









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





PD- 1629-03


GINA MARIE ESTRADA, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS

ECTOR  COUNTY



 Meyers, J., delivered the opinion of the Court, in which Price, Womack,
Johnson, Hervey, Holcomb, and Cochran, JJ., join.  Keller, P.J., and Keasler, J.,
concurred in the judgment. 
O P I N I O N


	Appellant pled guilty to possession of two ounces or less of marijuana and was
sentenced to 3 days in jail and a $350.00 fine.  On appeal, Appellant claimed that the trial
court erred in denying her motion to suppress evidence found during a warrantless entry
into her residence.  The Eighth Court of Appeals held that there was no probable cause
for a warrantless search of the home, and reversed and remanded Appellant's conviction. 
We will reverse.
I. Facts
	On January 12, 2002, Officer Raymond Baladez of the Ector County Sherrif's
Office responded to a call complaining of loud music and vehicles traveling at high
speeds up and down a road next to Appellant's house.  When Officer Baladez drove up to
the house, he testified that he observed two people who appeared to be minors running
into the residence from a car parked in the driveway.  Upon closer inspection, Officer
Baladez discovered cups containing alcoholic beverages on the hood of the car.  When he
went to the residence to investigate, he banged on the door several times and identified
himself as a sheriff, but there was no answer.  Officer Baladez also testified that he was
able to hear voices and people running inside the house, but could not get a response at
the door, nor on the telephone when he asked his dispatch to call the residence.
	At this time, Officer Baladez went back to his car at the end of the driveway. 
While he was in his car, he received a call to investigate an anonymous tip of shots being
fired in a nearby area.  He responded to the call, and found no evidence of any
disturbance.  Officer Baladez testified that he suspected the anonymous tip had been
made by people inside the Appellant's residence in order to provide themselves with an
opportunity to exit without being detected.  When he went back to the residence, he saw
two vehicles exiting the driveway at a high rate of speed.  When Officer Baladez stopped
the vehicles, he discovered that both of the occupants were 18 years of age, and smelled
alcohol and marijuana on their breath and clothes.  The minors told Officer Baladez that
they had been drinking alcoholic beverages at Appellant's house.  Officer Baladez then
instructed the two minors to back their cars into Appellant's driveway.  At this point,
Officer Baladez testified that Appellant walked out of her house and down to the gate at
the end of the driveway, which she then opened.  Officer Baladez indicated that he could
also smell alcohol and marijuana on Appellant, and said Appellant told him that she had
not answered the door earlier because she did not want to go to jail.  
	Officer Baladez proceeded to follow Appellant up the driveway to the door of the
residence, which Appellant opened.  Officer Baladez testified that he could smell a strong
odor of marijuana emanating from the residence.  Officer Baladez then stated that he
"stepped up onto the door jam" because there were a number of other people in the
residence and he wanted to be able to see them for his safety.  When he stepped into the
doorway to observe the other people in the residence, he saw an ashtray in the living room
which appeared to contain the remnants of marijuana cigarettes.  Officer Baladez then
walked through the residence to locate the other people inside, and in doing so noticed
marijuana on the floor of a bedroom.  After questioning the other people in the house,
Officer Baladez placed Appellant under arrest for possession of marijuana in the amount
of two ounces or less.  
	Appellant timely filed a Motion to Suppress Evidence alleging that her rights were
violated as a result of an illegal search and seizure without a warrant, probable cause, or
other lawful authority pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, as well as in violation of Article I, Sections 9, 10 and 19
of the Texas Constitution.  After a hearing on the motion, at which both Appellant and
Officer Baladez testified, the trial court denied Appellant's motion to suppress, holding
that Officer Baladez had sufficient probable cause to investigate the situation, and that
there were exigent circumstances present that permitted him to enter the residence
without a warrant.  

II. Appellate Decision and Grounds for Review
	The Eighth Court of Appeals reversed the decision of the trial court.  The court of
appeals, relying on our decision in Steelman v. State, (1) held that although there were facts
that may have been sufficient to establish probable cause necessary for procuring a
warrant, in this instance, the facts were not of such a character as to allow a warrantless
search of the home. (2)  The court of appeals held that according to Steelman, the odor of
marijuana alone does not constitute the probable cause necessary for a warrantless search
and seizure in a home. (3)  We granted review on two grounds: first, did the court of appeals
err in holding, in effect, that the odor of marijuana coming out of a house is not sufficient
to establish probable cause for a warrantless search of the house?  Second, did the court
of appeals err in holding that the evidence in this case did not rise to the level necessary to
support a warrantless search of the house?	
	The State argues that the court of appeals incorrectly applied Steelman to this case,
and that Steelman holds only that the odor of burning marijuana coming from a house did
not give officers probable cause to believe that a person coming from that house
committed the offense of possession of marijuana in their presence.  It asserts that this
Court held the search was illegal in Steelman because there was no probable cause to
arrest, and the search was incident to the arrest; not because the officers lacked probable
cause to believe that marijuana was present in the house.  Appellant asserts that the court
of appeals' decision was correctly reasoned, and that in order to conduct a warrantless
search of someone's home, there must be probable cause plus exigent circumstances. 
Appellant argues that in the instant case, neither were present.  

III. Standard of Review
	When reviewing a trial court's ruling on a mixed question of law and fact (as is the
determination of probable cause in the pretrial suppression hearing in this case), the court
of appeals may review de novo the trial court's application of the law of search and
seizure to the facts of the case. (4)  We review de novo the application of the law to facts in
this case, but we also afford almost total deference to the trial court's evaluation of the
credibility and demeanor of the witnesses who testified at the pre-trial hearing.  When
there are no explicit findings of historical fact, the evidence must be viewed in the light
most favorable to the trial court's ruling. (5)  The trial court's ruling must be upheld if it is
correct under any theory of law applicable to the case. (6)

IV. State v. Steelman 
	To begin our analysis of this case, it is necessary to first review the facts of the
Steelman case, as this was the primary Texas case relied on by the court of appeals, as
well as both parties in their respective briefs.  In Steelman, police officers received an
anonymous tip that the defendant and others may have been dealing drugs at the
defendant's residence. (7)  Three officers were sent to the residence, and when they arrived,
looked into the window.  The officers saw no evidence of illegal activity, however, they
did observe four men sitting inside the residence.  The officers then knocked on the front
door and the defendant opened the door, stepped outside, and closed the door behind him. 
When the defendant did this, the officers smelled burning marijuana emanating from
inside the residence.  They asked the defendant for his identification, and he went inside
to retrieve it, attempting to close the door behind him. (8)  Before he could do this, however,
an officer placed his foot inside the doorway and the officers entered the residence,
handcuffing all four of the occupants inside and placing them under arrest.  Subsequently,
a search warrant was obtained based on the officers assertion that they had probable cause
to believe the defendants were in possession of marijuana.  With this search warrant, the
officers then searched the house two hours after the arrest and found marijuana. (9)  Based
on the above fact scenario, we held in Steelman that:
	The mere odor of burning marijuana did not give the officers probable
cause to believe that [defendant] had committed the offense of possession
of marijuana in their presence.  The odor of marijuana, standing alone, does
not authorize a warrantless search and seizure in a home. (10) 

	Appellant argues that based on the Steelman case, the court of appeals was correct
in holding that the odor of marijuana coming out of a house is not enough to establish
probable cause for a warrantless search of the house.  We disagree.  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.  In other words, just because the officers in
the Steelman case smelled marijuana, without any other evidence, they did not have
probable cause to suspect that the defendant, one of four people in the house, was
committing the offense of possession of marijuana in their presence so that they could
arrest him without a warrant. (11)
	There is, however, a distinction between what is necessary to establish probable
cause, and what is required for an officer to conduct a warrantless search of an
individual's residence.  In Steelman, we held that the odor of marijuana alone is not
enough to allow officers to conduct a warrantless search.  This is because it is clear under
both United States constitutional law and Texas constitutional law that a warrantless
search of  a residence is illegal unless probable cause exists in combination with exigent
circumstances. (12) 
 
V. Probable Cause
	Though it is clear that odor alone may not justify a warrantless search, the State
argues that odor alone may be enough to establish probable cause, which in combination
with exigent circumstances could justify a warrantless search.  This Court has set forth
the following probable cause standard for searches:			
	Probable cause to search 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. (13)

The Supreme Court has further defined the probable-cause standard as the sum total of
layers of information, and not merely individual layers and considerations, that a
reasonable and prudent man acts upon. (14)  In this case, the court of appeals failed to
consider the sum total of information on the part of Officer Baladez, instead misapplying
our holding in Steelman to the facts in this case by declaring that the odor of marijuana
does not constitute probable cause, therefore rendering the ensuing search illegal.  The
court of appeals declared that "the fact that Baladez smelled marijuana on [Appellant], in
addition to smelling it emanating from the house, does not contribute to the probable
cause analysis." (15)
  However, the odor of marijuana in this case was indeed an element or
layer in determining whether Officer Baladez had probable cause to believe an offense
was being committed.   The "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. (16) 
	In addition to the odor of marijuana, Officer Baladez observed minors under the
influence of alcoholic beverages.  These minors in fact told the officer that they and other
minors had been consuming alcohol and smoking marijuana inside Appellant's house. 
This evidence, in addition to the smell of marijuana on Appellant and emanating from
Appellant's house, viewed in the light most favorable to the trial court's ruling, is enough
to establish that there was probable cause for Officer Baladez to believe that a crime had
been or was being committed, and that evidence of that crime would be found.
	For this reason, we hold that the court of appeals erred by holding that according to
Steelman, the odor of marijuana coming out of the house, along with the other
observations made by Officer Baladez, did not establish probable cause to search the
house.  
VI. Exigent Circumstances
	We now turn to the question of whether the evidence of exigent circumstances in
this case was sufficient to support a warrantless search of the house.  In order to support a
warrantless search, probable cause, in combination with some sort of exigent
circumstances, must exist. (17)  In the instant case, the trial court found, and we uphold, that
Officer Baladez had probable cause to believe offenses were being committed in the
Appellant's residence based on, among other things, the odor of marijuana on the
Appellant and her friends, and the odor emanating from the house.  Thus, the second
inquiry for the trial court became whether exigent circumstances existed to permit the
warrantless entry and search by Officer Baladez.  The court of appeals failed to take into
account the trial court's finding that there was evidence from the witnesses which it
believed established exigent circumstances for a warrantless search. (18) 
	 Officer Baladez testified before the trial court that he could hear people inside the
house who did not answer when he knocked and identified himself as a police officer.  He
also testified that there were several persons  attempting to leave the residence before he
returned to investigate further.  Based on this testimony, the trial court could reasonably
have found that the warrantless search was justified by the need to prevent destruction of
evidence or contraband in the time it would have taken for him to procure a warrant. (19)  In
addition, Officer Baladez stated that the reason he stepped up into the doorway of the
Appellant's residence was because he had information from Appellant's friends that there
were a number of people inside the house, and he wanted to be able to see and identify
them for his safety as he investigated the situation.  The trial court evaluated this
testimony as well, and could reasonably have found that exigent circumstances existed
that allowed the officer to protect himself from people he believed were present and may
have been armed or dangerous. (20) 
	We defer to the trial court's evaluation of the witnesses' credibility and demeanor
during their testimony as to the circumstances on the night in question.  We conclude that
the trial court did not abuse its discretion in finding that exigent circumstances were
present.  Thus, the trial judge did not err in failing to suppress the marijuana evidence
discovered by Officer Baladez upon his warrantless entry into the residence. 	For these reasons, we hold that the trial court properly denied Appellant's motion
to suppress, and reverse the decision of the court of appeals.   

							Meyers, J.
Delivered: January 26, 2005
Publish
 





1. 93 S.W. 3d 102 (Tex. Crim. App. 2002).
2. Estrada v. State, 116 S.W. 3d 370, 373-74 (Tex. App. - El Paso 2003) pet. granted. 
3. Id. at 374. 
4. Guzman v. State, 955 S. W. 2d 85, 87( Tex. Crim. App. 1997). 
5.  Ross v. State, 32 S.W. 3d 853, 855 (Tex. Crim. App. 2000)("[w]hen the trial court fails
to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling
and assume that the trial court made implicit findings of fact that support its ruling as long as
those findings are supported by the record.").
6. Romero v. State, 800 S.W. 2d 539, 543-44 (Tex. Crim. App. 1990).
7. State v. Steelman, 93 S.W. 3d 102, 104 (Tex. Crim. App. 2002).
8.  Id. at 105.
9. Id.
10. Id. at 108.
11. Id. at 109.
12. See McGee v. State, 105 S.W. 3d 609, 615 (Tex. Crim. App. 2003)( "Pursuant to the
Fourth Amendment, a warrantless search of either a person or property is considered per se
unreasonable subject to a 'few specifically defined and well established exceptions.'  The
Supreme Court has held that voluntary consent to search, search under exigent circumstances,
and search incident to arrest are among these exceptions.")(quoting Minnesota v. Dickerson, 508
U.S. 366, 372 (1993)).  See also McNairy v. State, 835 S.W. 2d 101, 107 (Tex. Crim. App. 1991)
("if probable cause is present, the inquiry becomes whether exigent circumstances existed to
obviate the need for a search warrant and justify the initial warrantless entry....")  Exigent
circumstances justifying a warrantless entry include 1) rendering aid or assistance to persons
whom the officers reasonably believe are in need of assistance; 2) preventing destruction of
evidence or contraband; and 3) protecting the officers from persons whom they reasonably
believe to be present and armed and dangerous.  Id.
13. McNairy, 835 S.W. 2d 101; Washington v. State, 660 S.W. 2d 553, 535 (Tex. Crim.
App. 1983).
14. Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 (1948).
15. Estrada v. State, 116 S.W. 3d 370, 374 (Tex. App. - El Paso 2003).
16. McGee v. State, 105 S.W. 3d 609, 614 (Tex. Crim. App. 2003); Hattersley v. State, 487
S.W. 2d 354, 356 (Tex. Crim. App. 1972); Chavez v. State, 769 S.W. 2d 284, 287-88 ( Tex.
App.-Houston [1st Dist.] 1989, writ ref'd).
17. McNairy, 835 S.W. 2d 101, 107.
18.  Indeed, the trial court stated at the conclusion of the hearing, right before denying
Appellant's motion to suppress: "I think that there were sufficient exigent circumstances to
permit his entry into the home where the marijuana was in plain view."
19. See McNairy, 835 S.W. 2d 101, 107.
20. Id.
