Marco Antonio Flores-Perez v. State ( 2013 )

Affirmed and Memorandum Opinion filed June 11, 2013.
In the
Fourteenth Court of Appeals
NO. 14-12-00669-CR
NO. 14-12-00670-CR
MARCO ANTONIO FLORES-PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause Nos. 1781891 & 1781892
MEMORANDUM OPINION
Appellant Marco Antonio Flores-Perez pleaded guilty to the misdemeanor
offenses of evading arrest and driving while intoxicated (DWI). Appellant appeals
the trial court’s denial of his motion to suppress evidence based on his unlawful
arrest under the Fourth Amendment and article I, section 9, of the Texas
Constitution. Appellant argues the following four issues: (1) the trial court erred in
finding that police had reasonable suspicion to detain appellant: (2) the trial court
erred in finding that consent was given to search the main house; (3) even if there
was valid consent to search the main house, the trial court erred in finding consent
to search the back building where appellant was located; and (4) the trial court
erred in finding that no warrant was needed to search the back building and arrest
appellant due to the presence of exigent circumstances. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with the misdemeanor offenses of evading arrest or
detention and DWI, alleged to have been committed on or about September 17,
2011. Appellant filed a motion to suppress the evidence, arguing that it was
obtained as a result of an illegal search and seizure.
At the suppression hearing, Officers Karen Taylor and Carl Rodriguez with
the Houston Police Department testified that shortly after midnight on September
17, 2011, Rodriquez was conducting a traffic stop when Taylor pulled up in her
vehicle to assist him. Taylor stopped her vehicle slightly behind and to the left of
Rodriguez’s vehicle. The stop took place on a two-lane road, and Taylor’s vehicle
blocked “most of the right lane.” Then appellant—who was driving a pick-up
truck with “music blaring”—“squealed his tires” as he “quickly” turned the
corner,” did not reduce his speed around the police vehicles, put his back tire into
the roadside drainage ditch, and accelerated past the police vehicles in the opposite
lane of traffic. Appellant drove within two feet of the traffic stop and came
“dangerously close to striking” Taylor’s vehicle. Taylor activated her emergency
lights and proceeded to pursue appellant’s truck. Appellant did not stop and
continued driving for approximately 75 yards, then swerved to the right and
“squealed” and “spun” his tires while backing into a driveway. The nature of
appellant’s “pretty reckless” and “erratic” driving indicated to both Taylor and
Rodriguez, based on their training and experience, that appellant might be “drunk
or intoxicated.” Appellant stopped, jumped out of the truck, and ran toward a
2
house. Taylor told appellant to “stop” in both English and Spanish. Appellant did
not stop, ran into the house, and slammed the front door.
Taylor testified that she knocked on the front door, and a woman, who
turned out to be appellant’s mother, opened the door. Taylor asked the woman in
both English and Spanish, “Where is he?” The woman replied she did not know
and then made a gesture that Taylor interpreted as “come in.” Taylor followed the
woman through the house through a hallway to a couple of bedrooms, but did not
find appellant. After Rodriguez concluded his traffic stop, he proceeded to the
house, entered through the open front door, and joined Taylor in the search for
appellant. As the officers headed toward the kitchen, they observed a set of keys
on the floor and the back door “cracked open.” Rodriguez also heard dogs barking
in the backyard. Taylor and Rodriguez entered the backyard through the open
back door and shined their flashlights into a dark, large “shed” or “storage unit.”
Taylor and Rodriguez searched areas of the backyard where a person “could hide.”
Taylor and Rodriguez then heard “a thump and a rustle” and a “stirring” at the
back of the shed that sounded like a person moving around. Rodriguez then
opened the shed’s unlocked back door and located appellant. When appellant
refused to exit the shed, Taylor and Rodriguez forcibly removed and then arrested
him. Appellant smelled like “an alcoholic beverage” and had “glassy” eyes.
Appellant’s mother testified that appellant entered the main house shortly
before police arrived. Appellant’s mother heard knocking so she opened the front
door. A “lady police officer” asked appellant’s mother, “Where is he?” and
appellant’s mother shrugged that she did not know. According to appellant’s
mother, she did not invite the officer to come in. The officer followed appellant’s
mother into the house. The officer and another police officer who came into the
house “a little later” searched a few rooms. The family’s dogs were barking as the
3
officers entered the backyard.
The trial court denied the motion to suppress and, upon appellant’s request,
issued findings of fact and conclusions of law. Appellant pleaded guilty to evading
arrest or detention and DWI, and was sentenced to 30 days’ imprisonment.
On appeal, appellant argues that the trial court erred in denying his motion to
suppress because: (1) the State did not show police had a legal basis to detain or
arrest appellant; (2) the State did not show police obtained lawful consent to search
the main house; (3) even if police obtained consent to search the main house, the
State did not show police obtained lawful consent to search the back building; and
(4) the State did not show police had probable cause and that exigent
circumstances existed to excuse the need for a warrant to search the back building
and arrest him.
II. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress using a bifurcated
standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007); Banda v. State, 317 S.W.3d 903, 907 (Tex. App.—Houston [14th Dist.]
2010, no pet.). “Trial judges are uniquely situated to observe the demeanor and
appearance of any witnesses and, as the sole fact-finder at a suppression hearing,
may believe or disbelieve any portion of a witness’s testimony and make
reasonable inferences from the evidence presented.” Banda, 317 S.W.3d at 907
(citing Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009); Wiede v.
State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007)). Therefore, we afford a
great deal of deference to the trial court’s determination of historical facts. Id.
(citing Amador, 221 S.W.3d at 673); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). When a trial court enters findings of fact, we thus determine
whether the evidence, viewed in the light most favorable to the trial court’s ruling
4
on the motion to suppress, supports these fact findings. State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006); see Banda, 317 S.W.3d at 907.
However, the legal question of whether a specific search or seizure is
reasonable or supported by probable cause under the Fourth Amendment is subject
to de novo review. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006);
Banda, 317 S.W.3d at 907. We will sustain the trial court’s ruling so long as it is
reasonably supported by the record and correct under any legal theory applicable to
the case. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda,
317 S.W.3d at 907.
III. ANALYSIS
To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 275 S.W.3d at 878. Once the
defendant satisfies this burden by establishing that the search or seizure occurred
without a warrant,1 the burden shifts to the State to prove the search or seizure was
reasonable. See id.; Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007);
Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).
A. Whether police had a legal basis to detain or arrest appellant
Appellant first argues that any detention was unreasonable because he had
not committed a traffic violation and there was no reason to suspect that he was
driving while intoxicated. Appellant further contends that because there was no
legal basis for his detention, his subsequent arrest for evading arrest or detention
likewise was invalid. We conclude that, based on the totality of the circumstances,
the officers were justified in their seizure of appellant based on reasonable
1
The parties do not dispute that police did not obtain any warrant to conduct any search
of the main house or back building, or to arrest appellant.
5
suspicion of commission of DWI.
1. Applicable law
Both the Fourth Amendment of the U.S. Constitution and article I, section 9,
of the Texas Constitution protect individuals from unreasonable searches and
seizures. Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993).
Appellant concedes that the Texas Constitution does not provide more protection,
so we analyze his challenge under the Fourth Amendment. See Flores v. State, 319
S.W.3d 697, 702 n.8 (Tex. Crim. App. 2010).
For Fourth Amendment purposes, a traffic stop is a seizure and must be
supported by reasonable suspicion to be lawful. Vasquez v. State, 324 S.W.3d 912,
919 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Davis v. State, 947
S.W.2d 240, 243–45 (Tex. Crim. App. 1997)). Whether the detaining officer had
reasonable suspicion to justify the stop “must be examined in terms of the totality
of the circumstances and will be justified when the detaining officer has specific
articulable facts, which taken together with rational inferences from those facts,
lead him to conclude that the person detained actually is, has been, or soon will be
engaged in criminal activity.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.
1997); see State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). The
detaining officer’s actual subjective intent is irrelevant; we instead examine
whether there was an objectively justifiable basis for the seizure. See LeCourias v.
State, 341 S.W.3d 483, 487–88 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
In making this determination, we use “commonsense judgments and inferences
about human behavior.” Woodard, 341 S.W.3d at 412.
2. Appellant’s suppression hearing
Here, both officers observed appellant’s driving. Taylor testified that
6
appellant “squealed” his truck around the corner, “blared” his music, failed to slow
down while passing the police vehicles involved in the traffic stop, put his back tire
in the opposite ditch, and continued “squealing” down the street and accelerated
past the stop. She described appellant’s driving as “pretty reckless” because he
was “all over the road swerving, speeding up, slowing down, speeding up.”
Appellant then “squealed” back into a driveway. Taylor indicated that she thought
appellant could be intoxicated.
Rodriguez testified that he heard appellant’s “squealing” tires as he observed
appellant “turning quickly” around the corner. Appellant drove within two feet of
the traffic stop, “dangerously close to” Taylor’s vehicle. Appellant then
accelerated past the stop at or slightly above the residential speed limit of 30 miles
per hour. Appellant did not turn down his “blaring” music, which Rodriguez noted
was at citation level. Appellant continued down the road, then swung his truck to
the right and “spun” his tires while backing into a driveway. Rodriguez had
concerns appellant was driving “drunk or intoxicated.”
The trial court made a factual finding that Taylor observed appellant driving
erratically, which included “squealing” his tires, driving off the road, and “maybe
excessive speed.” The trial court thus concluded that Taylor “certainly had more
than ample reasonable suspicion to stop [appellant’s] vehicle.” The trial court,
however, did not articulate the precise crime police reasonably suspected appellant
of committing.
Viewing the evidence in the light most favorable to the trial court’s ruling,
we conclude that such evidence supports the court’s factual finding regarding
appellant’s erratic manner of driving. See Kelly, 204 S.W.3d at 818. We proceed
to review de novo the trial court’s legal conclusion that reasonable suspicion
existed to justify police stopping appellant. See Iduarte, 268 S.W.3d at 548;
7
Dixon, 206 S.W.3d at 616.
3. Police had a legal basis to stop appellant for reasonable suspicion
of DWI.
Appellant argues that police had no lawful basis to stop him for either a
traffic violation—specifically, failure to drive on the right side of the road or
reckless driving2—violation of a city noise ordinance, or DWI.
Even though appellant may have a defense to a traffic citation, such as that
the police vehicles were blocking the right-hand lane,3 “it does not negate a stop
based on a reasonable suspicion that the driver of the motor vehicle has lost control
of his mental and physical faculties by the ingesting of alcohol and/or other drugs.”
See Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.], pet.
ref’d); Gajewski v. State, 944 S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.]
1997, no pet.). In Cook, the appellant argued that there was no reasonable basis to
stop him for failure to maintain a single lane where there were no other vehicles
near the appellant and there was no evidence his weaving was unsafe. 63 S.W.3d
at 928–29. This court, however, concluded that the officer was justified in
stopping the driver on a reasonable suspicion of DWI “based on the totality of the
facts and the rational inferences to be drawn from those facts” of the appellant’s
“driving behavior.” Id. at 929 (officer observed appellant leave a bar at a
considerable rate of speed, pull into gas station and leave within ten to fifteen
seconds, drive “all over” an unmarked roadway, and weave back and forth between
2
Appellant further contends that, in the trial court, the State did not argue appellant’s
alleged reckless driving as a reasonable basis for his detention. The State did present, in the trial
court, reasonable suspicion of DWI as a basis for the stop.
3
See TEX. TRANSP. CODE ANN. § 545.051 (West 2011) (allowing for driver to travel on
wrong side where “an obstruction necessitates moving the vehicle left of the center of the
roadway”).
8
traffic lanes, so he “began following him because he thought [appellant] might be
intoxicated”); see also Gajewski, 944 S.W.2d at 453 (concluding reasonable
suspicion of DWI justified stop where officer observed driver weaving across
center line three times and weaving across and into another lane).
Appellant argues that he only swerved out of his lane to avoid the police cars
parked in the middle of the street, and later to turn into his driveway. But appellant
did not merely swerve a couple of times. He also rounded the corner “quickly,”
“squealing” his tires. He did not slow his speed as he passed the ongoing traffic
stop, putting his back tire into the ditch and again “squealing” his tires. Appellant
passed “dangerously” close to Taylor’s stopped vehicle and accelerated, albeit to
only slightly above the speed limit, past the stop. He drove “all over the road
swerving, speeding up, slowing down, speeding up.” He did not lower the volume
of his “blaring” music. He did not appear to “recognize” that there were two
police vehicles conducting a stop. Then he swung out to the right, and again
“squealed” and “spun” his tires backing into a driveway. Thus, the specific,
articulable facts of appellant’s erratic “driving behavior,” together with rational
inferences drawn from those facts, provided a sufficient basis upon which a
reasonable police officer reasonably could suspect that appellant was driving while
intoxicated. See Woods, 956 S.W.2d at 38; Cook, 63 S.W.3d at 929.4
Further, both Taylor and Rodriguez testified that based on their training and
experience investigating DWIs, they had concerns based on appellant’s manner of
driving that he might be intoxicated. See Curtis v. State, 238 S.W.3d 376, 381
(Tex. Crim. App. 2007) (considering officers’ training and experience related to
4
Appellant’s driving behavior is thus distinguishable from that at issue in State v.
Guzman, relied on by appellant. See 240 S.W.3d 362, 367–68 (Tex. App.—Austin 2007, pet.
ref’d) (refusing to find reasonable suspicion for DWI based merely on officer’s observation of
one tire losing traction and spinning when driver accelerated from stop at an intersection).
9
detecting DWIs). Moreover, there is no dispute that this incident occurred after
midnight, and Taylor testified “we get many DWIs in that particular area.” See
Foster v. State, 326 S.W.3d 609, 613 & n.10 (Tex. Crim. App. 2010) (noting that
“time and location are relevant and appropriate considerations when doing a
totality of the circumstances review to determine whether or not reasonable
suspicion exists,” and considering time of night, 1:30 a.m., and location, near
Austin’s downtown bar district); see also Curtis, 238 S.W.3d at 381 (considering
“lateness of the hour”—1:00 a.m.).5
In light of the time of night, the location, the officers’ training and
experience, and appellant’s driving behavior, it was rational for police to have
inferred that appellant may have been intoxicated. See Foster, 326 S.W.3d at 614.
Given the totality of the circumstances, we therefore conclude the officers’
testimony warranted the trial court’s ruling that Taylor had reasonable suspicion—
here, for commission of DWI—so that there was an objectively justifiable basis to
detain appellant. Therefore, we overrule appellant’s first issue.
B. Whether police had a legal basis to enter the back building without a
warrant to locate and arrest appellant
Appellant next argues in three issues that the State did not meet its burden to
prove that the warrantless search for appellant, and his arrest, was justified by any
exception to the warrant requirement—namely, lawful consent to search the main
house, lawful consent to search the back building, or exigent circumstances. 6 We
5
Bass v. State, relied on by appellant, is thus distinguishable because the officer there did
not testify that he suspected the appellant of DWI based on his experience or that “anything
about the objective circumstances—time, location, the vehicle’s movement, etc.—would have
led a reasonable officer to suspect” the appellant was intoxicated besides his swerving. See 64
S.W.3d 646, 650 (Tex. App.—Texarkana 2001, pet. ref’d).
6
Appellant concedes that if the State has met its burden to show exigent circumstances,
i.e., we overrule his fourth issue, there is no need for the State also to have shown voluntary
consent of the main house or the back building and we need not address appellant’s second and
10
conclude that sufficient exigent circumstances existed to justify police entering the
main house and the back building, and arresting appellant without a warrant.
1. Applicable law
There is a strong preference for police to administer searches and seizures
pursuant to a warrant. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim.
App. 2007). Pursuant to the Fourth Amendment, warrantless searches and seizures
inside a residence are presumptively unreasonable, subject to a “few specifically
defined and well established exceptions.” See McGee v. State, 105 S.W.3d 609,
615 (Tex. Crim. App. 2003) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372
(1993)). These exceptions include: exigent circumstances, voluntary consent to
search, and search incident to arrest. See Gutierrez, 221 S.W.3d at 685; McGee,
105 S.W.3d at 615; see also TEX. CODE CRIM. PROC. ANN. art. 14.05 (West 2011)
(consent and exigent circumstances allow officer making arrest to enter residence
without warrant). The State bears the burden to prove that a warrant exception
applies. McGee, 105 S.W.3d at 615.
The State must satisfy a two-step process in order to validate a warrantless
search or arrest based on exigent circumstances. See Parker v. State, 206 S.W.3d
593, 597 (Tex. Crim. App. 2006) (warrantless entry or search); Winter v. State, 902
S.W.2d 571, 573 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (warrantless
arrest). If either step is not met, such warrantless action “will not pass muster
under the Fourth Amendment.” See Parker, 206 S.W.3d at 597.
First, in the context of a warrantless entry or search, there must be probable
cause to enter or search a specific location. Gutierrez, 221 S.W.3d at 685. Such
probable cause exists “when reasonably trustworthy facts and circumstances within
third issues.
11
the knowledge of the officer on the scene would lead a man of reasonable prudence
to believe that the instrumentality . . . or evidence of a crime will be found.” Id.
(quoting Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005)). Probable
cause for a warrantless arrest exists “if, at the moment the arrest is made, the facts
and circumstances within the arresting officer’s knowledge and of which he has
reasonably trustworthy information are sufficient to warrant a reasonably prudent
man in believing that the person arrested had committed or was committing an
offense.” Amador, 275 S.W.3d at 878.
Second, an exigency that requires an immediate entry to a particular place
without first obtaining a warrant must exist. Parker, 206 S.W.3d at 597. “Just as
an officer, in the heat of the moment, will use all facts available to him in deciding
whether to enter a home without a warrant, so too must a reviewing court analyze
each piece of evidence as part of the totality of information, as it relates to both the
probable cause and the exigent circumstances determinations.” Id. at 601. “A
variety of [exigent] circumstances may place a police officer in situations in which
a warrantless entry is viewed as a reasonable reaction by the officer.” McNairy v.
State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991). Exigent circumstances may
include: (1) rendering aid or assistance to persons whom the officer reasonably
believes need assistance, (2) a risk of danger to police or any victim, (3) preventing
the destruction of evidence or contraband, (4) an increased likelihood of
apprehending a suspect, and (5) hot or continuous pursuit. See Gutierrez, 221
S.W.3d at 685; McNairy, 835 S.W.2d at 107; Randolph v. State, 152 S.W.3d 764,
771 (Tex. App.—Dallas 2004, no pet.). Texas courts, including this court, have
recognized hot pursuit of a suspect attempting to avoid arrest or detention as an
exigent circumstance justifying a warrantless entry and arrest. See Rue v. State,
958 S.W.2d 915, 918 (Tex. App.—Houston [14th Dist.] 1997, no pet.); Curry v.
12
State, 831 S.W.2d 485, 488 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d); see
also Winter, 902 S.W.2d at 573–74. “[A] suspect may not defeat an arrest which
has been set in motion in a public place . . . by the expedient of escaping to a
private place.” Curry, 831 S.W.2d at 488 (quoting United States v. Santana, 427
U.S. 38, 43 (1976)).
2. Appellant’s suppression hearing
Here, after police decided to stop appellant based on reasonable suspicion of
DWI, Taylor activated her emergency lights and began pursuing appellant in her
vehicle down a residential street. Appellant did not stop but instead continued
driving for about 75 yards, then backed into his driveway and exited his vehicle.
Despite Taylor yelling at him in both English and Spanish to “stop,” appellant ran
into the main house and slammed the door. After knocking on the door and
entering the house, Taylor continued to pursue appellant. Taylor asked appellant’s
mother where he was and checked the bedrooms for appellant. Around this time,
Rodriguez entered the open front door of the main house and joined Taylor in the
search for appellant. In the kitchen, the officers observed keys on the floor and the
back door cracked open. Rodriguez also heard dogs barking as the officers entered
the backyard. Taylor and Rodriguez shined their flashlights into a dark building
that they believed to be a large storage shed. As they continued searching the
backyard, both officers heard a “thump and rustle” and a “stirring” coming from
the back area of the shed. This noise came from “above the doorknob” of the back
door to the shed and sounded like a person moving around. Because the shed
otherwise appeared vacant, Rodriguez suspected that appellant made the noise.
Rodriguez turned the unlocked door handle, entered the building, and located
appellant. Appellant smelled like alcohol and had “glassy” eyes. The officers
removed appellant from the building and arrested him.
13
The trial court made the following factual findings: that Taylor attempted to
stop appellant by following his vehicle with her emergency lights on, that appellant
failed to stop his vehicle, that appellant was attempting to evade Taylor while she
followed him in her vehicle, that appellant was attempting to evade Taylor after he
exited his vehicle and she exited her vehicle and told him to stop, that appellant
failed to stop and entered a house, that appellant was attempting to evade Taylor
when he entered the house, that Taylor chased appellant to the house, that
appellant’s mother knew appellant was being pursued by police, that it became
apparent that appellant was not in the house, that the keys to appellant’s vehicle
were on the kitchen table near an open back door, that Taylor now accompanied by
Rodriguez entered the backyard where they observed another structure and
continued to search for appellant, that the officers heard “some sounds within the
structure,” and that the officers found appellant and placed him under arrest.
The trial court thus found “that the officers were certainly in hot pursuit of
the suspect that is sufficient, more than sufficient exigent circumstances existed for
the officers to enter the structure to continue to do their search for the defendant.”
The trial court concluded that “the search of the building was certainly not
unreasonable at all under the circumstances then and there existing, the officers
having more than sufficient probable cause to search and arrest the appellant.”
Thus, the trial court concluded that the State had shown both probable cause and
the exigent circumstance of hot pursuit—justifying the officers’ warrantless entry
into the back building and arrest of appellant.
Viewing the evidence in the light most favorable to the trial court’s ruling,
we conclude that such evidence supports the court’s factual findings regarding
appellant’s evasive actions and the officers’ efforts to pursue and locate appellant.7
7
One minor discrepancy is that the evidence shows that the officers observed the keys on
14
See Kelly, 204 S.W.3d at 818. We proceed to review de novo the trial court’s legal
conclusion that probable cause supported the officers’ warrantless entry into the
back building to arrest appellant. See Dixon, 206 S.W.3d at 616. We review the
trial court’s finding that the exigent circumstance of hot pursuit existed for clear
error or an abuse of discretion. See Parker, 206 S.W.3d at 598 n.21 (citing United
States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)); Estrada, 154 S.W.3d at 610.
3. Probable cause existed to search the back building.8
Appellant argues that police did not have probable cause to search the back
building for the instrumentality of or evidence of a crime because Rodriguez
testified that he did not believe appellant was in the back building. In particular,
appellant contends probable cause cannot be supported because Rodriguez
believed there was a “fifty-fifty chance” that appellant had cleared the fence and
had not remained in the backyard.
However, we do not focus on a singular fact in isolation but instead make
our determination of whether the officers had probable cause and exigent
the kitchen floor instead of the table. However, the significance of the keys is not their precise
location in the kitchen, but instead that the officers observed them left near the open back door of
the house, the rational inference being that appellant dropped or tossed them in his haste as he
fled into the backyard.
8
Appellant does not contest on appeal that, if reasonable suspicion existed initially to
stop appellant, police had probable cause to believe appellant was evading arrest or detention. A
person evades arrest or detention if he intentionally flees from a person he knows is a peace
officer attempting lawfully to arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a) (West
2011). A peace officer may arrest an offender without a warrant for any offense committed in
the officer’s presence or within the officer's view. TEX. CODE CRIM. PROC. ANN. art. 14.01(b)
(West 2011). Here, based on the facts that appellant continued driving and refused to stop after
Taylor began pursuing him with her emergency lights on, and appellant refused to stop after
exiting his vehicle as Taylor ordered him to stop, and appellant ran into the house and slammed
the door, police had probable cause to believe that appellant was evading arrest or detention.
Because police sought to lawfully detain appellant for reasonable suspicion of DWI and
appellant evaded such detention, appellant committed an offense in the presence of Taylor that
justified appellant’s arrest. See Rue, 958 S.W.2d at 918.
15
circumstances to enter the back building without a warrant based on “the sum of all
the information known to the officer[s] at the time of entry.” See Parker, 206
S.W.3d at 600. “Probable cause to search exists when the totality of the
circumstances allows a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” Dixon, 206 S.W.3d at 616.
Moreover, “probable cause is a fluid concept—turning on the assessment of
probabilities in particular factual contexts.” Id. (quoting Illinois v. Gates, 462 U.S.
213, 232 (1983)).
Here, appellant’s trail first led police from his vehicle to the main house. As
Taylor ordered appellant to stop after he exited his vehicle, appellant ran into the
main house and slammed the door. Taylor entered the house and searched for
appellant. Rodriguez joined the search. The officers observed a set of keys on the
kitchen floor and the back door “cracked open,” and Rodriguez heard dogs
barking, all of which reasonably could lead to the rational inference that appellant
had exited the main house and entered the backyard. The officers observed
another structure in the backyard and shined their flashlights into it, but the shed
was darkened, did not have a deadbolt, and appeared to be used for storage. Then
the officers checked around the building and the “clutter” in the backyard. As
Rodriguez noted, although appellant may have hopped over the fence, an equal
probability existed that appellant had hidden himself somewhere in the backyard.
Faced with this even probability, the officers then heard the “thump” and “stirring”
noises that sounded like a person coming from the back building. The officers
specifically suspected that appellant had made the noise; Rodriguez “didn’t believe
anyone else would be behind the door because of the fact that it looked like a
storage shed or empty building.” Therefore, keeping in mind that probable cause
must be based on all the information within the officers’ knowledge at the time of
16
entry, we conclude that the circumstances here would lead a man of reasonable
prudence to believe there was a “fair probability” appellant was hidden behind the
back door of the back building. See Gutierrez, 221 S.W.3d at 685. In other words,
appellant’s trail ultimately led police to the back building.
4. Police were in hot pursuit of appellant.
Appellant argues that hot pursuit could not provide the basis for a finding of
exigent circumstances to enter the back building to search for and arrest him
because the trail had “gone cold” after police searched the main house and the
officers did not see appellant enter the back building. Appellant further argues that
Rodriguez admitted police could have obtained a warrant for the back building.
Hot pursuit of a suspect evading arrest or detention is an exigent
circumstance justifying a warrantless entry and arrest. See Santana, 427 U.S. at
42–43; Rue, 958 S.W.2d at 918; Winter, 902 S.W.2d at 573–74; Curry, 831
S.W.2d at 488. Appellant does not dispute evading arrest or detention is a serious
enough crime that police in hot pursuit would be permitted to enter the back
building without a warrant and arrest him. See Winter, 902 S.W.2d at 573–74.
And appellant conceded at the suppression hearing that the rule of hot pursuit
likely permitted Taylor’s warrantless entry into the main house. Instead, appellant
relies on Welsh v. Wisconsin and contends that hot pursuit did not justify entry into
the back building because there was no longer an immediate or continuous pursuit.
See 466 U.S. 740, 753 (1984) (rejecting State’s argument that police were in hot
pursuit “because there was no immediate or continuous pursuit of the petitioner
from the scene of a crime”).
However, Welsh is distinguishable because the suspect there had abandoned
his car at the scene of an accident, walked away from the scene without ever being
observed by police, and was safely at his home asleep by the time of his arrest. See
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id. Further, while the doctrine of hot pursuit focuses on the immediate and
continuous nature of the pursuit, it does not require that police keep the suspect
squarely in their sights at all times. See LaHaye v. State, 1 S.W.3d 149, 152–53
(Tex. App.—Texarkana 1999, pet. ref’d) (concluding hot pursuit applied despite
officer having to turn his vehicle around to pursue suspect, who was on a moped,
and despite officer’s losing sight of suspect as suspect ran into an apartment
complex); see also Jimenez v. State, 750 S.W.2d 798, 803 (Tex. App.—El Paso
1988, pet. ref’d) (noting that “it is the overall continuity of the pursuit which
should govern,” and concluding hot pursuit applied despite “gap in observation” of
appellant’s vehicle by police).
Here, Taylor began pursuing appellant’s truck on the residential street and
observed appellant enter the main house. Taylor continued her pursuit of appellant
by entering and searching for him in the main house. Rodriguez joined Taylor, and
both officers continued the pursuit based on reasonable circumstances that led
them to believe appellant had entered the backyard. The officers continued to
search for appellant in the backyard by checking areas where a person could hide.
Rodriguez indicated that it was not “five, ten seconds into searching” the back
portion of the yard when the officers heard noises coming from the back building
that they believed to be appellant. Thus, there was no break in the officers’
continuous efforts to apprehend appellant. Therefore, we conclude the trial court
did not commit clear error or abuse its discretion in finding that the officers were in
hot pursuit of appellant when they entered the back building. See Parker, 206
S.W.3d at 598 n.21; Estrada, 154 S.W.3d at 610; LaHaye, 1 S.W.3d at 153.
Finally, appellant argues the State failed to show exigent circumstances
existed that “made the procuring of a warrant impracticable” because Rodriguez
stated, “we could have [obtained a warrant] if we really suspected that [appellant]
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was in [the back building].” But this testimony does not indicate that obtaining a
warrant was in fact practicable under the circumstances presented. To the
contrary, Rodriguez was referring to a hypothetical situation because what the
officers knew at the time did not lead them to “really suspect” appellant was in the
back building. The back building appeared dark and vacant, and there was a “fifty-
fifty chance” appellant could have “hopped the fence” instead of staying in the
backyard. Mere seconds later, as they continued their search of the backyard, the
officers heard sounds coming from the back building that reasonably indicated
appellant—whom they reasonably suspected of DWI and whom they had probable
cause to believe was committing the serious offense of evading detention or
arrest—was hidden inside. Based on the totality of the information available to the
officers in the heat of that precise moment, we cannot conclude that their decision
to immediately enter the back building without first obtaining a warrant was
unreasonable. See Parker, 206 S.W.3d at 597, 601. Thus, we overrule appellant’s
second, third, and fourth issues.
IV. CONCLUSION
Accordingly, because the State adequately established that police had
reasonable suspicion to detain appellant for DWI, and that both probable cause and
the exigent circumstance of hot pursuit existed to validate the officers’ warrantless
entry into the back building and appellant’s arrest, the trial court did not err in
denying appellant’s motion to suppress. See Amador, 275 S.W.3d at 878.
Therefore, we affirm the trial court’s judgments.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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