State v. Steelman
| Decision Date | 23 October 2002 |
| Docket Number | No. 1023-00.,No. 1022-00.,1022-00.,1023-00. |
| Citation | 93 S.W.3d 102 |
| Parties | The STATE of Texas v. Leo STEELMAN and Ian Steelman, Appellees. |
| Court | Texas Court of Criminal Appeals |
Stan Brown, Abilene, for Appellant.
Kollin Shadle, Asst. DA, Abilene, Matthew Paul, State's Attorney, Austin, for State.
Before the court en banc.
Texas Code of Criminal Procedure article 14.01(b) provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." The issue presented in this case is whether the odor of burnt marijuana emanating from a residence, coupled with an anonymous tip that drug dealing was taking place at that residence, gave police officers probable cause to believe that the person who opened the door of the residence had committed an offense in the officers' presence and thus permitted the officers to enter and arrest everyone inside the home.
I
On April 21, 1998, the Abilene Police Department received an anonymous tip that drug dealing was taking place at the residence of Ian and Leo Steelman, appellees.1 In response, the department dispatched three officers to the scene. Upon arrival, the officers proceeded to the front door of the residence. Before they got to the front door, however, the officers peered into the house through a crack in one of the window blinds. They observed no illegal activity. They merely saw four men sitting in a living room.2 The officers then proceeded to knock on the front door.
Ian opened the door, stepped outside, and closed the door behind him. When Ian opened the door, the officers smelled the odor of burnt marijuana. The officers asked Ian for identification. Ian informed the officers that he would have to retrieve his identification from inside the house. He then opened the door, walked back through it, and attempted to close it behind him. At that point, one of the officers placed his foot in the doorway and prevented Ian from closing the door. The officers then burst through the doorway, handcuffed all of the occupants, including Leo, and placed them all under arrest.
At that point, the officers contacted narcotics agent David Varner. Varner arrived at the scene and smelled marijuana inside the residence. After asking for, but not receiving, appellees' consent to search the residence, Varner left to obtain a search warrant. In his search warrant affidavit, Varner asserted that probable cause existed to believe that the occupants of the residence were in possession of marijuana. Approximately two hours after the officers initially entered the residence, Varner obtained a search warrant, searched the residence, and found marijuana.
On July 16, 1998, a Taylor County grand jury indicted appellees for misdemeanor possession of marijuana. See Tex. Health & Safety Code § 481.121(b). Appellees filed a motion to suppress the marijuana. In their motion, appellees argued that both the warrantless arrests and the search of the residence pursuant to the warrant were illegal under the Texas Constitution and state statutory law, namely Texas Code of Criminal Procedure article 14.01(b). They further argued that because the initial arrest of Ian and the subsequent arrest of Leo were illegal, any evidence acquired thereafter was tainted by that illegality and, therefore, should be suppressed under Texas Code of Criminal Procedure article 38.23. See Irvin v. State, 563 S.W.2d 920, 924 (Tex.Crim.App. 1978) ().
At the suppression hearing, the State argued that once a police officer smells burning marijuana and determines which house it is coming from, the officer has probable cause to arrest the occupants and search that house.3 The trial court attempted to clarify the State's position, and the following exchange took place:
The State then continued its argument:
So, your honor, the — I guess to summarize our position, these officers went there on a tip, went there where you or I could go, where anybody could go, knock on the door, smelled marijuana coming from the residence, that gives them probable cause to believe that marijuana is present and the cases say that they can then search for that marijuana.
They go inside the residence, secure the residence, make the arrest, ask for consent, do not get it, then make application for a search warrant. The affidavit speaks for itself. The officer, again, presents his probable cause to believe that the marijuana was there. He says he smelled it and I forgot how many other officers he put in his affidavit say that they smelled it there and the Justice of the Peace finds probable cause, signs the warrant and the warrant is executed and the evidence is seized.
That's our basis for the search that was conducted, Your Honor.
At that point, the trial court attempted again to clarify the State's position: COURT: As I understand the State's argument is they say the facts of this case would justify the search without a warrant, is that correct?
Thus, it is clear that, even though appellees' argued that both the warrantless arrests and the search pursuant to the warrant were illegal, the State contended that the evidence should not be suppressed solely because the warrantless arrest and warrantless search were legal. The State, for whatever reason, choose not to rely upon the search warrant.
At the conclusion of the suppression hearing, the trial court granted appellees' motion to suppress. The trial court concluded that because the officers did not have probable cause to believe that either Ian or Leo had committed an offense in their presence, the warrantless arrests of Ian and Leo were illegal, and therefore, any evidence seized during the subsequent search of the residence was tainted and should be suppressed.4 The State appealed the trial court's ruling.
On appeal, the State made two distinct arguments. The State argued first that "the odor of burning marijuana that escaped from the residence when [Ian first opened the door] provided probable cause [to believe] that the offense of possession of marijuana was being committed in the officers' presence." The State argued second, for the first time, that "even if the warrantless arrest was improper ... the search under the search warrant was proper because neither the probable cause to search, nor the marijuana evidence was the `fruit' or product of the arrest." The Eleventh Court of Appeals disagreed with the State and upheld the trial court's ruling suppressing the marijuana. State v. Steelman, 16 S.W.3d 483 (Tex.App.Eastland 2000). The court of appeals reasoned (1) that the warrantless arrests of appellees were illegal because the officers did not have probable cause to believe that the appellees had committed an offense in their presence and (2) that "the issuance of the search warrant did not attenuate the taint from the [initial] illegal search and arrest." We granted the State's petition for discretionary review to determine whether the court of appeals erred. See Tex.R.App. Proc. 66.3(b).
In its brief to this Court, the State argues that the warrantless arrests of appellees, and the subsequent search of their residence, were reasonable under both the State and Federal Constitutions and valid under one of the warrant exceptions in the Texas Code of Criminal Procedure. However, appellees, in their motion to suppress, did not make a federal constitutional argument concerning the warrantless arrests. Instead, appellees made a state statutory argument and a state constitutional argument.5 They argued that the arrests were illegal, and any fruits of the arrest were tainted, because (1) the arrests were "without a valid warrant and without probable cause,"6 and (2) the arrests were unreasonable under Article I, section 9 of the Texas Constitution. The trial court elected to grant the motion to suppress based upon Article 14.01(b). The trial court expressly concluded that "[a]n officer may not arrest a person without a warrant unless he observes such person is committing an offense." On appeal, the State argued that the arrests were legal under Article 14.01(b). Neither the State nor appellees, in their briefs to the court of appeals, made any mention of Article I, section 9. At that point, the parties abandoned the state constitutional argument. Therefore, as to the legality of the warrantless arrests and search, only the state statutory argument is properly before us.
In its brief to this Court, the State also argues that "even if the entry and arrest are deemed illegal, the `taint' of the entry and arrest does not reach backward to the lawfully-obtained probable cause on which the search warrant is based." Indeed, we have recognized that even if an illegal warrantless arrest taints subsequently acquired evidence, such evidence need not be suppressed if the State can show that the taint has been attenuated (e.g. by an otherwise valid search warrant). See Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986). However, as...
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