Marijuana Smell Not Enough to Justify Warrantless Entry into Home, According to Texas Court of Criminal Appeals

The Texas Court of Criminal Appeals ruled that probable cause to suspect that a home contained marijuana, a clear marijuana odor coming from inside the home, and the knowledge of the home’s occupant that a police officer was present did not justify entering the home without a warrant. Turrubiate v. Texas, No. PD-0388-12, slip op. (Tex. Crim. App., Apr. 10, 2013). The court rejected the state’s argument that the risk of evidence destruction constituted “exigent circumstances” that would allow a warrantless search. However, it found that the appellate court did not address the separate question of exigent circumstances based on child safety, and remanded the case to the appellate court for further review.

A Texas Department of Family and Protective Services (DFPS) investigator went to the defendant’s home, where he allegedly lived with his girlfriend and her six-month-old child, to investigate alleged marijuana use. The investigator knocked on the door, and when the defendant cracked it open, the investigator claimed to detect a strong marijuana odor. After the defendant told him no one else was home, the investigator gave him his card, told him to have the girlfriend contact him, and left. A sheriff’s deputy met the investigator at the home soon after, and the two knocked on the door again. The deputy also claimed he could smell marijuana when the defendant cracked the door open. Citing the risk that the defendant would destroy evidence, the deputy entered the home by force, pointed a taser at the defendant, and handcuffed him on the floor. The defendant confirmed the presence of marijuana in a backpack.

At trial, the defendant argued that the warrantless entry into the home violated the Fourth Amendment. The trial court denied his motion to suppress, and a jury found the defendant guilty. The court of appeals reversed the verdict, agreeing with the defendant that exigent circumstances based on the perceived risk of destruction of evidence did not exist.

“Exigent circumstances” are an exception to the Fourth Amendment rule against warrantless searches by police. Texas courts have ruled that exigent circumstances exist in certain situations that would make “obtaining a warrant impractical.” Id. at 5-6, citing McNairy v. Texas, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Exigent circumstances may exist if the officer has probable cause and reasonably believes evidence of a crime will be found in three types of situations: rendering aid to persons the officer reasonably believes need assistance; protecting another officer from a person the officer believes is armed and dangerous; and preventing “destruction of evidence or contraband.” Turrubiate, slip op. at 6, citing Gutierrez v. Texas, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

Both Texas and federal caselaw require reasonable suspicion that destruction of evidence is imminent, not merely possible, in order to meet the exigent circumstances requirement. The Supreme Court has held that the state must show “affirmative conduct” that gives rise to a suspicion of imminent evidence destruction. Turrubiate at 9, citing Kentucky v. King, 131 S.Ct. 1849, 1862 (2011).

The court also found, however, that the appellate court did not address the state’s argument that the safety of the child who resided at the house created exigent circumstances. Since this could justify a search under the first situation established by Gutierrez, the court remanded the case there.

Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To schedule a confidential consultation to discuss your legal matter, contact us online or at (432) 687-5157.

More Blog Posts:

East Texas Town Seizes Large Amounts of Marijuana in Traffic Stops, Texas Criminal Lawyer Blog, January 1, 2013
Federal Judge Approves Warrantless Hidden Video Surveillance in Drug Case, Texas Criminal Lawyer Blog, November 26, 2012
Texas Appellate Court Rules that Police Officer Did Not Violate Defendant’s Fourth Amendment Rights by Shining a Flashlight into His Car, Texas Criminal Lawyer Blog, November 16, 2012

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