      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00261-CR
                                       NO. 03-05-00262-CR
                                       NO. 03-05-00263-CR



                               John Rudolph Martinez, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
          NOS. D-1-DC-2004-202688, D-1-DC-2004-202689 & D-1-DC-2004-202690,
               HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                                           OPINION


               Appellant John Rudolph Martinez appeals three convictions for possession of four

grams or more but less than 200 grams of cocaine, heroin, and methamphetamine. After waiving

trial by jury, appellant entered pleas of guilty before the court to lesser included offenses of those

charged in the original indictments as a part of a plea bargain. A prior conviction for possession of

cocaine alleged for enhancement of punishment in each indictment was abandoned by the State.

               The trial court assessed punishment in each case at eight years, six months

confinement in the Texas Department of Criminal Justice, Institutional Division. The sentences are

to run concurrently.
                                        POINT OF ERROR

               Appellant presents his sole contention in the form of a question: “Did the trial court

err by overruling appellant’s motion to suppress based on the Fourth Amendment right against

unreasonable search and seizure? In the instant case, the police officers failed to knock and

announce before executing their narcotics search warrant.”

               Despite our concerns about the irregular procedure involving the motion to

suppress evidence, the parties are apparently in agreement about the facts underlying the motion, and

the trial court has certified appellant’s right to appeal a motion filed and ruled on before trial. See

Tex. R. App. P. 25.2(a)(2)(A).


                                    MOTION TO SUPPRESS
                                    STANDARD OF REVIEW

               A trial court’s ruling on a motion to suppress evidence is reviewed on appeal under

an abuse of discretion standard. Oles v. State, 993 S.W.3d 103, 106 (Tex. Crim. App. 1999). The

ruling will stand unless it falls outside the bounds of reasonable disagreement. Janecka v. State,

937 S.W.2d 456, 462 (Tex. Crim. App. 1996). The appellate court must review the trial court’s

ruling in light of what was before the trial court at the time the ruling was made. Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Weatherred v. State, 15 S.W.3d 540,

542 (Tex. Crim. App. 2000). Appellate courts give great deference to a trial court’s determination

of historical fact where supported by the record.         Johnson v. State, 68 S.W.3d 644, 652

(Tex. Crim. App. 2002). The reviewing court, however, conducts a de novo review of applicable

law, Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990), as well as mixed questions



                                                  2
of law and fact that do not turn on the credibility and demeanor of a witness.               State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997).

               If the trial court has made no explicit findings of fact, as here, the evidence must be

reviewed in the light most favorable to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323,

327-28 (Tex. Crim. App. 2000). The trial court’s ruling should be upheld if it is correct on any

theory of the law applicable to the case, even if the wrong reason was given for the ruling. Willover,

70 S.W.3d at 845; Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).


                                      BURDEN OF PROOF

               If a defendant seeks to suppress evidence on the basis of the Fourth Amendment, the

burden of proof is on the defendant to overcome the presumption of proper police conduct. Russell

v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). If the defendant meets his burden by showing that

a search or seizure occurred and no warrant was obtained, the burden shifts to the State. If the State

produces a valid warrant, the burden shifts back to the defendant. Id. at 9-10. Here, the agreement

of the parties shows that there was a valid search warrant. Appellant complains not of the validity

of the warrant, but the manner of its execution. This would seemingly shift the burden back to the

State as to the execution of the search warrant.


                                  FACTUAL BACKGROUND

               The pertinent facts are derived solely from Austin police officers’ offense reports.

Austin police officers received information from a confidential informant on June 14, 2004, that



                                                   3
appellant was in possession of cocaine in a hotel room. Reliable information was received indicating

that there was heavy foot traffic to Room 319 in the Best Value Motel. On the morning of June 15,

2004, Austin police officers set up a surveillance of Room 319. It was determined that appellant was

registered as a guest in that room. The manager of the motel asked the officers if they were going

to be able to clean up the drug problem at his motel. One officer set up his surveillance in Room

320, across the hall from Room 319. Another officer stationed himself in the parking lot. At

approximately 10:00 a.m., a Hispanic female left Room 319, went to a car in the parking lot (known

to have been driven by the appellant), got a purse out of the car, and walked to a nearby access road.

She was not detained. Later that morning, a police officer observed appellant looking up and down

the hallway from Room 319, and later opening the door to talk to the manager about staying another

day. Still later, appellant walked to the motel’s office and returned to his room.

               At 12:40 a.m. on June 16, 2004, police officers obtained a search warrant to search

appellant’s motel room. In the early morning hours, the officers telephoned appellant in his room,

hoping to get him to open his room door. He did not answer. One of the officers, posing as a motel

maintenance worker, knocked on Room 319’s door, announcing that he was there to fix the air

conditioner. As appellant opened the door, the officers moved in, announcing that they were Austin

police officers with a search warrant. Appellant was arrested and handcuffed. Balloons of heroin,

cocaine, and methamphetamine were found. The entry was obtained by ruse. No force was used and

no “breaking” occurred. There was no damage to property, and evidence of contraband was not

destroyed. The officers were executing a valid search warrant.




                                                  4
                                          DISCUSSION

               Appellant does not challenge the validity of the search warrant, but only the manner

of its execution. Appellant relies solely upon the Fourth Amendment to the United States

Constitution and asserts the lack of reasonableness of the “no-knock” entry in the instant case.1


The Fourth Amendment

               The Fourth Amendment guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const.

amend. IV; Brewer v. State, 932 S.W.2d 161, 167 (Tex. App.—El Paso 1996, no pet.). The Fourth

Amendment does not prohibit all searches and seizures, but only those that are unreasonable. Ibarra

v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). The central inquiry under the Fourth

Amendment is the reasonableness of the search or seizure under the totality of the circumstances.

See Judge Robert R. Barton, Texas Law and Practice—Texas Search and Seizure § 2.01.3 (4th ed.

2006) (citing Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998)). “The reasonableness of

a search is determined by assessing, on the one hand, the degree to which it intrudes upon an

individual’s privacy and, on the other, the degree to which it is needed for the promotion

of legitimate governmental interests.” Id. (citing United States v. Knights, 534 U.S. 112, 117-18

(2001)).




       1
           Appellant does not raise or brief a Texas constitutional issue and does not complain of
any violation of Texas statutes in the manner of the execution of the search warrant. See Shuffield
v. State, 189 S.W.3d 782, 788 (Tex. Crim. App. 2006) (involving forfeiture of state constitutional
issue).

                                                 5
The “No Knock” Rule

               It is an ancient common-law principle that law enforcement officers must announce

their presence and provide residents with an opportunity to open the door. See Wilson v. Arkansas,

514 U.S. 927, 931-32 (1995). The common-law background of the so-called “knock and announce”

rule was extensively examined in Miller v. United States, 357 U.S. 301, 306 (1958). Under the

common law, “breaking was unlawful where the officer failed first to state his authority and purpose

for demanding admission.” Id. at 308. The rule has been codified as a part of the federal statutory

law. 18 U.S.C.A. § 3109 (West 2000).

               In Sabbath v. United States, 391 U.S. 585 (1968), the Court noted that section 3109

“is designed to incorporate fundamental values and the ongoing development of the common law.”

Id. at 589. Section 3109 has been frequently interpreted by federal courts. In Sabbath, the Supreme

Court held that entry into a residence by opening a closed but unlocked door was a “breaking” and

violated section 3109. Id. at 588-91. In Wilson, the United States Supreme Court was presented

with the issue of whether the rule was also within the command of the Fourth Amendment. The

Court concluded that it was. Wilson, 514 U.S. at 931-36.2

               In light of Wilson, appellant urges that the “knock-and-announce” rule is incorporated

within the Fourth Amendment’s reasonableness inquiry. Noting the purposes served by the rule as




       2
          Wilson v. Arkansas incorporated the “knock-and-announce” rule into the Fourth
Amendment but left unidentified the circumstances under which the failure to knock and announce
would be excused. 514 U.S. 927, 936 (1995); see also Price v. State, 93 S.W.3d 358, 361
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

                                                 6
set out in United States v. Cantu, 230 F.3d 148, 151 (5th Cir. 2000),3 appellant urges that Richards

v. Wisconsin, 520 U.S. 385, 394 (1997), enunciated the standard or test to determine if a “no knock”

entry will violate the Fourth Amendment:


       In order to justify a “no knock” entry, the police must have a reasonable suspicion
       that knocking and announcing their presence under particular circumstances would
       be dangerous or futile, or that it would inhibit the effective investigation of the crime,
       for example, allowing the destruction of evidence.


Richards at 394.

               Officers are not required to knock and announce their presence before entry if either

(1) a magistrate has authorized the “no knock” entry or (2) the circumstances support a reasonable

suspicion of exigency when the officers arrive at the door, although no magistrate has authorized the

unannounced entry. United States v. Banks, 540 U.S. 31, 36-37 (2003). In determining the

applicability of number (2) above, the totality of the circumstances must be examined. Id. at 36;

Flores v. State, 177 S.W.3d 8, 14 (Tex. App.—Houston [1st Dist.] 2005 pet. ref’d).4

               However, Hudson v. Michigan, 126 S. Ct. 2159, 2165, 165 L Ed.2d 56 (2006), held

that the police officers’ conceded violation of the “knock-and-announce” rule in executing a search




       3
          The purposes of the “knock-and-announce” rule are to (1) protect officers and residents
from potential violence, (2) prevent the unnecessary destruction of private property, and (3) protect
residents from unnecessary intrusion into their private lives. See United States v. Cantu, 230 F.3d
148, 151 (5th Cir. 2000); United States v. Brown, 52 F.3d 415, 420-21 (2d Cir. 1995).
       4
         For a discussion of the Texas “knock-and-announce” rule in light of Wilson, 514 U.S.
927, and Richards v. Wisconsin, 520 U.S. 385 (1997), see Judge Robert R. Barton, Texas Law and
Practice—Texas Search and Seizure § 2.03.4.3(E), (F) (4th ed. 2006).

                                                   7
warrant did not require suppression of all the evidence found in the search of the defendant’s home.

The Court gave the following reasoning:


       (1)     The federal constitutional violation of an illegal manner of entry was not a
               but-for cause of obtaining the evidence.

       (2)     The interests protected by the knock-and-announce requirement (a) were
               different from those protected by the Fourth Amendment’s warrant
               requirement and (b) did not include one’s interest in preventing the
               government from seeing or taking evidence described in a warrant.

       (3)     Resort to the massive remedy of suppressing evidence of guilt was unjustified
               because (a) the social costs of applying the exclusionary rule to knock-and-
               announce violations would be considerable, (b) the incentive for such
               violations was minimal to begin with, and (c) the extant deterrences against
               such violations were substantial.


Id. at 2164-68, L Ed.2d at 64-69.

               Hudson observed that Wilson had specifically declined to decide whether

the exclusionary rule was applicable to a violation of the “knock-and-announce” rule and that the

question was now squarely before the Court. Id. at 2163.             The Court concluded that the

impermissible manner of entry there did not trigger the exclusionary rule. Id. at 2171.5

               Appellant’s reliance in the instant case on the “knock-and-announce” rule is

misplaced. Even if the State conceded a violation of the rule, which it does not, the exclusionary rule

would not apply. Here, as in Hudson, the officers were executing a valid search warrant, and the

evidence was seized pursuant to that warrant. Moreover, there was no violation of the “knock-and-


       5
          The holding in Hudson v. Michigan, 126 S. Ct. 2159, 2170 (2006), which involved a search
warrant, has been extended to arrest warrants. See United States v. Pelletier, 469 F.3d 194, 196
(1st Cir. 2006).

                                                  8
announce” rule in the instant case. The “knock-and-announce” rule is a prerequisite for forcible

entry. It does not apply if officers gain entry to a house without using force, even if entry is

accomplished by a ruse. See United States v. Legault, 323 F. Supp. 2d 217, 223 (D. Mass. 2004)

(citing Commonwealth v. Sepulveda, 546 N.E.2d 879 (Mass. 1989)). Here, no force was used to gain

entry into appellant’s hotel room. The officers used a ruse. “When a suspect is persuaded to open

the door to his or her residence, under false pretenses or otherwise, the government has not applied

force to open it.” United States v. Alejandro, 368 F.3d 130, 134 (2d Cir. 2004).

               As the Ninth Circuit Court of Appeals has noted, the common-law history points

toward a conclusion that the use of subterfuge does not infringe the “knock-and-announce” rule. See

Leahy v. United States, 272 F.2d 487, 490 (9th Cir. 1959) (citing Parke v. Evans, 80 Eng. Rep. 211

(1724); Rex v. Backhouse, 98 Eng. Rep. 533 (1763)). Largely on this basis, the Leahy opinion

concluded that “[m]isrepresentation of identity in order to gain admittance is not a breaking within

the meaning of the [federal “knock-and-announce”] statute [18 U.S.C.A. section 3109].” Id. at 489;

see Alejandro, 368 F.3d at 135.6 In United States v. Beale, 445 F.2d 977 (5th Cir. 1971), the court

stated: “We are impressed by the discussion of the common law history in Leahy revealing a long-

standing distinction between entries where force is employed and those obtained by ruse or

deception, but without force.” Id. at 978.

               In Sabbath, 391 U.S. at 590 n.7, the Supreme Court, discussing the “knock-and-

announce” rule under 18 U.S.C.A. section 3109, stated: “We do not here deal with entries obtained




       6
        See also United States v. Phillips, 497 F.2d 1131, 1134 (9th Cir. 1974) (confirming validity
of Leahy, after decision in Sabbath v. United States, 391 U.S. 585, 589-91 (1968)).

                                                 9
by ruse, which have been viewed as involving no ‘breaking.’” See, e.g., Smith v. United States, 357

F.2d 486, 488 (5th Cir. 1966); Leahy, 272 F.2d at 489; see also Wilgus, Arrest Without a Warrant,

22 Mich. L. Rev. 798, 806 (1924). “The function of law enforcement is the prevention of crime

and the apprehension of criminals. . . . Criminal activity is such that stealth and strategy are

necessary weapons in the arsenal of the police officer.” Sherman v. United States, 356 U.S. 369, 372

(1958); see also Sorrells v. United States, 287 U.S. 435, 444-45 (1932). “[I]n the detection of many

types of crime, the Government is entitled to use decoys and conceal the identity of its agents.”

Lewis v. United States, 385 U.S. 206, 209 (1966).7 “Deception is necessary at times to accomplish

the mission of police officers and does not by itself violate the Constitution.” People v. Mastin,

115 Cal. App. 3d 978, 987 (Cal. Ct. App. 1981); see generally John Wesley Hall, Jr., Search and

Seizure § 8.77 (3d ed. 2000); 79 C.J.S., Searches and Seizures § 200 (Deception) (1995).


       Deception—wisely or not—has generally been viewed by the [Supreme] Court as
       infringing no interest protected by the Fourth Amendment. Moreover, any
       requirement of announcement can obviously not be met in a deception situation so
       application of the announcement requirements to these situations would be a de facto
       Fourth Amendment prohibition against the manner of gaining entry. If such a
       prohibition is to be imposed, it should be done directly and explicitly, not as an
       incidental consequence of the announcement requirement.

40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 6.91

(2d ed. 2001).




       7
         Even absent a warrant, stratagem or deception utilized to obtain evidence is generally
permissible. Lewis v. United States, 385 U.S. 206, 208-09 (1966) (“The pretense [here] resulted in
no breach of privacy.”).

                                                10
               And it has also been written that “no important privacy interests of the occupant are

violated if the stranger he lets in is a policeman rather than an electrician.” Note, Police Practices

and the Threatened Destruction of Tangible Evidence, 84 Harv. L. Rev. 1465, 1497 n.152 (1971);

see also 1 William E. Ringel, Searches, Seizures, Arrests and Confessions § 6.11 (2d ed. 2003)

(“The right of privacy is minimal when police have a warrant, because there is no right to refuse

entry to the police, only a right to submit voluntarily. When entry is made by ruse, the door has been

opened, albeit on a false pretext; thus the occupant is not surprised that someone has entered and

there is no unexpected exposure of private activities.”) (footnotes omitted).

               In Alejandro, officers with an arrest warrant went to the defendant’s apartment 368

F.3d at 130. After knocking three to five minutes, one officer announced that he was a gas company

employee, that there was a gas leak in the area, and that he needed to get into the apartment. Id.

at 132. The defendant opened the door. The officers identified themselves and arrested the

defendant. Id. There was no physical force used and no damage to the property. In a search of

several areas of the apartment, the officers saw what appeared to be illicit drugs and money. They

then obtained a search warrant and pursuant thereto seized these items. Id.

               The defendant sought to suppress the evidence, claiming that the officers violated

both 18 U.S.C.A. section 3109 and the Fourth Amendment. Id. The Government responded that

the “knock-and-announce” rule was inapplicable because the officers did not break anything to

obtain entry and the ruse did not violate the defendant’s Fourth Amendment rights. Id. at 132-33.

The court agreed, holding that the ruse was not a “breaking” within section 3109 and that there was

no violation of the Fourth Amendment. Id. at 133; see also United States v. Michaud, 268 F.3d 728,



                                                 11
733 (9th Cir. 2001) (holding that officer’s “use of trickery to encourage [appellant] to open her hotel

room door” did not violate Fourth Amendment given existence of valid warrant).

               Given the circumstances in the instant case, there was no violation of the Fourth

Amendment as claimed by appellant. The issue of suppression is rendered moot. The trial

court did not abuse its discretion in denying the motion to suppress. Appellant’s sole point of

error is overruled.

               The judgment is affirmed.




                                               John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Pemberton and Onion*

Affirmed

Filed: March 27, 2007

Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

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