Turrubiate v. State

• Decision Date: 10 April 2013
• Docket Number: No. PD–0388–12.,PD–0388–12.
• Citation: 399 S.W.3d 147
• Parties: Marcos TURRUBIATE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

399 S.W.3d 147

Marcos TURRUBIATE, Appellant,

v.The STATE of Texas.

No. PD–0388–12.

Court of Criminal Appeals of Texas.

April 10, 2013.

Victor M. Valdes, San Antonio, TX, for Appellant.

Kevin P. Yeary, Assistant District Attorney, San Antonio, TX, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

ALCALA, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, J.J., joined.

In deciding this petition for discretionary review filed by the State, we address what constitutes exigent circumstances permitting police officers to enter a home without a warrant. We agree with the holding by the court of appeals that probable cause to believe that illegal drugs are in a home coupled with an odor of marijuana from the home and a police officer making his presence known to the occupants do not justify a warrantless entry. Turrubiate v. State, 365 S.W.3d 780, 788 (Tex.App.–San Antonio 2012). However, because the court of appeals did not address the State's alternative ground for finding exigent circumstances regarding child safety, we remand the case to that court to do so.

I. Background

An investigator with the Texas Department of Family and Protective Services, Christopher Lopez, went to the home of Marcos Turrubiate, appellant, to investigate allegations of marijuana use at that home, in which lived the six-month-old child of Erin Guller, appellant's girlfriend. When he knocked on the front door, appellant cracked the door open and stuck out his head. Lopez noticed a strong odor of marijuana emanating from the home. Lopez asked if Guller or her child were home, and appellant said they were not. Lopez told appellant that it was imperative that he speak with Guller, gave appellant his card, and left. Lopez immediately contacted his supervisor and the sheriff's department.

Lopez was soon met by Deputy Chavarria, and Lopez informed him that the home smelled like marijuana. Lopez and the deputy knocked on appellant's door. Appellant cracked open the door, and Lopez again noticed a strong odor of marijuana from within the home. Deputy Chavarria also smelled “a very strong, fresh odor of marijuana” coming “from the crack in the door.” In light of his “suspicion to believe that there was possible marijuana in the house,” the deputy determined that entry was required to “prevent [the marijuana] from being destroyed” and to preserve it for use in prosecution. He thought that if he left to obtain a warrant, it would “make the evidence available for destruction.”

For this reason, Deputy Chavarria forcibly entered the home, pointed a taser gun at appellant, handcuffed him, and placed him on the floor. He searched appellant and the surrounding area for weapons and asked him if there was marijuana in the home. Appellant confirmed that there was and indicated that it was in a backpack nearby. The deputy located a plastic baggie of marijuana in appellant's backpack after appellant consented to the search in writing. Deputy Chavarria placed him under arrest for possession of marijuana.

Appellant filed a motion to suppress the evidence. Appellant argued that the odor of marijuana alone does not justify a warrantless entry and that nothing indicated that he intended to destroy evidence. The trial court denied the motion.¹ The State offered the marijuana into evidence at trial, and the jury found appellant guilty and sentenced him to one year in prison, probated.

On direct appeal, appellant challenged the trial court's ruling on the motion to suppress, arguing that the circumstances failed to justify the deputy's warrantless entry into appellant's home. The court of appeals agreed and reversed. Turrubiate, 365 S.W.3d at 783. It held that “the record does not support the existence of exigent circumstances requiring immediate entry into the apartment without first obtaining a warrant” because “nothing in the record suggests that destruction of evidence was a risk under the circumstances.” Id. at 787. Although the State's brief argued that the risk to the child from the presence of marijuana in the home constituted an exigent circumstance that would permit the warrantless entry, the court of appeals did not address that argument, instead confining its analysis to the risk of the destruction of evidence as an exigent circumstance. See id. In its petition for discretionary review, as in its direct-appeal brief, the State contends that the risk to the child posed by the presence of marijuana in the home and the risk of the destruction of evidence each are exigent circumstances that justify this warrantless entry. We address only the risk of destruction of evidence because the court of appeals has not yet addressed whether there was an exigency based on any risk to the child.²

II. Analysis of Exigent Circumstances Based on Risk of Destruction of Evidence

A. Standard of Review

We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex.Crim.App.2010). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of law to the facts de novo. Id. When the trial court does not issue findings of fact, as here, findings that support the trial court's ruling are implied if the evidence, viewed in a light most favorable to the ruling, supports those findings. See State v. Kelly, 204 S.W.3d 808, 818–19 (Tex.Crim.App.2006). Almost total deference is given to the trial court's implied findings, especially those based on an evaluation of witness credibility and demeanor. Valtierra, 310 S.W.3d at 447. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.

Generally, in determining whether the State demonstrated probable cause and exigent circumstances, appellate review is limited to the record at the time of the suppression hearing. O'Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000). However, appellate review may include evidence adduced at trial when, as here, “the suppression issue has been consensually re-litigated by the parties during trial on the merits.” Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).

B. Law Applicable to Warrantless Entry

A warrantless entry into a residence is presumptively unreasonable.³Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007). When a defendant moves to suppress evidence based on a warrantless search, the State has the burden of showing that probable cause existed at the time the search was made and that exigent circumstances requiring immediate entry made obtaining a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). Probable cause exists when reasonably trustworthy circumstances within the knowledge of the police officer on the scene would lead him to reasonably believe that evidence of a crime will be found. See id. If probable cause exists, exigent circumstances may require immediate, warrantless entry by officers who are (1) providing aid to persons whom law enforcement reasonably believes are in need of it; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; or (3) preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 685. We address the State's argument regarding the third circumstance and remand for the court of appeals to address the State's argument regarding the first circumstance.

1. Imminent Destruction of Evidence: McNairy factors and Kentucky v. King

Before the Supreme Court's decision in Kentucky v. King, this Court, in McNairy v. State, identified five factors relevant to a reasonable determination by the searching officers that evidence might be destroyed or removed before they could obtain a search warrant. See Kentucky v. King, ––– U.S. ––––, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); McNairy, 835 S.W.2d at 107. The five circumstances were as follows:

(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 police 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 the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

McNairy, 835 S.W.2d at 107.

The State argues that the court of appeals's application of these factors conflicts with the recent Supreme Court opinion in King. See131 S.Ct. 1849. The State arguesthat, under King, the primary inquiry in deciding the legality of a warrantless entry is whether an officer reasonably believed that entry was necessary to prevent the destruction of evidence. See id. It contends that the existence of probable cause combined with the deputy making his presence known to the occupants and the strong odor of marijuana emanating from the home justified the deputy's inference that the destruction of evidence was imminent so as to permit the warrantless entry. We disagree.

In King, the Court held that, when probable cause and exigent circumstances exist, police officers may enter a home without a warrant, even when their conduct created the exigency, as long as the officers did not create the exigency by violating or threatening to violate the Fourth Amendment. Id. at 1858. The Court assumed that an exigency existed and decided only the question, “Under what circumstances do police impermissibly create an exigency?” Id. at 1862–63. The Court determined that police officers loudly knocking on the door of an apartment and announcing their presence did not violate or threaten to violate the Fourth Amendment. Id. at 1863. It disavowed many...