State v. Iduarte

*141LEE ANN DAUPHINOT, Justice,

dissenting.

I must respectfully dissent from the majority opinion, which substitutes its own findings of fact and determinations of credibility for those of the trial court.

The trial court went to great lengths to provide this court with both oral and written findings of fact and conclusions of law. The trial court reminded us that

[i]n a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.[), cert. denied, 537 U.S. 1051, 123 S.Ct. 603, 154 L.Ed.2d 527 (2002);] Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject any or all of any witness’s testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993)[;] Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The trial court resolves all conflicts in the testimony. Hawkins v. State, 853 S.W.2d 598, 600 (Tex.App.-Amarillo 1993, no pet.).

The trial court made clear to us that “[t]his case boils down to the credibility of Officer Eddleman” and that the trial court did not believe his testimony. The trial court found that “Officer Eddleman intended to go into the Defendant’s apartment, with or without his permission.” The trial court concluded that Officer Ed-dleman’s entry into the apartment was not supported as a search incident to arrest, was not supported by consent, was not for a community caretaking function, and was not pursuant to exigent circumstances. Contrary to the majority’s contention that Appellee unilaterally stood up and began walking back to the apartment, the trial court concluded that Appellee “merely acquiesced to the officer’s show of authority.”1 We are bound by the trial court’s determination of this fact.

The evidence before the trial court shows that someone called the police to report that shots had been fired. Before the police illegally entered his home, Ap-pellee was downstairs in the courtyard, on his knees, with his hands on top of his head. Both Officer Eddleman and Officer DeLeon had their weapons drawn. Officer DeLeon searched Appellee and the man with him, who was also on his knees, and found no weapons. Officer Eddleman had already decided to arrest Appellee for public intoxication at that point.

Officer Eddleman told Appellee to go upstairs to his apartment ostensibly to get his estranged wife an extra set of keys to the pickup after he had already handed over the set in his pants pocket, but the trial court concluded that “it was clear his intentions were to look for a weapon.” When Appellee responded that he could not go into the apartment because the electricity was off, Officer Eddleman insisted, stating that he had a flashlight. After hearing the evidence, the trial court concluded that “Officer Eddleman intended to go into [Appellee’s] apartment, with or without his permission.”

The trial court also noted that Officer Eddleman claimed on one hand that Ap-pellee was so intoxicated that he “was having a hard time keeping a steady balance. Officer Eddleman also observed bloodshot eyes, slurred speech, and smelled an odor of an alcoholic beverage on his breath.” But when Officer Eddle-man told him to go back to his apartment, Appellee, according to both officers, “began to run up the stairs,” and Officer Eddleman testified that he “could not keep *142up with him,” despite Officer Eddleman’s observation made, at most, minutes earlier that Appellee was unable keep a steady-balance.

The trial court also concluded,
It defies common sense that if you have probable cause to arrest an individual for public intoxication, you allow that individual, knowing there has been a report of assault and gunshots fired, [you] allow that individual (who has already taken an aggressive stance toward officers) to roam, unhandcuffed, back into his unlighted, dark apartment where you suspect a weapon is located, to retrieve some keys which were not necessary to either Mrs. Iduarte being able to leave the scene safely or for any other purpose.
[[Image here]]
.... To me, the question is if there is probable cause to arrest the defendant for public intoxication, which is at any point before the second entry into the apartment. It’s pretty clear from the evidence that’s all they would have had probable cause to arrest him for. If there is that probable cause and they were going to effect an arrest, then obviously the logical way to handle that would have been to do that at the bottom of the stairs on the curb where the two people were standing together with the officers. By them not doing that, it seems to me that the officers were trying to create a circumstance where they could create exigent circumstances....
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.... That’s like saying, okay, I have probable cause to arrest you for possession of a controlled substance, go in the house and get the controlled substance. Oh, wait, now I have exigent circumstances to go in there because he might destroy the evidence.

The trial court also pointed out the discrepancies between Officer Eddleman’s version of the events and Officer De-Leon’s. Officer Eddleman claimed that Appellee cocked the hammer and pointed the firearm directly at him. Officer Ed-dleman dropped to his knee and shot two bullets into Appellee. Officer DeLeon, in contrast, testified that Appellee reached “on the kitchen table” and said something to the effect of, “Here is the gun, I am going to shoot myself.” Officer DeLeon did not testify that Appellee cocked the hammer. The trial court found that Officer DeLeon testified that Appellee picked up the gun, but this finding is not supported by the record. The trial court made clear its finding that Officer Eddle-man was not a credible witness.

In order to conduct a warrantless search of someone’s home absent consent,2 the officer must have both probable cause and exigent circumstances.3

In Johnson v. United States, the Supreme Court of the United States noted that the strong odor of burning opium emanating from a closed hotel room might well establish probable cause to believe that someone behind the door was committing a criminal offense, but “the arresting officer did not have probable cause to arrest petitioner until he had entered her room and found her to be the sole occupant.” 4 The problem in Johnson was not *143the lack of probable cause, but the failure to obtain a search warrant because there were no exigent circumstances. The Court explained,

No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay-necessary to prepare papers and present the evidence to a magistrate.... No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time will disappear.5

As the Texas Court of Criminal Appeals noted in explaining the rationale behind the Johnson decision,

Until the officers, who already had probable cause, knocked on her door, the defendant was blissfully unaware of any police presence and was thus unlikely to flee or dispose of the contraband during the time the officers obtained a search warrant. It is precisely from the Johnson scenario that the rule that “police may not create their own exigency” to make a warrantless arrest or search was born. See [Johnson, 333 U.S.] at 16-17, 68 S.Ct. [at 370] (concluding that “the Government is obliged to justify the arrest by the search and at the same time justify the search by the arrest. This will not do. An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion.”). Thus, exigent circumstances “do not meet Fourth Amendment standards if the government deliberately creates them.” United States v. Coles, 437 F.3d 361, 366 (3d Cir.2006) (discussing and following Johnson, collecting cases dealing with the question of whether police officers have deliberately created their own exigency to justify a warrantless arrest inside a private home or hotel room); compare United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986) (officers, who had probable cause to obtain a search warrant, created their own exigency because they knew that their “knock and talk” investigative strategy would require a warrantless entry), with United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) (officers who conducted “knock and talk” to investigate complaints of criminal activity and identify inhabitants did not create their own exigency when they saw firearm in plain view through open apartment door; police did not observe any criminal activity before approaching apartment and did not know occupants were armed until they were directly in front of open door), [cert. denied, 534 U.S. 861,122 S.Ct. 142, 151 L.Ed.2d 94 (2001) ]. Under the Fourth Amendment, courts “look to the reasonableness and propriety of the actions and investigative tactics of the police which precede the exigency relied upon to justify warrantless entry.” Coles, 437 F.3d at 368. “The presence of exigent circumstances is a finding of fact,” which appellate courts review only for clear error or abuse of discretion. Id. at 366.6

The majority appears to dwell on the issue of reasonable suspicion to believe that there was a gun in the apartment. That is not the issue here. Instead, the relevant inquiry is whether Officer Eddle-man should have created exigent circumstances to justify his warrantless entries into the apartment or whether he should *144have sought a warrant. If the presence of exigent circumstances is a finding of fact that appellate courts review only for clear error or abuse of discretion, as the Coles court held and the Parker court adopted,7 then the creation of exigent circumstances is a finding of fact that we cannot set aside absent clear error or an abuse of discretion.

In the case now before this court, Officer Eddleman claimed that he had probable cause to arrest Appellee for public intoxication before going into the apartment. Although the trial court clearly stated that its granting of Appellee’s motion to suppress turned on the credibility of the witnesses, and although the trial court made it clear that Officer Eddleman was not credible, the majority relies exclusively on Officer Eddleman’s testimony in overturning the trial court’s determination of the facts and the trial court’s application of the law to those facts.

As the trial court concluded, Officer Ed-dleman was determined to go into Appellant’s apartment to search for a firearm because there had been a report of gunshots. The majority emphasizes that “ap-pellee’s alleged aggravated assault against Officer Eddleman took place after the officer’s alleged improper conduct had occurred.”8 Hence, the majority somehow concludes that the illegal entry into Appel-lee’s apartment did not require suppression of the evidence obtained after the illegal entry because “Article 38.23 does not require the exclusion of evidence of a crime that occurred after the officer’s unlawful search or seizure.”9 In so holding, the majority takes as true all of Officer Eddleman’s testimony, including that contradicted by Officer DeLeon.

Respectfully, the record is clear that the offense that Officer Eddleman was determined to investigate and the offense that required entry into Appellee’s apartment was discharging a firearm, either alone or as part of an assault. That offense was complete before Officer Eddleman arrived on the scene. Only Officer Eddleman testified that Appellee pointed a firearm at him. This was not Officer DeLeon’s testimony. The trial court pointed out the discrepancy in the two officers’ testimony. Nor did the trial court accept Officer Ed-dleman’s testimony that suggested that Appellee had denied having a firearm. Indeed, the trial court’s Finding of Fact 42 states,

Officer Eddleman confronts the Defendant and says, “I thought you said you didn’t have a gun.” (There was not any testimony that Officer Eddleman had ever asked the Defendant if he had a gun prior to this point).

A new offense was committed by Appel-lee after Officer Eddleman’s entry into Appellee’s apartment only if Officer Eddle-man was telling the truth and Officer De-Leon was not. The trial court did not find Officer Eddleman to be a credible witness. The majority, however, makes its own determination of Officer Eddleman’s credibility by assuming that he, and not Officer DeLeon, told the truth about where Appel-lee pointed the gun and whether he cocked the hammer.

The trial court held that both warrant-less entries were unlawful. A warrantless entry requires either consent or probable cause and exigent circumstances. A police officer may not create exigent circumstances to avoid the warrant requirement. The trial court found that Officer Eddle-man had created the exigent circumstance to justify the second warrantless entry and that the first entry was also unlawful be*145cause there was neither consent nor exigent circumstances.

The majority relies on three cases involving resisting arrest or aggravated assault of a police officer during an arrest to conclude that the evidence in the case before us should not be suppressed.10 Unlike the evidence of the charged offenses in those thre,e cases, however, the evidence sought by Officer Eddleman when he illegally entered Appellee’s apartment both times was the gun — the gun that was allegedly used to fire the shots triggering the 911 call, the gun Officer Eddleman questioned Appellee about, and the same gun that Officer Eddleman claimed that Appellee later pointed at him. Consequently, even if evidence of the purported simple assault were admissible under Mayorga as being evidence only of the new crime,11 the gun, as the object of both the initial investigation and Officer Eddle-man’s illegal acts, was not.12 The gun was evidence that existed before the illegal entries and was the sole reason for the illegal entries.

The trial court had the opportunity to view the witnesses, listen to their testimony, and determine their credibility. The trial court made clear that the ruling on the motion to suppress was based on the trial court’s determination of the witnesses’ credibility. Because the majority substitutes its determination of credibility for that of the trial court, I must respectfully dissent.

. See Maj. Op. at 139, n. 5.

. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973).

. Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980).

. Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. at 367, 370, 92 L.Ed. 436 (1948).

. Id. at 15, 68 S.Ct. at 369.

. Parker v. State, 206 S.W.3d 593, 598 n. 21 (Tex.Crim.App.2006).

. Id.; see also Coles, 437 F.3d at 366.

. See Maj. Op. at 139.

. See id.

. See Maj. Op. at 139-40 (relying on State v. Mayorga, 901 S.W.2d 943, 946 (Tex.Crim.App.1995) (plurality opinion); Donoho v. State, 39 S.W.3d 324, 327 (Tex.App.-Fort Worth 2001, pet. ref'd); and Cooper v. State, 956 S.W.2d 95, 98 (Tex.App.-Tyler 1997, pet. ref'd)).

. See Mayorga, 901 S.W.2d at 946.

.See id.