Barocio, Xavier















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. PD-1980-03


XAVIER HERNANDEZ BAROCIO, Appellant

v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


Price, J., filed an opinion concurring in the judgment, in which Johnson and Holcomb, JJ., joined.

C O N C U R R I N G O P I N I O N



I agree with the majority that the trial court did not err denying the appellant's motion to suppress. I write separately to explain my reasons.

The appellant filed a motion to suppress statements and tangible evidence obtained by a warrant that he claims was obtained in violation of the United States and Texas Constitutions. Specifically, the appellant claimed that sheriff's deputies entered his home without a warrant and then applied for a warrant based on information obtained while they were illegally in his home.

The trial court held a hearing on the motion. There were many discrepancies in the testimony given by Deputies Wyatt, Kirsch, and Monfort. (1)

The evidence admitted during the hearing on the motion to suppress showed that Wyatt found a car parked in front of the appellant's trailer. It was parked partially in the roadway and heading in the wrong direction. The driver's door was wide open, and upon stopping, Wyatt discovered that the keys to the car were in the ignition. He called for back up.

Kirsch responded to Wyatt's call for back up, and the two deputies went to knock on the appellant's door to find out about the car. The deputies noticed that there were pry marks on the front door. Wyatt testified that, at this point, he could smell marihuana and heard a lot of noise in the trailer. Kirsch testified that he did not hear noises and that he smelled no marijuana at that point. They both saw surveillance cameras pointing at the front porch and the street in front of the trailer.

The deputies knocked on the door and waited two to five minutes before the appellant came to the door. When the door was opened, Kirsch smelled a strong odor of marihuana for the first time and Wyatt said that he smelled it stronger than before. One of the deputies questioned the appellant about the car. The appellant told them that it was his. The deputies also asked the appellant for identification. The appellant was uncooperative and appeared to be nervous.

Wyatt testified that he detained the appellant on the porch and that Kirsch went inside to see if anyone else was in the trailer. While Kirsch was inside, he saw some marihuana lying loose on the kitchen counter near a plastic bag. Wyatt testified that he never entered the trailer until the search warrant had been obtained and that he never told anyone that he had. He talked to Monfort to obtain a search warrant.

Kirsch testified that he and Wyatt directed the appellant to go inside to get his identification and that Wyatt followed the appellant and Kirsch followed Wyatt. When they were in what was called the foyer of the trailer, Kirsch said that he saw marihuana on the kitchen counter. The appellant was taken outside to the patrol car, and Kirsch performed a protective sweep to see if anyone else was in the trailer.

Monfort, who was not at the trailer, obtained the search warrant. He said that Wyatt told him that he had seen the marihuana while standing outside the trailer on the porch. This along with the other information about the incident appeared in the affidavit supporting the warrant.

The trial court denied the motion to suppress. It concluded that the smell of marihuana provided exigent circumstances to allow the deputies to enter the home. The trial court did not have the benefit of our opinion in Steelman v. State, (2) when it made its ruling. Even so, if the trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. (3)

The Court of Appeals concluded that, under our holding in Steelman, the facts did not give rise to exigent circumstances in this case. (4) It also held that exigent circumstances did not exist regarding a possible burglary because the deputies had the sole suspect in custody. (5)

Under the Fourth and Fourteenth Amendments, a search or seizure conducted in the home without a warrant issued upon probable cause is presumptively unreasonable. (6) When exigent circumstances exist, however, the warrantless search of a home is authorized. (7) Exigent circumstances are found when there is some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence. (8)

The appellant conceded during the hearing on the motion for new trial that the deputies had probable cause to obtain a warrant to search the appellant's trailer because of the smell of marihuana. The only question is whether exigent circumstances existed to permit the deputies to enter before they obtained the warrant.

The record shows that a car in the street was left open with the keys in the ignition. Wyatt and Kirsch found pry marks on the front door of the trailer where the car was parked. Wyatt heard a lot of noise while he was standing on the front porch. The appellant took a long time to come to the door after the deputies knocked. When he came to the door, he was uncooperative and appeared to be nervous. The appellant either was unable to or refused to produce his identification showing that he owned the car and was an occupant of the trailer. These facts gave rise to probable cause to believe that a burglary had taken place or was still going on. A reasonable police officer with knowledge of these facts could have concluded that other perpetrators or potential victims were inside the trailer. These facts support the conclusion that exigent circumstances existed for the deputies to search the house for potential suspects or victims.

I want to make clear that the smell of marihuana and the surveillance cameras were not particularly relevant to the finding of exigent circumstances because of a potential burglary. But I do agree that these facts supported probable cause for a search warrant on the basis that there were drugs inside the trailer.

With these comments, I concur in the Court's judgment.



Filed: March 9, 2005.

Publish.

1. In the record, the name is spelled Monford. The name and signature on the affidavit supporting the search warrant is spelled Monfort.

2.

Steelman v. State, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002) (holding that the smell of burning marihuana alone does not authorize the warrantless search and seizure in a home).

3.

State v. Ross, 32 S.W.3d 853, 855-856 (Tex. Crim. App. 2000).

4.

Barocio v. State, 117 S.W.3d 19, 24 (Tex. App.--Houston [14th Dist.] 2003).

5.

Ibid.

6.

McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991).

7.

Ibid.

8.

Id., at 107.