                                   NO. 07-02-0354-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                   OCTOBER 26, 2004

                          ______________________________


                     CHRISTOPHER CHAD PARKER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

                 FROM THE COUNTY COURT OF BAILEY COUNTY;

                   NO. 10780; HONORABLE MARILYN COX, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                        OPINION


       Appellant Christopher Chad Parker appeals from his conviction for possession of

marijuana. He urges that the trial court erred in failing to suppress evidence of marijuana

found by officers after the officers entered appellant’s house without a warrant. We affirm.


       On April 2, 2001, officers from the Muleshoe Police Department and Bailey County

sheriff’s office went to appellant’s house to investigate a report that minors were drinking
in the house. One officer looked into the residence through a window as a second officer

knocked on the front door. A voice in the house said “It’s the police” and someone ran up

the stairs to the second story of the house.


       Appellant opened the door in response to the officer’s knock. When he did so, the

officers smelled the odor of burned marijuana emanating from within the house. The

officers informed appellant that they were at the residence to investigate a report of

underage drinking, but that because of the odor of marijuana the officers intended to enter

and secure the residence. Appellant attempted to close the door, but one officer stuck his

foot in the doorway and again explained to appellant that the officers were going to secure

the residence. Appellant then opened the door, the officers entered the house, secured it,

located all of the occupants, and directed them to be seated in the living room. During this

time, additional officers arrived in response to a radio call from the original officers. As the

on-scene supervisor was explaining the situation to appellant and appellant’s wife and

asking for consent to search the house, another officer noticed a marijuana “joint” in plain

view in an ashtray in the living room. There was also loose marijuana, in plain view,

scattered on a pizza box. After the supervisor was notified of the marijuana, he obtained

verbal consent from appellant to search the house. The only other contraband discovered

during the search was a pipe found in an upstairs bedroom that smelled of burned

marijuana.


       Appellant filed a motion to suppress, alleging that the evidence of marijuana was

obtained illegally since it was not discovered pursuant to a warrant, consent, or probable

cause. After an evidentiary hearing, the trial court overruled appellant’s motion. No

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findings of fact or conclusions of law were filed. A jury convicted appellant and sentenced

him to 180 days in jail and a $1,000.00 fine.


       Appellant presents one issue by which he challenges the trial court’s failure to

suppress evidence of marijuana discovered after what he terms the officers’ illegal entry

into his home.


       The standard of review in regard to trial court rulings on motions to suppress is a

bifurcated standard.     Appellate courts afford almost total deference to trial court

determinations of historical facts and to decisions involving mixed questions of law and fact

if the resolution of those questions depends on an evaluation of credibility and demeanor.

In such circumstances, appellate courts review for an abuse of discretion. See Guzman

v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). If the application of the law to facts is

not dependent on an evaluation of credibility and demeanor, then our review is de novo.

Id.


       When the standard of review is for abuse of discretion, reviewing courts must uphold

the trial court’s decision on any proper grounds, regardless of the basis expressed by the

trial court for its ruling. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

If no explicit findings of fact are made by the trial court, an appellate court assumes that the

trial court made implicit findings which are supported by the record and which support the

conclusion of the trial court. Id. at 855.




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       Appellant cites State v. Steelman, 93 S.W. 3d 102 (Tex.Crim.App. 2002), for the

position that the smell of burned marijuana does not, by itself, present a sufficient basis for

probable cause to enter a private residence and arrest an individual. Appellant contends

that because the officers did not have a basis to enter his home to make a warrantless

arrest, they did not have sufficient probable cause to enter his residence without a warrant

and conduct a search of the residence.


       In Steelman, the Abilene Police received a tip of drug dealing originating from the

Steelman’s residence. Upon arrival at Steelman’s home, the police looked through a

window but were unable to see any illegal activity. The officers then knocked on the door.

When Steelman opened the door, the officers smelled the odor of burned marijuana.

Steelman tried to close the door, but an officer placed his foot in the doorway and

eventually forced his way into the residence. Once inside the residence, the officers

arrested everyone within the home. Id. Up to this point, the officers did not have a warrant

nor had they obtained consent to enter the residence.


       At the conclusion of a pretrial suppression hearing, the trial court found that the

warrantless arrest of Steelman was illegal since the odor of marijuana, standing alone, did

not provide sufficient probable cause to lead officers to believe that Steelman had

committed an offense in their presence. The trial court granted the motion to suppress

pursuant to TEX . CRIM . PROC . CODE ANN . § 14.01(b) (Vernon 1977), finding that the State

had failed to prove that an offense had been committed in the officer’s presence. Id. at

106. The trial court held that once an officer arrests a person without a warrant or without

observing an offense, any evidence obtained after the arrest must be suppressed. Id. at

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105. The Court of Criminal Appeals upheld the decision of the trial court, stating that the

odor of marijuana, standing alone, does not authorize a warrantless search or seizure of

a home. Id. at 108.


       The facts in appellant’s situation do not mirror those in Steelman. Appellant’s

situation is more akin to the facts in Effler v. State, 115 S.W.3d 696 (Tex.App.--Eastland

2003, no pet.). In Effler, the police, without a warrant, went to a trailer house in response

to a report of unusual odors emanating from the trailer. Upon arriving at the trailer the

officers detected odors which they identified as a type commonly present during the

manufacture of methamphetamine. As the officers walked toward the trailer house, they

heard the sound of someone running inside the trailer. A guest in the trailer house

responded to the officers’ appearance at the door. In response to the officers’ request to

enter the trailer, the guest indicated that he would seek permission for them to enter. The

guest then turned and ran into the trailer. The officers followed and apprehended Effler as

he was attempting to pour the contents of two one-gallon jugs down a sink. The officers

also observed plastic bags containing an off-white substance. The trial court refused to

suppress the evidence based on Effler’s claim that the warrantless entry into his trailer was

illegal. Relying on McNairy v. State, 835 S.W.2d 101 (Tex.Crim.App. 1991), the court of

appeals affirmed based on the trial court’s determination that (1) at the time of entry into

the trailer, the officers had probable cause to believe that a search would yield evidence

of a crime or the instrumentality of a crime; and (2) exigent circumstances existed which

permitted a warrantless entry into Effler’s home. Effler, 115 S.W.3d at 698-99.




                                             -5-
         Although appellant argues that Steelman is identical to the case at hand, in

Steelman, the dispositive issue was whether probable cause existed to justify a warrantless

arrest of Steelman in his home. Steelman, 93 S.W.3d 109. The considerations in

reviewing probable cause differ on whether the issue involves an arrest, a search or a

seizure. See Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599

(1984); See also Mireles v. State, No. 01-03-00407-CR, 2004 WL 1172100, at *2 n.1

(Tex.App.–Houston [1 Dist.] May 27, 2004) (not designated for publication). Probable

cause to search a residence exists when reasonably trustworthy facts and circumstances

known to officers at the time of entry would lead a reasonably prudent person to believe

that evidence of a crime will be found within the residence. See McNairy, 835 S.W.2d at

106.


       In the case before us, appellant does not dispute or challenge the officers’ testimony

that when the officers approached appellant’s house, they heard someone in the house

announce that the police were at the front door, the officers observed a person running

upstairs after that announcement, and then, when the door was opened, the officers

smelled burned marijuana. Regardless of the standard of review we apply, see Guzman,

955 S.W.2d at 89, such testimony and evidence created probable cause for the officers to

believe that a search of the residence would yield evidence of a crime or the instrumentality

of a crime. See McNairy, 835 S.W.2d at 106-07; Effler, 115 S.W.3d at 699.


       We next inquire as to whether, in addition to the presence of probable cause,

exigent circumstances existed to justify entry into appellant’s home without a warrant. To

determine whether exigent circumstances existed, we review (1) the degree of urgency and

                                             -6-
the amount of time necessary to obtain a warrant; (2) the reasonableness of the belief that

contraband was subject to destruction or removal; (3) the possibility of danger to the police

officers securing the site pending the application for a warrant; (4) the suspects’ awareness

of police presence or surveillance; and (5) the ready destructibility of the contraband. See

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


       In addition to the evidence supporting probable cause which we have noted above,

the officers’ testimony reflected that the average time to obtain a search warrant was a little

over an hour and that the officers believed the residence should be secured to prevent the

destruction of evidence of marijuana in the house. No evidence was offered in regard to

the possibility of danger to the officers if they secured the house without entering it.


       In light of evidence falling within four of the five remaining factors referenced in

McNairy, we conclude that exigent circumstances existed for a warrantless entry into

appellant’s home by the officers for the purpose of securing the home pending application

for a search warrant. See Effler, 115 S.W.3d at 699.


       Because both probable cause and exigent circumstances existed to support the

officers’ warrantless entry into appellant’s home, we overrule appellant’s sole issue and

affirm the judgment of the trial court.




                                           Phil Johnson
                                           Chief Justice



Publish.



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