Stewart v. State

OPINION ON MOTION FOR REHEARING EN BANC

SEARS, Justice.

On Motion for Rehearing, En Banc, the original opinion is withdrawn and the judgment of the Trial Court is reversed and remanded.

This case involves the question of whether a warrantless entry by police into the private apartment of Appellant was justified under the “emergency doctrine.”

Appellant was convicted, in a trial to the court, of manufacturing methamphetamine. He received a probated sentence and a $4000 fine. The conviction was affirmed by two justices of this court and a dissent was written by Justice Ellis. Appellant timely filed a motion for rehearing, en banc, which was granted.

Appellant and a co-defendant, Green, were tried separately and both were convicted of manufacturing methamphetamine. On appeal, Green’s conviction was reversed. Green v. State, 666 S.W.2d 291 (Tex.App.-Houston [14th Dist.] 1983, no pet.). The opinion in Green concluded the stipulation of evidence was invalid as it lacked the signature of the trial judge, and warrantless entry was not justified under the emergency doctrine. In the first Stewart opinion, the majority concluded an “emergency” existed, therefore a warrant-less search was justified, and the introduction into evidence of contraband seized was lawful and proper.

Appellant raises five grounds of error, however our treatment of the first ground of error is dispositive of this case. Appellant complains in ground of error one that the trial court erred in holding that the warrantless entry of the apartment was lawful. We agree, and ground of error one is sustained.

Before we reach the “emergency” issue, we feel it important to respond to the State’s position that Appellant cannot complain about the introduction of evidence because Appellant executed a “Stipulation of Evidence” and thereby agreed that the court could base its finding of guilt or innocence on this evidence. The Appellant handled the trial and the stipulation correctly, as he followed the instructions of this court in Zappas v. State, 650 S.W.2d 131 (Tex.App.-Houston [14th Dist.] 1982, pet. granted). It must be understood that a “Stipulation of Evidence” is not an agreement that the evidence or testimony is admissible or that the testimony is truthful. It is merely an agreement to waive cross-examination of witnesses and agree that the written version of their testimony is the same as it would be if they were present in the courtroom. Further, in this case, the Stipulation of Evidence contained the following language:

The parties agree that the Defendant does not waive his right to complain of the legality of the search or warrant in this cause.

It is clear that Appellant at all times complained of the court’s error in overruling the Motion to Suppress and in admitting evidence seized pursuant to the unlawful entry into Appellant’s apartment. It is also clear that the court and the State understood and agreed to Appellant’s right to appeal that ruling of the court.

In addition to the Stipulation of Evidence, the record contains the statement of facts from the hearing on the Motion to Suppress and the tape recording of conversations with the Houston Fire Department (H.F.D.) and the Houston Police Department (H.P.D.). The record establishes that a resident of an apartment complex called the H.F.D. at 8:59 a.m. complaining of a “gaseous odor” in the area. Mark Key, an eight year veteran of H.F.D., responded with a unit, discovered the complex was completely electrical, and ruled out the possibility of a natural gas leak. Key talked with the couple who made the complaint and learned they had been bothered by this order for the past week. Key determined the odor was ether, but a walk-around of the complex failed to locate the source. Key had never encountered any problems or responded to any emergency calls regarding ether. He recognized the odor because he had previously purchased it at an auto parts store and used it on his car. He called the H.F.D. dispatcher, and reported “a definite smell of ether all through the apartments.” He reported the complainant “smelled it every night and suspected someone was making dope.” He requested instructions on what course of action to take. The dispatcher talked with the chief dispatcher who advised that the people call H.P.D. and said, “The best thing to do is to let him (complainant) handle it on his end, and tell him there’s really nothing we can do about it.” Key told the couple to call H.P.D. and returned to the fire station confident that no emergency existed.

The couple then called H.P.D. and reported the smell of ether, the suspicion of dope and related that H.F.D. had responded, found no emergency and advised them to call H.P.D. Officer Shirley of H.P.D. responded, smelled a strong odor of ether, and from his past experience in narcotics, suspected a methamphetamine laboratory. Shirley investigated and discovered apartment 69 to be the source of the ether. A “cloud” of ether was seen on the patio of the apartment and appeared to emanate from the doors and/or windows of apartment 69. The record is not clear at this point whether Shirley or some other police officer called the Harris County District Attorney’s office. However, someone talked to an assistant district attorney who advised him to call H.F.D. Officer Shirley at this time called H.F.D. from the complainant’s apartment, and talked to Key. Key advised Shirley that ten to fifteen minutes earlier he had investigated the ether odor and found no emergency situation. Shirley stated that the odor was much stronger now and that apartment 69 was the source. Key advised that, if the odor was “that strong,” Shirley should knock on the door of the apartment, and if no one answers, to enter and air out the apartment. Shirley then called H.P.D., reported locating the source of the ether, and stated “we’re going inside to check it out.” Shirley then proceeded to apartment 69, knocked on the door, and waited ten minutes before Appellant opened the door. The “cloud” and the smell were stronger when the door was opened and Shirley immediately rushed past Appellant, entered the apartment without consent, opened windows and saw “in plain view” a methamphetamine laboratory. Appellant and Green were placed under arrest, other officers were called to the scene, a search warrant was obtained, and the evidence was seized.

For purposes of this appeal, we find it unnecessary to deal with the issuance of the subsequent search warrant. Shirley’s warrantless entry was either good or bad in law the instant it was made. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Therefore, the subsequent issuance of a search warrant cannot justify a previous unjustifiable act and make evidence admissible that is otherwise inadmissible. A “search” occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, - U.S. -, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

We must first approach this appeal with the viewpoint that any search conducted outside the judicial process, and without prior approval of a judge or magistrate, is per se unreasonable under the Fourth Amendment to the Constitution of the United States. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We next look to specific exceptions to the above rule to determine if our facts fall within these well delineated exceptions. There are three exceptions under which a warrantless search and seizure can be held justified: (1) “Plain view” doctrine, (2) “consent,” or (3) “emergency” doctrine. Root v. Gauper, 438 F.2d 361 (8th Cir.1971). The “plain view” doctrine carries with it the requirement that the officers have the right to be where they are when they first “view” the evidence in question. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). This exception will apply only if we find that Shirley had a right to be in Appellant’s apartment in the first place. There is nothing in the record to show that the lab was visible from outside the apartment. Further, the “consent” exception cannot help the State because there is no evidence to support a claim that Appellant or any one else consented to Shirley’s entry of Appellant’s apartment. We are therefore left with the “emergency doctrine” exception as the only avenue available to the State to justify the introduction into evidence of the items seized.

The emergency doctrine originated in dictum in Justice Jackson’s opinion in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947):

There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.

The U.S. Supreme Court expanded on the foregoing by establishing an emergency exception when an officer hears a cry for help and demands entrance in the name of the law. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Since that time, the emergency doctrine has been applied in many varying circumstances, however they all fall into one of three categories:

(1) to render emergency aid or assistance to persons whom they reasonably believe to be in distress or in need of assistance.¹

(2) to prevent the destruction of evidence or contraband.²

(3) to protect the officers from other suspects or persons whom they reasonably believe may be present, and if so, they reasonably believe may be armed and dangerous.³

In applying the facts of this case to the foregoing categories of emergency exceptions, we can immediately eliminate (2) and (3). Officer Shirley testified that he had no reason to believe Appellant or anyone else was disposing of contraband, and, there is no evidence in the record to indicate that Shirley believed there was anyone armed and dangerous in the apartment. Therefore, in order for officer Shirley’s warrantless entry into Appellant’s apartment to be justified, officer Shirley must have entered to protect the occupants of the apartment from harm or to render aid and assistance if he reasonably believed them to be in distress.

An objective standard as to the reasonableness of the officer’s belief was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that in-trusion_ And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search, warrant a man of reasonable caution in the belief that the action taken was appropriate?

Applying the above standard to the instant case, we conclude the action of Shirley was not justified by any emergency condition. Shirley, in response to a leading question by the State, testified that his primary concern was for the safety of the people inside apartment 69 and the residents of all the apartments. However, his following actions contradict his alleged motives:

(1) Shirley smelled ether and suspected a methamphetamine laboratory.

(2) He took the time to call or have someone call the Harris County District Attorney’s office for advice pri- or to entering the apartment.

(3) On the advice of an assistant district attorney he called H.F.D.

(4) H.F.D. advised him to enter the apartment if no one answered the door.

(5) He testified he would have entered the apartment regardless of what H.F.D. advised.

(6) He took the time to call H.P.D. and advise the dispatcher he was entering the apartment.

(7) He knocked on the door of apartment 69 and waited 10 minutes for Appellant to open the door.

(8) He failed to get a pass key from the security guard or apartment manager and immediately enter apartment 69.

(9) He failed to inquire of Appellant if he was in need of aid or assistance before entering the apartment.

(10) He failed to determine if any other persons were in the apartment and in need of aid or assistance before entering the apartment.

(11) There is no evidence that anyone in the entire complex was in need of aid or assistance and there is no reasonable belief that anyone was.

(12) He failed to notify H.F.D. of any emergency that threatened the lives of the residents of the complex. The first time he called Key he was seeking advice, and the second call was to report finding a dope laboratory.

(13) He failed to notify H.P.D. of any life threatening emergency, instead he told them he suspected dope and was going in.

(14) He failed to take any precautions or to seek any assistance to remove any persons from a potential danger zone.

(15) He did not respond immediately to what he claimed was an emergency situation.

The gist of all of the case law dealing with the emergency exception is the need to act immediately, thus negating the possibility of obtaining a search warrant. The only reasonable justification for an exception to the per se unreasonableness of such a warrantless intrusion is the emergency of the situation. The actions of Shirley do not lead us to believe that he reasonably believed an emergency existed. Even if he thought Appellant and others were overcome by ether in the apartment, and entered to give them aid and assistance, this “emergency” terminated the minute Appellant opened the door. The record contains no evidence that Appellant or Green were in need of aid or assistance. We cannot, even in retrospect, reasonably conclude any other residents were in any “immediate” danger.

The facts in this appeal are very similar to those in Bray v. State, 597 S.W.2d 763 (Tex.Crim.App.1980). In both cases, persons specially trained to handle the “emergency” were on the scene prior to the arrival of the police. In both cases the trained persons concluded no emergency existed and left the scene. In both cases the police could have requested consent to enter and failed to do so. In both cases the unjustified entry was, at least in part, motivated by the belief a crime had been committed. The Bray court noted:

There is a difference between rendering emergency aid and investigating the possibly criminal cause of the emergency.' The emergency doctrine justifies the former, but it does not always justify the latter.

See also Root v. Gauper, 438 F.2d 361 for a similar fact situation.

In Provost v. State, 631 S.W.2d 173 (Tex.App.-Houston [1st Dist.] 1981, pet. ref’d), the State contended an emergency justified a warrantless entry into a home. The court of appeals rejected that contention because the police did not act immediately, but instead they: (1) telephoned the District Attorney, (2) telephoned the fire department, and (3) waited ten minutes before entering.

The unauthorized physical entry of a person’s home is the chief evil against which the wording of the Fourth Amendment is directed. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), see also Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

In summation, it appears the only valid test to determine the reasonableness of officer Shirley’s actions is to balance the need to enter against the constitutionally protected right violated by such intrusion. The burden of proof is on the State to show that “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. at 456, 69 S.Ct. at 193. The State has failed in this burden.

The judgment of the Trial Court is reversed and remanded for a new trial.

1 . ... Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

2 . ... Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

3 . . ..Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).