
 










IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1980-03


XAVIER HERNANDEZ BAROCIO, Appellant

v.


THE STATE OF TEXAS




ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW
FOURTEENTH COURT OF APPEALS
HARRIS COUNTY


		Hervey,  J., delivered the opinion of the Court in which Keller, PJ., Meyers,
Womack, Keasler and Cochran, JJ., joined.  Price, J., filed an opinion concurring in the
judgment,  in which Johnson and Holcomb, JJ., joined.

O P I N I O N



	After the trial court denied his motion to suppress, appellant pled no contest to misdemeanor
possession of marijuana.  We address whether probable cause and exigent circumstances existed to
justify a warrantless police entry into appellant's home, during which the police saw the marijuana
in plain view.
	The evidence from the suppression hearing shows that two sheriff's deputies (Wyatt and
Kirsch) had probable cause to suspect a possible, ongoing burglary of appellant's home.  See Barocio
v. State, 117 S.W.3d 19, 21-22 (Tex.App.-Houston [14th Dist] 2003) and at 32-34 (Guzman, J.,
dissenting).   While on patrol, these deputies noticed an illegally parked car, with its driver's door
open and the keys in the ignition, in front of a home.  See id.  When they approached the home to
investigate, they saw pry marks on the front door lock and a surveillance camera aimed at the front
door.  See id.  The deputies knocked on the front door.  See id.  While waiting for someone to answer
the door, they heard a lot of noise inside the home, and they smelled burnt marijuana.  See id.  Kirsch
testified that, in his experience, it would not be unusual for burglars to smoke marijuana in a home
that they were burglarizing.  See id.  Several minutes later, appellant opened the door,  and the odor
of burnt marijuana became stronger.  See id.  The deputies repeatedly requested appellant's
identification.  See id.
	At this point, the testimony of the deputies conflicted.  See id.  Wyatt testified that appellant
refused to provide  identification and that he detained appellant on the porch while Kirsch entered
the home to conduct a "protective sweep" and to investigate "the smell of marijuana."  See id. 
Kirsch testified that appellant eventually indicated that his identification was inside the home.  See
id.  Kirsch told appellant to get his identification.  See id.  Kirsch and Wyatt followed appellant when
he went inside the home.  See id.  Kirsch testified that he followed appellant to investigate the
marijuana odor and the possible burglary.  See id.  Once inside the home, the deputies saw the
marijuana in plain view.  See id.  They eventually learned that the home belonged to appellant and
that appellant was not a burglar when appellant's wife arrived  and identified appellant.
	The Court of Appeals accepted the deputies' testimony that they entered the home to
investigate the odor of burnt marijuana and a possible burglary.  See Barocio, 117 S.W.3d at 23
("decision in this case does not turn on the credibility or demeanor of the witnesses because the
[deputies'] testimony, even if entirely believed, is insufficient to justify the warrantless entry into
appellant's home").  The Court of Appeals also accepted that the deputies had probable cause to
believe that appellant was burglarizing the home when they detained appellant on the porch.  See
Barocio, 117 S.W.3d at 24-25.
	Relying on this Court's decision in Steelman v. State, 93 S.W.3d 102 (Tex.Cr.App. 2002),
the Court of Appeals decided that the odor of burnt marijuana alone did not justify the warrantless
entry into the home.  See Barocio, 117 S.W.3d at 24 ("odor of marijuana, standing alone, does not
authorize a warrantless search and seizure in a home") quoting Steelman, 93 S.W.3d at 24.  The
Court of Appeals also decided that, while police can enter a home to investigate a  burglary in
progress, they may not do so "after detaining the sole suspect."  See id. (emphasis in original).  We
exercised our discretionary authority to review this decision.  The three grounds upon which we
granted discretionary review state:
	1) The published one-judge plurality opinion below failed to view the evidence in the
light most favorable to the trial court's ruling on the motion to suppress and
incorrectly reviewed the trial court's ruling under a de novo standard when there were
many witnesses who gave conflicting or inconsistent testimony that could have been
the basis for the trial court's ruling.

	2) The published one-judge plurality opinion below incorrectly applied Steelman v.
State (citation omitted), in reversing the trial court's denial of a motion to suppress
where evidence at the suppression hearing showed that the officers reasonably
believed that they were investigating a burglary and that other suspects might be
inside the residence.

	3) The published one-judge plurality opinion below incorrectly held that the  State
had waived the issue of attenuation by allegedly failing to argue that issue during the
suppression hearing when the trial court ruled in favor of the  State at that hearing.

	We initially note that this case is distinguishable from Steelman because, unlike in Steelman,
the deputies entered the home based on more than just the odor of burnt marijuana.  They also had
probable cause to suspect a possible, ongoing burglary and exigent circumstances allowed them to
enter the home without a warrant to investigate the situation further.  And, we do not agree with the
decision of the Court of Appeals that police may not enter a home to investigate a possible burglary
after detaining what ultimately turns out to be the sole suspect in the burglary.  See Barocio, 117
S.W.3d at 24-25.  We agree with the analysis of the dissenting opinion in the Court of Appeals:
	Kirsch testified that he was investigating a possible burglary of appellant's home
when he made the warrantless entry.  The possibility that a burglary is in progress or
has recently been committed may provide officers with exigent circumstances to
justify a warrantless entry.  (Citations and footnote omitted). Because suspects or
victims may still be in the residence, and because there is an immediate and urgent
need to protect the resident and his property, the warrantless police entry may be
justified as exigent depending upon the specific circumstances of the case.  For
example, police may properly enter to look for other perpetrators or victims.  Indeed,
as one federal court has observed, it would "defy reason" to force officers to leave
the scene of a possible burglary-in-progress to obtain a warrant thereby "leaving the
putative burglars free to complete their crime unmolested."  (citation omitted).
 
See Barocio, 117 S.W.3d at 33 (Guzman, J., dissenting).  This opinion is also consistent with our
recent decision in Estrada v. State,   S.W.3d   slip op. at 10-11 (Tex.Cr.App. No. PD-1629-03,
delivered January 26, 2005) (police had probable cause to believe that criminal activity was
occurring inside the defendant's home based on, among other things, the odor of marijuana
emanating from the home, from the defendant and from her friends, and exigent circumstances, the
need to prevent the destruction of evidence because others were present in the home, justified
warrantless entry and search of home).

	We sustain the  State's second ground which makes it unnecessary to address the first and
third grounds, which we dismiss.  The judgment of the Court of Appeals is reversed and the
judgment of the trial court is affirmed.

									Hervey, J.
Delivered:	March 9, 2005
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