Opinion filed September 2, 2010




                                          In The


   Eleventh Court of Appeals
                                        __________

                       Nos. 11-08-00318-CR & 11-08-00319-CR
                                     __________

                    MERCEDES JEROME BROOKS, Appellant

                                             V.

                             STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court

                                   Brown County, Texas

                        Trial Court Cause Nos. CR19394 & CR19395


                           MEMORANDUM OPINION

       In Cause No. 11-08-00318-CR (No. CR19394 in the trial court), Mercedes Jerome
Brooks entered an open plea of guilty to the offense of possession of a controlled substance –
between four and 200 grams of cocaine – with the intent to deliver. He also entered a plea of
true to the enhancement allegation. In Cause No. 11-08-00319-CR (No. CR19395 in the trial
court), appellant entered an open plea of guilty to the offense of possession of between four
ounces and five pounds of marihuana. The trial court convicted appellant of both offenses,
found the enhancement allegation to be true in Cause No. 11-08-00318-CR, and assessed
punishment at confinement for fifty years and at two years in state jail, respectively. We affirm.
         Appellant presents three issues challenging the trial court’s denial of his motion to
suppress.1 In the first issue, appellant contends that his Fourth Amendment rights were violated
because the officers did not allow sufficient time for appellant to answer the door before they
entered the residence. In the second issue, appellant contends that the money listed in the
affidavit in support of the search and arrest warrant was discovered during an illegal search. In
his final issue, appellant asserts that the affidavit failed to provide sufficient probable cause for
the issuance of the warrant.
         The record shows that the trial court conducted a pretrial hearing on appellant’s motion to
suppress and that two witnesses testified at the hearing: Investigator Vance Hill and Sergeant
Tony Aaron.          Investigator Hill, a certified peace officer with more than twenty years of
experience, testified that he was involved in a huge operation in Brown County to
simultaneously execute narcotic-related search and arrest warrants. One such warrant was a
capias to arrest appellant for the first degree felony offense of delivery of a controlled substance.
Investigator Hill was assigned as the case agent for the execution of the warrant to arrest
appellant. He testified that a team of officers arrived at appellant’s house about daylight to
execute the warrant. Appellant’s vehicle was there, and a television was on. Before making a
forced entry into appellant’s residence, the officers “knocked on the front door very loudly,”
hesitated for “15-20 seconds,” knocked again, and announced in a loud voice: “Police
department, arrest warrant.” Upon entering the residence, Investigator Hill observed marihuana
lying in plain sight on the coffee table in the living room. Inside the residence were appellant,
Jamie Davis, and their infant child. Appellant and Davis refused to consent to a search of their
house, so Investigator Hill notified Sergeant Aaron of the situation, including the marihuana in
plain sight. While Investigator Hill remained at the scene to help secure it, Sergeant Aaron
prepared an affidavit and obtained a warrant to search appellant’s residence. Large amounts of
cocaine and marihuana were discovered during the execution of the search warrant.
         For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives when there is

         1
            We note that appellant urged, and the trial court ruled on, the motion to suppress in Cause No. CR19394 only and that
appellant withdrew his motion to suppress in Cause No. CR19395. We also note that the cases were subsequently joined for trial
in a single criminal action. See TEX. HEALTH & SAFETY CODE ANN. § 481.132 (Vernon 2010).

                                                               2
reason to believe the suspect is inside. Payton v. New York, 445 U.S. 573, 603 (1980). In this
case, the record indicates that the officers had a warrant to arrest appellant and had reason to
believe he was inside his residence when they knocked on the door. Prior to making entry into
appellant’s residence, the officers knocked, announced loudly, and waited for a sufficient period
of time. See United States v. Banks, 540 U.S. 31 (2003) (upholding a 15-to-20 second wait).
Under the circumstances in this case, the trial court could have found that the officers did not
violate the Fourth Amendment’s knock-and-announce requirement.
       Furthermore, a violation of the Fourth Amendment’s knock-and-announce rule does not
require suppression of the evidence. Hudson v. Michigan, 547 U.S. 586 (2006); Wright v. State,
253 S.W.3d 287 (Tex. Crim. App. 2008). Pursuant to Hudson, even if the officers in this case
failed to wait a reasonable time after knocking and announcing before entering appellant’s
residence pursuant to the warrant, the evidence discovered as a result of the entry was not subject
to suppression. We hold that the trial court did not err in denying appellant’s motion to suppress
on Fourth Amendment grounds. Appellant’s first issue is overruled.
       In the second issue, appellant contends that the money listed in the affidavit in support of
the search and arrest warrant was discovered during an illegal search. Nothing in the record
suggests that the money was found during an illegal search. The affidavit indicates that, during
the execution of the arrest warrant, the money was observed lying on a dresser. Appellant’s
contention is not supported by the record, and the issue is overruled.
       In his third issue, appellant complains that the affidavit in support of the search warrant is
insufficient to support the warrant. A magistrate’s determination to issue a search warrant is
subject to the deferential standard of review articulated in Illinois v. Gates, 462 U.S. 213 (1983),
and Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990). Swearingen v. State, 143 S.W.3d
808, 811 (Tex. Crim. App. 2004). Under that standard, we must give deference to a magistrate’s
determination of probable cause and affirm that decision if the affidavit demonstrates a
substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. at 810.
Our inquiry is whether the affidavit contains sufficient facts, coupled with inferences from those
facts, to establish a fair probability that evidence of a particular crime will likely be found at a
given location. Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007).




                                                 3
       The affidavit in this case reflects that the affiant, Sergeant Aaron, had been a licensed
peace officer in the State of Texas for over ten years and had investigated numerous felony drug
offenses. The affidavit reads in part as follows:
       [Y]our affiant has received information from District Attorney Investigator Vance
       Hill of the 35th Judicial District Attorney’s Office Who has been a commissioned
       peace officer for the state of Texas for over ten years. Investigator Vance Hill
       advised affiant that on December 13, 2007 that while he along with other officers
       went to the suspected place to serve a state indictment on the Suspected Parties
       for the distribution of ecstasy. Upon making entry into the suspected place Hill
       observed marijuana laying in plain view on the coffee table and folded monies
       lying on a dresser in the bedroom. Hill identified both suspected parties as living
       at the suspected place. Affiant is aware that the Suspected Parties is a known
       drug trafficker and has a criminal history for drug related offenses. Affiant
       believes additional marijuana or evidence of Possession of a controlled substance
       exist.

       The information contained in Sergeant Aaron’s affidavit shows that an experienced peace
officer had just observed marihuana in plain view at the suspected place, which was identified in
the affidavit as appellant’s residence. The magistrate could reasonably have inferred from the
affidavit that the experienced peace officer was qualified to recognize marihuana when he saw it.
See Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006) (upholding finding of probable cause
based on inference that officer who stated that he smelled an odor he associated with the
manufacture of methamphetamine was qualified to recognize that odor). We hold that the
affidavit is sufficient to justify the magistrate’s finding of probable cause. Appellant’s third
issue is overruled.
       The judgments of the trial court are affirmed.




                                                           JIM R. WRIGHT
                                                           CHIEF JUSTICE


September 2, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.



                                                    4
