Salinas, Jose Gonsales v. State

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE GONSALES SALINAS,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-01-00193-CR Appeal from the 238th District Court of Midland County, Texas (TC# CR26372)

O P I N I O N

This is an appeal from a conviction for the offense of possession of cocaine.  Appellant pleaded guilty to the court and the court assessed punishment at eight (8) years= community supervision and a fine of $1,500.  For the reasons stated in this opinion, we reverse the judgment of the trial court.

I.  SUMMARY OF THE EVIDENCE

At the hearing on the motion to suppress the evidence, Officer Jesse Franco testified that on October 13, 2000, he was employed by the Andrews Police Department and was assigned to the Trans Pecos Drug Task Force.  On that date he drew up a search and arrest warrant for a house located at 406 Cowden Street in Midland, Texas.  The affidavit in support of the search warrant stated in relevant part:

2.  THERE IS AT SAID SUSPECTED PLACE AND PREMISES, PROPERTY CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF THE STATE OF TEXAS AND DESCRIBED AS FOLLOWS:  COCAINE, PHOTO COPIED CURRENCY.

3.  SAID SUSPECTED PLACE AND PREMISES ARE IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING PERSONS: COSME  ULN W/M, ANGELA ALDACO NAVARRETE DOB 08-02-56 AND PERSON(S) UNKNOWN AT SAID RESIDENCE. 

4.  IT IS THE AFFIANT=S BELIEF AND AFFIANT HEREBY CHARGES AND ACCUSES, THAT:  On or about October 13th, and on or about the above described premises, the above named and/or described individual(s) did then and there, intentionally and knowingly possess against the laws of the State of Texas and were in the possession of A USABLE AMOUNT OF COCAINE.

5.  AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS:

ON FRIDAY, OCTOBER 13, 2000, AFFIANT RECEIVED INFORMATION FROM A CONFIDENTIAL INFORMANT, HERINAFTER (sic) CALLED C.I, WHOSE IDENTITY MUST REMAIN CONFIDENTIAL DUE TO THE FACT THAT DEATH OR SERIOUS BODILY HARM WOULD OCCUR TO C.I. IF IDENTITY WERE DISCLOSED.  C.I. PURSHASED (sic) A USABLE AMOUNT OF COCAINE FROM DESCRIBED PREMISES WITHIN THE LAST 48 HOURS OF THIS DATE.  SAID COCAINE FIELD TESTED POSITIVE FOR COCAINE.  C.I. HAS PURCHASED QUANTITIES OF THE ABOVE NAMED CONTROLLED SUBSTANCE NUMEROUS TIMES IN THE PAST THEREFOR C.I. IS FAMILIAR WITH LOOK, ODOR, AND METHODS BY WHICH COCAINE IS INGESTED INTO THE HUMAN BODY.  ALSO C.I. HAS GIVEN INFORMATION TO AFFIANT WHICH HAS PROVED TRUE, RELIABLE AND CORRECT AT LEAST TWO TIMES.  C.I. HAS PERSONAL KNOWLEDGE THAT RESIDENCE IS OCCUPIED BY ABOVE SUSPECT COSME ULN W/M.  IT IS ALSO AFFIANT=S BELIEF THAT MORE COCAINE EXISTS AT AFORE MENTIONED RESIDENCE.

During the course of his testimony, Franco stated that when he and three other officers executed the search and arrest warrant on October 13, 2000 at 10:55 p.m., they did not Aknock and announce.@  They broke the door down and entered the residence.  Franco testified that:

We believed that if we would have made a knock and announce, we -- evidence may be destroyed or it would have given them time for the suspect to possibly pull a weapon. 

When they entered the house, the officers found Appellant and Angela Navarette inside.  They were subdued and the officers searched the house.  In the bedroom under the bed, they found cocaine in a white napkin.  They found two baggies of cocaine lying in front of the television.  Also in the bedroom were two crack cocaine pipes and a spoon which contained a white powdery substance.  Franco searched Appellant and found two five dollar bills that had been used to purchase cocaine at the house.  Marijuana residue was found in an ashtray on the headboard of the bed.  After one of the other officers saw the residue of a white powdery substance in a red truck belonging to Appellant he consented to a search of the pickup. 

During cross-examination, Franco testified that he had executed five search warrants including the one in the present case.  He had only been executing such warrants for three to four months.  He stated that he was unaware that he was obligated to knock and announce his and the other officer=s presence prior to entering the house.  He had executed all of the other warrants without any prior announcement before entering the house.  Franco stated that it was his understanding that when he obtained a warrant, it was permissible to just break down the door. 

Lieutenant Lorenzo Arredondo testified that he worked for the Reeves County Sheriff=s Department and he was assigned to the Trans Pecos Drug Task Force.  He was Officer Franco=s supervisor.  He arrived at the house five minutes after the door was broken down.  Arredondo assisted in the search of the house.  He testified that he was aware of the requirement to announce before entering a location that is the subject of the search warrant.  He had not instructed Franco regarding this requirement.  Arredondo stated that if there was prior information that a suspect at a residence had weapons, a tactical team would be called out to assist in executing the warrant.  When he arrived at the location, there was no tactical team present.  Arredondo stated that he did not have any specific information that Appellant had weapons in the house. 

II.  DISCUSSION

In Issue No. Two, Appellant asserts that the court erred by overruling his motion to suppress the evidence in that the officers unreasonably executed the search and arrest warrant by failing to properly announce their presence and purpose prior to entry of Appellant=s home.  Ordinarily, we review a trial court=s evidentiary ruling for an abuse of discretion.  See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  In this case, however, we are presented with a question of law based upon undisputed facts.  Therefore, we review de novo whether the trial court correctly applied the law to the undisputed facts.  Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  An appellate court will sustain a judge's ruling that evidence is admissible if there is any basis to support it.  Carter v. State, 700 S.W.2d 289, 291-92 (Tex. App.‑‑Dallas 1985, pet. dism'd).  Therefore, if the record shows a reasonable basis for denying a motion to suppress, the appellate court will uphold it, even if the trial court's grounds for denying the motion were erroneous.  Id.

In Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct.1914, 131 L.Ed2d 976 (1995), the United States Supreme Court held that the Fourth Amendment of the United States Constitution incorporated the common-law requirement that law enforcement personnel entering a dwelling must knock on the door prior to entry and announce their identity and purpose before attempting any forcible entry.  Wilson, 514 U.S at 936, 115 S.Ct at 1919.  In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct 1416, 137 L.Ed.2d 615 (1997), the United States Supreme Court held that it was not permissible to adopt a per se exception to the "knock and announce" principle for felony drug cases.  In doing so, the Richards court acknowledged that felony drug investigations frequently involve both a danger of physical violence to police as well as a danger that evidence will be destroyed.  Richards, 520 U.S. at 394; 117 S.Ct. at 1421.  Despite these general dangers, the Court concluded it was constitutionally impermissible to dispense with the knock and announce requirement based solely on the fact a felony drug search warrant was being executed.  Richards, 520 U.S. at 395, 117 S.Ct. at 1422.  Rather, in each case, an officer must have reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.  Richards, 520 U.S. at 394, 117 S.Ct at 1421.  The standard of showing these circumstances is not high but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged; thereby placing the burden of proof upon the State when such a challenge occurs.  Richards, 520 U.S. at 394-95, 117 S.Ct. at 1422.      After reviewing the record, we conclude the State failed to carry its burden to present facts particularized to this case to show that the police had reasonable suspicion that knocking and announcing would be dangerous or would lead to the destruction of evidence.  The record shows the police did not knock and announce because of generalized concerns about their safety and the destruction of evidence.  There is no indication in the affidavit or the search and arrest warrant of any particularized concern.  Furthermore, our review of the record does not otherwise reveal any particularized circumstances that would justify a no knock entry. Specifically, there was no evidence police had any information that weapons were at the residence or that anyone present at the residence was armed or dangerous.  Franco=s statement of concern about the destruction of evidence and the existence of weapons seems to be a generalized concern; especially given his lack of understanding concerning the requisites of executing a search warrant.  Nor was there any evidence the police had any information regarding the location or amount of drugs such that they could reasonably suspect the drugs could be easily destroyed.  We conclude the State did not show the unannounced entry was justified.  The stated reason for the unannounced entry is constitutionally impermissible.  Thus, the search of Appellant's residence violated the Fourth Amendment.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2002) requires the suppression of all evidence obtained in violation of the United State=s Constitution.  Because the warrant in this case was unlawfully executed, the trial court erred in overruling Appellant's objection and admitting the evidence obtained in the search.

Having found constitutional error in the admission of the evidence, we must reverse the conviction unless we conclude beyond a reasonable doubt that the error made no contribution to the conviction or the punishment.  Tex. R. App. P. 44.2(a).  In this instance, the complained-of evidence includes the cocaine which Appellant was charged with possessing.  As such, the error contributed to Appellant=s conviction.  See McQuarters v. State, 58 S.W.3d 250, 258 (Tex. App--Fort Worth 2001, pet. ref=d).  We sustain Issue No. Two.

Having sustained Appellant=s Issue No. Two, we find it unnecessary to address Issue No. One.  We reverse the judgment of conviction and remand this cause to the trial court for further proceedings consistent with this opinion. 

June 13, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No.3

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)