Pair v. State

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Pursuant to a plea bargain, Appellant Frankie Dean Pair, Jr. pleaded guilty to the offense of manufacture of more than 400 grams of methamphetamine, and the trial court sentenced him to five years’ confinement. In two points, Pair complains that the trial court erred by denying his pretrial motion to suppress. We will affirm.

II. Factual BackgRound¹

Around 10:00 p.m. on February 28, 2003, deputies with the Montague County Sheriffs Department attempted to serve a felony arrest warrant on Kathy McWilliams in Sunset, Texas. Deputy Dwayne Schel-steder and two other deputies approached a single-story house and knocked on the front door, but no one answered. A strong odor of ether emanated from the interior of the house, and the deputies thought they heard something — a person or an animal — moving around inside of the residence. The deputies then walked around to the rear of the house and knocked on the back door; again, no one answered.

Concerned with the odor emanating from the house, one of the deputies contacted Deputy Dan Jordan, a lieutenant investigator for the sheriffs department. Deputy Jordan instructed the deputies to watch the house and make sure nobody left until he arrived. Deputy Jordan contacted Department of Public Safety Trooper Marshall Thomas and informed him that while attempting to serve an arrest warrant, deputies noticed a strong either-like odor commonly associated with methamphetamine coming from inside of the residence, that no one answered the door despite their repeated knocks, and that people were moving around inside. Another deputy had noticed “a pitcher of white powder on the back porch” that was thought to contain methamphetamine or methamphetamine by-products. Familiar with the residence because of information previously received that a methamphetamine lab possibly existed there, Trooper Thomas advised Deputy Jordan and the other officers to enter the residence in order to prevent the destruction of any possible evidence of drug activity. Trooper Thomas further advised the deputies to remove the occupants from inside the house but to not perform a search of the premises.

Deputy Jordan arrived at the residence with additional officers and entered the house. Although deputies did not search the house, those persons discovered inside were taken outside, patted down for weapons, handcuffed, and placed in patrol cars. One individual was discovered in a bathroom pouring liquid into the toilet; officers detained him before he could flush the toilet. Pair was among those removed from the house.

Trooper Thomas obtained a search warrant in the meantime and arrived at the residence thereafter. Officers searched the residence and collected the white powder substance in the pitcher located on the back porch, the liquid from the toilet, and three syringes — one found in a kitchen drawer, one found in a coat on the couch, and another found on top of the oven— containing a clear liquid. Officers also found pseudoephedrine pills still in blister packets, clear liquid in an acetone container in the kitchen, and a baggie of white powder on top of the oven. Subsequent analysis of the seized items showed that the white powdery substance in the pitcher found on the back porch, two of the syringes, the clear liquid from the toilet, and the baggie holding white powder all contained methamphetamine.

In his motion to suppress evidence, Pair argued that both “the actions of the Texas Department of Public Safety Narcotics Service” and his warrantless arrest violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution. Deputy Schelsteder and Trooper Thomas were the only two witnesses to testify at Pair’s suppression hearing. The trial court signed an order denying Pam’s motion to suppress on October 5, 2004; it made no findings of fact or conclusions of law. Pair appeals from this pretrial ruling.

III. SEARCH, Steelman, and Admissibility of Evidence

In his first point, Pair argues that the trial court improperly denied his motion to suppress because he was illegally arrested. The State, however, maintains that the trial court correctly denied Pair’s motion to suppress because the officers’ initial entry and subsequent search of the residence was lawful.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Therefore, we give almost total deference to the trial court’s ruling on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Best, 118 S.W.3d at 861-62. However, we review de novo a trial court’s rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.

Where the trial court denies the motion and does not file findings of historical fact, as in this case, we view the evidence in the light most favorable to the trial court’s ruling and assume that the ruling is based upon implicit findings of fact supported by the record. Carmouche, 10 S.W.3d at 327-28. Furthermore, we will uphold the trial judge’s decision so long as it is correct under any theory of law. Ross, 32 S.W.3d at 855-56.

B. Evidence Derived From Lawful Warrantless Entry and Subsequent Search Admissible Under Article 38.23(a)

A non-consensual police entry into a residential unit constitutes a search under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). A warrantless search is justified when the State shows (1) that probable cause existed at the time the search was made and (2) that exigent circumstances existed which made the procuring of a warrant impracticable. Estrada v. State, 154 S.W.3d 604, 610 (Tex.Crim.App.2005); McNairy, 835 S.W.2d at 106. Probable cause to search a residence exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. McNairy, 835 S.W.2d at 106. Exigent circumstances exist allowing a warrantless entry into a house when officers are justified in believing that evidence or contraband will be destroyed before they can obtain a search warrant. Id. at 107. Several factors are used in analyzing whether officers could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to the officers guarding the site of the contraband while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destruetibility of the contraband and knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. Id.

Applying the aforementioned principles to the instant case, testimony at the motion to suppress hearing showed that as Deputy Schelsteder stood at the front door he smelled a strong odor, which he believed to be ether, emanating from the house. Based on his knowledge and experience as a deputy, he recognized the odor as one commonly associated with the manufacture of methamphetamine. See Estrada, 154 S.W.3d at 608-09 (“Though it is clear that odor alone may not justify a warrantless search, ... [t]he ‘odor of an illegal substance’ may be a factor that police officers use in determining whether there is probable cause that an offense has been or is being committed.”) (emphasis added). In addition to the odor, Deputy Schelsteder further testified that he thought he heard movement inside the house although he was not sure if it was a person or an animal. Trooper Thomas was in contact with Deputy Jordan. Trooper Thomas testified that he had previously conducted surveillance on the house because he had received information that a methamphetamine lab was possibly operating inside. He testified that Deputy Jordan informed him that “in addition to smelling the chemical odor, they [the deputies] could hear people inside the residence moving around, kind of like they were running, maybe trying to hide.” Trooper Thomas also learned from Deputy Jordan that a deputy on the scene had observed a “pitcher of a white powder on the back porch consisting of methamphetamine or by-products of methamphetamine.” Viewing the evidence in the light most favorable to the trial court’s ruling and considering the facts and circumstances available to the officers prior to the entry and considering the reasonable inferences that could be drawn from that information, we hold that probable cause existed to enter the residence. McNairy, 885 S.W.2d at 106.

Having determined that probable cause existed, we next examine the record to determine whether exigent circumstances existed to justify the warrantless entry. Deputies knocked on the front and back doors of the house, but no one answered; however, they thought they heard people moving around inside. Deputy Schelsteder testified that he and the other officers entered the residence “to make sure no evidence was destroyed.” Indeed, Trooper Thomas testified that he “advised [Deputy] Jordan to ask officers to go ahead and make entry for officer safety to make sure that no one was injured and to prevent destruction of any other evidence in the residence.” Trooper Thomas secured a search warrant in the meantime, and officers did not conduct a search of the residence until the search warrant arrived. Accordingly, we hold that exigent circumstances existed justifying entry into the house because a warrant could not be obtained immediately, because officers heard people moving around within the house, and because any contraband inside the residence — allegedly methamphetamine — was readily destructible. See id. at 107.

Pair argues that the trial court erred by denying his motion to suppress because his arrest was unlawful. Following his lead and citing State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App.2002), the dissent concludes that “[b]ecause the police could not have lawfully arrested Appellant under any exception to the warrant requirement, ‘they had no authority (under article 14.05) to enter the residence without a warrant and conduct a search, and any evidence seized as a result of those illegalities was tainted and subject to suppression.’ ” Thus, Pair and the dissent contend that the evidence gathered from the house should have been suppressed because Pair was illegally arrested under Texas Code of Criminal Procedure Article 14. We disagree for two reasons: first, the facts and thus applicable law of this case are distinguishable from those in Steelman, and second, the seized evidence is admissible pursuant to article 38.23(a) of the code of criminal procedure.

The dissent suggests that the facts of this case are “similar” to those in Steel-man, and it proceeds to cite portions of that opinion at length. This case, however, is distinguishable in significant ways. First, the officers in Steelman entered the residence for the purpose of effecting a warrantless arrest. Id. at 104; see also Parker v. State, — S.W.3d -, -, No. 07-02-0354-CR, 2005 WL 66942, at *2-3 (Tex.App.-Amarillo Jan.12, 2005, pet. granted) (“[T]he dispositive issue [in Steelman ] was whether probable cause existed to justify a warrantless arrest of Steelman in his home.”); Effler v. State, 115 S.W.3d 696, 699 (Tex.App.-Eastland 2003, pet. ref'd) (“[T]he officers in Steelman entered the home for the purpose of effecting a warrantless arrest of its occupants.”). The court stated,

Ian opened the door, stepped outside, and closed the door behind him. When Ian opened the door, the officers smelled the odor of burnt marijuana. The officers asked Ian for identification. Ian informed the officers that he would have to retrieve his identification from inside the house. He then opened the door, walked back through it, and attempted to close it behind him. At that point, one of the officers placed his foot in the doorway and prevented Ian from closing the door. The officers then burst through the doorway, handcuffed all of the occupants, including Leo, and placed them all under arrest.

At that point, the officers contacted narcotics agent David Varner. Varner arrived at the scene and smelled marijuana inside the residence. After asking for, but not receiving, appellees’ consent to search the residence, Varner left to obtain a search warrant.

Steelman, 93 S.W.3d at 104 (emphasis added). Here, officers did not (1) enter the residence in order to arrest the inhabitants because they smelled an odor commonly associated with the manufacture of methamphetamine and then (2) seek a warrant to search the residence. Rather, here officers entered the residence with probable cause for the purpose of preventing the destruction of contraband pending arrival of the search warrant. See Estrada, 154 S.W.3d at 608 (“Our holding in Steelman does not support the proposition that marijuana odors alone cannot constitute probable cause for a warrantless search. Rather, Steelman holds that the mere odor of marijuana does not constitute the probable cause necessary for police to arrest someone for committing an offense in their presence.”) (emphasis added). Second, in Steelman, unlike in this case, there is no assertion or discussion of exigent circumstances necessitating the officers’ entry into the residence. Thus, the Steelman facts are distinguishable from the facts of this case.

Moreover, Pair is appealing the trial court’s denial of his motion to suppress illegally obtained evidence. Article 38.23(a) of the Texas Code of Criminal Procedure provides that evidence “obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America” shall not be admitted in evidence against the accused on the trial of any criminal case. Tex.Code CRiM. PRoc. Ann. art. 38.23(a) (Vernon 2005). As discussed above, a warrantless entry into a residence is a search. We determined that officers had probable cause to enter the residence and that exigent circumstances existed. Consequently, the warrantless entry was valid and justified. After entering the residence and removing those inside, officers did not proceed to conduct a search and seizure of items in the house. Rather, they postponed any further search until after a warrant had been acquired. After the search warrant arrived, the officers proceeded to search the residence and found the contraband that is at issue in the motion to suppress.

Throughout his appellate brief, Pair attempts to confuse the issues. He wants to prevent the evidence seized by officers from the residence, pursuant to a valid search warrant, from being used against him.² But he tries to achieve this by arguing a “warrantless arrest.” This he cannot do. See Steelman, 93 S.W.3d at 123 (Hervey, J. dissenting).

Accordingly, we hold that the evidence Pair sought to suppress was not obtained in violation of article 38.23(a) — it was obtained pursuant to a valid search warrant after officers having probable cause entered the house to prevent the destruction of contraband. That Pair may have been illegally arrested — which we do not decide — has no effect upon and is of no consequence to the subsequent lawful search of the residence, the seizure of contraband from the residence, and the admissibility of that evidence. Johnson v. State, 871 S.W.2d 744, 749-51 (Tex.Crim.App.1994) (“If the evidence is not ‘obtained’ in violation of the law, then its admission into evidence is not in contravention of Art. 38.23.”). The trial judge’s decision was correct under this theory of law. See Ross, 32 S.W.3d at 855-56. Therefore, the trial court did not err by denying Pair’s motion to suppress evidence. We overrule Pair’s first point.

IV. SEARCH WARRANT VALIDITY

In his second point, Pair argues that the search warrant executed by the officers was invalid to authorize a search of the residence because the credibility of those individuals reporting information to the affiant cannot be determined, because part of the information relied on by the affiant is stale, and because the affidavit fails to name the deputies providing some of the information.

In determining whether a probable cause affidavit sufficiently supports a search warrant, the trial court examines the totality of the circumstances and gives great deference to the magistrate’s decision to issue the warrant.³ Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1198, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997); State v. Duncan, 72 S.W.3d 803, 805 (Tex.App.-Fort Worth 2002, pet. dism’d). Probable cause exists when the magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). Although we examine only the four corners of the affidavit to determine whether probable cause exists, a magistrate may draw reasonable inferences from the affidavit and must interpret the affidavit in a common sense and realistic manner when determining whether probable cause exists to issue the warrant. Ramos, 934 S.W.2d at 362-63; State v. Stone, 137 S.W.3d 167, 175 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); Duncan, 72 S.W.3d at 805-06.

The allegations in the affidavit are sufficient if they would “justify a conclusion that the object of the search is probably on the premises.” Ramos, 934 S.W.2d at 363. While information from an unnamed informant alone does not establish probable cause, the informant’s tip combined with independent police investigation may provide a substantial basis for the probable cause finding. Janecka v. State, 739 S.W.2d 813, 825 (Tex.Crim.App.1987). A police officer is presumed to be reliable and no special showings are required. Davis v. State, 165 S.W.3d 393, 405 n. 3 (Tex.App.-Fort Worth 2005, pet. granted) (citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); Barton v. State, 962 S.W.2d 132, 143 (Tex.App.-Beaumont 1997, pet. ref'd).

Probable cause ceases to exist when it is no longer reasonable to presume that items once located in a specified place are still there. Stone, 137 S.W.3d at 178. When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time between the occurrence of events set out in the affidavit and the time the search warrant was issued becomes less significant. Id.

The affidavit, dated March 1, 2003, states that on October 17, 2002, Deputy Jordan advised Trooper Thomas, the affi-ant, that he had received information from a confidential informant that the occupants of 201 Campbell Street — the searched residence — were believed to be manufacturing methamphetamine. On December 15, 2002, Montague County deputies attempted to serve a warrant on a subject at the residence and smelled a strong odor of ether coming from about the residence. As the affidavit states, “The Deputies knew that ether is a known ingredient in the manufacture of Methamphetamine and the owner of the residence is associated with known drug dealers and users.” The affidavit continues,

On this date [the date the affidavit was executed — March 1, 2003], Deputies with the Montague County Sheriff’s Office went to the residence in order to serve a felony arrest warrant on a subject who was reported to be inside. While at the residence, Deputies smelled a strong chemical odor that they know, due to their experience and training as law enforcement officers, to be associated with the Manufacture of Methamphetamine.

The information Trooper Thomas received from fellow officers is presumed credible. See Barton, 962 S.W.2d at 143. Moreover, the information supplied by the confidential informant does not stand on its own; it was corroborated by deputies just a few hours before the warrant was signed. Although a portion of the facts set out to establish probable cause relates information acquired in late 2002, the affidavit states that deputies attempting to serve an arrest warrant at the residence on February 28, 2003 once again smelled a chemical odor that they associated with the manufacture of methamphetamine. Thus, because the affidavit states facts indicating activity of a protracted and continuous nature, we give less significance to the passage of time between late 2002 and the day the warrant was signed and conclude that it was reasonable to assume that items located at the residence — methamphetamine — were still there. See Stone, 137 S.W.3d at 178. Finally, nothing in the Texas Code of Criminal Procedure requires the affidavit to provide the names of the officers supplying information. See Tex.Code CRim. Proc. Ann. art. 18.01(b), (c), (d) (Vernon Supp.2005). Accordingly, we overrule Pair’s second point.⁴

V. Conclusion

Having overruled both of Pair’s points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

1 . The dissent provides a different view of the factual events and their timing, not viewing the historical facts in the light most favorable to the trial court’s ruling.

2 . The items Pair seeks to suppress were found in the residence, not on Pair's person.

3 . The Supreme Court has expressed the probable cause standard as follows:

[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the "laminated total ... [.]” In dealing with probable cause, ... as the very name implies, we are dealing with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

McNairy, 835 S.W.2d at 106 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)).

4 . The dissent raises issues that were not asserted by Pair in his brief. Having no discretion to consider unassigned error, we decline to entertain those lines of argument. See Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).