Barocio, Xavier Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: June 19, 2003
• Docket: 14-01-00944-CR
• Status: Published

Opinion

Reversed and Remanded and Plurality and Dissenting Opinions filed June 19, 2003

Reversed and Remanded and Plurality and Dissenting Opinions filed June 19, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00944-CR

XAVIER HERNANDEZ BAROCIO, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________

On Appeal from the County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 1050094

P L U R A L I T Y   O P I N I O N

            Following the denial of his motion to suppress, appellant Xavier Hernandez Barocio pleaded no contest to possession of marijuana.  He contends on appeal that the trial court should have suppressed the marijuana because police discovered it after entering his home without a warrant.  We find that the trial court should have suppressed the marijuana.  Accordingly, we reverse and remand.

                                                               Background

            While on patrol, Harris County Deputy Wyatt noticed a car parked on the road, facing the wrong direction, with its driver’s door open, and the keys in the ignition.  He and Deputy Kirsch approached the home nearest the car to investigate.  As they approached the front porch, they saw pry marks on the front door and a surveillance camera aimed at the front door. 

            Deputy Wyatt testified that they knocked and waited several minutes before Barocio answered.  He testified that he could smell burnt marijuana as he stood outside the door.  According to Deputy Wyatt, when Barocio opened the door, the marijuana odor became stronger.  They asked for identification, but Barocio refused to provide it.  Thus, Deputy Wyatt testified that he detained Barocio on the porch while Deputy Kirsch entered the home to conduct a protective sweep and investigate the odor of marijuana.  Deputy Wyatt further testified that when they asked for identification, they were investigating only the odor of marijuana.

            Deputy Kirsch’s version differed in some respects to Deputy Wyatt’s testimony.  He testified that he first smelled marijuana when Barocio opened the door.  Deputy Kirsch stated that he told Barocio to step outside and asked for his identification.  Barocio indicated that his identification was inside the home.  Deputy Kirsch testified that he then instructed Barocio to retrieve the identification.  According to Deputy Kirsch, when Barocio entered the home, he and Deputy Wyatt followed without consent.  Once inside, Deputy Kirsch could see a bag of marijuana lying on the kitchen counter.  At that point, Deputy Kirsch conducted a protective sweep of the remainder of the home.  He testified that “the principle reason” he entered the home “was the strong odor of burning marijuana inside.”  The “secondary reason” was to obtain identification in connection with his suspicion that Barocio was a burglar.

            Finally, Barocio testified that the deputies asked him to step outside to see his driver’s license and insurance card.  As he stepped onto the porch, he closed the front door behind him.  He testified that Deputy Kirsch nonetheless entered the home without permission.  When Barocio protested and grabbed his cellular telephone to call his lawyer, Deputy Wyatt took away the telephone and handcuffed him.  He further testified that he never entered his home with the officers.  Barocio admitted that the marijuana was lying on the kitchen counter, but testified that it was not visible from the front door.  Barocio further admitted that he had smoked some of the marijuana the night before.

            After discovering the bag of marijuana in the kitchen, the deputies obtained a search warrant through Deputy Kevin Montford.  Because of statements by Deputy Wyatt, Deputy Montford averred that the officers first saw the marijuana in plain view while standing outside the home.  However, this line of sight was later proved impossible, and Deputy Wyatt testified at trial that he did not see the marijuana until after the search warrant was issued.  Further, Deputy Wyatt testified that it was Deputy Kirsch who provided the information about the bag of marijuana to Deputy Montford for the search warrant.

                                                       Standard of Review

            We review a trial court’s ruling on a motion to suppress for abuse of discretion.  Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993).  Accordingly, we give great deference to the trial court’s determination of historical facts supported by the record.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1991).  We afford the same amount of deference to the trial court’s rulings on “mixed questions of law and fact,” such as the issue of probable cause, if the resolution of those ultimate questions turns on evaluation of witnesses’ credibility and demeanor.  Id.  If a mixed question of law and fact does not turn on an evaluation of credibility and demeanor, we review the ruling de novo.  Id.  Thus, “[w]hen faced with an issue of  mixed law and fact, the critical question under Guzman is whether it ‘turns’ on an evaluation of credibility and demeanor.”  Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).  A question “turns” on an evaluation of credibility and demeanor where the testimony of one or more witnesses, if believed, is enough to establish what is needed to decide the substantive issue.  Id.

            The decision in this case does not turn on the credibility and demeanor of the witnesses because the testimony, even if entirely believed, is insufficient to justify the warrantless entry into appellant’s home.  Therefore, we review the trial court’s ruling de novo.

                                                      Warrantless Search

            The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution forbid unreasonable searches and seizures.  “‘(P)hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”  Spring v. State, 626 S.W.2d 37, 41 (Tex. Crim. App. 1981) (quoting United States v.

United States Dist. Court

for E. Dist. Of Mich., 407 U.S. 297, 313 (1972)); see State v. Steelman, 16 S.W.3d 483, 488 (Tex. App.—Eastland 2000), aff’d, 93 S.W.3d 102 (Tex. Crim. App. 2002) (a private dwelling is a sacrosanct place in search and seizure law).  Thus, the Fourth Amendment draws a firm line at the entrance to the house.  Green v. State, 78 S.W.3d 604, 608–09 (Tex. App.—Fort Worth 2002, no pet.) (citing Payton v. New York, 445 U.S. 573, 590 (1980)).  No evidence obtained in an unreasonable search and seizure may be admitted at trial.  See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Pamph. 2003).  A warrantless search is per se unreasonable, subject to a few specifically established exceptions.  Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).  These exceptions are “jealously and carefully drawn.”  Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971); Jones v. United States, 357 U.S. 493, 497 (1958).

            One such exception is a search conducted with probable cause and exigent circumstances, which make obtaining a warrant impracticable.  McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991).  “Probable cause to search 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.”  Id.  On appellate review, a warrantless search based on probable cause may require evidence of a more “judicially competent or persuasive character” than a search based upon a magistrate’s determination of probable cause.  Aguilar v. Texas, 378 U.S. 108, 111 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1983).  Thus, facts which might constitute issuance of a warrant for probable cause do not necessarily validate a search made without a warrant.  Id.  “Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the [Fourth] Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”  Johnson v. United States, 333 U.S. 10, 13–14 (1948) (holding that odor of burning opium did not excuse necessity of obtaining a warrant to search).^[1]

            In keeping with this rationale, the Texas Court of Criminal Appeals has recently held that  “[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.”  State v. Steelman, 93 S.W.3d at 108.  In Steelman, police received a tip that drug dealing was taking place at the defendants’ residence.  The police knocked on the door and, when one defendant opened the door, smelled the odor of burnt marijuana.  Id. at 103.  As with Barocio, the defendant who answered the door stepped outside.  As with Barocio, the police asked the defendant for identification.  As with Barocio, when he turned and entered the home, the police entered the home behind him without consent.  Id. at 104. Once inside, the police arrested the defendant and the other occupants of the home.  The court held that the odor of marijuana did not give police probable cause for the arrest.  Id. at 108.  Similarly, in applying Steelman to this case, we hold that the odor of marijuana alone did not provide probable cause for the warrantless entry into Barocio’s home.

            The dissent engages in lengthy commentary about the plain smell of marijuana, citing cases from New Jersey, Wisconsin, Ohio, and California.  We acknowledge the academic and judicial debate about the “plain smell” doctrine.^[2]   Nonetheless, it is merely an academic exercise for an intermediate court to initiate such a debate when the issue has been decided by our state’s highest criminal court.

            Further, the dissent devises both probable cause and exigency by pairing the marijuana odor with suspicions that Barocio was a burglar.^[3]  Certainly, police can enter a home to investigate a burglary-in-progress.  See In re J.D., 68 S.W.3d 775 (Tex. App.—San Antonio 2001, pet. denied) (two teens with a rifle seen entering yard from alley; police see signs of burglary at home and hear people within, though no one responded to police’s shouts).  However, in none of the dissent’s cases did the police enter to investigate a burglary after detaining the sole suspect.^[4]  If the officers had articulated facts reasonably showing other persons were in Barocio’s home, whether victims or accomplices, no doubt the State would have argued on appeal the emergency doctrine, which is the basis of the cases cited by the dissent.^[5]  See Brimage v. State, 918 S.W.2d 466, 500–01 (Tex. Crim. App. 1994).^[6]  The dissent’s stance also ignores the State’s concession at trial that investigation of a possible burglary did not provide officers justification to enter Barocio’s home.^[7]  Coupling odor and burglary suspicions, when the sole suspect has been detained, is simply a red herring.^[8]

            Finally, the dissent finds exigency in the “likelihood” that the marijuana would have been destroyed if police left to obtain a warrant.  Having held there was no probable cause for the warrantless search, we need not address exigency.  However, we note that preventing the destruction of evidence or contraband can be an exigent circumstance.  McNairy, 835 S.W.2d at 107.  To show such exigency, there must be evidence that “the police could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant.”  Covarrubia v. State, 902 S.W.2d 549, 553 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).  The dissent reasons that Barocio became aware of police presence when he emerged from his home and might of then disposed of the marijuana if they left to obtain a warrant.  We note, however, that the police never left Barocio’s home while they obtained a search warrant, which a third officer delivered.  During their short wait, the police detained Barocio in the back of a police car.  The dissent also reasons that the odor of burnt marijuana indicated that the evidence was in the process of being destroyed.  However, “the presence of drugs alone does not give rise to exigent circumstances justifying a warrantless entry and search.”  United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).  There must be facts from which police could have reasonably concluded the marijuana was in danger of destruction.  In fact, the officer who delivered the search warrant to Barocio’s home testified there was no rush because Barocio had been detained.  Lastly, the dissent cannot find exigency through the possible destruction of evidence when police send a defendant inside for identification.  Exigent circumstances do not pass Fourth Amendment muster if the police deliberately create them.  United States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993).

            The dissent has valiantly attempted to factually distinguish Steelman and Johnson.  However, attempting to factually distinguish Steelman from the instant case “leaves the people’s homes secure only in the discretion of police officers.”  Johnson, 333 U.S. at 13–14.  Following Steelman, which is the law in Texas, and Johnson, from our nation’s highest court, we hold there was no probable cause for the warrantless search of Barocio’s home.

                                                     Inevitable Discovery

            Although the bag of marijuana was discovered during the officers’ improper entry, the State nonetheless contends that it was seized in good faith reliance on a facially valid search warrant issued by a neutral magistrate based on probable cause.  See Tex. Code Crim. Proc. Ann. art. 38.23(b) (Vernon Pamph. 2003).  This argument implicitly asks us to find two things: (1) the warrant was valid despite untruths in the affidavit through which it was procured^[9] and (2) its execution would have inevitably led to discovery of the marijuana.

            The inevitable discovery doctrine is an exception to the federal exclusionary rule by which evidence is admissible if the prosecution can establish that it inevitably would have been discovered by lawful means.  Price v. State, 93 S.W.3d 358, 370 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (op. on reh’g).  However, there is no inevitable discovery doctrine under  the Texas exclusionary rule.  State v. Daugherty, 931 S.W.2d 268, 269 (Tex. Crim. App. 1996).  “Once the illegality and its causal connection to the evidence have been established, the evidence must be excluded.”  Id. at 270.  We thus decline to apply the inevitable discovery doctrine here.

                                                 Attenuation of the Taint

            Lastly, the State contends that any taint caused by the initial, warrantless entry was attenuated by the subsequently procured search warrant.  See Johnson v. State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994) (permitting attenuation doctrine under Texas exclusionary rule).  The State did not argue the attenuation doctrine at the suppression hearing.  It cannot raise this theory for the first time on appeal.  Steelman, 93 S.W.3d at 106–07; see Sedani v. State, 848 S.W.2d 314, 318–21 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (op. on reh’g).

                                                                Conclusion

            Following Steelman, we hold that the odor of marijuana did not give deputies probable cause for warrantless entry into Barocio’s home.  Because the bag of marijuana was the fruit of an illegal search, the trial court should have suppressed evidence of it.  See Wong Sun v. United States, 371 U.S. 471, 488 (1963) (holding that under the “fruit of the poisonous tree” doctrine, evidence derived directly or indirectly from illegal governmental activity is excluded as trial evidence).  Further, evidence about the bag of marijuana may not be admitted under inevitable discovery or attenuation-of-the-taint doctrines.  Accordingly, we sustain Barocio’s issues, reverse his conviction, and remand to the trial court for further proceedings consistent with this opinion.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Plurality and Dissenting Opinions filed June 19, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.  (Edelman, J. concurs in result only.  Guzman, J. dissenting.)

Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”  Johnson, 333 U.S. at 14; see Steelman, 93 S.W.3d at 112–13 (Cochran, J., concurring) (quoting Johnson).

            ^[2]  See, e.g., Michael A. Sprow, Comment, Wake Up and Smell the Contraband: Why Courts that Do Not Find Probable Cause Based on Odor Alone Are Wrong, 42 Wm. & Mary L. Rev. 289 (2000).  The author largely relies upon cases in which contraband was smelled in cars, and he naively opines, “[W]arrantless searches of a home or other building will not be widespread in a plain smell jurisdiction.”  Id. 315.

            ^[3]  The dissent invents an all-inclusive burglary investigation.  In contrast, the testimony shows that Officer Kirsch’s burglary investigation was limited to obtaining Barocio’s identification.

            ^[4]  An investigative detention allows an officer to determine a person’s identity or maintain the status quo while the officer obtains more information.  Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

            ^[5]  Officer Kirsch looked through the remainder of the home because “it’s just protocol.”  The dissent airily excuses a total lack of evidence that he reasonably believed others were present in the home.  In so doing, the dissent tosses aside search and seizure law, issues an advisory opinion, and permits matter-of-course exigency on the presumption that all suspected burglars are “predators.”  Compare United States v. Erickson, 991 F.2d 529, 533 (9th Cir. 1993) (no search permitted for community caretaking where police peered in burglarized home and observed marijuana plants) with In re Sealed Case 96-3167, 153 F.3d 759, 767 (D.C. Cir. 1998) (exigency existed because of danger posed by suspected burglar whom police observed force entry and whom they chased up the home’s darkened staircase) (both cases cited by dissent).

            ^[6]  The emergency doctrine allows a warrantless search where police have “reasonable cause to believe that, absent an immediate search, serious bodily harm or death may result.”  Brimage, 918 S.W.2d at 500–01. 

            ^[7]  The State argued that if police smell marijuana while investigating a different crime, police can enter a home based on the odor.  The State concluded, “So then we really have two reasons for the case for them to enter.  One, the investigation of the burglary.  That doesn’t get them in but the odor of marijuana then lets them in the door.”

            ^[8]  The dissent invites us to unnecessarily distinguish particular cases and particular facts.  We decline to engage in countless rejoinders.  We also decline to release an advisory opinion about whether a car parked with its driver’s door open, pry marks on a door, and a surveillance camera give police probable cause and exigency to search absent detention of the suspected burglar.  Despite citing an “exhaustive” article about burglary as an exigent circumstance, the dissent still fails to provide a single case permitting entry in a home after police detain the sole suspect.

            ^[9]   Deputy Montford averred that Deputy Wyatt saw the marijuana in plain view while standing on Barocio’s front porch.  Photographs at trial proved that such a line of sight was impossible, and Deputy Wyatt denied observing the marijuana before the search warrant was issued.  Further, Deputy Montford recited that one of the officers observed smoke in the home, which was untrue.