No. 4-05-00126-CR
Delivered and Filed: October 19, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 4, Bexar County, Texas, Trial Court No. 881962, Honorable Sarah Garrahan-Moulder, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
Opinion by: ALMA L. LÓPEZ, Chief Justice.
The State of Texas appeals the trial court's order granting Joan Daniela Sprigg's motion to suppress evidence pursuant to a warrantless entry into her residence. We affirm.
Background
On April 3, 2004, Officer Bryan Cox and another officer were dispatched to an apartment complex for a loud music complaint. When Cox and the second officer arrived at the scene, they could smell the distinct odor of marijuana. The officers located the apartment that was the subject of the loud music complaint and determined, by standing at the door and sniffing the cracks, that the odor of burning marijuana was coming from that apartment. When the officers knocked on the door, Sprigg answered. The odor of marijuana became more intense and the officers could see smoke coming from the apartment. Without asking permission or gaining consent, the officers walked into the apartment. As they entered the apartment, the officers asked Sprigg who was smoking. Sprigg answered she was the only one smoking. The officers took several steps into the apartment and saw marijuana and rolling papers on the kitchen counter. The items were not visible from outside the apartment. Sprigg was charged by information with possession of marijuana of less than two ounces. Sprigg filed a motion to suppress the evidence seized from her apartment. At the pretrial suppression hearing, the State conceded that the entry into and search of Sprigg's apartment was without benefit of a warrant or consent. The State maintained, however, that the search was valid because it was supported by probable cause and exigent circumstances. Cox testified that he is trained in situations like this to ensure that neither evidence nor contraband is destroyed. When asked whether he reasonably believed that if he did not enter the apartment evidence would be destroyed, Cox responded, "In my experience I have seen it happen." The trial court granted Sprigg's motion to suppress and denied the State's request for findings of fact and conclusions of law. Motion to Suppress
In its sole point of error, the State asserts the trial court erred in granting Sprigg's motion to suppress. The State contends that uncontested evidence established that both probable cause and exigent circumstances existed to justify the police officers' warrantless entry into Sprigg's apartment. We disagree. Standard of Review When reviewing a trial court's ruling on a mixed question of law and fact, such as a motion to suppress, we review de novo the trial court's application of the law of search and seizure to the facts of the case. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Crim.App. 1997). When there are no explicit findings of historical fact, we view the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We uphold the trial court's ruling if it is correct under any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App. 1990). Discussion To justify warrantless entry and search under the exigent circumstances exception, the State must demonstrate that probable cause existed at the time the search was made and exigent circumstances existed that made the procurement of a warrant impractical. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991). Probable cause to search exists if the facts and circumstances known to the officer would allow a person of reasonable caution to believe evidence of a crime will be found. Id. Recently, the Court of Criminal Appeals reiterated that the odor of marijuana, standing alone, is not enough to authorize the warrantless search of a residence. Estrada v. State, 154 S.W.3d 604, 608 (Tex.Crim.App. 2005); see also State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App. 2002). The warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances. Estrada, 154 S.W.3d at 608. To establish the exigent circumstances exception, the State must show circumstances existed that made it reasonable for officers to conclude "evidence would be destroyed . . . before they could obtain a search warrant." McNairy, 835 S.W.2d at 107. Relevant factors in determining the reasonableness of a warrantless entry include: (1) the degree of urgency involved and the amount of time needed to obtain a warrant; (2) reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police officers guarding the site while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware the police are "on their trail"; and (5) the ready destructibility of the contraband. Id. In Estrada v. State and State v. Steelman, the Court of Criminal Appeals addressed similar situations. In Steelman, the police received an anonymous tip that the defendant may have been dealing drugs from his residence. Steelman, 93 S.W.3d at 104. When officers arrived at the residence, they looked through a window and saw four men sitting inside, but saw no evidence of illegal activity. Id. When officers knocked on the door, the defendant opened the door, stepped outside and closed the door behind him. Id. Officers could smell the odor of burning marijuana from inside the residence. Id. When the defendant went inside to retrieve his identification and attempted to close the door behind him, an officer blocked the doorway. Id. at 104-05. Officers entered the residence, handcuffed the four occupants and placed them under arrest. Id. Subsequently, the police obtained a search warrant based on the officers' assertions that they had probable cause to believe the defendants were in possession of marijuana. Id. Ultimately, the Court of Criminal Appeals found that the mere odor of marijuana did not provide the officers with probable cause to believe that the defendant had committed the offense of possession of marijuana in their presence. In Estrada, the Court of Criminal Appeals discussed the distinction between what is necessary to establish probable cause and what is required for officers to conduct a warrantless search of an individual's residence. Estrada, 154 S.W.3d at 608. After reviewing the facts of Steelman, the court stated, "[i]n Steelman, we held that the odor of marijuana alone is not enough to allow officers to conduct a warrantless search." Id. The court went on to explain that a warrantless search of a residence is not allowed unless exigent circumstances exist in addition to probable cause. Id. In Estrada, two minors told a police officer that they drank alcoholic beverages and smoked marijuana at the defendant's residence. Id. at 605. When the officer knocked on the door of the defendant's residence, the officer could hear people inside, but no one answered. Id. After receiving an anonymous call about gunshots nearby, the officer returned to investigate and observed people attempting to leave. Id. at 606. Eventually, the defendant walked out of her house and to the gate at the end of her driveway. Id. The officer smelled alcohol and marijuana on the defendant, who told the officer she had not answered the door because she did not want to go to jail. Id. The officer then followed the defendant to the front door of the residence, which the defendant opened. Id. The officer stepped on the door jam and then into the doorway. Id. From that position, the officer could see the remnants of marijuana cigarettes in an ashtray. Id. When the officer walked through the house to locate other people inside, he saw marijuana on the floor in the bedroom. Id. The court found that, given the additional factors, the officer had probable cause to search the house and that the evidence established that exigent circumstances existed to support the officer's warrantless search of the residence. Id. at 609-10. In the instant case, the State relies on three factors to establish probable cause. First, the State points out that the officers had been dispatched to Sprigg's apartment for a complaint of loud music. Second, the officers smelled the odor of marijuana coming from that same apartment. Finally, when Sprigg opened the door of the apartment to the officers' knock, the officers "could see smoke coming out of the apartment." The State urges that at this point, the officers had probable cause to believe an offense was being committed. Despite being dispatched to the apartment for a loud music call, the record does not provide any evidence that when officers arrived there was a disturbance. Unlike in Estrada, there was no evidence other than the odor of marijuana that any illegal activity was taking place. The State places emphasis on the "marijuana smoke" coming from the apartment when Sprigg opened the door. Cox, however, testified only that "we could see smoke" and the smell became more intense. Despite the State's assertion that Sprigg's reliance on Steelman is misplaced, these facts vary little from Steelman. Cox's testimony shows that at this point in their encounter with Sprigg, the only indication officers had that illegal activity may be happening was the odor of marijuana. Cox testified that "[a]t that point there was contraband in the apartment due to the smell of marijuana." Odor alone, however, does not constitute probable cause that an offense is being committed in an officer's presence. Steelman, 93 S.W.3d at 108-09. The State also argues that exigent circumstances existed, in addition to probable cause, because the smoke coming from the apartment could mean the marijuana was being destroyed. Further, the State asserts that the loud music call indicated the possible presence of additional people in the apartment, which increased the possibility that the marijuana was being destroyed. The possibility that evidence is being destroyed is only one factor in determining whether exigent circumstances exist. Cox testified that he had, in the past, seen evidence destroyed. However, the record does not indicate any circumstances specific to this case that would show police were in any danger, the situation was urgent, the time needed to obtain a warrant was excessive, or that anyone inside the apartment was even aware of police presence. Quite simply, the circumstances in this case do not rise to the level of those in Estrada so as to establish the probable cause and exigent circumstances necessary to support a warrantless entry and search of a residence. Given the record before us, we cannot conclude that the trial court erroneously granted Sprigg's motion to suppress. The State's sole point of error is overruled. The judgment of the trial court is affirmed.