.

Where the trial court denies the motion and does not file findings of historical fact, as in this case, we view the evidence in the light most favorable to the trial court's ruling and assume that the ruling is based upon implicit findings of fact supported by the record. Carmouche, 10 S.W.3d at 327-28. Furthermore, we will uphold the trial judge's decision so long as it is correct under any theory of law. Ross, 32 S.W.3d at 855-56.

B. Evidence Derived From Lawful Warrantless Entry and Subsequent Search Admissible Under Article 38.23(a)

A non-consensual police entry into a residential unit constitutes a search under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). A warrantless search is justified when the State shows (1) that probable cause existed at the time the search was made and (2) that exigent circumstances existed which made the procuring of a warrant impracticable. Estrada v. State, 154 S.W.3d 604, 610 (Tex.Crim. App.2005); McNairy, 835 S.W.2d at 106. Probable cause to search a residence 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. McNairy, 835 S.W.2d at 106. Exigent circumstances exist allowing a warrantless entry into a house when officers are justified in believing that evidence or contraband will be destroyed before they can obtain a search warrant. Id. at 107. Several factors are used in analyzing whether officers could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to the officers guarding the site of the contraband while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. Id.

Applying the aforementioned principles to the instant case, testimony at the motion to suppress hearing showed that as Deputy Schelsteder stood at the front door he smelled a strong odor, which he believed to be ether, emanating from the house. Based on his knowledge and experience as a deputy, he recognized the odor as one commonly associated with the manufacture of methamphetamine. See Estrada, 154 S.W.3d at 608-09 ("Though it is clear that odor alone may not justify a warrantless search, . . . [t]he `odor of an illegal substance' may be a factor that police officers use in determining whether there is probable cause that an offense has been or is being committed.") (emphasis added). In addition to the odor, Deputy Schelsteder further testified that he thought he heard movement inside the house although he was not sure if it was a person or an animal. Trooper Thomas was in contact with Deputy Jordan. Trooper Thomas testified that he had previously conducted surveillance on the house because he had received information that a methamphetamine lab was possibly operating inside. He testified that Deputy Jordan informed him that "in addition to smelling the chemical odor, they [the deputies] could hear people inside the residence moving around, kind of like they were running, maybe trying to hide." Trooper Thomas also learned from Deputy Jordan that a deputy on the scene had observed a "pitcher of a white powder on the back porch consisting of methamphetamine or by-products of methamphetamine." Viewing the evidence in the light most favorable to the trial court's ruling and considering the facts and circumstances available to the officers prior to the entry and considering the reasonable inferences...