            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0388-12


                          MARCOS TURRUBIATE, Appellant

                                              v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

      A LCALA, J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON, K EASLER, H ERVEY, and C OCHRAN, J.J., joined. K ELLER , P.J., filed a
dissenting opinion. M EYERS, J., did not participate.

                                       OPINION

       In deciding this petition for discretionary review filed by the State, we address what

constitutes exigent circumstances permitting police officers to enter a home without a warrant.

We agree with the holding by the court of appeals that probable cause to believe that illegal

drugs are in a home coupled with an odor of marijuana from the home and a police officer

making his presence known to the occupants do not justify a warrantless entry. Turrubiate v.

State, 365 S.W.3d 780, 788 (Tex. App.—San Antonio 2012). However, because the court of
                                                                                  Turrubiate - 2

appeals did not address the State’s alternative ground for finding exigent circumstances

regarding child safety, we remand the case to that court to do so.

                                       I. Background

       An investigator with the Texas Department of Family and Protective Services,

Christopher Lopez, went to the home of Marcos Turrubiate, appellant, to investigate

allegations of marijuana use at that home, in which lived the six-month-old child of Erin

Guller, appellant’s girlfriend. When he knocked on the front door, appellant cracked the door

open and stuck out his head. Lopez noticed a strong odor of marijuana emanating from the

home. Lopez asked if Guller or her child were home, and appellant said they were not. Lopez

told appellant that it was imperative that he speak with Guller, gave appellant his card, and

left. Lopez immediately contacted his supervisor and the sheriff’s department.

       Lopez was soon met by Deputy Chavarria, and Lopez informed him that the home

smelled like marijuana. Lopez and the deputy knocked on appellant’s door. Appellant cracked

open the door, and Lopez again noticed a strong odor of marijuana from within the home.

Deputy Chavarria also smelled “a very strong, fresh odor of marijuana” coming “from the

crack in the door.” In light of his “suspicion to believe that there was possible marijuana in

the house,” the deputy determined that entry was required to “prevent [the marijuana] from

being destroyed” and to preserve it for use in prosecution. He thought that if he left to obtain

a warrant, it would “make the evidence available for destruction.”

       For this reason, Deputy Chavarria forcibly entered the home, pointed a taser gun at
                                                                                       Turrubiate - 3

appellant, handcuffed him, and placed him on the floor. He searched appellant and the

surrounding area for weapons and asked him if there was marijuana in the home. Appellant

confirmed that there was and indicated that it was in a backpack nearby. The deputy located

a plastic baggie of marijuana in appellant’s backpack after appellant consented to the search

in writing. Deputy Chavarria placed him under arrest for possession of marijuana.

       Appellant filed a motion to suppress the evidence. Appellant argued that the odor of

marijuana alone does not justify a warrantless entry and that nothing indicated that he

intended to destroy evidence. The trial court denied the motion.1 The State offered the

marijuana into evidence at trial, and the jury found appellant guilty and sentenced him to one

year in prison, probated.

       On direct appeal, appellant challenged the trial court’s ruling on the motion to

suppress, arguing that the circumstances failed to justify the deputy’s warrantless entry into

appellant’s home. The court of appeals agreed and reversed. Turrubiate, 365 S.W.3d at 783.

It held that “the record does not support the existence of exigent circumstances requiring

immediate entry into the apartment without first obtaining a warrant” because “nothing in the

record suggests that destruction of evidence was a risk under the circumstances.” Id. at 787.



1
       The trial judge did not render a ruling at the hearing and indicated that she would issue a
ruling before trial. About five weeks later and several months before the trial had begun, she
tendered a letter to the parties informing them that she was denying the motion, and that letter was
made a part of the record on appeal. See Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App.
1985) (“It is settled that when a pre-trial motion to suppress evidence is overruled, the accused need
not subsequently object to the admission of the same evidence at trial in order to preserve error.”).
Neither party requested findings of fact or conclusions of law.
                                                                                       Turrubiate - 4

Although the State’s brief argued that the risk to the child from the presence of marijuana in

the home constituted an exigent circumstance that would permit the warrantless entry, the

court of appeals did not address that argument, instead confining its analysis to the risk of the

destruction of evidence as an exigent circumstance. See id. In its petition for discretionary

review, as in its direct-appeal brief, the State contends that the risk to the child posed by the

presence of marijuana in the home and the risk of the destruction of evidence each are exigent

circumstances that justify this warrantless entry. We address only the risk of destruction of

evidence because the court of appeals has not yet addressed whether there was an exigency

based on any risk to the child.2

    II. Analysis of Exigent Circumstances Based on Risk of Destruction of Evidence

       A. Standard of Review

       We review a trial court’s denial of a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). We review the

trial court’s factual findings for an abuse of discretion, but review the trial court’s application

of law to the facts de novo. Id. When the trial court does not issue findings of fact, as here,

findings that support the trial court’s ruling are implied if the evidence, viewed in a light most


2
       The State’s sole ground in its petition for discretionary review states,

       The Court of Appeals’ opinion fails to read the record in a light most favorable to the
       trial court’s ruling and fails to consider the totality of the circumstances in
       contravention of the appropriate standard of review, resulting in an erroneous
       conclusion that no exigency existed to justify the deputy’s warrantless entry into the
       appellant’s residence in conflict with the United States Supreme Court’s opinion in
       Kentucky v. King[, 131 S. Ct. 1849 (2011)].
                                                                                    Turrubiate - 5

favorable to the ruling, supports those findings. See State v. Kelly, 204 S.W.3d 808, 818-19

(Tex. Crim. App. 2006). Almost total deference is given to the trial court’s implied findings,

especially those based on an evaluation of witness credibility and demeanor. Valtierra, 310

S.W.3d at 447. We will sustain the trial court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case. Id.

       Generally, in determining whether the State demonstrated probable cause and exigent

circumstances, appellate review is limited to the record at the time of the suppression hearing.

O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). However, appellate review

may include evidence adduced at trial when, as here, “the suppression issue has been

consensually re-litigated by the parties during trial on the merits.” Rachal v. State, 917 S.W.2d

799, 809 (Tex. Crim. App. 1996).

       B. Law Applicable to Warrantless Entry

       A warrantless entry into a residence is presumptively unreasonable.3 Gutierrez v. State,

221 S.W.3d 680, 685 (Tex. Crim. App. 2007). When a defendant moves to suppress evidence

based on a warrantless search, the State has the burden of showing that probable cause existed

at the time the search was made and that exigent circumstances requiring immediate entry



3
       Within the last few weeks, the Supreme Court reiterated that at the Fourth Amendment’s
“‘very core’ stands ‘the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’” Florida v. Jardines, 569 U.S. ___, No. 11-564, 2013 U.S.
LEXIS 2542, at *7-8 (U.S. Mar. 26, 2013) (not yet reported) (quoting Silverman v. United States,
365 U. S. 505, 511 (1961)). Citing King, the Supreme Court reaffirmed that “[a] police officer not
armed with a warrant may approach a home in hopes of speaking to its occupants, because that is
‘no more than any private citizen might do.’” Id. at *11 (quoting King, 131 S. Ct. at 1862).
                                                                                 Turrubiate - 6

made obtaining a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim.

App. 1991). Probable cause exists when reasonably trustworthy circumstances within the

knowledge of the police officer on the scene would lead him to reasonably believe that

evidence of a crime will be found. See id. If probable cause exists, exigent circumstances

may require immediate, warrantless entry by officers who are (1) providing aid to persons

whom law enforcement reasonably believes are in need of it; (2) protecting police officers

from persons whom they reasonably believe to be present, armed, and dangerous; or (3)

preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 685. We

address the State’s argument regarding the third circumstance and remand for the court of

appeals to address the State’s argument regarding the first circumstance.

              1. Imminent Destruction of Evidence: McNairy factors and
                 Kentucky v. King

       Before the Supreme Court’s decision in Kentucky v. King, this Court, in McNairy v.

State, identified five factors relevant to a reasonable determination by the searching officers

that evidence might be destroyed or removed before they could obtain a search warrant. See

Kentucky v. King, 131 S. Ct. 1849 (2011); McNairy, 835 S.W.2d at 107. The five

circumstances were as follows:

       (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 police officers guarding the site of the
       contraband while a search warrant is sought;
                                                                                 Turrubiate - 7


       (4) information indicating that the possessors of the contraband are aware that
       the police are on their trail; and

       (5) the ready destructibility of the contraband and the knowledge that efforts
       to dispose of narcotics and to escape are characteristic behavior of persons
       engaged in the narcotics traffic.

McNairy, 835 S.W.2d at 107.

       The State argues that the court of appeals’s application of these factors conflicts with

the recent Supreme Court opinion in King. See 131 S. Ct. 1849. The State argues that, under

King, the primary inquiry in deciding the legality of a warrantless entry is whether an officer

reasonably believed that entry was necessary to prevent the destruction of evidence. See id.

It contends that the existence of probable cause combined with the deputy making his

presence known to the occupants and the strong odor of marijuana emanating from the home

justified the deputy’s inference that the destruction of evidence was imminent so as to permit

the warrantless entry. We disagree.

       In King, the Court held that, when probable cause and exigent circumstances exist,

police officers may enter a home without a warrant, even when their conduct created the

exigency, as long as the officers did not create the exigency by violating or threatening to

violate the Fourth Amendment. Id. at 1858. The Court assumed that an exigency existed and

decided only the question, “Under what circumstances do police impermissibly create an

exigency?” Id. at 1862-63. The Court determined that police officers loudly knocking on the

door of an apartment and announcing their presence did not violate or threaten to violate the
                                                                                  Turrubiate - 8

Fourth Amendment. Id. at 1863. It disavowed many state-court approaches, including faulting

a police officer who, after acquiring evidence sufficient to establish probable cause to search,

did not seek a warrant, but instead knocked on the door to speak with an occupant or to obtain

consent to search. Id. at 1860.

       Nothing in King supports the State’s contention that a police officer who has probable

cause to believe that there are illegal narcotics in a home may enter that home without a

warrant after he has identified himself as an officer and made his presence known to the

occupant if there is a noticeable odor of marijuana emanating from the home. See id. The

State’s approach would abandon the requirement that the record affirmatively show facts that

reasonably indicate exigent circumstances that a defendant was attempting to, or would

attempt to, destroy evidence, a requirement vital to the Supreme Court’s holding in King.

Compare id. at 1856-57. The State’s interpretation would permit a presumption that an

occupant will attempt to destroy illegal narcotics merely because he possesses them and is

aware of the presence of police, and there is an odor of marijuana. The State’s proposed

approach is ultimately premised upon generalizations regarding the behavior of individuals

who are in possession of illegal narcotics, namely, that they will take immediate action to

destroy evidence if the police are at their door and an odor of marijuana fumes is present.

       An approach based on such generalizations, however, is not authorized by King. See

id. at 1862. The Supreme Court’s analysis in King states,

       When law enforcement officers who are not armed with a warrant knock on a
       door, they do no more than any private citizen might do. And whether the
                                                                                           Turrubiate - 9

        person who knocks on the door and requests the opportunity to speak is a police
        officer or a private citizen, the occupant has no obligation to open the door or
        to speak. And even if an occupant chooses to open the door and speak with the
        officers, the occupant need not allow the officers to enter the premises and may
        refuse to answer any questions at any time. Occupants who choose not to stand
        on their constitutional rights but instead elect to attempt to destroy evidence
        have only themselves to blame for the warrantless exigent-circumstances search
        that may ensue.

Id. (internal citations omitted) (emphasis added). The Supreme Court did not presume that

possessors of narcotics would destroy evidence upon learning of a police presence, but instead

held that only those occupants who attempted to destroy evidence would be subjected to a

warrantless exigent-circumstances search. Id. In other words, the Court required that the

record show proof of imminent destruction based on affirmative conduct by those in

possession of narcotics in a particular case. See id.4

        In light of King, we conclude that the five McNairy factors no longer adequately assist

a court in determining whether the record shows an exigent circumstance. See id.; McNairy,

835 S.W.2d at 107. The first circumstance—the degree of urgency involved and the amount

of time necessary to obtain a warrant—and the third circumstance—the possibility of danger

to police officers guarding the site of the contraband while a search warrant is sought—are

now immaterial to the exigent-circumstances evaluation. See King, 131 S. Ct. at 1962;



4
       The Fifth Circuit has also recently explained that the mere possibility that evidence may be
destroyed does not give rise to a finding of exigent circumstances. United States v. Menchaca-
Castruita, 587 F.3d 283, 295-96 (5th Cir. 2009). It rejected the government’s argument based on
generalizations regarding drug traffickers and instead required evidence of more specific
circumstances to support an officer’s belief that delay to obtain a warrant will result in the destruction
of evidence. Id.
                                                                                 Turrubiate - 10

McNairy, 835 S.W.2d at 107. The second circumstance, which permits consideration of

whether there is a reasonable belief that the contraband is about to be removed, essentially

allows the court to consider the ultimate question at issue, which asks whether there is proof

that the officer reasonably believed that removal or destruction of evidence was imminent. See

King, 131 S. Ct. at 1862. Although it remains appropriate for a court to consider McNairy’s

fourth and fifth circumstances regarding whether occupants know the police are “on their

trail” and whether the evidence is readily destructible, these factors are merely aids in a

court’s assessment of the entire record in determining whether the officer reasonably believed

that the removal or destruction of evidence was imminent. See id.; McNairy, 835 S.W.2d at

107.

              2. Circumstances Did Not Show Destruction of Evidence Imminent

       The State contends that, given the strong odor of marijuana emanating from appellant’s

home, it was reasonable for the trial court to conclude that appellant was aware that the police

were on his trail when he opened the door. Despite the lack of furtive movements, the State

contends that these circumstances, alone, gave the officer reason to believe that appellant

would attempt to destroy the marijuana absent immediate intervention. We disagree.

       We can conceive of many instances in which an occupant possessing contraband would

not attempt to destroy it after a police officer has identified himself at the occupant’s door.

For example, a police officer may have probable cause to believe that a high-school student

is in possession of marijuana that he sells from his bedroom in his parents’ home. The
                                                                                   Turrubiate - 11

student’s parents, knowing that the officer is on the student’s “trail” for the marijuana in their

home, would not necessarily attempt to destroy the contraband. But the State’s proposed

approach would permit the warrantless search because an officer has probable cause and there

is a presumed exigency that someone in possession of contraband will destroy it when he

knows a police officer is on his trail. Or an occupant may know that it would be futile to

attempt to destroy the illegal substance, such as someone in possession of 100 kilos of well-

packaged cocaine. Or an occupant may decide to risk keeping the illegal substance despite the

police presence, such as someone who believes he has successfully concealed the substance

against police search. A reviewing court should not presume, therefore, that a showing that

an occupant possessed contraband and that an officer with probable cause knocked and

announced himself also shows that destruction of evidence was imminent.

       Although the Supreme Court did not reach the ultimate question as to whether there

actually were exigent circumstances in King, the Court discussed the evidence that tended to

show the existence of those circumstances. King, 131 S. Ct. at 1862. This included evidence

that (1) police officers smelled marijuana coming from an apartment and (2) after officers

banged on the apartment door, they “‘could hear people inside moving,’” and “‘[i]t sounded

as [though] things were being moved inside the apartment.’” Id. at 1854. Those noises led the

officers to believe that “drug-related evidence was about to be destroyed.” Id.

       By comparison, the only facts that purportedly establish exigent circumstances in this

case are the odor of marijuana and appellant’s knowledge that a police officer was at
                                                                                    Turrubiate - 12

appellant’s door. Lacking is the additional evidence discussed in King of attempted or actual

destruction based on an occupant’s movement in response to the police knock. Id. We require

some evidence of exigency beyond mere knowledge of police presence and an odor of illegal

narcotics.5

       We agree with the court of appeals that nothing in the record suggests that destruction

of evidence was imminent under the circumstances. See Turrubiate, 365 S.W.3d at 787.

Appellant voluntarily answered the door both times Lopez knocked and did not engage in any

conduct suggesting that he intended to destroy evidence, such as making furtive movements

after seeing Deputy Chavarria at the door.

       Similarly, the state court in King on remand from the Supreme Court determined that

the facts in that case, which included the additional circumstance of sounds of things being

moved inside the apartment, did not establish exigent circumstances. King v. Commonwealth,



5
        See, e.g., Gutierrez v. State, 221 S.W.3d 680, 683 (Tex. Crim. App. 2007) (exigent
circumstances existed where (1) officers had tip that appellant had a stolen computer; (2) appellant
saw officers arrive at his home and met them outside; (3) officers smelled marijuana from inside the
home; (4) officers questioned him about the computer; (5) he admitted having the stolen computer;
(6) he “had bloodshot eyes and looked very nervous;” and (7) he said he would go inside and retrieve
the computer while officers remained on the porch); Estrada v. State, 154 S.W.3d 604, 605-06 (Tex.
Crim. App. 2005) (exigent circumstances where officer smelled marijuana, knocked and announced,
then heard people “running” inside, and, after no one answered, he saw two vehicles quickly exiting
the driveway); United States v. Mata, 517 F.3d 279, 289 (5th Cir. 2008) (exigent circumstances
existed where officers knew that (1) occupants possessed contraband “with absolute certainty;” (2)
knew they “had only hours” before the occupants would deliver the drugs; (3) numerous cars were
entering and exiting the premises; and (4) “individuals were conducting counter-
surveillance—keeping an eye out for law enforcement”); United States v. Jones, 239 F.3d 716, 721
(5th Cir. 2001) (exigency where officers suspected, but were not certain, that criminal activity was
occurring within home, knocked, and saw firearm in plain view within reach of occupant when he
opened the door), cert. denied, 534 U.S. 861 (2001).
                                                                                 Turrubiate - 13

386 S.W.3d 119, 122-23 (Ky. 2012, pet. for cert. filed). Concluding that the officers’ belief

that evidence was about to be destroyed was not supported by the record, the court noted that

the sounds described by the officers “were indistinguishable from any household sounds, and

were consistent with the natural and reasonable result of a knock on the door.” Id. It explained

that probable cause to believe that a crime has been committed does not necessarily create

exigent circumstances and held that the State “must show something more than a possibility

that evidence is being destroyed to” constitute an exigent circumstance. Id. at 123.

       The Eighth Circuit recently held that facts arguably more incriminating than those in

the present case did not constitute exigent circumstances under King. United States v.

Ramirez, 676 F.3d 755, 761-63 (8th Cir. 2012). In United States v. Ramirez, the record

revealed that officers had probable cause to believe that occupants of a hotel room were in

possession of illegal drugs. Id. at 758. The officers knocked on the hotel-room door and heard

“the sound of an individual approaching the door.” Id. No one, however, answered the door.

Id. Having already obtained a key to the room, an officer unsuccessfully attempted to open

the door with it, while blocking the peephole and announcing “housekeeping.” Id. When an

occupant partially opened the door, the officers announced themselves, and the occupant tried

to shut the door. Id. The officers forced the door open and found contraband within the room.

Id.

       Concluding that the circumstances did not justify the officers’ warrantless entry, the

Court noted that the officers had neither seen nor heard anything indicating that the occupants
                                                                                Turrubiate - 14

might imminently destroy evidence. Id. at 763. The Court observed that there was “no dead

bolt lock being engaged, no toilet flushing or a shower or faucet running, and no shuffling

noises or verbal threats emanating from the room; nor did the officers have any information

that an occupant of room 220 had attempted to escape through a window, nor any indication

that these individuals were armed or dangerous.” Id. The Court explained that, “when the

police knock on a door but the occupants choose not to respond or speak, or maybe even

choose to open the door and then close it, or when no one does anything incriminating, the

officers must bear the consequences of the method of investigation they’ve chosen.” Id. at

762. The Court observed that, even assuming the officers were “conducting a run-of-the-mill

attempt to simply knock and gain entry,” the occupant was not obligated to allow them to

enter and was “within his bounds in his attempt to close the door.” Id. The Court concluded

that the occupant’s attempt to shut the door in response to the officers’ knock did not support

the exigency and “[t]hat he did so, without more, does not bolster the claim that it was

reasonable to conclude that the destruction of evidence was imminent.” Id. Similarly, given

the absence of evidence in the present case showing that the destruction of evidence was

imminent, we agree with the court of appeals that the record does not support the deputy’s

warrantless entry into appellant’s home on that basis.

  III. We Remand Case for Court of Appeals to Decide State’s Alternative Ground

       In its brief to both the court of appeals and to this Court, the State alternatively

contends that another exigent circumstance justified the warrantless entry, namely, that a
                                                                                        Turrubiate - 15

police officer in Deputy Chavarria’s position would have reasonably believed that the

presence of marijuana in the home was endangering the health and safety of the six-month-old

baby who lived there.6 See Gutierrez, 221 S.W.3d at 685. The emergency-doctrine exception

to the Fourth Amendment permits police officers to make warrantless entries and searches

when they reasonably believe that a person within is in need of immediate aid. Id.; Shepherd

v. State, 273 S.W.3d 681, 683-84 (Tex. Crim. App. 2008). If a search is justified for that type

of exigency, the police may seize any evidence that is in plain view or otherwise lawfully

obtained during the course of their legitimate emergency activities. See Shepherd, 273 S.W.3d

at 683-84; Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).

       The State explains that an officer would have reasonably believed that exigent

circumstances existed based on (1) appellant’s admission that a child lived in the home; (2)

the report submitted to the children’s protective agency that alleged marijuana use inside that

home; and (3) the noticeable odor of marijuana coming from inside the home. The court of

appeals did not address the State’s contention that the deputy’s entry was justified by an

objectively reasonable belief that the child required immediate aid. See Gutierrez, 221 S.W.3d

at 685. Because this alternative ground, if supported by the record, may have been the basis

to properly uphold the trial court’s finding of exigent circumstances, the court of appeals erred



6
         The State argues that, although the deputy did not testify that he entered the residence out of
concern for the child’s safety, objective evidence of an exigency will justify an officer’s warrantless
entry irrespective of his subjective motives. See Bond v. United States, 529 U.S. 334, 339 n.2 (2000)
(“[T]he subjective intent of the law enforcement officer is irrelevant in determining whether that
officer’s actions violate the Fourth Amendment.”).
                                                                                  Turrubiate - 16

in failing to address it. See Valtierra, 310 S.W.3d at 447-48 (reviewing court will sustain trial

court’s ruling if that ruling is “reasonably supported by the record and is correct on any theory

of law applicable to the case”); T EX. R. A PP. P. 47.1 (appellate court must hand down an

opinion that addresses every issue raised and necessary to final disposition of appeal). We

remand this case to the court of appeals, therefore, to decide whether the State made the

argument regarding the imminent risk to the baby at trial and, if not, whether the court of

appeals may nonetheless address that argument on appeal because it is an alternative basis to

uphold the trial court’s ruling. See Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App.

2012) (appellate court may not reverse conviction without first addressing preservation

issues). We sustain the State’s sole issue in part.

                                       IV. Conclusion

       A police officer who enters a home without a warrant merely because he had probable

cause to believe contraband was in that home, smelled marijuana, and identified himself to

the occupant of that home violates the Fourth Amendment. We, however, reverse the

judgment of the court of appeals and remand the case to that court to decide the State’s

appellate arguments with respect to the safety of the child.




Delivered: April 10, 2013

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