

 

 

 

NUMBER 13-08-543-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

MILES PARK, 				                   	                   Appellant,

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the 94th District Court 
of Nueces County, Texas.
 

DISSENTING MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela

Dissenting Memorandum Opinion by Justice Vela


	The trial judge found, and I agree, that Officer Wright's entry into appellant's
residence was justified.  The majority, however, concludes that "taking into account the
facts known to Officer Wright at the time the police entered appellant's residence, . . . it
was not reasonable for the trial court to determine that appellant was reaching for a
weapon when appellant reached toward the couch."  Slip op. at 14-15.  I, however, am
reluctant to second-guess our police officers who must make split-second decisions
concerning the possible use of a weapon based upon the circumstances they encounter
while conducting investigations either on the street or at a residence.  Because the majority
overlooks the danger a police officer, such as Officer Wright, faces when encountering a
person whose quick, furtive movement causes the officer to believe he is reaching for a
weapon, I respectfully dissent.
	The Fourth Amendment prevents only unreasonable searches.  Bell v. Wolfish, 441
U.S. 520, 558 (1979), and under the circumstances of this case, I do not believe the search
was unreasonable.  "The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application."  Id. at 559.  "Moreover, courts
should not second-guess police officers' conduct from the peace of a judge's chambers." 
Rhodes v. State, 913 S.W.2d 242, 249 (Tex. App.-Fort Worth 1995), aff'd, 945 S.W.2d
115 (Tex. Crim. App. 1997) (internal quotation marks omitted).  Instead, "[r]easonableness
must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight."  Id.
	We review the trial court's ruling on a suppression motion for abuse of discretion. 
Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).  "When reviewing a trial
judge's decision to deny a motion to suppress where probable cause to search was
challenged, an appellate court must afford 'almost total deference to a trial court's express
or implied determination of historical facts and review de novo the court's application of the 
law of search and seizure to those facts.'"  Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim.
App. 2006) (quoting State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).  When
a trial court makes no explicit findings of fact, as in this case, we "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 that support its ruling as long as those findings are supported by the
record.'"  Id. (quoting Ross, 32 S.W.3d at 855).
	The majority highlights the fact that Officer Wright's partner, "Officer Moss[,] was
unsuccessful in his attempt to purchase narcotics from anyone at appellant's residence. 
According to Officer Wright, because the undercover buy was unsuccessful and there were
'no informants to that house,' the next step was to knock on the door and explain why they
were there."  Slip op. at 5-6.  However, the motives of Officers Wright and Moss to conduct
a "knock and talk" at appellant's residence--even if conducted after an unsuccessful
attempt to buy drugs there--is not dispositive of the issue in this appeal.  A police officer's
motive does not invalidate objectively justifiable behavior under the Fourth Amendment. 
See Whren v. United States, 517 U.S. 806, 813-15 (1996); Barrios v. State, 27 S.W.3d
313, 318-19 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd).  Case law states that as long
as a person in possession of property has not made express orders prohibiting trespass,
a police officer may enter upon residential property, follow the usual path to the home's
front door, and knock on it for the purpose of asking the occupant questions.  Cornealius
v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995); Washington v. State, 152
S.W.3d 209, 214 (Tex. App.-Amarillo 2004, no pet.); Nored v. State, 875 S.W.2d 392, 396-97 (Tex. App.-Dallas 1994, pet. ref'd).  Here, the record does not show the existence of
an express order forbidding Officers Wright and Moss from approaching appellant's door
and knocking on it.  Thus, the law permitted the officers to knock on appellant's door and
speak to him about drug dealing in the residence.
	However, "[a] warrantless police entry into a person's home is presumptively
unreasonable unless it falls within the scope of one of a few well-delineated exceptions." 
Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007).  One of these exceptions
"requires the police to jump over two distinct hurdles."  Parker v. State, 206 S.W.3d 593,
596 (Tex. Crim. App. 2006).  The first hurdle requires the existence of probable cause.  Id. 
"The second hurdle is that exigent circumstances, those which justify an immediate need
to enter a residence without first obtaining a search warrant, must also exist."  Id. at 597.
	When the question is whether probable cause exists to cross the threshold of a
private residence, probable cause may point to the location or to a specific person.  Id.  In
Estrada v. State, the court of criminal appeals reiterated the probable-cause standard that
applies to a warrantless entry or search of a specific location:  "'Probable cause to search
exists when reasonably trustworthy facts and circumstances within the knowledge of the
officer on the scene would lead a man of reasonable prudence to believe that the
instrumentality of a crime or evidence of a crime will be found.'"  154 S.W.3d 604, 609
(Tex. Crim. App. 2005) (quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App.
1991)).  It is not necessary that such a belief be correct or more likely true than false.  See
Texas v. Brown, 460 U.S. 730, 742 (1983).  The concept of probable cause, dealing as it
does in probabilities, not certainties, is a fluid one.  See Angujo v. State, 727 S.W.2d 276,
280 (Tex. Crim. App. 1987).  "[T]he determination of whether an officer has probable cause
and exigent circumstances to enter a person's home without a warrant is a factual one
based on the sum of all the information known to the officer at the time of entry."  Parker,
206 S.W.3d at 600.  "Just as an officer, in the heat of the moment, will use all facts
available to him in deciding whether to enter a home without a warrant, so must a reviewing
court analyze 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.  "If the
State does not adequately establish both probable cause and exigent circumstances, then
a warrantless entry will not withstand judicial scrutiny."  Gutierrez v. State, 221 S.W.3d 680,
685-86 (Tex. Crim. App. 2007).  The same facts that give rise to probable cause may also
be relevant to an analysis of exigent circumstances.  State v. Hoffman, 293 S.W.3d 633,
636 (Tex. App.-San Antonio 2009, pet. ref'd), see Parker, 206 S.W.3d at 600-01.
A. Probable Cause to Enter Appellant's Residence
	The reasonably trustworthy facts and circumstances within Officer Wright's
knowledge prior to the officers' initial entry into appellant's apartment included:  (1)
"anonymous tips" that the apartment might contain drugs; (2) Officer Wright did not know
appellant, did not know if he was violent, and did not know how many people were in the
apartment; (3) when Officer Wright knocked on appellant's front door, appellant opened
it and "was a little irritated that the police were at his door"; (4) while appellant stood in the
doorway, he told Officer Wright that he "briefly had a bad roommate that kind of took over
his apartment and that person was actually the one selling drugs, all he had done was
smoke a little marijuana"; (5) Officer Wright smelled marijuana; (6) while appellant talked
to Officer Wright, he saw appellant make "a quick furtive movement" by putting his hand
"into the couch cushion under the couch," which was "probably two feet" from the door
where Officer Wright stood; (7) because Officer Wright thought appellant "was reaching
for some type of weapon," he entered the apartment and placed appellant in hand
restraints; and (8) Officer Wright entered the apartment for his "safety."
	The majority states that "when defense counsel asked Officer Wright if appellant
had '[gone] towards the couch in a threatening manner,' Officer Wright stated, 'No, it was
just a quick, furtive movement.'"  Slip op. at 14.  If a suspect inside a residence makes a
quick, furtive movement with his or her hand into a couch cushion, which was two feet from
an officer who is standing at the door for the purpose of conducting a narcotics
investigation, this Court should not prevent that officer from entering the residence in order
to protect his or her life.  To a trained officer, such as Officer Wright, appellant's conduct
hardly qualified as innocent behavior, and Officer Wright could reasonably interpret it as
threatening.  Obviously, a person inside a residence has greater access to weapons
concealed therein--thereby increasing the threat to police officers--than the person would
have when standing outside the residence.  I find that the threat to Officer Wright's safety
was neither imagined nor objectively unreasonable under these particular circumstances. 
Thus, Officer Wright had probable cause to enter the apartment because the reasonably
trustworthy facts and circumstances within his knowledge would lead a person of
reasonable prudence to believe that the instrumentality of a crime; i.e., a weapon, would
be found inside the couch.

	When asked if he had any reason to suspect that appellant "would be getting a
weapon to attack [him]," Officer Wright responded that he "[has] no idea what people are
going to do when they reach into couches."  Slip op. at 13.  As the Supreme Court stated
in Graham v. Connor, "[t]he calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments--in circumstances
that are tense, uncertain, and rapidly evolving. . . ."  490 U.S. 386, 396-97 (1989).  
B. Exigent Circumstances to Enter the Residence
	The majority states that "'[s]ituations creating exigent circumstances usually include
factors pointing to some danger to the officer. . . .'"  Slip op. at 14.  This is exactly what
Officer Wright faced in this case.  "A variety of . . . circumstances may place a police officer
in situations in which a warrantless entry is viewed as a reasonable reaction by the officer. 
Situations creating exigent circumstances usually include factors pointing to some danger
to the officer. . . ."  McNairy, 835 S.W.2d at 107.  Officer Wright testified that he thought
appellant "was reaching for some type of weapon" and that he entered the apartment for
his "safety."  Considering the totality of the circumstances, Officer Wright was justified in
entering the apartment because exigent circumstances existed that allowed him to insure
his safety and the safety of Officer Moss.  See id.
	The majority states that "[a]ppellant asserted that he reached for the couch after
Officer Wright came into the house, . . . ."  Slip op. at 8.  However, "[a]s the sole trier of fact
during a suppression hearing, the trial court may believe or disbelieve all or any part of a
witness' testimony."  Wilson v. State, No. PD-0307-09, 2010 WL 715253, at *3 (Tex. Crim.
App. March 3, 2010).  Accordingly, the trial court could have disbelieved all of appellant's
testimony and believed Officer Wright when he testified that he entered the residence after
he saw appellant make the quick, furtive movement.  
	Another exception that permits a warrantless police entry into a person's residence
arises when an officer conducts a self-protective search for weapons.  The Fourth
Amendment permits an investigative detention if, under the totality of the circumstances,
the officer has reasonable suspicion supported by articulable facts that the person detained
is, has been, or soon will be engaged in criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22
(1968); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  These facts must
amount to more than a mere articulable hunch or suspicion.  Williams v. State, 621 S.W.2d
609, 612 (Tex. Crim. App. 1981).  When determining whether reasonable suspicion exists,
we consider the facts known to the officer at the moment of detention.  Davis v. State, 947
S.W.2d 240, 243 (Tex. Crim. App. 1997).  Additionally, we base a determination of
reasonable suspicion on common-sense judgments and inferences about human behavior. 
Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
	The majority concluded that "Officer Wright did not articulate any facts to support
his belief that appellant was reaching for a weapon."  Slip op. at 14.  I respectfully disagree
with this conclusion.  While standing outside of appellant's front door, Officer Wright saw
appellant make a quick, furtive movement, putting his hand into the couch.  This made
Officer Wright think that appellant was reaching for a weapon.  Citing officer safety, he
entered the apartment and detained appellant.  Officer Wright, a peace officer with nine
years' experience, testified that he was trained to secure a person whom he believed was
reaching for a weapon.  Under the totality of the circumstances, Officer Wright had
reasonable suspicion supported by articulable facts, which amounted to more than a mere
articulable hunch or suspicion, that appellant would soon be engaged in criminal activity;
i.e., assault on a police officer.
	Based on the facts known to Officer Wright prior to his entry into the apartment, I
find that the trial court was within its discretion to determine that Officer Wright had
reasonable suspicion supported by articulable facts that appellant soon would be engaged
in criminal activity and, I would hold that the officers' entry into the residence was justified
and that the trial court did not abuse it discretion in denying appellant's motion to suppress.
 See Watson v. State, 861 S.W.2d 410, 416 (Tex. App.-Beaumont 1993, pet. ref'd).       
	For these reasons, I respectfully dissent. 	

 
							ROSE VELA	
							Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Delivered and filed the 25th
day of March, 2010.
