No. 05-10-00703-CR
Opinion Filed June 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F09-33990-Y.
Before Justices RICHTER, LANG, and FILLMORE.
Opinion By Justice LANG.
After the trial court denied Sol David Barron's motion to suppress evidence, he pleaded guilty to possession of methamphetamine in an amount of one gram or more but less than four grams and true to one enhancement paragraph. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on four years' community supervision, and assessed a $2000 fine. In his sole issue on appeal, appellant contends the trial court erred by denying his motion to suppress. We affirm the trial court's judgment.
Background
Appellant filed a pretrial motion to suppress asserting the actions of the Irving Police Department violated his constitutional and statutory rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. Specifically, appellant claimed he was arrested "without valid warrant, probable cause, or other lawful authority." Appellant sought to have supressed any tangible evidence seized, appellant's arrest, as well as all evidence related to the arrest, and any testimony by law enforcement officers regarding appellant's actions while in detention or under arrest. Irving police officer Rudy Chavez testified at the suppression hearing that on June 13, 2009, at about 11:19 a.m., he and another officer were dispatched to the Best Western Hotel off of Airport Freeway regarding a domestic disturbance in one of the rooms. The call regarding the disturbance was made by a hotel clerk. When they arrived at the hotel, the officers went directly to the room that was indicated in the call notes. Chavez knocked on the door and a woman answered. The woman did not appear to have any injuries and did not appear to be in distress. Chavez testified he was standing to the left edge of the door. While still outside the room, Chavez saw a man, whom Chavez identified as appellant, sitting on a sofa in the room. Chavez also saw a bong, which he identified as drug paraphernalia, on the television stand inside the room, and he noticed a strong odor of marijuana. Chavez explained the officers were responding to a domestic disturbance call. Chavez told the occupants of the room that the officers were going to enter the room. Chavez testified that the officers entered the room to investigate the domestic disturbance and because of the bong and the odor of marijuana. Chavez initially did a pat down of appellant for weapons. Chavez also ran a warrants check on appellant and discovered there were outstanding warrants for appellant from Grand Prairie. After confirming the warrants were valid, Chavez arrested appellant on the warrants. When searching appellant incident to the arrest, Chavez found a bag with methamphetamine in appellant's pocket. Amanda Jackson testified that she and appellant had stayed at the hotel because there was a several-day power outage at their home due to "rain and stuff." At 11:19 a.m. on June 13, 2009, she and appellant were getting ready to check out of the hotel. She testified that their efforts were continually interrupted by hotel housekeepers who came to the room to ascertain when they were leaving. Then, two officers came to the door. Jackson testified she did not take her hand off the doorknob. The officers gained entry to the room when one started "stepping his way in." Jackson testified the officers did ask if they could enter the room, but she told him she would "prefer them not to." The officers basically pushed her out of the way to get into the room, and she did not give her permission for them to enter. Jackson further testified that the pictures admitted as Defendant's Exhibit nos. 1 and 2 show the hotel room door open wider than it was when she stood in the doorway, but Defendant's Exhibit no. 3 shows her in the doorway as she would have been on June 13, 2009. She testified the bong was on the television and it was not visible from outside the room. Jackson said there was no odor of marijuana in the hotel room. After the officers entered the room, one patted down appellant for weapons. The officer kept his hand on appellant's pocket and said, "Oh, what's this?" The officer called on his radio. Jackson said she could overhear the officer's supervisor say something like, "Well, call Grand Prairie and see if you can make them active." The officers ultimately arrested appellant on the warrants and then searched him. After appellant was removed from the hotel room, the officers asked Jackson if there was anything else in the room. She replied no, and denied them permission to search the room. However, the officers told her she was not free to leave and they would get a warrant if she refused permission. So, Jackson said, "Fine, go ahead.", and they "tore the whole room apart." Jackson testified she and appellant had smoked marijuana the night before, but not that morning. She also testified she and appellant had a "little argument," which the housekeepers would have heard if they were right outside the door. At the conclusion of the hearing, the trial judge denied the motion to suppress. Applicable Law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Under this standard, we afford almost total deference to a trial court's determination of historical facts. See Hubert, 312 S.W.3d at 559; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact and the sole judge of the credibility of witnesses and the weight to be given their testimony. See Valtierra, 310 S.W.2d at 447. The judge is free to believe or disbelieve all or part of a witness's testimony because he has the opportunity to observe the witness's demeanor and appearance. See id. We review de novo the trial court's application of the law of search and seizure to the facts of the case before it. See Hubert, 312 S.W.2d at 559; Guzman, 955 S.W.2d at 89. When the trial court does not make express findings of fact, we must view the evidence in the light most favorable to the ruling and assume the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record. See Valtierra, 310 S.W.3d at 447. "We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case." State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). There is a strong preference for searches to be administered pursuant to a warrant. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). In order to justify a warrantless search, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impossible. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause exists when there are reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene that would lead a man of reasonable prudence to believe that the instrumentality or evidence of a crime will be found. Id. In determining whether there was probable cause, we view the totality of the facts and circumstances and the reasonable inferences that could be drawn by the officer. See id. at 107. There is a distinction between what is necessary to establish probable cause and what is required for an officer to conduct a warrantless search of a residence. See Estrada v. State, 154 S.W.3d 604, 608 (Tex. Crim. App. 2005). In addition to probable cause, there must exist exigent circumstances for the officer to make a warrantless entry into the home. See id. Situations creating exigent circumstances usually include factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence. McNairy, 835 S.W.2d at 107. Analysis
Conflicting testimony was presented during the suppression hearing. The officers responded to a call from hotel staff of a domestic disturbance in appellant's room. Chavez testified that after Jackson opened the door, he saw a bong on the television and smelled a strong odor of marijuana. Jackson denied the bong was visible from Chavez's vantage point outside of the room. Jackson admitted she and appellant had smoked marijuana the night before, but denied there was an odor of marijuana in the room on the morning of June 13, 2009. The trial judge resolved the conflict in favor of the State. The presence of the drug paraphernalia in plain view and the odor of marijuana were sufficient to give the officers probable cause to believe a crime was being committed in their presence. See Estrada, 154 S.W.3d at 609. As to exigent circumstances, Chavez testified he entered the hotel room both because of the domestic disturbance call and because of the presence of drug paraphernalia and the odor of marijuana. Although Chavez did not see any bruises or scratches on Jackson when she opened the door, in light of the information he had, Chavez could have reasonably believed it was necessary to enter the room to prevent injury arising from a domestic disturbance. Thus, based on the totality of these circumstances, we conclude the record shows exigent circumstances justified the officers' entry into the hotel room. See id. at 610; McNairy, 835 S.W.2d at 107. Once inside the room, Chavez identified appellant and conducted a pat down search for weapons. See Terry v. Ohio, 392 U.S. 1, 18-19 (1968). Chavez testified appellant did not have any weapons and Chavez did not discover any contraband during the pat down. Chavez testified that once he confirmed there were outstanding warrants for appellant's arrest, he conducted a search incident to the arrest; this was when Chavez found the methamphetamine. Jackson testified the officer conducting the pat down commented, "What's this," and kept his hand on appellant's pocket. Once the officer made sure the warrant was active, he took the methamphetamine out of appellant's pocket. The trial court again resolved this conflict in the State's favor. The search of appellant's person incident to arrest under a valid warrant was permissible under established Fourth Amendment law. See United States v. Robinson, 414 U.S. 218, 236 (1973). Moreover, upon discovering the bag in appellant's pocket, Chavez was entitled to inspect it. See id. Finally, when the inspection revealed the bag contained methamphetamine, Chavez was entitled to seize it as "`fruits, instrumentalities, or contraband' probative of criminal conduct." Id. Conclusion
Having reviewed the entire record under the proper standard, we conclude the trial court's ruling is supported by the record and applicable law. See Dixon, 206 S.W.3d at 590. Therefore, the trial court did not abuse its discretion by denying appellant's motion to suppress the evidence. We resolve appellant's sole issue against him. We affirm the trial court's judgment.