No. 05-05-00180-CR
Opinion issued July 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F03-40609-VH. Affirmed.
Before Justices MOSELEY, LANG, and MAZZANT.
Opinion By Justice MAZZANT.
Thomas Jason Kinder appeals his conviction for unlawful possession of a firearm by a felon. In his first and second issues, he argues the trial court erred in denying his motion to suppress the warrantless entry into the apartment because there are no exceptions to the warrant requirement under Tex. Code Crim. Proc. Ann. art. 14.05 or under Article I, § 9 of the Texas Constitution. In his third issue, appellant claims the trial court violated his rights under the Fourth Amendment, Article I, § 9 of the Texas Constitution and articles 14.01 and 14.03 of the Texas Code of Criminal Procedure by not granting his motion to suppress because he had "standing" to complain of the entry into the apartment by the police. Appellant's fourth and fifth issues allege the trial court erred in denying his motion to suppress because the police lacked probable cause to enter the apartment violating Article I, § 9 of the Texas Constitution and the Fourth and Fourteenth Amendments of the United States Constitution. We affirm the trial court's judgment.
Background
Mesquite police officer Joseph Thompson testified that, on April 3, 2003, at approximately 7 p.m., he was dispatched to a location where a theft of mail had been reported. The owner of the residence had seen the suspects take letters out of his mailbox and followed them to an apartment complex at 4933 North Galloway Avenue in Mesquite, Texas. The complainant reported the suspects to be two white females, about eighteen years old, whom he would be able to identify. He contacted the police dispatcher and gave a description of the suspects' car, license plate number, and address of the building in front of which the car was parked. When Thompson arrived at that location, he found the vehicle with matching license plate number parked exactly where he had been told it was located. The car was not occupied. Thompson decided to knock on the doors of the apartments directly in front of the vehicle to see if he could find the suspects. No one answered the door when Thompson knocked at the first apartment. When he went to the next apartment, the woman who answered the door told him about a couple of females who matched the age and description of the suspects, but she was not sure if they drove a car. She described the location of their apartment as "right under the staircase around the corner." Together with Mesquite police officer Trent Prescher, who had just arrived, Thompson went to that apartment. A young woman, approximately the same age as the suspects, answered the door. She invited the officers into her apartment. She told the officers she had just arrived home. Based on the information she provided, the officers concluded the woman was not a suspect. She also told them she had seen "a lot of girls" going in and out of apartment 619, which was across the hall, and that apartment was probably where they would find the suspects. Thompson and Prescher knocked on the door of apartment 619. Appellant answered the door, opening it just enough to stick his head out. The officers asked appellant if it was his apartment. Appellant replied it was not his apartment and that he did not live there. The officers asked if anyone else was home, and appellant said he was alone. Thompson recalled appellant was somewhat evasive in his responses and he did not seem to want to answer their questions. Thompson said he could smell the odor of marijuana. The officers asked if they could enter the apartment, and appellant refused. Because appellant's head was the only thing the officers could see, they could not tell if the marijuana odor was coming from appellant or the apartment. Thompson also did not know whether appellant was trying to keep the door closed in order to keep them from seeing the suspects they were looking for or because of the marijuana. Thompson believed appellant was acting very suspicious by preventing them from seeing inside the apartment. Appellant's demeanor suggested to Thompson that appellant was hiding something. Based on the smell of marijuana and the belief that the suspects they were looking for might be inside, the officers entered the apartment to secure it until they could get a search warrant. The officers believed they needed to secure the apartment to prevent appellant, or possibly someone else, from destroying evidence. Thompson asked appellant to sit on the sofa for the officers' safety, but appellant instead turned and walked towards the back of the apartment. Believing that appellant would either warn someone or "grab something," Thompson grabbed appellant by the arm and led him back to the sofa. Appellant was not cooperative. He tried to get up from the sofa several times. After another officer arrived, Thompson made a protective sweep of the apartment, including the bedroom, to make sure no one was hiding there. When Thompson entered the bedroom, he immediately noticed a semi-automatic handgun lying on the bed. There was also a rifle behind the bed leaning up against the wall and a clear plastic bag of marijuana on a box near the bed. Thompson seized the marijuana, pistol, and rifle. Appellant was placed under arrest for outstanding warrants and possession of marijuana. When officers discovered he had a prior felony conviction, appellant was also charged with unlawful possession of a firearm by a felon. Officer Prescher testified that he met Thompson at the apartment complex on the evening of April 3, 2003, to assist him in looking for suspects in a suspected mail theft. Appellant answered the door when Thompson and Prescher knocked, but he only opened the door about six inches. As appellant opened the door, Prescher noticed the strong odor of marijuana. Appellant's eyes were glassy and he appeared to be under the influence of something. He was also nervous. After entering the apartment, the officers asked appellant, who was wearing only a pair of boxer shorts, if he was alone. He said he was, but Prescher did not believe appellant was telling the truth. Prescher watched appellant while Thompson made a protective sweep of the apartment. Because appellant kept trying to get up from the sofa, Prescher put appellant in handcuffs for the officers' safety. The rest of appellant's clothes-his pants, socks, and shoes-were on the bedroom floor. To Prescher's knowledge, appellant did not have any other clothing at the apartment. Officer Jason Williams testified that when he arrived at the apartment, Thompson and Prescher were already there. Williams was responsible for keeping appellant seated in the living room. Appellant told Williams he did not live there. He said he was waiting for a friend to show up and that when she arrived, he would leave. Because the living room lights were off but the bedroom lights and television were on, Williams asked appellant if he had been in the bedroom. Appellant said several times he had not been in the bedroom that day and had never been in there. But after appellant was placed under arrest for the outstanding warrants, he asked the officers if he could have his clothes. When they asked where his clothes were, he replied that they were in the bedroom. In the bedroom, along with appellant's clothing, the marijuana, and the weapons, officers also found a photo identification in the name of Jason Thomas. Appellant testified that the apartment was leased to Sarah and Dan Drennon. Prior to April 3, 2003, the date of his arrest, appellant had spent two or three days a week at the apartment, sleeping on the sofa. At the beginning of the month, he had been asked if he was going to stay there and appellant decided that he wanted to live there. At the time of his arrest, appellant had no important personal belongings at the apartment. His clothing was at his girlfriend's residence, where he stayed when he was not at the apartment. On the date of his arrest, appellant said he was not moving into the apartment. Some of his clothes, his underwear, and other personal items were there so he could take a shower and leave. Appellant did not have a key to the apartment. On the date of his arrest, appellant had been let in by someone else who was already there. Appellant did not contribute to any of the bills or pay rent for the apartment prior to his arrest. After his arrest, he moved into the apartment and lived there for approximately six months. The rent was $840, and appellant's share of the rent was $420. Appellant testified that when he answered the knock at the door, the officer said he was investigating a mail theft. Appellant said he knew nothing about that. The officer then asked if appellant lived there and if he was alone. Appellant repeatedly testified that he told the officer he did not live there. The officers said they smelled marijuana and asked appellant if they could come in and talk about it. Appellant refused. The officers told him they were going to get a warrant and, when they returned, he would go to jail anyway. After the officers entered the apartment, appellant stepped back and walked toward the sofa. He denied he was walking fast, trying to get away from the officers, or walking toward the bedroom, where the marijuana and guns were found. Appellant denied he had been smoking marijuana or using any other drugs. Appellant also denied he had ever used the name Jason Thomas. He explained that the identification belonged to him; it was a prison identification but the Texas Department of Criminal Justice had gotten appellant's name wrong. Appellant acknowledged he previously had been sentenced to prison for felony possession. He also had felony convictions for burglary of a building and unauthorized use of a motor vehicle. Appellant admitted to twice pleading guilty to possession of marijuana and had a conviction for unauthorized carrying of a weapon. In addition, appellant had four evading arrest convictions and several convictions for burglary of a vehicle. After hearing arguments, the trial court denied appellant's motion to suppress. Pursuant to a plea agreement, appellant subsequently pleaded guilty to the charge of unlawful possession of a firearm by a felon and was sentenced to five years in prison. Appellant raises five issues in this appeal. In his first, second, fourth, and fifth issues, he argues that the trial court erred in denying his motion to suppress because the police entered his apartment without warrant or probable cause and no exigent circumstances justified the entry. In his third issue, appellant claims the trial court erred in denying his motion to suppress based on his lack of standing to complain of the entry into the apartment by the police. Appellant relies on the Fourth Amendment, Article I, § 9 of the Texas Constitution, and articles 14.05 and 38.23 of the Texas Code of Criminal Procedure. Discussion
We begin with appellant's first, second, fourth, and fifth issues which claim the police lacked probable cause and there were no exceptions to the warrant requirement. We address these issues together. 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). 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). Thus, 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). 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. Probable Cause and Exigent Circumstances
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 v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991); Pair v. State, 184 S.W.3d 329, 334 (Tex.App.-Fort Worth 2006, no pet.). 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 these principles, the officers' testimony at the motion to suppress hearing showed that when appellant opened the door to the apartment, they smelled the odor of marijuana. Based on their knowledge and experience, they immediately recognized the odor. 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."); see also Parker v. State, No. PD-0250-05, 2006 WL 931596, at *3 (Tex.Crim.App. April 12, 1006). In addition to the odor, appellant had glassy eyes and appeared to be nervous. 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, as well as the reasonable inferences that could be drawn from that information, we conclude the officers had probable cause to believe there was marijuana inside the apartment. Having determined that probable cause existed, we next determine whether exigent circumstances justified the warrantless entry. The record shows the officers went to the apartment complex to investigate a possible mail theft. After knocking on the doors of apartments near the suspects' vehicle, one person told the officers that the female suspects they were looking for might live across the hall in apartment 619 because a lot of women were seen going in and out of that apartment. See West v. State, 720 S.W.2d 511, 513 n. 2 (Tex.Crim.App. 1986). After they knocked on the door to apartment 619 and appellant answered, the officers asked him if two females lived there. The officers thought appellant was being evasive because it took him a long time to answer their questions. Appellant also appeared to be nervous. Based on his responses to their questions and his demeanor, the officers could have reasonably believed there were other persons inside the apartment. After smelling the order of marijuana, the officers were justified in entering the apartment under the exigent circumstances exception to the warrant requirement to secure the premises from appellant or other persons who might destroy the marijuana before they could get a search warrant. Once inside the apartment, the officers were justified in conducting a "protective sweep" of the premises to ensure no one could pose a threat to their safety. Cf. Maryland v. Buie, 494 U.S. 325, 337 (1990); Reasor v. State, 12 S.W.3d 813, 815-16 (Tex.Crim.App. 2000). During a protective sweep, officers may seize any evidence that is in plain view. See Laney v. State, 117 S.W.3d 854, 862 (Tex.Crim.App. 2003). During his inspection of the premises, Thompson found firearms in plain view. See Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000) (plain view exception requires that "(1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence."). Accordingly, we conclude that exigent circumstances existed justifying entry into the apartment because a warrant could not be obtained immediately and because any contraband inside the residence was readily destructible. See McNairy, 835 S.W.2d at 107. The circumstances were sufficiently exigent to bring the officers' entry into the apartment within the exception to the warrant requirement under article 14.05 of the Texas Code of Criminal Procedure. We also conclude there was no violation of the Fourth Amendment or Article I, § 9 of the Texas Constitution. The trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's first, second, fourth, and fifth issues are overruled. We do not address appellant's third issue. See Tex.R.App.P. 47.1. We affirm the trial court's judgment.