      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00803-CR



                              Michael Joseph Tilghman, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
          NO. CR-16-1126, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                           OPINION


               Following the denial of his motion to suppress evidence, appellant Michael Joseph

Tilghman pleaded guilty to the offense of possession with intent to deliver methamphetamine in an

amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code

§§ 481.102(6), .112(a), (d). The district court sentenced Tilghman to 10 years’ imprisonment. In

a single issue on appeal, Tilghman argues that the district court abused its discretion in denying the

motion to suppress. We will reverse the district court’s judgment.


                                         BACKGROUND

               The evidence that Tilghman sought to suppress was found inside his hotel room at

the Marriott Fairfield Inn in San Marcos, following a warrantless entry into the room by police

officers. At the suppression hearing, the State called two witnesses: (1) Joshua Chapman, the hotel

night manager who had accompanied the police to Tilghman’s room and who had unlocked the door
for the officers and (2) Officer Daniel Duckworth of the San Marcos Police Department, one of the

officers who had opened the door and entered the hotel room without a warrant. Also admitted into

evidence was a video recording of the entry that was taken from Duckworth’s body camera.

               Chapman testified that when he arrived at the hotel on the night of October 14, 2016,

he received a phone call from one of the managers of a previous shift asking him to remove the

occupants of Room 123 “for having drugs in the room.” According to Chapman, the basis for the

previous manager’s belief that drugs were present was “[t]he smell of marihuana coming from the

room.”1 Chapman testified that he was familiar with the odor of marihuana and that, as he “walked

down the hallway just to be sure,” he, too, could smell marihuana emanating from the room.

               Chapman recounted that the Marriott chain of hotels has a nonsmoking policy that

is advertised in a binder contained within each guest room. Although Chapman testified that there

is “a fee” for violating that policy, he acknowledged that the policy does not mention eviction from

the hotel as a consequence. Chapman also testified that according to Marriott policy, if a hotel guest

commits a crime, “we have to ask them to leave.” However, when asked if there was “any sort of

rental agreement that describes that policy,” Chapman testified, “Not that I know of.”

               Chapman testified that prior to his arrival at the hotel that night, another manager or

hotel employee had knocked on the door of the room “[t]o get [the occupants] to leave” but that

“nobody answered” and that “another gentleman said that they were gone.” In order to facilitate the


       1
         When asked if there was any other reason why he wanted the occupants to leave the hotel,
Chapman testified that they still owed $50 for the room. However, Chapman added that the
occupants were not required to pay the remaining balance until they checked out of the hotel the
following morning, and he later acknowledged on cross-examination that it was “[j]ust the
marihuana odor,” and not the outstanding balance, that had prompted the eviction decision.

                                                  2
eviction, Chapman “decided to call law enforcement because [he] knew there [were] multiple guys

in the room” and he was concerned for his safety. Chapman added that he did not call law

enforcement to “get anybody in trouble” or to “effect the arrest of anybody.” Rather, “it was just to

get them evicted from the room.”

               Chapman further testified that after law enforcement arrived at the hotel, he explained

the situation to them and then, after waiting for a third officer to arrive, he led them to the room.

Once they were outside the room, Chapman recalled, one of the officers knocked on the door

multiple times, but no one answered. One of the officers then advised Chapman that they did not

have the right to enter the room, but Chapman did. Chapman then proceeded to unlock the door

using a key card, and the officers opened the door.

               On cross-examination, Chapman testified that he had never communicated with the

occupants of the room, either prior to or following the arrival of law enforcement, nor had he ever

knocked on their door. Instead, it was a manager from a prior shift who had knocked on the door

at some point prior to Chapman’s arrival. Chapman also testified that he did not think the prior

manager or any other hotel employees had slid anything under the door informing the occupants that

they were no longer welcome at the hotel.

               Officer Duckworth testified that he and another officer, Austin Smith, were

dispatched to the hotel at approximately 10:52 p.m. that night. Duckworth explained that the

dispatch “came in as a marihuana call. The management could smell the odor of marihuana coming

from a room and they were requesting assistance in evicting the occupants of that room.” When they

arrived at the hotel, Duckworth recalled, they were again advised that management and employees



                                                 3
had smelled marihuana coming from the room in question. However, when asked if he could smell

anything when he had arrived in the hotel lobby, Duckworth testified, “I can’t recall.”

               After a third officer arrived at the hotel, the officers accompanied Chapman to the

room. Once there, “Officer Smith knocked on the door multiple times with no answer.” The first

and second times that Smith knocked on the door, Smith said nothing, but the third time that he

knocked, Smith announced, “San Marcos Police. Come open the door.” No one answered.

However, Duckworth testified that he heard “whispering” inside the room, so he knew that people

were inside. When asked if he heard “anything else relating to activity in the room while you were

standing outside the door,” Duckworth testified, “I did not.”

               After Smith’s announcement failed to bring anyone to the door, Duckworth told

Chapman that they “wouldn’t be able to do anything but he could.” Specifically, Duckworth can be

heard on the recording telling Chapman, “We don’t have the authority to open the door, but you do.”

Chapman can then be seen taking his key card out of his pocket and holding it while Duckworth

gestured toward the door with his hand. Chapman then approached the door, tapped the key card

to the door lock, and stepped back as both Smith and Duckworth proceeded to turn the handle on the

door and push the door open. Duckworth testified that as he opened the door, he heard the sound

of a toilet flushing, which led him to believe that there was someone inside the bathroom.

               Duckworth recounted, “As the door opened there were two people standing in the

hallway closest to the—closest to the door. One person was standing partially inside the open

bathroom door. I couldn’t see his left hand. I asked him to move to his right and show his hands,

which he did.” That man, later identified as Bo Zimmerhanzel, asked the officers, “What’s going



                                                 4
on here?” Duckworth informed the men “that they were no longer welcome at the hotel and that the

management was requesting that they gather their belongings and leave.” Duckworth then asked if

there was anyone else inside the room, and Zimmerhanzel pointed to the bathroom and told the

officers that another man was inside. That man, later identified as Travis Ward, then “popped his

head out of the bathroom door” and was holding a disposable shaving razor. Ward told the officer

that he had been shaving. Duckworth, however, did not see any water or shaving cream on Ward’s

face. The third occupant of the hotel room, who had been standing behind Zimmerhanzel when the

officers opened the door, was later identified as Tilghman.2

               Approximately 30 seconds after opening the door, the officers entered the room.

When asked to explain why they entered the room, Duckworth testified as follows:


       With the flushing sounds and him saying that he was shaving with no evidence of
       him shaving; him being in the bathroom whenever I heard the flushing sound; and
       then the general behavior with the call of narcotics, we decided to make entry into the
       room to prevent further destruction of evidence and as officer safety whenever they
       were gathering their belongings because typically with narcotics comes firearms and
       weapons.


Duckworth added, “I didn’t ask for permission to enter, but as we were breaking that threshold [of

the doorway,] Mr. Zimmerhanzel invited us in.”3 Once the officers were inside the room, the

occupants claimed that they had not heard the officers knocking on the door and that they had been




       2
        Tilghman and Ward were co-defendants in the case, although Ward has not appealed the
suppression order. Zimmerhanzel was not a party to the proceedings in the court below.
       3
         This is difficult to hear on the recording, but Zimmerhanzel apparently said, “Come on,
come on in, man,” after Officer Smith had already entered the room.

                                                 5
playing a guitar. However, Duckworth testified that the officers “didn’t hear any guitar sounds

coming from the room,” only whispering.

                According to Duckworth, after the officers had entered the room, they “stood around

. . . in different areas and then we just told them to collect their belongings and essentially stood there

until we started observing narcotics in plain view.”4 This evidence included “a glass container

containing marihuana on the nightstand in between the two beds” and, in the drawer to the

nightstand, “a small, clear plastic bag containing a white crystalline substance” that Duckworth

recognized as methamphetamine. After detaining the men, the officers “searched the areas

immediately around them” and found additional narcotics in the trash can, specifically “another

plastic bag containing many smaller, clearer plastic bags containing methamphetamine.”

                On cross-examination, Duckworth was asked whether he would have been able to

enter the room and evict the men if the only issue had been the outstanding $50 balance owed on the

room. Duckworth answered, “No,” and explained that hotel occupants “have a certain expectation

of privacy in a hotel room,” although he acknowledged that when there are payment issues, “it gets

a little fuzzier . . . as far as law enforcement is concerned.” Duckworth was also asked if he had

smelled marihuana as he was standing outside the room.                 He answered, “I don’t recall.”

Additionally, Duckworth agreed that the officers had stepped through the threshold of the doorway

before any of the occupants had given them permission to enter the room.




        4
          The video recording that was admitted into evidence stopped shortly after the officers
entered the room. Thus, the officers’ discovery of narcotics is not shown on the recording.

                                                    6
                Duckworth further testified that he believed, given the circumstances, that Chapman

could have evicted the occupants on his own but that he had contacted law enforcement for help

because the occupants had earlier “refused to come to the door.” Duckworth also explained that

hotel guests can be charged with criminal trespass if their reservation expires and they refuse to leave

despite receiving notice from management that they need to go. Duckworth acknowledged, however,

that no such notice had been given in this case, although he claimed that this was because “the

residents of the room refused to answer their door.” Duckworth also testified that following the

arrests of the men, he had attempted to ascertain whether there had been a rental agreement in place

for the room, but hotel management informed him that “there’s no written rental agreement that the

occupants would have to sign.”

                After hearing the above evidence, the district court took the matter under advisement

and subsequently denied the motion to suppress. Later, the district court made findings of fact and

conclusions of law, including the following:



        1.      The Court finds that the Defendant had a substantially diminished expectation
                of privacy in the hotel room he was occupying with co-Defendants due to
                their eviction by hotel staff, including Joshua Chapman, for hotel policy
                violations.

        2.      The Court finds that Joshua Chapman had a right to enter the room to
                facilitate that eviction and as a result, Officers, including Officer Duckworth,
                had a right to enter the room at the invitation of Mr. Chapman to assist in
                facilitating the eviction.

        3.      The Court finds that the presence of contraband in plain view allowed for the
                lawful arrest of the Defendant and co-Defendants without a warrant for that
                contraband.



                                                   7
       4.      The Court finds that the lawful arrest of the Defendant and co-Defendants
               allowed for a lawful search of the hotel room incident to the arrest, which led
               to the discovery of the narcotics at issue in this case in the trash can.

       5.      The Court finds that even if Defendant had a reasonable expectation of
               privacy in the hotel room he was occupying, Officer Duckworth and his
               companions had probable cause to believe that a crime was being committed
               in the hotel room based upon the information relayed to them by hotel staff
               upon their arrival at the hotel.

               Additionally, the Court finds that exigent circumstances existed to justify the
               warrantless entry and search of the hotel room based upon the possible
               destruction of evidence. The information relayed to them by hotel staff
               included the failure of the Defendant and co-Defendants to answer the
               Officer’s knocks, the noises heard through the door prior to it being opened,
               the sound of the toilet flushing as the door was being opened, and
               co-Defendant Ward’s explanation of his behavior in the bathroom as well as
               the physical observations of him that contradicted that explanation are all
               facts that supported a reasonable concern that evidence was being destroyed
               on behalf of the Officers present.

       6.      The Court finds that even if the Defendant had a reasonable expectation of
               privacy in the hotel room he was occupying, and even if probable cause did
               not exist sufficient to support a reasonable belief that a crime was being
               committed in the hotel room, and even if there were not specific articulable
               facts present to support the existence of exigent circumstances sufficient to
               support the warrantless entry and search of the hotel room, that co-Defendant
               Zimmerhanzel consented to the entry of the hotel room occupied by the
               Defendant by Officers.


After reserving his right to appeal the denial of his motion to suppress, Tilghman pleaded guilty to

possession with intent to deliver methamphetamine and was sentenced to 10 years’ imprisonment

as noted above. This appeal followed.




                                                 8
                                   STANDARD OF REVIEW

               “We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review.” Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018) (citing Furr

v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016)); see Guzman v. State, 955 S.W.2d 85, 88–89

(Tex. Crim. App. 1997). “At a motion to suppress hearing, the trial judge is the sole trier of fact and

judge of credibility of witnesses and the weight to be given to their testimony.” Lerma, 543 S.W.3d

at 190 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). “Therefore, we afford

almost complete deference to the trial court in determining historical facts.” Id. (citing Carmouche

v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). “When a trial judge makes express findings

of fact, an appellate court must examine the record in the light most favorable to the ruling and

uphold those fact findings so long as they are supported by the record.” State v. Rodriguez, 521

S.W.3d 1, 8 (Tex. Crim. App. 2017) (citing Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010)). “The appellate court then proceeds to a de novo determination of the legal significance

of the facts as found by the trial court—including the determination of whether a specific search or

seizure was reasonable.” Id. (citing Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004)).


                                           DISCUSSION

Tilghman’s expectation of privacy in the hotel room

               We first consider the district court’s conclusions that Tilghman “had a substantially

diminished expectation of privacy in the hotel room” due to his eviction from the room and that the

police officers “had a right to enter the room at the invitation of [hotel management] to assist in

facilitating the eviction.” For the reasons that follow, we disagree.

                                                  9
               “The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures[.]’” Id. (quoting U.S.

Const. amend. IV). “The central concern underlying the Fourth Amendment has remained the same

throughout the centuries; it is the concern about giving police officers unbridled discretion to

rummage at will among a person’s private effects.” Id. at 8–9 (citing State v. Granville, 423 S.W.3d

399, 405 (Tex. Crim. App. 2014)). Accordingly, “[a] search, conducted without a warrant, is per se

unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.” Id. at 9 (citing Georgia

v. Randolph, 547 U.S. 103, 109 (2006)).

               “The physical entry of the home is the chief evil against which the wording of the

Fourth Amendment is directed.” Id. at 9 (citing Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)). “Of

course, Fourth Amendment protections of the ‘home’ are not limited to houses,” id., but extend to

other dwelling places, including apartments, see State v. Rendon, 477 S.W.3d 805, 810–11 (Tex.

Crim. App. 2015), college dormitories, see Rodriguez, 521 S.W.3d at 9, and hotel rooms, see

Moberg v. State, 810 S.W.2d 190, 194 (Tex. Crim. App. 1991).

               In arguing that the police conduct in this case violated his Fourth Amendment rights,

Tilghman relies on Stoner v. California, 376 U.S. 483 (1964). In that case, the police, during a

robbery investigation, approached the night clerk at a hotel and asked the clerk for permission to

enter a room where they believed the suspect was staying. Id. at 485. The clerk informed the

officers that the suspect was “out at this time,” but he gave the officers permission to enter the room

and, additionally, offered to take them “directly to the room.” Id. The clerk then led the officers to




                                                  10
the room, “placed a key in the lock, unlocked the door, and [said], ‘Be my guest.’” Id. The officers

then proceeded to search the room and discovered evidence of the crime. Id. at 485–86.

               The United States Supreme Court, in concluding that the evidence was obtained in

violation of the Fourth Amendment, rejected the State’s contention that the warrantless entry “was

lawful because it was conducted with the consent of the hotel clerk.” Id. at 487–88. The Court

explained that “the rights protected by the Fourth Amendment are not to be eroded by strained

applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’” Id. at 488. The

Court added, “It is important to bear in mind that it was the petitioner’s constitutional right which

was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the

petitioner could waive by word or deed, either directly or through an agent.” Id. at 489. The Court

concluded that, “[n]o less than a tenant of a house, or the occupant of a room in a boarding house,

a guest in a hotel room is entitled to constitutional protection against unreasonable searches and

seizures” and that this “protection would disappear if it were left to depend upon the unfettered

discretion of an employee of the hotel.” Id. at 490.

               The State contends that the facts in Stoner are distinguishable from the facts here

because “Stoner still had occupancy rights at the time hotel management allowed law enforcement

access to his room.” “In contrast,” the State asserts, “[Tilghman] and his co-defendants were being

evicted right then and there.”

               As support for its position that the eviction provided the police with authority to enter

the room without a warrant, the State cites to state and federal cases holding that the expiration of

a hotel guest’s term of occupancy or the eviction from the premises “substantially diminishes” the



                                                  11
guest’s reasonable expectation of privacy in the room. For example, in Brimage v. State, 918

S.W.2d 466 (Tex. Crim. App. 1996) (op. on reh’g), the Court of Criminal Appeals concluded that

after a motel guest’s term of occupancy had expired, “‘[t]he manager of a motel then has the right

to enter the room and may consent to a search of the room and the seizure of the items there found.’”

Id. at 507 (quoting United States v. Parizo, 514 F.2d 52, 54 (2nd Cir. 1975)); see also State v. Porter,

940 S.W.2d 391, 393 (Tex. App.—Austin 1997, no pet.) (observing that “[t]he expiration of [the

guest’s] lease, therefore, ended his reasonable expectation of privacy in the motel room and gave [the

motel manager] the right to enter the room” and consent to police officer’s search). Similarly, in

Voelkel v. State, 717 S.W.2d 314 (Tex. Crim. App. 1986), the Court of Criminal Appeals concluded

that a hotel guest had “a substantially diminished expectation of privacy . . . by the time [the police]

arrived to facilitate her eviction” because, beginning on the previous evening, hotel management

“had thrice told appellant she had to be gone by 1:00 p.m. on the 20th. Yet at 3:00 p.m. she was still

there, evidencing no particular haste to depart.” Id. at 315; see also Bass v. State, 713 S.W.2d 782,

786 (Tex. App.—Houston [14th Dist.] 1986, no pet.) (concluding that guest who owed hotel $7500

at time of her eviction “had no reasonable expectation of privacy in the hotel room once she had

failed to pay her bill”).

                Furthermore, the State cites to federal cases that have reached similar conclusions.

See, e.g., United States v. Peoples, 854 F.3d 993, 996 (8th Cir. 2017) (concluding that police entry

into hotel room did not violate Fourth Amendment where police were acting pursuant to Missouri

law that allowed hotel management to evict guests who are “using the premises for an unlawful

purpose”); United States v. Tolbert, 613 Fed. Appx. 548, 551 (7th Cir. 2015) (concluding that



                                                  12
because hotel room had been rented “subject to the condition that guests who violate its no-party

policy are subject to immediate eviction,” hotel guest lost his right to privacy once management

authorized officers to evict him for violating that policy); United States v. Bass, 41 Fed. Appx. 735,

737 (6th Cir. 2002) (concluding that hotel management “had no authority to subvert [the

defendant’s] exclusive right to consent to the search of his hotel room in the absence of any evidence

that the hotel management had decided to evict him at the time of the search”). The common thread

in these cases is evidence showing that the guest has been evicted from the hotel or his term of

occupancy has expired, thereby diminishing his reasonable expectation of privacy in the room.

               In this case, however, the term of occupancy for the hotel room had not yet expired

at the time the police opened the door and entered the room. Chapman testified that the room had

been reserved until check-out the following morning and that the balance owed on the room did not

have to be paid until the time of check-out. Thus, because Tilghman, Ward, and Zimmerhanzel still

had a right to occupy the room at the time of the warrantless entry, they still had a reasonable

expectation of privacy in the room. Accordingly, the Brimage and Voelkel line of cases do not apply

here.

               The cases holding that a hotel guest loses his right to privacy following eviction from

the hotel are similarly inapplicable on the facts of this case. Although the hotel had a nonsmoking

policy, Chapman testified that the consequence for violating that policy was “a fee,” not eviction

from the hotel. Although Chapman also testified that, according to hotel policy, if a guest commits

a crime on the premises, “we have to ask them to leave,” the State provided no evidence explaining

the specific terms of this policy, including the extent to which the policy allowed hotel management



                                                 13
to immediately evict its guests without notice. In fact, when asked if there was “any sort of rental

agreement that describes that policy,” Chapman testified, “Not that I know of,” and Officer

Duckworth similarly testified that hotel management had informed him that “there’s no written rental

agreement that the occupants would have to sign.”

                Moreover, even if the hotel had a policy allowing for immediate eviction under the

circumstances in this case, there was no evidence presented that the occupants were aware of that

policy so as to diminish their reasonable expectation of privacy in the room. Chapman testified that

he never communicated with the occupants of the room, nor had he ever knocked on their door.

Instead, another manager or hotel employee had knocked on the door at some point prior to

Chapman’s arrival that evening. However, according to Chapman, “nobody answered” the door and

“another gentleman said that they were gone” at the time the hotel employee had knocked. Chapman

also testified that he did not think the prior manager or any other hotel employee had slid anything

under the door informing the occupants that they were no longer welcome at the hotel.5


        5
            The State asserts, and the dissent agrees, that notice of the eviction was not required
because under Texas property law, “[t]here is no landlord-tenant relationship between a hotel and
its guest,” and “an innkeeper has no duty to keep a guest indefinitely and has the right to evict a guest
. . . ‘without resort to legal process, provided no more force is used than necessary.’” Bertuca v.
Martinez, No. 04-04-00926-CV, 2006 Tex. App. LEXIS 1386, at *6–7 (Tex. App.—San Antonio
Feb. 22, 2006, no pet.) (mem. op.) (quoting McBride v. Hosey, 197 S.W.2d 372, 374 (Tex. Civ.
App.—El Paso 1946, writ ref’d n.r.e.). We decline to apply these principles to criminal proceedings
where a defendant’s Fourth Amendment rights are at stake. As the United States Supreme Court
explained in Stoner, it would be “‘unnecessary and ill-advised to import into the law surrounding
the constitutional right to be free from unreasonable searches and seizures subtle distinctions,
developed and refined by the common law in evolving the body of private property law which, more
than almost any other branch of law, has been shaped by distinctions whose validity is largely
historical.’” 376 U.S. at 488 (quoting Jones v. United States, 362 U.S. 257, 266-267 (1960)). The
Court added, “‘We ought not to bow to them in the fair administration of the criminal law. To do
so would not comport with our justly proud claim of the procedural protections accorded to those

                                                   14
                The dissenting opinion acknowledges that the hotel evicted Tilghman without notice

but nevertheless contends that the eviction was proper and therefore that the police could enter the

hotel room to effectuate that eviction. However, if we were to hold that a hotel can evict its guests

from their rooms without notice during their term of occupancy and that the police need nothing

more than the request of hotel staff to effectuate such an eviction, then hotel guests would no longer

have any reasonable expectation of privacy in their hotel rooms. Such a holding would be contrary

to the decision of the United States Supreme Court in Stoner, which held that “a guest in a hotel

room is entitled to constitutional protection against unreasonable searches and seizures” and that this

“protection would disappear if it were left to depend upon the unfettered discretion of an employee

of the hotel.” 376 U.S. at 490. Requiring notice of eviction is one way in which courts can ensure

that a hotel guest’s privacy rights are not left to the “unfettered discretion” of hotel employees.

Additionally, notice of eviction provides evidence from which courts can conclude that, prior to

police entry, a hotel guest had lost his reasonable expectation of privacy in the hotel room. See, e.g.,

Voelkel, 717 S.W.2d at 315 (concluding that “appellant had a substantially diminished expectation

of privacy” in hotel room “by the time [police officers] arrived to facilitate her eviction” because,

prior to police arrival, “appellant was informed on three occasions that she would have to leave the

hotel”). Because there is no such evidence here, we cannot agree with the dissent’s view that the

police actions in this case were justified.

                In summary, although there are some circumstances in which hotel guests have a

diminished expectation of privacy in their room following either their lawful eviction from the hotel



charged with crime.’” Id.

                                                  15
or the expiration of their term of occupancy, the State failed to satisfy its burden to prove that such

circumstances were present here. See State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018)

(observing that State had burden of proof at suppression hearing to demonstrate that police action

in absence of warrant was reasonable and legal). Instead, the record reflects that, similar to the

circumstances that the United States Supreme Court found unconstitutional in Stoner, the hotel night

manager led police officers to a hotel room still occupied by Tilghman, unlocked the door for the

officers, and stepped back as the officers, without a warrant, opened the door themselves and

proceeded to enter the room. Under these circumstances, we conclude that Tilghman’s Fourth

Amendment rights were violated.6 See Stoner, 376 U.S. at 490; Moberg, 810 S.W.2d at 194.




       6
           We note that the Fourth Amendment violation was not limited to the physical entry into
the hotel room but occurred as soon as the police opened the door to the room, enabling them to see
and hear what was occurring inside. See Kyllo v. United States, 533 U.S. 27, 37 (2001) (“In the
home, our cases show, all details are intimate details, because the entire area is held safe from prying
government eyes.”); Katz v. United States, 389 U.S. 347, 353 (1967) (explaining that “the Fourth
Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures”
and that “the reach of that Amendment cannot turn upon the presence or absence of a physical
intrusion into any given enclosure”); United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997);
(concluding that “an unconstitutional search occurs when officers gain visual or physical access to
a motel room” after door has been involuntarily opened); United States v. Berkowitz, 927 F.2d 1376,
1387 (7th Cir. 1991) (discussing “a person’s right to choose to close his door on and exclude people
he does not want within his home,” which is “one of the most—if not the most—important
components of a person’s privacy expectation in his home”); United States v. Maez, 872 F.2d 1444,
1451 (10th Cir. 1989) (“While ‘physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed’ the [Supreme] Court has ‘refused to lock the Fourth
Amendment into instances of actual physical trespass.’”); United States v. Winsor, 846 F.2d 1569,
1572 (9th Cir. 1988) (en banc) (rejecting government’s contention that “the police did not effect a
search when they first viewed the interior of the [hotel] room because they had not yet physically
entered it” and explaining that “[t]o draw a distinction based upon whether there had been a physical
entry into the premises would enable police officers to evade the reach of the Fourth Amendment
simply by forcing a door open and visually examining the interior without crossing the threshold”).

                                                  16
Exigent circumstances did not justify the warrantless intrusion

               The district court concluded in the alternative that, even if Tilghman had a reasonable

expectation of privacy in the hotel room, the officers “had probable cause to believe that a crime was

being committed in the hotel room based upon the information relayed to them by hotel staff upon

their arrival at the hotel.” The district court further concluded that “exigent circumstances existed

to justify the warrantless entry and search of the hotel room based upon the possible destruction of

evidence.”

               “To validate a warrantless search based on exigent circumstances, the State must

satisfy a two-step process.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (citing

Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006)). “First, there must be probable cause

to enter or search a specific location.” Id. “In the context of warrantless searches, probable cause

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 . . . or evidence

of a crime will be found.’” Id. (quoting Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App.

2005)). “Second, an exigency that requires an immediate entry to a particular place without a

warrant must exist.” Id. “If the State does not adequately establish both probable cause and exigent

circumstances, then a warrantless entry will not withstand judicial scrutiny.” Id.




                                                  17
               Assuming arguendo that the State satisfied its burden to establish probable cause,7

we cannot conclude on this record that the State satisfied its burden to establish exigency. “The

exigency exception operates ‘when the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable under the Fourth

Amendment.’” Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App. 2016) (quoting Missouri v.

McNeely, 569 U.S. 141, 148–49 (2013)). “Exigency potentially provides for a reasonable, yet

warrantless search ‘because “there is compelling need for official action and no time to secure a

warrant.”’” Id. (quoting McNeely, 569 U.S. at 149). “Whether law enforcement faced an emergency

that justifies acting without a warrant calls for a case-by-case determination based on the totality of

circumstances.” Id. Additionally, the emergency must exist at the time of the warrantless intrusion.

See Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also United States v. Johnson, 256 F.3d 895,

907 (9th Cir. 2001) (“[T]he critical time for determining whether any exigency exists is the moment

the officer makes the warrantless entry. They cannot rely on exigencies discovered once they are

inside.”); United States v. Vega, 221 F.3d 789, 799–800 (5th Cir. 2000) (explaining that exigent

circumstances must exist prior to challenged police conduct). The Court of Criminal Appeals has




       7
           We note that the district court’s probable-cause determination was based primarily on
evidence that Chapman and other hotel employees had smelled an odor of marihuana emanating
from the room at some point prior to the arrival of police. However, Officer Duckworth testified that
he “did not recall” whether he could smell marihuana in either the hotel lobby or standing outside
the hotel room. Thus, to the extent the record supports a finding of probable cause, the evidence to
support that finding is not particularly compelling. See State v. Steelman, 93 S.W.3d 102, 107–09
(Tex. Crim. App. 2002) (“The odor of marihuana, standing alone, does not authorize a warrantless
search and seizure in a home.”); but see Estrada v. State, 154 S.W.3d 604. 608–09 (Tex. Crim. App.
2005) (concluding that odor of marihuana, when combined with other factors, supported probable-
cause determination).

                                                  18
identified “three categories of exigent circumstances that justify a warrantless intrusion by police

officers: 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 (citing McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App.

1991)).

               The only exigency urged by the State at the suppression hearing (and the only

exigency specified by the district court in its findings and conclusions) was the need to prevent the

destruction of evidence or contraband.8 In order for this exigency to apply, the record must support


          8
          On appeal, the State also argues that the warrantless search was justified by the need of the
officers to conduct a “protective sweep” of the premises and to “protect police officers from persons
whom they reasonably believe to be present, armed, and dangerous.” Although the State
acknowledges in its brief that it argued neither of these theories during the suppression hearing, it
asserts that these are “theories of law applicable to the case” that should be addressed on appeal. We
disagree. “A ‘theory of law’ is applicable to the case if the theory was presented at trial in such a
manner that the appellant was fairly called upon to present evidence on the issue.” State v.
Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016). Here, the record reflects that neither the
“protective sweep” nor the “officer safety” theories were presented at the suppression hearing in such
a manner. Thus, they are not “law applicable to the case” and cannot be used to affirm the district
court’s order. See State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013) (holding that if
“alternative legal theory that an appellee proffers for the first time on appeal as a basis to affirm a
trial court’s otherwise faulty judgment turns upon the production of predicate facts by the appellant
that he was never fairly called upon to adduce during the course of the proceedings below,” then
“alternative legal theory should not be considered ‘law applicable to the case’ under these
circumstances, and this is so regardless of whether the appellee was the defendant or the State at the
trial court level”).

         Moreover, even if these theories were “law applicable to the case,” we could not conclude
on this record that the State satisfied its burden to prove that either theory justified the officers’
actions. Although the video recording shows that Tilghman was wearing what appeared to be a
utility knife attached to his pants, and that the officers noticed this knife and asked Tilghman to hand
it over to them after the officers had entered the room, the record does not support a finding that the

                                                  19
a finding that “the officer reasonably believed that the removal or destruction of evidence was

imminent.” Turrubiate v. State, 399 S.W.3d 147, 153 (Tex. Crim. App. 2013). This requires the

State to adduce “proof of imminent destruction based on affirmative conduct by those in possession

of narcotics in a particular case.” Id. (citing Kentucky v. King, 563 U.S. 452, 470 (2011)). “[T]he

mere possibility that evidence may be destroyed does not give rise to a finding of exigent

circumstances.” Id. at n.4.

               According to the State, the following circumstances supported the officers’ belief that

evidence destruction was imminent: (1) hotel staff had reported an odor of marihuana emanating

from the room earlier that night; (2) the occupants of the room refused to answer the door; (3) the

officers could hear whispering inside the room; (4) Officer Duckworth heard the sound of a toilet

flushing; and (5) Ward was in the bathroom, where he claimed to have been shaving despite the

absence of water and shaving cream on his face.9 However, Officer Duckworth testified that he did

not hear the toilet flushing until after he had already begun to open the door, and Ward was not seen

in the bathroom until after the door had been opened. Accordingly, those circumstances do not

factor into the exigency analysis. Instead, we consider only the circumstances that were known to



officers reasonably believed, prior to their warrantless entry, that any of occupants inside posed a
danger to the officers or others so as to justify either a protective sweep of the hotel room or a
warrantless entry into the room for “officer safety” purposes. See Cooksey v. State, 350 S.W.3d 177,
186–87 (Tex. App.—San Antonio 2011, no pet.) (rejecting “protective sweep” and “officer safety”
justifications for warrantless entry where officers were not investigating violent crime and there was
no evidence presented that defendant posed danger to officers or others).
       9
         The State also appears to place significance on the fact that Tilghman “was in the process
of being evicted” from the hotel. However, as we have already explained, there was no evidence
presented that Tilghman or the other occupants were aware of that pending eviction prior to the
police opening the door and informing them that they were no longer welcome at the hotel.

                                                 20
the officers prior to their decision to open the door without a warrant. See Mincey, 437 U.S. at 393;

Johnson, 256 F.3d at 907; Vega, 221 F.3d at 799–800.

                Those circumstances are not sufficient to support a finding of exigency.              In

determining whether the record supports a finding that officers reasonably believed that the removal

or destruction of evidence was imminent, courts “require some evidence of exigency beyond mere

knowledge of police presence and an odor of illegal narcotics.” Turrubiate, 399 S.W.3d at 154.

Such evidence can include sounds of “furtive movements” coming from inside the residence

suggesting that the occupants “intend[] to destroy evidence.” See id. However, sounds that are

“‘indistinguishable from any household sounds, and [are] consistent with the natural and reasonable

result of a knock on the door’” are insufficient. See id. at 155 (quoting King v. Commonwealth, 386

S.W.3d 119, 122 (Ky. 2012)). Here, the only sound that the officers heard prior to opening the door

was whispering. We cannot conclude that the sound of whispering, combined with no one answering

the door, supports a finding that the officers reasonably believed that evidence destruction was

imminent at the time they opened the door to the hotel room. See id. at 153–54; see also King, 563

U.S. at 469–70 (“[W]hether the 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.”);

United States v. Ramirez, 676 F.3d 755, 763 (8th Cir. 2012) (concluding that absence of sounds

coming from hotel room, other than “the sound of someone approaching [the door] after [officer]

had knocked” did not support finding of exigent circumstances). Accordingly, the officers’ decision

to open the door without a warrant was not supported by exigent circumstances.




                                                   21
The “plain view” and search-incident-to-arrest exceptions to the warrant requirement do not
apply

               The district court also concluded that “the presence of contraband in plain view

allowed for the lawful arrest of the Defendant . . . without a warrant for that contraband” and that

“the lawful arrest of the Defendant . . . allowed for a lawful search of the hotel room incident to the

arrest, which led to the discovery of the narcotics at issue in this case in the trash can.” However,

neither of those exceptions to the warrant requirement apply here.

               “In certain circumstances a warrantless seizure by police of an item that comes within

plain view during their lawful presence in a private area may be reasonable under the Fourth

Amendment.” Rodriguez, 521 S.W.3d at 18 (citing State v. Dobbs, 323 S.W.3d 184, 187 (Tex.

Crim. App. 2010)). “For a plain-view seizure to be lawful, the officer must have had lawful

authority to be in the location from which he viewed the item, and the incriminating nature of the

item must be immediately apparent.” Id. Here, as we explained above, the officers did not observe

the contraband until after they had entered the hotel room. Because Tilghman had a reasonable

expectation of privacy in the hotel room and the warrantless entry by police was not justified by

“exigent circumstances,” the police did not have lawful authority to be inside the room where they

viewed the contraband. Accordingly, the plain-view exception does not apply here. See id.; State

v. Betts, 397 S.W.3d 198, 207 (Tex. Crim. App. 2013); see also Horton v. California, 496 U.S. 128,

136 (1990) (“It is, of course, an essential predicate to any valid warrantless seizure of incriminating

evidence that the officer did not violate the Fourth Amendment in arriving at the place from which

the evidence could be plainly viewed.”); Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App.




                                                  22
2009) (“Plain view, in the absence of exigent circumstances, can never justify a search and seizure

without a warrant when law enforcement officials have no lawful right to access an object.”).

                Similarly, Tilghman, Ward, and Zimmerhanzel were arrested only as a result of the

discovery of contraband that the officers did not observe until after they had unlawfully entered the

hotel room. Consequently, Tilghman’s arrest and the search incident to that arrest were “fruit of the

poisonous tree,” and the evidence obtained during that search should also have been excluded. See

Wong Sun v. United States, 371 U.S. 471, 484–85 (1963); United States v. Jones, 619 F.2d 494, 498

(5th Cir. 1980); United States v. Robinson, 535 F.2d 881, 883 (5th Cir. 1976); Wehrenberg v. State,

416 S.W.3d 458, 464 (Tex. Crim. App. 2013).


The State failed to prove that Zimmerhanzel’s “consent” was voluntarily given or sufficiently
attenuated from the unlawful entry


                As noted earlier, Zimmerhanzel can be heard on the video recording saying, “Come

on, come on in, man,” after Officer Smith began entering the room. In his testimony, Officer

Duckworth characterized this statement as Zimmerhanzel “inviting” the officers into the room.

Based on this evidence, the district court concluded that “Zimmerhanzel consented to the entry of

the hotel room occupied by the Defendant by Officers.”10

                Consent is a “jealously and carefully drawn” exception to the warrant requirement.

Georgia v. Randolph, 547 U.S. 103, 109 (2006). “When a prosecutor seeks to rely upon consent to


        10
           This was another legal theory that the State failed to argue at the suppression hearing, and
it does not appear to have been fully litigated in the court below. However, because the district court
considered the issue of consent in its ruling, we will similarly consider it on appeal as a theory of law
applicable to the case.

                                                   23
justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely

and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968). “This burden cannot

be discharged by showing no more than acquiescence to a claim of lawful authority.” Id. at 548–49;

see Carmouche, 10 S.W.3d at 331. Moreover, consent is not voluntarily given when it is “the result

of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).

The voluntariness of consent “is a question of fact to be determined from the totality of all the

circumstances.” Id. at 227. “[I]f under all the circumstances it has appeared that the consent was

not given voluntarily—that it was coerced by threats or force, or granted only in submission to a

claim of lawful authority—then . . . the consent [is] invalid and the search unreasonable.” Id. at 233.

“Although the federal constitution only requires the State to prove the voluntariness of consent by

a preponderance of the evidence, the Texas Constitution requires the State to show by clear and

convincing evidence that the consent was freely given.” Carmouche, 10 S.W.3d at 331 (citing State

v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)).

               Here, the circumstances surrounding Zimmerhanzel’s consent are depicted clearly

on the video recording. After the officers knocked on the door repeatedly, announced that they were

with the San Marcos Police Department, and proceeded to open the door, Zimmerhanzel and

Tilghman can be seen standing near the door, with Zimmerhanzel appearing surprised. One of the

officers tells the occupants, “How’s it going? San Marcos Police Department. What’s going on,

guys?” Zimmerhanzel, who is standing partly inside the bathroom, responds, “Nothing. Goddamn.

What’s going on here?” An officer replies, “Hey, let me see your other hand.” Zimmerhanzel

complies by stepping outside the bathroom and showing the officers both of his hands. He then tells



                                                  24
the officers, “Oh, I’m sorry. Damn, what the hell’s going on?” One of the officers announces,

“Here’s the deal. Y’all, it’s time for y’all to leave.” Zimmerhanzel asks, “What did we do?” The

officer replies, “You are no longer welcome guests of this hotel.” Zimmerhanzel again asks, “What

did we do, sir? Damn.” One of the officers, in an apparent reference to Zimmerhanzel and

Tilghman, then asks, “Just y’all two?” Zimmerhanzel points at the bathroom and indicates that

another person is inside, either showering or shaving. Ward then emerges from the bathroom,

holding a disposable shaving razor, and tells the officers, “Sorry, I’m shaving.” Zimmerhanzel again

asks, “What, what’s the problem here?” Officer Duckworth then gestures his hand toward the door,

telling the other officers to “go in, make sure.” Officer Smith then enters the room, with another

officer following closely behind him. As Smith is walking past the door, Zimmerhanzel then says,

“Come on, come on in, man.” All of this occurs within 30 seconds of the officers opening the door.

               In summary, the recording reflects that the officers knocked on the door repeatedly,

announced their presence as police officers, opened the door to the hotel room, asked to see

Zimmerhanzel’s hands and asked if there was anyone else inside the room, told the occupants that

they had to leave the hotel but did not answer Zimmerhanzel’s inquiries as to why they were no

longer welcome there, and then proceeded to enter the room without asking permission of any of the

occupants. Only after one of the officers was already inside the room did Zimmerhanzel tell the

officers to “come on in.” Thus, the officers clearly conveyed by their words and conduct that they

had lawful authority to enter the hotel room. Under these circumstances, we cannot conclude that

Zimmerhanzel’s consent was anything more than “acquiescence to a claim of lawful authority.”

Thus, the State failed to satisfy its burden to prove by “clear and convincing evidence” that



                                                25
Zimmerhanzel’s consent was voluntarily given. See Bumper, 391 U.S. at 546–50 (after officer

falsely conveyed to homeowner that he had authority to search her house, homeowner told officer

to “come on in”; Supreme Court concluded that homeowner’s consent was product of “colorably

lawful coercion” and was thus involuntary); Carmouche, 10 S.W.3d at 331–33 (concluding that

defendant’s consent to search, given while he was “closely surrounded by four police officers” and

under other coercive circumstances, was not freely and voluntarily given).

               Additionally, even if the record supported a finding that Zimmerhanzel’s consent was

voluntary, that would not end our inquiry. Because Zimmerhanzel’s consent was not given until

after the unlawful entry, the State must also prove by clear and convincing evidence that the taint

inherent in that illegality had dissipated by the time consent was given. Brick v. State, 738 S.W.2d

676, 680–81 (Tex. Crim. App. 1987); State v. Pena, 464 S.W.3d 389, 399 (Tex. App.—Corpus

Christi 2014, pet. ref’d); Orosco v. State, 394 S.W.3d 65, 75 (Tex. App.—Houston [1st Dist.] 2012,

no pet.). Factors to consider in this analysis include: (1) the temporal proximity between the

unlawful entry and the given consent; (2) whether the unlawful entry brought about police

observation of the particular object for which consent was sought; (3) whether the search or seizure

resulted from flagrant police misconduct; (4) whether the consent was volunteered or requested;

(5) whether the person consenting was made fully aware of the right to refuse consent; and

(6) whether the police purpose underlying the illegality was to obtain the consent. See Orosco, 394

S.W.3d at 75 (citing Brick, 738 S.W.2d at 680-81).

               Here, the temporal proximity between the time the officers opened the door and the

time of Zimmerhanzel’s consent was approximately 30 seconds. Thus, the first factor weighs



                                                26
strongly against a finding of attenuation. Regarding the second factor, the officers would not have

observed the contraband without the unlawful entry. Therefore, the second factor also weighs

against a finding of attenuation. Regarding the third factor, we conclude that the police misconduct

in this case was flagrant. As reflected on the recording, the officers knew that they did not have

authority to open the door, but nevertheless directed Chapman to unlock the door and then proceeded

to open the door themselves. Moreover, once the door was open, only the officers communicated

with the occupants. Additionally, the information provided by the officers was vague—despite

Zimmerhanzel’s repeated requests for an explanation, at no time did the officers explicitly inform

the occupants that management had “evicted” them from the hotel or explain to them why they were

“no longer welcome” there. Thus, the officers conveyed that they were in charge of the situation

rather than hotel management. Accordingly, the third factor also weighs against a finding of

attenuation. Although the fourth factor weighs in the State’s favor, because Zimmerhanzel

volunteered consent, the fifth factor weighs against the State, because the officers did not explain

to Zimmerhanzel that he had the right to refuse consent. Finally, the sixth factor also weighs in the

State’s favor, because it does not appear that the police purpose underlying the unlawful entry was

to obtain consent.

                In conclusion, four of the six Brick factors weigh against a finding of attenuation, and

the first factor strongly so. On this record, we conclude that the State failed to satisfy its burden to

prove by clear and convincing evidence that the taint inherent in the illegality had dissipated by the

time Zimmerhanzel gave consent to enter the room.




                                                  27
                                        CONCLUSION

               We conclude that the police, by opening the door to Tilghman’s hotel room and

entering the room without a warrant, while Tilghman still had a right to occupy the room, violated

Tilghman’s Fourth Amendment rights. We further conclude that the entry was not justified by

exigent circumstances or any other exception to the warrant requirement. Accordingly, the district

court abused its discretion in denying Tilghman’s motion to suppress the evidence that was found

inside the room. We reverse the district court’s judgment and remand for further proceedings

consistent with this opinion.


                                             __________________________________________
                                             Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Kelly
 Dissenting Opinion by Justice Kelly

Reversed and Remanded

Filed: June 7, 2019

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