Opinion filed February 10, 2017




                                         In The


          Eleventh Court of Appeals
                                      __________

                                  No. 11-15-00143-CR
                                      __________

                  JASON EUGENE DELEON, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 25708A

                                      OPINION
      Jason Eugene Deleon pleaded guilty to the offense of tampering with evidence
by concealing marihuana in his mouth.1 He also pleaded “true” to the enhancement
paragraph, which alleged a prior felony conviction. In accordance with a plea
agreement, the trial court assessed Appellant’s punishment at confinement for four
years. On appeal, Appellant asserts that the trial court abused its discretion when it
denied his motion to suppress. We affirm.


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       TEX. PENAL CODE ANN. § 37.09(c) (West 2016).
                                         I. Background Facts
        On September 6, 2013, Officer Brady Wayne Broyles stopped Appellant’s
vehicle because Appellant failed to signal his turn. As Officer Broyles approached
the vehicle, he smelled “the odor of fresh marijuana” emanating from the vehicle.
After Officer Broyles spoke to Appellant and Appellant’s two passengers,
Officer Broyles called for backup.                Officer Broyles asked Appellant and his
passengers about the marihuana odor, and he gave them an opportunity to disclose
the presence of any illegal substances in the vehicle. Appellant denied that he had
any marihuana in the vehicle, and he stated that they had smoked all of the marihuana
three hours prior to the traffic stop.
        While Officer Broyles conducted a pat-down search of Appellant, he “noticed
that [Appellant] was chewing on something.”                        Officer Broyles then “asked
[Appellant] to open his mouth.” When Appellant opened his mouth, Officer Broyles
observed a “green wad” that he thought was marihuana mixed in with gum.
Officer Broyles “advised” Appellant to spit out the substance onto the hood of the
police car, and Appellant complied. Officer Broyles inspected the substance and
confirmed that it contained marihuana. Appellant was arrested for tampering with
evidence and for possession of marihuana.
        Appellant filed a motion to suppress the substance obtained by
Officer Broyles. The parties offered no evidence at the motion to suppress hearing
other than Officer Broyles’s written report regarding the arrest.2 The trial court
denied Appellant’s motion to suppress and issued findings of fact and conclusions
of law. The trial court concluded that the marihuana odor was sufficient to constitute
probable cause to search Appellant’s person. The trial court also concluded that no
force was used on Appellant to convince him to open his mouth.

        2
           The trial court reviewed the COBAN video of the incident at the motion to suppress hearing, but
the trial court’s findings of fact indicate that the video is not a part of the record.
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                                              II. Standard of Review
      We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).
The trial court is given almost total deference as to the historical facts found, but the
trial court’s application of the law is reviewed de novo. Id. We must affirm the trial
court’s ruling if it is correct under any theory of law applicable to the case. State v.
Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016). A reviewing court
evaluates evidence adduced at the suppression hearing in the light most favorable to
the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000).
                                                  III. Analysis
      Appellant asserts in one issue on appeal that the trial court erred when it
denied his motion to suppress. Specifically, Appellant asserts that marihuana odor
alone is not sufficient to justify the search of his mouth. Appellant also argues that
Officer Broyles could not justifiably have conducted a Terry3 frisk because
Appellant was not committing or about to commit a crime and because there was no
indication that Appellant or his passengers were armed. The State stipulated that the
police did not have a warrant to search Appellant’s person. Therefore, the State bore
the burden of establishing that the search was reasonable. Neal v. State, 256 S.W.3d
264, 282 (Tex. Crim. App. 2008). The State contends that police officers had
probable cause to search Appellant because Appellant admitted to smoking
marihuana earlier and because Officer Broyles detected the marihuana odor coming
from Appellant’s vehicle.
      Under the Fourth Amendment, a warrantless search is “per se unreasonable
. . . subject only to a few specifically established and well-delineated exceptions.”


      3
          Terry v. Ohio, 392 U.S. 1 (1968).
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Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (alteration in original)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One of those exceptions
is a search under exigent circumstances. McGee v. State, 105 S.W.3d 609, 615 (Tex.
Crim. App. 2003). Under the exigent circumstances exception, a warrantless search
of a person is reasonable when (1) an officer has probable cause and (2) an exigency
exists that requires an immediate search. Gutierrez v. State, 221 S.W.3d 680, 685
(Tex. Crim. App. 2007).
      “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.” Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006)
(quoting Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005)). This
“flexible, nondemanding” standard requires only a probability of criminal activity
rather than an actual showing of such activity. State v. Duarte, 389 S.W.3d 349, 354
(Tex. Crim. App. 2012) (citing McLain, 337 S.W.3d at 272); see Davis v. State, 905
S.W.2d 655, 662 (Tex. App.—Texarkana 1995, pet. ref’d) (stating that probable
cause is a “flexible, common-sense standard” (citing Texas v. Brown, 460 U.S. 730,
742 (1983))).
      [P]robable cause is the sum total of layers of information and the
      synthesis of what the police have heard, what they know, and what they
      observe as trained officers. We weigh not individual layers but the
      “laminated” total. . . . “In dealing with probable cause, . . . as the very
      name implies, we deal with probabilities. These are not technical; they
      are the factual and practical considerations of everyday life on which
      reasonable and prudent men, not legal technicians, act.”

Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1984) (op. on reh’g)
(second alteration in original) (quoting Smith v. United States, 358 F.2d 833, 837
(D.C. Cir. 1966)); see also Brinegar v. United States, 338 U.S. 160, 176 (1949).


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      To determine if probable cause existed to conduct a warrantless search, the
court utilizes the “totality of the circumstances” approach. See Amos v. State, 819
S.W.2d 156, 161 (Tex. Crim. App. 1991); Routledge v. State, 834 S.W.2d 452, 455
(Tex. App.—Fort Worth 1992, pet. ref’d). Law enforcement officers may draw
logical inferences and make intelligent deductions from the totality of the
circumstances. See, e.g., Jackson v. State, 745 S.W.2d 4, 10 (Tex. Crim. App. 1988).
The need to prevent the imminent destruction, removal, or concealment of property
intended to be seized are circumstances that would make procuring a warrant
impracticable. See, e.g., Booty v. State, No. 14-94-01086-CR, 1997 WL 138996, at
*4 (Tex. App.—Houston [14th Dist.] Mar. 27, 1997, pet. ref’d.). The State argues
that, because the police had probable cause and because exigent circumstances were
present, the police were justified to complete the warrantless search. As we explain
below, we agree that, under a totality of the circumstances, Officer Broyles had more
than reasonable suspicion, he had probable cause to search Appellant’s person; we
also agree that exigent circumstances were present to justify the warrantless search.
In light of the resolution on probable cause and exigent circumstances, we need not
address Appellant’s Terry frisk argument or the State’s argument on consent.
      A. Officer Broyles had probable cause to conduct the search.
      Appellant argues that Officer Broyles could not justifiably search Appellant’s
mouth because marihuana odor alone is insufficient to justify a search of his person.
Appellant argues that the Texas Court of Criminal Appeals in State v. Steelman held
that the odor of marihuana alone is insufficient to search a home or a person that
exited the home from which the odor emanated. 93 S.W.3d 102, 108 (Tex. Crim.
App. 2002). In Steelman, the defendant’s home was searched by police officers after
they detected the odor of marihuana when a person exited the home; the police did
not observe any criminal activity at the home, but had an anonymous tip that
someone was dealing drugs at the home. Id. The Steelman court focused on whether
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the police had probable cause to search the home and on the person that exited the
home and the other individuals found within the home, and the court held that police
lacked probable cause to search a home based solely on the drug’s odor. Id.
However, the court in Estrada v. State explained that, although marihuana odor
alone is not sufficient for a warrantless search of a house, it is a factor that may be
considered in determining whether probable cause exists. Estrada, 154 S.W.3d at
609; see also Parker, 206 S.W.3d at 597.
      Other courts have concluded that marihuana odor alone can provide sufficient
probable cause for a warrantless search of one’s person or vehicle. See Bogan v.
State, No. 02-15-00354-CR, 2016 WL 1163725, at *2 (Tex. App.—Fort Worth
Mar. 24, 2016, pet. ref’d) (mem. op., not designated for publication); Rocha v. State,
464 S.W.3d 410, 418 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); Harris v.
State, 468 S.W.3d 248, 255 (Tex. App.—Texarkana 2015, no pet.); Jordan v. State,
394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Officer Broyles noted in his police report that he “could immediately smell the odor
of fresh marijuana” coming from the vehicle. Appellant admitted to Officer Broyles
that he had smoked marihuana three hours prior to Officer Broyles’s traffic stop.
Officer Broyles also saw Appellant chewing something, and when Appellant opened
his mouth, the wad appeared to be a green-colored mixture of chewing gum and what
Officer Broyles suspected was marihuana. Under a totality of the circumstances,
Officer Broyles had probable cause to search Appellant’s person.
      B. Exigent circumstances existed to conduct a warrantless search.
      Warrants for searches are generally required “unless ‘the exigencies of the
situation’ make the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona,
437 U.S. 385, 394 (1978) (quoting McDonald v. United States, 335 U.S. 451, 456
(1948)). Typically, the exigency of a situation is examined on a case-by-case basis.
                                           6
Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013). However, the Court of Criminal
Appeals has consistently recognized three types of exigent circumstances that justify
a warrantless search: “1) providing aid or assistance to persons whom law
enforcement reasonably believes are in need of assistance; 2) protecting police
officers from persons whom they reasonably believe to be present, armed, and
dangerous; and 3) preventing the destruction of evidence or contraband.” Gutierrez,
221 S.W.3d at 685. The Court of Criminal Appeals further explained that a
warrantless search will only be justified under the exigent circumstances exception
when “the officer reasonably believed that removal or destruction of evidence was
imminent.” Turrubiate v. State, 399 S.W.3d 147, 153 (Tex. Crim. App. 2013).
      Two Texas cases, Estrada v. State and Holmes v. State, are instructive as to
Officer Broyles’s search of Appellant’s mouth. Estrada, 154 S.W.3d at 610;
Holmes v. State, 962 S.W.2d 663, 671 (Tex. App.—Waco 1998, pet. ref’d, untimely
filed). In Estrada, the Court of Criminal Appeals held that exigent circumstances
existed when a police officer detected the odor of marihuana and when the officer
could hear people inside the house who would not respond to his knock. 154 S.W.3d
at 609–10. Similar to Estrada, the Waco Court of Appeals in Holmes held that the
warrantless search of a defendant’s mouth was reasonable when a police officer
believed that marihuana was being concealed in the defendant’s mouth. See Holmes,
962 S.W.2d at 671.
      Appellant admitted to smoking marihuana prior to Officer Broyles’s traffic
stop. Officer Broyles smelled “fresh marihuana” coming from Appellant’s vehicle.
Officer Broyles noticed that Appellant was chewing on something. Based on these
facts, it was reasonable for Officer Broyles to suspect that Appellant was attempting
to conceal, in his mouth, evidence of a crime. While Officer Broyles did not testify
at the motion to suppress hearing, his police report stated, “[I]t was apparent to me
that [Appellant] was tampering with evidence as he was trying to conceal the odor
                                          7
of the Marijuana with the gum that was mixed in with the Marijuana that was in his
mouth. Also attempting to get it chewed up and swallowed before I found it.”
Appellant was in the process of destroying evidence and was actively concealing
evidence from Officer Broyles. Officer Broyles had probable cause to search
Appellant, and exigent circumstances justified a warrantless search of him.
                                      IV. Conclusion
      Because Officer Broyles had probable cause to search and because exigent
circumstances existed to justify a search, the warrantless search of Appellant’s
person was reasonable. After a review of the record, we hold that the trial court did
not abuse its discretion when it denied Appellant’s motion to suppress evidence
seized from his person. We do not reach the State’s argument that Appellant
consented to the search or the argument that the seizure was a result of a Terry pat-
down because Officer Broyles’s search was reasonable based on probable cause and
exigent circumstances. We overrule Appellant’s single issue on appeal.
                                   V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                       MIKE WILLSON
                                                       JUSTICE


February 10, 2017
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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