AFFIRM; and Opinion Filed November 13, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00931-CR
DAPHNE HICKS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-34378-N
MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Evans Opinion by Justice O’Neill The State charged appellant Daphne Hicks with possession of five pounds or less but
more than four ounces of marijuana. Appellant filed a motion to suppress, which the trial court
denied. He then pleaded not guilty and proceeded to trial. The jury returned a guilty verdict.
The trial court assessed two years’ confinement in state jail, probated for five years, with the
condition of serving 180 days in jail. In a single issue, appellant challenges the trial court’s
denial of his motion to suppress. The State responds officers acted appropriately under the
emergency doctrine exception to a warrantless entry into a home. We affirm the trial court’s
judgment.
Background
On May 5, 2011, Officers Jonathan Rowan and Ryan Turner responded to a suspected
domestic violence call at an apartment complex in Irving. The police dispatch told officers an anonymous neighbor reported screaming and arguing from inside the apartment. Officers were
familiar with the apartment because they had responded to another domestic call a few months
earlier.
Upon arrival, officers heard a male voice “yelling and cussing very loudly” at someone.
Although dispatch reported the presence of a male and female, Officer Rowan did not hear a
woman’s voice. He only heard the male yelling. Officer Rowan testified he was concerned for
the person being yelled at, and he believed the person could have been hurt. They also smelled
the strong scent of burnt marijuana coming from the apartment.
After about a minute, officers knocked on the door. Officer Rowan testified it
immediately got quiet; however, he could hear someone moving and shuffling things inside.
Officer Rowan then tried to look through the peep hole but could not see anything. Given the
nature of the situation, he decided to unscrew the peephole, push it inside the door, and then look
inside the apartment. He testified the apartment was in complete disarray. Officers knocked
again, announced themselves as police, and said someone needed to answer the door or they
would force it open. Officer Rowan knocked four or five more times before appellant opened
the door about a foot. The marijuana smell was even stronger after appellant opened the door.
When asked about the situation, appellant said nothing was going on. Officers asked for
consent to enter the apartment, but appellant refused. Officer Rowan then told appellant to step
back because he did not have a choice. Officers than entered the apartment.
Several other investigating officers testified it was obvious that an argument had taken
place inside the apartment. Broken glass covered the floor. Chairs were flipped upside down,
and the bed had been pulled out into the hallway. They also saw a female passed out on the
couch.
–2– Within plain view, officers also observed marijuana cigarettes on the kitchen island, a
grinder, a digital scale manual, and tin foil cut into squares. Appellant was arrested for
possession of drug paraphernalia and taken to jail. Officers then requested a search warrant.
Upon execution of the warrant, officers found money, pill bottles, and marijuana in the bedroom
closet. Appellant was later charged with possession of five pounds or less but more than four
ounces of marijuana.
During the suppression hearing, appellant argued Officer Rowan violated his rights
against unreasonable searches and seizures when he unscrewed the peep hole and looked inside
without a warrant or any justifiable exception to a warrantless entry. The State argued given the
nature of the call–responding to domestic violence–officers acted accordingly under the
emergency doctrine.
The trial court agreed with the State and denied appellant’s motion. Although the court
did not enter findings of fact and conclusions of law, it stated the following on the record in
support of its denial:
The Court is of the opinion that under the Texas law the rights of the State to protect its citizens under the police power of the State has to be balanced upon the citizen’s constitutional rights in the home in this case. The Court is of the opinion that the actions of the police department are justified as being that required by an emergency situation, and the public policy of the State to protect women in family violence situations.
This appeal followed.
Standard of Review and Applicable Search and Seizure Law
We apply a bifurcated standard of review to the trial court’s ruling on a motion to
suppress evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford
almost total deference to the trial court’s determination of historical facts and apply a de novo
review to the trial court’s application of the law to the facts. Id. The trial court is the sole trier of
fact, the judge of witness credibility, and the weight to be given to witness testimony. Id. When,
–3– as here, the trial court does not make explicit findings of fact, the appellate court must view the
evidence in the light most favorable to the trial court’s ruling and assume the trial court resolved
any issues of historical fact or credibility consistently with its ultimate ruling. Id. The trial
court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support
in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
Both parties agree this case turns on whether the “emergency-aid” doctrine applies. This
doctrine holds that the “Fourth Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe that a person within is in need of immediate
aid.” Laney v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003). Unlike the exigent
circumstances doctrine, the emergency doctrine applies when the police act in their community
caretaking role, and the doctrine is limited to the caretaking functions of protecting or preserving
life or avoiding serious injury. Shepherd v. State, 230 S.W.3d 738, 742 (Tex. App.—Houston
[14th Dist.] 2007), aff’d, 273 S.W.3d 681 (Tex. Crim. App. 2008).
To determine whether a warrantless search was justified under the emergency doctrine,
we apply an objective standard based on the police officer’s conduct and the facts and
circumstances known to the officer at the time of the search. Id. The officer must have a
reasonable belief that he must act to preserve life or avoid serious injury. Laney, 117 S.W.3d at
861. The search must be strictly circumscribed by the exigencies which justify its initiation, and,
if the doctrine applies, the police may seize evidence in plain view. Shepherd, 230 S.W.3d at
742.
Discussion
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AFFIRM; and Opinion Filed November 13, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00931-CR
DAPHNE HICKS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-34378-N
MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Evans Opinion by Justice O’Neill The State charged appellant Daphne Hicks with possession of five pounds or less but
more than four ounces of marijuana. Appellant filed a motion to suppress, which the trial court
denied. He then pleaded not guilty and proceeded to trial. The jury returned a guilty verdict.
The trial court assessed two years’ confinement in state jail, probated for five years, with the
condition of serving 180 days in jail. In a single issue, appellant challenges the trial court’s
denial of his motion to suppress. The State responds officers acted appropriately under the
emergency doctrine exception to a warrantless entry into a home. We affirm the trial court’s
judgment.
Background
On May 5, 2011, Officers Jonathan Rowan and Ryan Turner responded to a suspected
domestic violence call at an apartment complex in Irving. The police dispatch told officers an anonymous neighbor reported screaming and arguing from inside the apartment. Officers were
familiar with the apartment because they had responded to another domestic call a few months
earlier.
Upon arrival, officers heard a male voice “yelling and cussing very loudly” at someone.
Although dispatch reported the presence of a male and female, Officer Rowan did not hear a
woman’s voice. He only heard the male yelling. Officer Rowan testified he was concerned for
the person being yelled at, and he believed the person could have been hurt. They also smelled
the strong scent of burnt marijuana coming from the apartment.
After about a minute, officers knocked on the door. Officer Rowan testified it
immediately got quiet; however, he could hear someone moving and shuffling things inside.
Officer Rowan then tried to look through the peep hole but could not see anything. Given the
nature of the situation, he decided to unscrew the peephole, push it inside the door, and then look
inside the apartment. He testified the apartment was in complete disarray. Officers knocked
again, announced themselves as police, and said someone needed to answer the door or they
would force it open. Officer Rowan knocked four or five more times before appellant opened
the door about a foot. The marijuana smell was even stronger after appellant opened the door.
When asked about the situation, appellant said nothing was going on. Officers asked for
consent to enter the apartment, but appellant refused. Officer Rowan then told appellant to step
back because he did not have a choice. Officers than entered the apartment.
Several other investigating officers testified it was obvious that an argument had taken
place inside the apartment. Broken glass covered the floor. Chairs were flipped upside down,
and the bed had been pulled out into the hallway. They also saw a female passed out on the
couch.
–2– Within plain view, officers also observed marijuana cigarettes on the kitchen island, a
grinder, a digital scale manual, and tin foil cut into squares. Appellant was arrested for
possession of drug paraphernalia and taken to jail. Officers then requested a search warrant.
Upon execution of the warrant, officers found money, pill bottles, and marijuana in the bedroom
closet. Appellant was later charged with possession of five pounds or less but more than four
ounces of marijuana.
During the suppression hearing, appellant argued Officer Rowan violated his rights
against unreasonable searches and seizures when he unscrewed the peep hole and looked inside
without a warrant or any justifiable exception to a warrantless entry. The State argued given the
nature of the call–responding to domestic violence–officers acted accordingly under the
emergency doctrine.
The trial court agreed with the State and denied appellant’s motion. Although the court
did not enter findings of fact and conclusions of law, it stated the following on the record in
support of its denial:
The Court is of the opinion that under the Texas law the rights of the State to protect its citizens under the police power of the State has to be balanced upon the citizen’s constitutional rights in the home in this case. The Court is of the opinion that the actions of the police department are justified as being that required by an emergency situation, and the public policy of the State to protect women in family violence situations.
This appeal followed.
Standard of Review and Applicable Search and Seizure Law
We apply a bifurcated standard of review to the trial court’s ruling on a motion to
suppress evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford
almost total deference to the trial court’s determination of historical facts and apply a de novo
review to the trial court’s application of the law to the facts. Id. The trial court is the sole trier of
fact, the judge of witness credibility, and the weight to be given to witness testimony. Id. When,
–3– as here, the trial court does not make explicit findings of fact, the appellate court must view the
evidence in the light most favorable to the trial court’s ruling and assume the trial court resolved
any issues of historical fact or credibility consistently with its ultimate ruling. Id. The trial
court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support
in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
Both parties agree this case turns on whether the “emergency-aid” doctrine applies. This
doctrine holds that the “Fourth Amendment does not bar police officers from making warrantless
entries and searches when they reasonably believe that a person within is in need of immediate
aid.” Laney v. State, 117 S.W.3d 854, 860 (Tex. Crim. App. 2003). Unlike the exigent
circumstances doctrine, the emergency doctrine applies when the police act in their community
caretaking role, and the doctrine is limited to the caretaking functions of protecting or preserving
life or avoiding serious injury. Shepherd v. State, 230 S.W.3d 738, 742 (Tex. App.—Houston
[14th Dist.] 2007), aff’d, 273 S.W.3d 681 (Tex. Crim. App. 2008).
To determine whether a warrantless search was justified under the emergency doctrine,
we apply an objective standard based on the police officer’s conduct and the facts and
circumstances known to the officer at the time of the search. Id. The officer must have a
reasonable belief that he must act to preserve life or avoid serious injury. Laney, 117 S.W.3d at
861. The search must be strictly circumscribed by the exigencies which justify its initiation, and,
if the doctrine applies, the police may seize evidence in plain view. Shepherd, 230 S.W.3d at
742.
Discussion
In his sole issue, appellant argues the trial court erred by denying his motion to suppress
because Officer Rowan violated his Fourth Amendment right against an unlawful search and
seizure when he unscrewed the peephole on the front door and looked inside without a warrant.
–4– He argues the emergency aid exception “requires probable cause to suspect an offense and facts
known to the officers that are not as consistent as innocent activity as criminal activity.”
(emphasis in original). He asserts screaming and yelling alone is as consistent with non-criminal
communication as with criminal activity and cannot justify a warrantless entry into a home.
Further, he states the smell of marijuana emanating from the apartment cannot support probable
cause to justify a warrantless entrance into his home.
We begin by noting appellant is asserting an inaccurate standard of review and an
overruled, inapplicable doctrine of law. The application of the emergency aid doctrine does not
require an officer to have probable cause that an offense is in progress. Rather, the officer must
have a reasonable belief, given the known circumstances, that he must act to preserve life or
avoid serious injury. Laney, 117 S.W.3d at 861. This does not rise to the level of probable
cause. See, e.g., State v. Simmang, 945 S.W.2d 219, 223 (Tex. App.—San Antonio 1997, no
pet.) (“Reasonable suspicion is a less demanding standard than probable cause because it can be
established with information that is different in quantity or content and even less reliable than
that required to show probable cause.”). Further, the Texas Court of Criminal Appeals has
determined the “as consistent with innocent activity as with criminal activity” construct is no
longer a viable test for determining reasonable suspicion. See Woods v. State, 956 S.W.2d 33,
38–39 (Tex. Crim. App. 1997). Rather, one must consider the totality of the circumstances. Id.
at 38. However, even if the doctrine remained viable, it developed in the realm of temporary
detentions, which does not apply to the present facts. Accordingly, we shall review the totality
of the circumstances, as known to the officers at the time, and determine whether Officers
Rowan and Turner had a reasonable belief they needed to remove the peep hole because of an
emergency situation.
–5– When Officers Rowan and Turner arrived at appellant’s apartment, they had received
information from a 9-1-1 dispatcher that an anonymous caller reported hearing his female
neighbor “screaming” and a male was “probably hitting” the female. A short time passed
between the 9-1-1 call and the officers’ arrival.
Upon their arrival, they only heard a male voice inside yelling. They knocked on the
door multiple times and announced, “Police.” The yelling then abruptly stopped, and they heard
things shuffling around the apartment. Officer Rowan testified due to the nature of the call, “it
was my thought, standing outside there, there could be someone inside hurt.” He believed he
was dealing with a situation in which there was a possibility of serious bodily injury or death
occurring. He specifically testified that because he could only hear the male voice screaming, he
was concerned the female might be unconscious and could not yell for help. Officer Turner also
testified he was concerned when they only heard one voice that the other person inside was
“either unconscious or injured or worse.” Thus, officers unscrewed the peep hole to see if
anyone inside was injured. Officer Rowan further admitted he removed the peep hole rather than
kicking in the door because he was trying to minimize damage and expense for the apartment
complex.
Officer Rowan continued to emphasize throughout his testimony his main concern was
“to make sure there was no one inside that needed assistance,” and the smell of marijuana or the
investigation of any drug activity was not the reason for their presence at the apartment. They
were investigating a possible domestic dispute. Officer Turner testified that given his past
experiences, he had forced entries on domestic calls when the situation was of a safety concern.
Reviewing the totality of the circumstances in the light most favorable to support the trial
court’s judgment, we conclude the trial court did not abuse its discretion in determining the
emergency aid doctrine applied to these facts. Accordingly, appellant’s sole issue is overruled.
–6– Conclusion
We affirm the trial court’s judgment.
/Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE
Do Not Publish TEX. R. APP. P. 47
120931F.U05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAPHNE HICKS, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-12-00931-CR V. Trial Court Cause No. F11-34378-N. Opinion delivered by Justice O’Neill. THE STATE OF TEXAS, Appellee Justices Lang-Miers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of November, 2013.
/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE
–8–