State v. Steelman, 11-99-00155-CR

• Decision Date: 06 April 2000
• Docket Number: No. 11-99-00155-CR,No. 11-99-00156-CR,11-99-00155-CR,11-99-00156-CR
• Citation: 16 S.W.3d 483
• Parties: (Tex.App.-Eastland 2000) State of Texas, Appellant V. Leo Steelman, Appellee State of Texas, Appellant V. Ian Steelman, Appellee
• Court: Texas Court of Appeals

Page 483

16 S.W.3d 483 (Tex.App.-Eastland 2000)

State of Texas, Appellant

V.

Leo Steelman, Appellee

State of Texas, Appellant

V.

Ian Steelman, Appellee

No. 11-99-00155-CR

No. 11-99-00156-CR

11th Court of Appeals Eastland, Texas

April 6, 2000

Appeal from Taylor County

[Copyrighted Material Omitted]

Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

OPINION

TERRY McCALL, Justice.

The trial court granted the Steelmans' motions to suppress evidence in their prosecutions for possession of marihuana. The State appeals. See TEX. CODE CRIM. PRO. ANN. art. 44.01(a)(5) (Vernon Pamph. Supp. 2000). We affirm.

Standard of Review

In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App. 1997). Because the trial court is the exclusive finder of fact, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.), cert. den'd, 479 U.S. 885 (1986). Thus, the trial court's findings of fact are controlling unless the trial court abused its discretion in making them. Guzman v. State, supra. Appellate courts, however, review de novo mixed questions of law and fact, such as reasonable suspicion and probable cause. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847 (Tex.App. - Eastland 1999, no pet'n).

The Steelmans based their motions to suppress on TEX. CONST. art. I, 9 only; they did not rely on the federal constitution in the trial court. See U.S. CONST. amends. IV and XIV. Texas courts are not bound by the fourth amendment jurisprudence of the United States Supreme Court when interpreting Article I, section 9. Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). Fourth amendment cases do provide advisory authority, and Texas courts generally follow them in their interpretations of Article I, section 9. Johnson v. State, 912 S.W.2d 227, 230 (Tex.Cr.App. 1995); Aitch v. State, 879 S.W.2d 167,171-72 (Tex.App. - Houston [14th Deist.] 1994, pet'n ref 'd); see, e.g., Davis v. State, 829 S.W.2d 218, 221 (Tex.Cr.App.1992). Neither the State nor the Steelmans have advanced any reasons why Article I, section 9 should not be interpreted consistently with the fourth amendment in these cases. Furthermore, we see no reason to make a distinction.

Background Facts

The trial court entered findings of facts that we will adopt and summarize as the controlling facts of this case. The record supports the trial court's findings of fact, and neither party challenges them. On April 21, 1998, the Abilene Police Department received an anonymous telephone call that drug dealing was taking place at 3141 South 4th Street in Abilene. Officers Lance Vines, Jim Craft, and Jason Aulerich were dispatched to investigate at that location, a single family residence. The officers met down the street from the house and discussed their plan of action. They then proceeded to the house, which did not have a fence, gate, or any other barrier to enter onto the premises. The officers looked into a window and observed four people in the living room of the house. The record indicates that the officers could only see through a small crack in the closed blinds of the front window. Officer Aulerich testified that he could only see "some individuals inside moving around a little bit but couldn't makeout exacts."

Officers Vines and Craft went onto the front porch of the house and knocked on the door. Officer Vines testified that he did not announce himself as a police officer out of concern for his safety. Ian Steelman answered the door, stepped outside onto the porch, and closed the door behind him. While the door was open, Officers Vines and Craft smelled the odor of burnt marihuana. The officers asked Ian for his identification. Ian said that he would have to retrieve his identification from the house. He opened the door, stepped inside the house, and began to close the door. Officer Craft put his foot in the door to prevent its closing. Officers Vines and Craft forced their way into the house and drew their weapons. They again smelled the odor of burnt marihuana.

Officer Aulerich also came into the house. Officer Aulerich testified that he could smell the odor of burnt marihuana after he got onto the porch and reached the door. None of the officers saw any marihuana or contraband inside the house. The officers then handcuffed the occupants of the house, including the Steelmans, and read them their rights. The trial court found that the Steelmans were arrested. Leo Steelman refused to give consent to search the house. Officer David Varner, an Abilene Police Department Narcotics Officer, was called to the house. He requested consent to search, and Leo Steelman refused him as well. Officer Varner did not observe any marihuana or other contraband inside the house either.

Officers Varner and Vines left and secured a search warrant. Two and one-half hours later, they returned and executed the warrant. Prior to the search, none of the officers observed marihuana or contraband in the house. The search revealed several plastic sandwich bags containing marihuana, several marihuana pipes, two "stash boxes," and a handheld scale, among other things. The Steelmans and their two guests were handcuffed and detained in the house until the police completed the search and took them to jail. None of the officers recalled whether they smelled the Steelmans' clothing or hands for the odor of marihuana.

The findings of facts entered by the trial court indicate that the trial court found Officer Craft's testimony to be incredible. Officer Craft's testimony contained several discrepancies from that of Officers Vines and Aulerich. For example, Officer Craft testified that the officers did not meet with each other before going to the Steelmans' house. He also testified that he and Officer Aulerich could see through the window clearly enough to observe the four occupants of the house "smoking. I couldn't tell you what but I watched." Officer Craft testified that, when Ian Steelman opened the door, "smoke came out from behind him along with the odor of burning marihuana." Finally, Officer Craft testified that he saw a marihuana cigarette in plain view in an ashtray on the coffee table in the living room. The trial court, as the exclusive finder of fact, was free to disregard this testimony.

The trial court made two conclusions of law: (1) "An officer may not arrest a person without a warrant unless he observes such person committing an offense" and (2) "Once an officer arrests a person without a warrant or without observing an offense, any evidence obtained should be suppressed." The State argues that the trial court abused its discretion by concluding that the police officers made an unlawful arrest. The State contends that the odor of burnt marihuana gave rise simultaneously to probable cause to arrest and to search for the marihuana.

Legality of the Arrest

An arrest occurs when a person is placed under restraint or is taken into custody by an officer acting with or without a warrant. TEX. CODE CRIM. PRO. ANN. art. 15.22 (Vernon 1977); Johnson v. State, 722 S.W.2d 417, 419 (Tex.Cr.App. 1986); see Guzman v. State, supra at 86 n. 2. The record shows that the Steelmans and their two friends were handcuffed and detained in their living room from the time the officers entered the house until the officers obtained and executed the search warrant, a period of over two and one-half hours. The trial court found that an arrest occurred. We see no abuse of discretion in that finding.

An officer may not make a warrantless arrest unless he has probable cause to suspect an individual and if the arrest falls within one of the exceptions found in TEX. CODE CRIM. PRO. ANN. art. 14 (Vernon 1977 & Supp. 2000). Lunde. v. State, 736 S.W.2d 665, 666 (Tex.Cr.App.1987). One of those exceptions is when the individual commits a crime in the officer's presence. Article 14.01 (b). The trial court made three separate findings that, at three different points in time, the officers saw no marihuana or contraband in the house. The record does not indicate that any of the Steelman or their friends appeared high or intoxicated. Furthermore, the record indicates and the trial court found that the officers only smelled burnt marihuana and not that they saw smoke. Officer Vines testified that smelling like burnt marihuana is not itself a crime. A crime did not occur in the officers' presence; no one possessed marihuana in plain view when the officers entered the house. Cf. Johnson v. State, 481 S.W.2d 864 (Tex.Cr.App.1972), where the court held that marihuana smoke and the "high" appearance of the defendant gave police probable cause to arrest him.

Another exception to the warrant requirement is when, under the circumstances, the offer reasonably believes that the individual has committed an offense. Article 14.03(a)(1). Such a belief is the functional equivalent of probable cause which exists:

"[W]hen the facts and circumstances within an officer's personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not," a particular suspect has committed the crime. (Emphasis added)

Muniz v. State, 851 S.W.2d 238, 250-251 (Tex.Cr.App.1993), quoting Beck v. Ohio, 379 U.S. 89 (1964). The existence of probable cause requires an analysis of the facts of each case. Guzman v. State, supra at 90. The appellate court reviews the objective facts known to the officer at the time of the arrest, without regard to the officer's subjective thoughts, in order to determine whether probable cause existed. Johnson v. State, 722 S.W.2d supra at 419; Townsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983).

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