                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00199-CR
        ______________________________


       JAMES SUNNY BURTON, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 25,928




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                  OPINION

            James Sunny Burton, having been charged with possession of less than one gram of

methamphetamine, filed a motion to suppress evidence, claiming an unlawful search. The trial

court denied suppression of the evidence. After a jury was empaneled, Burton announced that he

would waive his right to a jury trial. The State did not acquiesce and Burton entered a plea of

guilty to the offense, the evidence was stipulated, and Burton was found guilty by the jury.

Submitting the issue of punishment to the court, he was sentenced to two years‘ confinement.1

            On appeal, Burton challenges the trial court‘s denial of Burton‘s motion to suppress. The

State maintains that Burton waived his right to appeal, contending that he had to make his plea of

guilty conditional upon his right to appeal.

            Before addressing Burton‘s complaint on appeal, we will discuss the State‘s contention

that Burton waived his right to appeal his conviction.2

Waiver of Right to Appeal?

            In its contention that Burton has waived his right to appeal, the State cites Shallhorn v.

State, 732 S.W.2d 636 (Tex. Crim. App. 1987). The result in Shallhorn turned in large part on

Helms v. State, 484 S.W.2d 925 (Tex. Crim. App. 1972), which was modified by Young v. State,

1
 A second indictment charged Burton with possession or transport of certain chemicals with intent to manufacture a
controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.124 (Vernon 2010). He also pled guilty to that
offense and was sentenced to seven years‘ incarceration (see cause number 06-10-00200-CR on the docket of this
Court). Both cases were addressed in one proceeding in the trial court and Burton has filed one appellate brief
attacking both convictions. Our resolution of Burton‘s points of error in this opinion likewise address his complaints
in the second conviction.
2
    There is no waiver of appeal in the record.

                                                          2
8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000) (a valid guilty plea does not waive defendant‘s

right to appeal unless judgment of guilt rendered independently of error asserted). In a case such

as Burton‘s, where the evidence sought to be suppressed was drugs and other contraband, the

judgment of guilt is not independent of the trial court‘s ruling on the suppression motion. Young,

8 S.W.3d at 667; Hargrove v. State, 40 S.W.3d 556, 558–59 (Tex. App.—Houston [14th Dist.]

2001, pet. ref‘d).

        A defendant in Texas has a statutory right to appeal his conviction:

        A defendant in any criminal action has the right of appeal under the rules
        hereinafter prescribed, provided, however, before the defendant who has been
        convicted upon either his plea of guilty or plea of nolo contendere before the court
        and the court, upon the election of the defendant, assesses punishment and the
        punishment does not exceed the punishment recommended by the prosecutor and
        agreed to by the defendant and his attorney may prosecute his appeal, he must have
        permission of the trial court, except on those matters which have been raised by
        written motion filed prior to trial. This article in no way affects appeals pursuant
        to Article 44.17 of this chapter.

TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon 2006); see also Ex parte Broadway, 301 S.W.3d

694, 697 (Tex. Crim. App. 2009). A defendant may, however, waive this right, if the waiver is

executed voluntarily, knowingly, and intelligently. Broadway, 301 S.W.3d at 697 (citing TEX.

CODE CRIM. PROC. ANN. art. 1.14; Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003)).

Where a waiver of appeal is entered prior to adjudication and sentencing, has not been bargained

for, and the precise terms of punishment are uncertain, the waiver is not made voluntarily,

knowingly, and intelligently. Ex parte Delaney, 207 S.W.3d 794, 796–97 (Tex. Crim. App.



                                                 3
2006).3 Nevertheless, if some form of bargain is made between the State and the defendant, the

waiver may be upheld. The Texas Court of Criminal Appeals distinguished Delaney from the

situation in Broadway: Broadway hoped the trial court would grant him deferred adjudication

community supervision, and so waived his right to a jury trial.4 The trial court found the State did

not want to acquiesce in this waiver of jury trial, and thus Broadway induced the State‘s consent

with his plea of guilty. The State gave consideration (its consent to join in Broadway‘s waiver of

a jury trial) and, hence, Broadway‘s waiver of appeal was part of a bargain. Broadway, 301

S.W.3d at 697–98.

           As discussed above, we do not find that Shallhorn stands for the proposition that a

defendant entering an open plea of guilty must specifically preserve the right to appeal the denial

of a pretrial motion to suppress. See TEX. CODE CRIM. PROC. ANN. art. 44.02. The State also

cites Simpson v. State, 67 S.W.3d 327 (Tex. App.––Texarkana 2001, no pet.), in support of its

position. In Simpson, we held that Simpson‘s plea of guilty waived any claim of error in the trial

court‘s denial of the motion to suppress. This holding was based on our finding that the judgment

of guilt was based on Simpson‘s plea of guilty (to the offenses of aggravated robbery and


3
 Delaney entered a plea of guilty without a negotiated plea agreement in place, and waived his rights to a jury trial and
appeal. He was placed on deferred adjudication community supervision; subsequently, he was adjudicated guilty, his
supervision revoked, and he received a life sentence. The Texas Court of Criminal Appeals found the waiver of
appeal was not voluntary, knowing, and intelligent because when the waiver was made––at the time of the initial plea
and before guilt was pronounced––Delaney could not know what his punishment would be. ―[S]imply knowing the
range of punishment for the offense is not enough to make the consequences of a waiver known with certainty.‖
Delaney, 207 S.W.3d at 799.
4
    See TEX. CODE CRIM. PROC. ANN. art. 1.13.

                                                           4
unauthorized use of a vehicle) and therefore was independent of any alleged error in the

suppression ruling. As stated earlier, a case such as Burton‘s, where the evidence sought to be

suppressed was drugs and other contraband, the judgment of guilt is not independent of the trial

court‘s ruling on the suppression motion. Young, 8 S.W.3d at 667; Hargrove, 40 S.W.3d at

558–59. A defendant who enters an open plea (i.e., pleads guilty, but not as the result of a plea

bargain) may still appeal written pretrial motions under Article 44.02. See Monreal, 99 S.W.3d at

620 (―both bargaining and non-bargaining defendants can appeal rulings on written, pre-trial

motions as well as jurisdictional issues‖).

            There is no evidence in the record here that Burton waived his right to appeal. The record

shows that he entered an open plea of guilty, preserved his challenge to the State‘s evidence with a

motion to suppress evidence which was ruled on (although adversely to him) by the trial court, and

received permission from the trial court to appeal.5 Accordingly, we find that Burton did not

waive his right to appeal.6

The Suppression Hearing

            A hearing was conducted on Burton‘s motion to suppress evidence. In that hearing, Hunt

County Sheriff‘s Officer Larry Proctor testified that he received information about a ―possible

drug lab that was in the process of cooking methamphetamines‖ at a residence at 601 Quail Run in

5
    See TEX. R. APP. P. 25.2.
6
 Even if, as the State urges, Burton‘s plea of guilty were taken to amount to a waiver of appeal, it could not be said
such waiver was made voluntarily or knowingly, as Burton‘s punishment was yet to be determined and no bargaining
had occurred. See Delaney, 207 S.W.3d at 799.

                                                          5
West Tawokoni. Proctor said that another police officer told him about an informant who was

then in custody, but Proctor could not recall if he had ever worked with or met with this informant

prior to this occasion. The informant had been arrested a couple of hours prior to talking to

Proctor, but Proctor was unaware of the nature of the charge upon which the informant was being

held. Proctor acknowledged he had no information at the time the statement was made to him that

it was worthy of reliance. When asked for any corroborating information or anything to suggest

the informant‘s statement was reliable, Proctor responded, ―Just the fact that he stated that he had

assisted in dropping off some of the items for the lab. . . . Some of the precursors.‖ Proctor said he

did not know what precursors had been ―dropped off,‖ as Proctor did not have that information

with him at the hearing and Proctor did not indicate that the informant told him when these

precursors had been left at the site by the informant. Although Proctor testified that he thought he

had made an audio visual recording of the informant‘s statement, he was unsure whether this had

been done and there was neither an affidavit nor a written statement by the informant mentioned or

introduced.

       After speaking to the informant, Proctor gathered several other officers and went to the

location with the intention ―to go down there and see if I could observe anything in that area.‖

This was sometime between about 10:30 p.m. and midnight. At the location, Proctor said there

was a ―strong northerly wind . . . and you could smell a strong odor of ammonia coming from that

location.‖ According to Proctor, there were twenty to twenty-five houses on this particular street;



                                                  6
the mother of one of the house‘s occupants lived next door, and the next closest residence was

about 200 yards away. Based on the smell of ammonia and what he had been told by the

informant, Proctor testified he believed ―exigent circumstances‖ existed.                         ―It‘s a hazardous

situation. You‘ve got open flames. Too much of it in one location you can cause fires or

explosions, things like that.‖ Proctor did not explain what open flames, if any, he observed on the

site before he entered the house. After entering the house, he extinguished some open flames, but

he did not offer anything more specific and did not say how, while still outside the house, he was

aware that these open flames existed.7 Based on these circumstances (an unidentified informant,

whose reliability was not then apparently known by Proctor, which informant had claimed to have

delivered unspecified precursors to the location, and a strong smell of ammonia at the location),

Proctor and the other officers on the scene tried to make contact with occupants of the house.

Proctor testified that one person (not identified in his testimony) was found in the yard; Proctor did

not testify what was done with this person. At that point, Proctor entered the residence and made

contact with Burton, who was the only person in the house. Proctor detained Burton, searched the

house, extinguished the open flames, and called for a HazMat8 team. After he testified about

detaining Burton, clearing the house of hazards by extinguishing the open flames, and calling for

the HazMat team, Proctor testified as follows:


7
 Proctor said after entering the house and detaining Burton, Proctor ―cleared the residence for any hazards, for any
open flames, which there was. I had them put out and then I called for the HazMat team.‖
8
    Although not specified in the testimony, we infer this means a team trained to deal with hazardous materials.

                                                             7
              A.     . . . I had to go back out to my vehicle and get my breathing
       apparatuses and stuff to go back inside.

              Q.     [Prosecutor] And can you describe to the Judge what stage of the
       production of methamphetamine did you witness inside that home?

              A.      [Proctor] Some of it was already complete. Not a whole lot of it
       but some of it was but they were still in the process of cooking.

              Q.      And after the HazMat Team arrived and the premises was [sic]
       secured, were you able to go back in and retrieve additional items or criminal
       instrumentalities used in the production of methamphetamine?

              A.      Yes, we did.

Exactly when Proctor saw evidence in the house of a methamphetamine laboratory is not clear.

The above exchange suggests it was not until after he had ―cleared‖ the house, retrieved his

breathing apparatus, then re-entered the house that he observed the methamphetamine-making

operation. Later, under cross-examination, Proctor testified as follows:

             Q.      [Defense Attorney] The moment you smelled the ammonia or the
       anhydrous, did you call HazMat immediately?

              A.       [Proctor] It wasn‘t immediately, no. We had to secure the area.

              Q.      And that was after you entered the residence. Correct?

              A.      No, ma‘am. We started securing the area prior to entering the
       residence.

              Q.      You called HazMat after you entered the residence?

              A.      Yes, ma‘am.




                                                8
              Q.     And you said they were in the process of having - - or in the process
       of making the methamphetamine. Correct?

               A.      That‘s correct.

               Q.      At what stage were they in the process?

               A.      About half-way through.

At no time did Proctor attempt to secure a search warrant. When he smelled ammonia, he

testified that he believed exigent circumstances existed and, because of those exigent

circumstances, he did not have sufficient time to seek the issuance of a search warrant. Several

items, including soaking or boiling fertilizer and some finished methamphetamine, were

subsequently found. Proctor also said that when he and the other officers arrived, neither Burton

nor anyone else was taking any actions suggesting the danger of the destruction of evidence.

However, Proctor testified that he believed that if the parties present would have ―noticed us out

there, they would have started destroying‖ evidence.

Reviewing Trial Court’s Ruling on Suppression

       We review a denial of a motion to suppress for an abuse of discretion. Shepherd v. State,

273 S.W.3d 681, 684 (Tex. Crim. App. 2008). A trial court‘s decision to grant or deny a motion

to suppress evidence is reviewed under a bifurcated standard of review. Ford v. State, 158

S.W.3d 488, 493 (Tex. Crim. App. 2005). The general rule is that an appellate court should afford

almost total deference to a trial court‘s determination of the historical facts supported by the

record, especially when the trial court‘s fact-findings are based on an evaluation of credibility and


                                                 9
demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression

hearing, the trial court is the exclusive trier of fact and the judge of the credibility of the witnesses.

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We are also to afford such deference

to a trial court‘s ruling on ―application of law to fact questions‖ (also known as ―mixed questions

of law and fact‖) if the resolution of those questions turns on an evaluation of credibility and

demeanor. Guzman, 955 S.W.2d at 89. On the other hand, we review a trial court‘s rulings on

mixed questions of law and fact de novo if they do not turn on the credibility and demeanor of

witnesses. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). We sustain the

trial court‘s ruling if it is reasonably supported by the record and correct on any theory of law

applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003). When a

trial court does not enter express findings of fact on the court‘s suppression ruling, the reviewing

court must 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 which support its ruling so long as those findings are

supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

Warrantless Search

        Proctor‘s search of Burton‘s residence was done without a warrant. Once a defendant has

made an initial showing that a search or seizure was without a warrant, the burden of proof shifts to

the State to show the search was either in fact made with a warrant or that it was a reasonable

search. Ford, 158 S.W.3d at 492. Generally, the Fourth Amendment to the United States



                                                   10
Constitution prohibits the government and its agents from searching the person or the property of

individual citizens without a search warrant. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim.

App. 2003); see U.S. CONST. amend IV.             There are, however, exceptions to the Fourth

Amendment‘s warrant requirement.           One such exception arises when the government‘s

representative (typically, a peace officer) has accumulated sufficient facts that when those facts are

considered in the aggregate, the officer has probable cause to believe (1) that a crime is being

committed and (2) exigent circumstances justify searching without first taking time to secure a

search warrant from a neutral magistrate. Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App.

2005); McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). The State claimed that

exigent circumstances existed here which justified Proctor‘s warrantless entry and search. Both

probable cause and exigent circumstances must be shown; otherwise, a warrantless entry will not

survive Fourth Amendment scrutiny. Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App.

2006). However, facts known to officers are not to be parsed into either a category of ―probable

cause‖ or ―exigent circumstances‖; ―a reviewing court analyze[s] each piece of evidence as part of

the totality of information, as it relates to both the probable cause and the exigent circumstances

determinations.‖ Id. at 601.

Probable Cause

       ―[P]robable cause is the accumulation of facts which, when viewed in their totality, would

lead a reasonable officer to conclude, with a fair probability, that a crime has been committed or is



                                                 11
being committed by someone.‖ Id. at 599; see also Baldwin v. State, 278 S.W.3d 367, 371 (Tex.

Crim. App. 2009) (probable cause is ―a greater level of suspicion than ‗reasonable suspicion‘ and

requires information that is more substantial in quality or content and a greater reliability with

respect to the source of information‖; a ―relatively high level of suspicion‖ though less than the

standard for preponderance of the evidence). Probable cause is a fluid concept, analyzed in light

of the totality of the circumstances and assessing probabilities in light of the particular facts and

circumstances present. See Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). Where

some of the information being considered for a determination of probable cause involves an

informant‘s tip, the informant‘s veracity and the basis of his knowledge are ―relevant

considerations in the totality-of-the-circumstances analysis that traditionally has guided

probable-cause determinations: a deficiency in one may be compensated for . . . by a strong

showing as to the other . . . .‖ Id. (quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)).

       The trial court entered no findings of fact and conclusions of law in this case to explain its

denial of Burton‘s motion to suppress; we will view the evidence in the light most favorable to the

trial court‘s ruling and assume the trial court made implicit findings of fact in support of the ruling

as long as those implicit findings are supported by the record. Woolverton v. State, 324 S.W.3d

794, 798 (Tex. App.—Texarkana 2010, pet. ref‘d) (citing Valtierra, 310 S.W.3d at 447).

Evidence of probable cause in this case consists of Proctor‘s testimony that an unidentified

informant (whose reliability was unknown to him) at the police station told Proctor the informant



                                                  12
had assisted in taking unnamed precursors at some unnamed time to a ―possible lab going,‖

together with Proctor‘s testimony that at the location, he smelled a strong odor of ammonia coming

from the residence, which, based on his training and experience, is used in the production of

methamphetamine.

        In State v. Steelman, 93 S.W.3d 102, 104 (Tex. Crim. App. 2002), police officers received

an anonymous tip that drug dealing was taking place at the Steelman residence. After looking

through a window and observing no illegal activity, they knocked on the door. Ian Steelman

answered and came onto the porch, closing the door behind him. The officers detected the odor of

burnt marihuana emanating from the residence (but not on Ian himself or his clothes); when Ian

went back in to get his identification and tried to close the door, officers prevented him from

closing the door, entered, and arrested all of the occupants. Id. at 104–05, 108 n.8. The Texas

Court of Criminal Appeals held that the arrest and subsequent search were invalid, ruling that

odors alone do not authorize a warrantless search and seizure in a home. Id. at 108. It is

significant that the Texas Court of Criminal Appeals‘ ruling in Steelman centered on its finding

that the smell of burning marihuana did not give the officers probable cause to believe Ian had

possessed marihuana in the officers‘ presence.9 An odor of marihuana may, though, be a factor in

a determination of probable cause that an offense has been or is being committed. Estrada, 154

S.W.3d at 609.

9
 ―Steelman simply reiterated what previously had been well established: the odor of marihuana emanating from a
residence, by itself, is insufficient to establish both the probable cause and statutory authority required for a
warrantless arrest of a particular person inside.‖ Parker, 206 S.W.3d at 598.

                                                       13
       In McNairy, 835 S.W.2d at 103, 106, police officers detected the strong smell of

methamphetamine emanating from a trailer house. The officers had extensive specific experience

with methamphetamine laboratories. As they approached the trailer house, the officers heard

individuals running from the residence into nearby brush. As the officers looked through the

doors of the trailer house to see if anyone was present, they observed chemicals associated with the

manufacture of methamphetamine. These discoveries were immediately preceded by the officers

finding a methamphetamine laboratory on another part of the same ten-acre tract. The court

found probable cause existed to justify entrance to the trailer. Id. at 106. Under the extant

circumstances, the Texas Court of Criminal Appeals also found that the officers could have

reasonably believed more suspects remained in the trailer who could have either posed threats to

the officers or destroyed evidence. Relying on the possibility of the destruction of evidence, the

Texas Court of Criminal Appeals found exigent circumstances existed which justified the officers‘

warrantless entrance. Id. at 107. However, after the initial warrantless entry (during which the

officers saw stacks of items used to produce methamphetamine), the officers did not search the

trailer house until they had first acquired a search warrant. Id. at 103.

       Closer to the facts of the instant case are those of Pool v. State, 157 S.W.3d 36 (Tex.

App.––Waco 2004, no pet.). In that case, the police received a tip of suspicious activities at

Pool‘s house; the tipster reported several propane tanks outside the house and told police that Pool

was ―probably cooking methamphetamine.‖ Id. at 39. While talking with Pool at the front door,



                                                 14
they smelled a ―chemical.‖ Id. Two officers also went around a fence and into Pool‘s back yard,

where they detected a faint smell of anhydrous ammonia and other items potentially used for

manufacturing methamphetamine. At this point, the officers left and applied for and obtained a

search warrant. The Waco Court of Appeals found there was no probable cause to justify the

officers‘ entry to the back yard.                  The informant said Pool was ―probably‖ cooking

methamphetamine and the officer on the porch only described smelling a chemical; an ammonia

smell10 was not detected until officers entered the back yard. Id. at 43.

            In Pair v. State, 184 S.W.3d 329 (Tex. App.––Fort Worth 2006, no pet.), an officer at the

front door of the suspected location smelled what he believed to be ether, which he recognized as a

smell commonly associated with the manufacture of methamphetamine. The officer thought he

then heard movement inside the house, possibly of people running or hiding. The officer was in

contact with another officer, who had conducted surveillance of the residence after receiving

information that there was possibly a methamphetamine laboratory at the location. Id. at 334.

Another deputy at the scene reported having seen a pitcher of white powder, which looked to be

either methamphetamine or methamphetamine by-products. Id. at 335. The Fort Worth court

found these facts amounted to probable cause to support a warrantless entry. Id.; see also Effler v.

State, 115 S.W.3d 696, 698–700 (Tex. App.––Eastland 2003, pet. ref‘d) (smell of odor officer

associated with manufacture of methamphetamine, in conjunction with officer‘s knowledge and

experience; sound of people running inside house; and one person‘s opening door then quickly
10
     Ammonia, as noted by the Waco court, is a legal substance.

                                                          15
running away amounted to probable cause to search). The officers in Pair entered to assure that

no evidence was being destroyed and no one was injured in the house; they, however, made no

search of the premises until they acquired a search warrant. Pair, 184 S.W.3d at 333.

         The facts present in the instant case are somewhat less than those in the cases cited above.11

Here, the searching officer had received a tip that on the present record, was basically anonymous

with no indication of reliability, though the tipster had claimed to have, at some point in time,

assisted in delivering some unidentified ―precursors‖ to the suspected location. A tip by an

unnamed informant of undisclosed reliability will rarely, when standing alone, establish the

requisite level of suspicion necessary to justify an investigative detention. See Alabama v. White,

496 U.S. 325, 329 (1990). There must be some further indicia of reliability, some additional facts

from which a police officer may reasonably conclude that the tip is reliable and a detention is

justified. See id. The informant‘s veracity, reliability, and basis of knowledge are highly

relevant. State v. Adkins, 829 S.W.2d 900, 901 (Tex. App.––Fort Worth 1992, pet. ref‘d).

―Thus, if a tip has a relatively low degree of reliability, more information will be required to

establish the requisite quantum of suspicion than would be required if the tip were more reliable.‖

White, 496 U.S. at 330. Proctor testified that he smelled a strong odor of ammonia coming from

the suspected residence and that he had experience and training through which he knew ammonia

is often used in the manufacture of methamphetamine. After the informant‘s tip, Proctor stated

11
  The State has declined to address the merits of either of Burton‘s points of error. We find this appellate strategy,
trusting all its eggs of judgment and sentence on two felonies, in the basket of a potentially ineffective procedural
defense, questionable.

                                                         16
his ―intention was to go down there and see if I could observe anything in that area.‖12 He went

―down there‖ with ―four units.‖13 Although the State has not briefed this issue, it appears that

their argument would have to be that the smell of ammonia tipped the scale of facts known to

Proctor to the side of probable cause. We defer to the trial court on matters of the credibility of

the witness at the suppression hearing, and review the finding of probable cause de novo.

            The police here only achieved minimal corroboration of the unnamed informant‘s

statement to Proctor. Reviewed in the light most favorable to the trial court‘s ruling, Officer

Proctor‘s smelling a strong odor of ammonia, combined with his experience that ammonia is often

present in the manufacture of methamphetamine, arguably provides some corroboration of the

informant‘s statement that he had helped deliver unspecified precursors to the residence at some

point in time. Corroboration by the law enforcement officer of any information related by the

informant may increase the reliability of the information. State v. Stolte, 991 S.W.2d 336, 341

(Tex. App.––Fort Worth 1999, no pet.).

            Had Proctor composed an affidavit describing his observances and submitted them to a

neutral magistrate, it is questionable whether he would have obtained a search warrant based solely




12
  This statement was made under cross-examination by Burton‘s attorney. When counsel asked what actions he took
to get a search warrant, Proctor replied, ―I did not attempt to get a search warrant . . . at that time because I had no
probable cause at that point. And with the exigent circumstances, if you‘ve got a lab going, the majority of the time,
you don‘t have time to get a search warrant.‖ Defense counsel‘s objection that this answer was nonresponsive was
sustained, so we will not rely on Proctor‘s opinion as to whether he had probable cause at that point in our analysis.
13
     Which we take to mean at least four other officers.

                                                           17
on the information he had.14 In Davis v. State, 144 S.W.3d 192 (Tex. App.––Fort Worth 2004,

pet. ref‘d), the officer‘s affidavit supporting the search warrant was found inadequate to establish

probable cause. The officer‘s affidavit relied almost entirely on a confidential informant who had

never before provided information to police. The only evidence of reliability for the informant

was that he had been arrested six years previously for an undisclosed drug offense and was

supposedly familiar with the ―packaging and characteristics‖ of marihuana. Id. at 198 (affidavit

alleged Davis possessed and was growing marihuana). The court of appeals also found fault with:

the officer‘s verification of the informant‘s information, which failed to establish that the

suspected individuals (named Davis and identified by the officer through driver‘s license and

automobile registration data) were the same Davises to whom the informant referred, which

suffered from a lack of specificity in the delineation of criminal activity, which was not

independently corroborated or verified, and which lacked any information in the affidavit

pertaining to the means by which the informant became privy to the information he provided. Id.

at 199–200.

         By way of some contrast, an officer‘s opinion that he smelled an odor he associated with

the production of methamphetamine was instrumental in a probable cause determination in Davis

v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006) (unrelated to above-cited Davis from the

Fort Worth Court of Appeals). In Davis, officers secured a search warrant. The Texas Court of


14
 Probable-cause determinations in warrantless search situations are made using the same standard as in warrant cases.
Dixon, 206 S.W.3d at 616 n.6.

                                                         18
Criminal Appeals agreed with the State‘s concession that the background information in the

affidavit was insufficient. That background data consisted of: (1) information procured from a

confidential informant (whose history or reliability remained unestablished) that Davis was

making methamphetamine at the named location; (2) a Crime Stoppers tip had been received

reporting a chemical odor at the residence and Davis was manufacturing methamphetamine at the

residence; and (3) information (from an undisclosed source) that Davis had purchased items such

as starter fluid and coffee filters, used in the production of methamphetamine. Id. at 152.

However, the affidavit also included a report from another police officer which stated that on a

date and time certain, he drove by the suspected location and ―could smell a strong chemical odor

he has associated with the manufacture of methamphetamine emitting from the residence.‖ Id. at

153.

       The court of appeals had reversed the conviction, citing the affidavit‘s failure to

―adequately specify the basis‖ for the belief of the officer who had detected the odor that the odor

he smelled was associated with the production of methamphetamine. Id. at 155. The Texas

Court of Criminal Appeals, though, found it was not ―unreasonable to infer that when a person

identifies a smell by association, he has encountered that odor-causing agent before.‖ Davis, 202

S.W.3d at 157. Thus, the Texas Court of Criminal Appeals found the trial court properly deferred

to the magistrate who made the probable cause determination and issued the warrant, and the trial

court did not err in denying the motion to suppress.



                                                19
         Although Davis involved a warrant, as we have cited above, the probable cause

determination for a warrantless search is virtually the same as that employed in reviewing a

warrant. Also of note to Burton‘s appeal is the following language in Davis:

         The affiant in this case, properly relying on facts supplied by another officer,
         asserted that on the day the affidavit was prepared, an officer drove past the
         residence, identified it by address, and smelled an odor that he has associated with
         the manufacture of methamphetamine. On these facts alone, without any other
         information, the magistrate was authorized to issue the warrant as long as the
         officer was ―qualified to recognize the odor.‖ That is the only relevant inquiry.

Id. at 156 (footnote omitted) (emphasis added). The Texas Court of Criminal Appeals, as

discussed above, went on to find that the officer detecting the smell was, indeed, qualified to

recognize the odor, or at least that was a not unreasonable inference to draw.15

         Viewing the record in the light most favorable to the trial court‘s ruling, we cannot say that

the trial court abused its discretion in finding probable cause for the search. Whether this Court

would have reached the same conclusion is immaterial. The trial court was within its discretion to

find that in the totality of the circumstances, there was evidence from which a reasonable officer

could conclude there existed a fair probability of finding evidence of a crime at the location at

issue.

Exigent Circumstances




15
 The Texas Court of Criminal Appeals did, though, go on to comment that the affidavit in Davis was ―far from
exemplary‖ and should not have been dependent on so many ―inferences and ‗common sense‘ conclusions.‖ Davis,
202 S.W.3d at 157.

                                                    20
       Having found the State demonstrated the officers had probable cause to believe evidence of

criminal activities were to be found in the residence, the record still must support a finding that

exigent circumstances existed which justified a warrantless entrance onto the property. 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 dangerous. McNairy, 835 S.W.2d at 107 (situations creating exigent

circumstances sufficient to justify a warrantless entry ―usually include factors pointing to some

danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible

destruction of evidence‖). Relevant factors include: (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; (4) information indicating 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 behaviors of persons

engaged in the narcotics traffic. Id. at 107 (citing United States v. Rubin, 474 F.2d 262, 268 (3rd

Cir. 1973)).

       We alluded to some exigent circumstance caselaw in our analysis of probable cause. In

McNairy, officers heard people running out of the trailer as officers approached. In Pair, officers



                                                 21
thought they heard sounds of people moving about inside the house. In Effler, police heard

people moving around in the house, and the person who opened the door ran quickly away. These

facts entered into the respective courts‘ consideration of whether exigent circumstances justified

warrantless entries.    In each case, officers‘ concerns over the possibility of destruction of

evidence or for officer safety amounted to exigent circumstances.

        Here, however, there was no indication that Burton or the person found in the yard of

Burton‘s house were aware that officers were present until they appeared; there was no evidence of

people moving around as if to destroy evidence. As pertains to safety of the officers, Proctor‘s

concern was for some possible ―fires or explosions, things like that.‖ But we find the record

insufficient to justify his warrantless entry under the facts of this case.

        We find it appropriate to discuss the exigencies needed to excuse a failure to knock and

announce the execution of a search warrant because the cases establishing or applying the rules on

these (Wilson, Richards, Ballard) speak in terms of concerns for safety of the officers involved or

about the possible destruction of evidence, the same concerns described in McNairy and its

treatment of exigent circumstance situations. The United States Supreme Court, in Richards,

held that in order to ―justify a ‗no-knock‘ entry, the police must have a reasonable suspicion that

knocking and announcing their presence, under the particular circumstances, would be dangerous

or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing

the destruction of evidence.‖ Richards v. Wisconsin, 520 U.S. 385, 394 (1997). We will use that



                                                  22
reasonable suspicion, in conjunction with the factors suggested in McNairy, to evaluate the

reasonableness of the officers‘ actions in the instant case.

            In Ballard v. State, 104 S.W.3d 372 (Tex. App.––Beaumont 2003, pet. ref‘d), the appellate

court reviewed the officers‘ decision to dispense with the requirement to knock and announce their

intentions to execute a search warrant.16 The officers decided to enter the house without the

requisite knocking and announcing of their presence based on the history of clandestine

laboratories being maintained and defended by violent, paranoid persons. Id. at 376–78. The

appellate court found the officer‘s testimony to be general and lacking in facts specific to the house

and the circumstances involved at the time of executing the warrant. Id. at 378–79 (citing

Richards, 520 U.S. at 394). The court of appeals also pointed out the lack of specificity of the

informant‘s testimony about the possibility that Ballard may have had a weapon and found the

officer‘s reliance on this information misplaced. Id. at 383. The court found the State failed to

carry its burden of providing adequate evidence to justify its no-knock entrance into Ballard‘s

house.

            Proctor testified he believed, once he smelled the strong odor of ammonia coming from the

direction of the suspect location, he was confronted with ―a hazardous situation. You‘ve got open

flames. Too much of it in one location you can cause fires or explosions, things like that.‖ He

did not explain what open flames he witnessed before he had already entered the house; later, when

describing how he went into the house, he just said he put out ―open flames‖ in the house.
16
     See Richards, 520 U.S. 385; Wilson v. Arkansas, 514 U.S. 927 (1995).

                                                          23
Proctor‘s stated basis for ―exigent circumstances‖ was that he feared an explosion or fire could

occur, but his testimony to support that conclusion appears inconsistent. He first said that open

flames were present: ―You‘ve got open flames. Too much of it [by which we presume he meant

ammonia] in one location, you can cause fires or explosions, things like that.‖ There is no

explanation of what ―open flames‖ were present when Proctor first came upon the residence.

There is nothing to support an inference that he saw an open flame from outside the house.

         Regarding McNairy‘s factors 17 to consider in reviewing law enforcement‘s claim of

exigent circumstances, we observe that Proctor offered no testimony regarding the length of time

he expected it would take him to secure a search warrant. He did say he had contact numbers

available to him for appropriate judges and it appears from the record that he discovered the odor

of ammonia shortly before midnight. There is nothing in the record to imply a reasonable belief

the contraband was about to be removed. Likewise, there is nothing indicating that Burton or

anyone else associated with the production of methamphetamine at the residence was aware that

they were the target of a police investigation. 18                  As for the possibility of danger to law


17
  (1) degree of urgency involved and the amount of time necessary to obtain a warrant; (2) 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; (4) information indicating the possessors of the contraband are aware that the police
are on their trail; and (5) the ready destructibility of the contraband. McNairy, 835 S.W.2d at 107.
18
  It is true Proctor said that if the suspected illicit chemists had been aware of the officers‘ presence, they would have
begun destroying evidence, but there is nothing in the record to suggest Burton or his partner knew law enforcement
agents were present. Proctor said he had his headlights on, but there is nothing in the record describing how close to
the residence he or the other officers drove or the layout of the neighborhood, other than Proctor‘s statements that
twenty to twenty-five houses were on this street; and after one neighboring house, the next closest residence was about
200 yards away.

                                                           24
enforcement officers guarding the site if a search warrant were to be sought, Proctor‘s statement

that the possibility of an explosion or fire conceivably augur in support of this factor. Regarding

the factor of ―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,‖19

the only evidence in support of this was Proctor‘s statement that the suspects would have begun

destroying evidence if made aware of the officers‘ presence. Proctor also said methamphetamine

itself––not the elements and implements used to manufacture it––could easily be destroyed.

Proctor offered no testimony as to how quickly other items could be destroyed. For example,

there were amounts of fertilizer being soaked or boiled, a Coleman lantern, and other (presumably

smaller) items such as rock salt and pseudoephedrine. 20                      Considering the evidence with

McNairy‘s suggested factors, we find there was evidence of some degree of urgency (first factor)

and of some danger to the officers and others in the immediate vicinity (third factor); but little or

no evidence, other than Proctor‘s broad assertion that evidence could be destroyed, that evidence

could soon be removed or destroyed, or that suspects knew that law enforcement officers were

close by and investigating (second, fourth, and fifth factors).

         A finding of exigent circumstances is a finding of fact which an appellate court reviews

only for clear error or an abuse of discretion. Parker, 206 S.W.3d at 598 n.21 (citing United


19
 Id.
20
 During the hearing, references were made to pictures taken at the scene and a report detailing seized items, but these
were not part of the appellate record. Proctor also referred to a ―generator,‖ but it is not clear if he meant a
gasoline-run machine to generate electricity or something else.

                                                          25
States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006)). As stated above, Proctor‘s testimony was not

entirely clear as to whether he saw evidence of the methamphetamine laboratory on his first

entrance into the house, when he ―cleared‖ it, or on the second, when he returned with a breathing

apparatus. In McNairy and Pair, discussed above, although officers initially entered the premises

under exigent circumstances, they did not search the buildings until after they had secured a search

warrant.

       Proctor‘s testimony did not amount to a reasonable suspicion that entrance without

securing a warrant was necessary either for the safety of the officers or the public, or to prevent the

destruction of evidence. Finding there was insufficient facts to support law enforcement‘s

―exigent circumstance‖ entry into Burton‘s residence, we sustain the second point of error.

Harm Analysis

       Because we have found the warrantless search was not authorized by an appropriate

exception to the requirement of a warrant, the error here is constitutional. We must reverse the

conviction unless we conclude beyond a reasonable doubt that the error made no contribution to

Burton‘s conviction or the punishment.         TEX. R. APP. P. 44.2(a). In the instant case, the

complained-of evidence which Burton sought to suppress includes both the methamphetamine

with which Burton was charged to have possessed in this case and the chemicals he was charged

with possessing in the companion case. A search that offends the Fourth Amendment renders the

subsequently discovered evidence inadmissible as a ―fruit of the poisonous tree.‖ Segura v.



                                                  26
United States, 468 U.S. 796, 804 (1984); see also Hernandez v. State, 60 S.W.3d 106 (Tex. Crim.

App. 2001) (error resulting from admission of evidence in violation of Fourth Amendment to be

reviewed under Rule 44.2(a)). The evidence should have been suppressed; as such, the error

contributed to Burton‘s conviction.      See McQuarters v. State, 58 S.W.3d 250, 258 (Tex.

App.—Fort Worth 2001, pet. ref‘d); Corea v. State, 52 S.W.3d 311, 317–18 (Tex. App.––Houston

[1st Dist.] 2001, pet. ref‘d).

        We reverse the judgment and remand to the trial court for further proceedings.



                                             Bailey C. Moseley
                                             Justice

Date Submitted:         March 15, 2011
Date Decided:           April 5, 2011

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