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Click here for the full text of this decision FACTS:While patrolling a Riverplace Apartments parking lot in Hooks around 1:30 a.m. on Oct. 21, 2001, officers noticed three people sitting in a parked car with the lights out. Having earlier received reports of suspicious activity in the area, the officers decided to investigate. One of the officers, David Gipson, approached the car and knocked on the front passenger’s side window. When the window was lowered, Gipson detected smoke and the burning smell of marijuana. He asked the occupants to step out of the vehicle, and, when they complied, the back-seat passenger fled. Gipson’s partner pursued the man, leaving Gipson with the two front-seat passengers, Jessie Lane Hitchcock and a female. Preceding his search of the vehicle, Gipson handcuffed Hitchcock and placed him, along with the female passenger, in the back seat of his patrol car. During his search, Gipson discovered marijuana residue in the ashtray and a bottle of cognac under the passenger’s seat. Following his search, Gipson removed Hitchcock and the other passenger from the patrol car and began searching them based on his findings in the car. Given the strong odor of marijuana in the car, Gipson believed he had probable cause to search Hitchcock and the remaining passenger for illegal drugs. Gipson performed a pat-down search for weapons and then reached into Hitchcock’s pockets. After recovering from Hitchcock’s left front pants pocket a gum wrapper with a white, rock-like substance inside, which he believed to be crack cocaine, Gipson arrested Hitchcock for possession of a controlled substance. After pleading guilty to possession of a controlled substance, Hitchcock was sentenced to two years in state jail (probated for five years) and assessed a $750 fine. On appeal, Hitchcock contends the trial court erred in denying his motion to suppress, alleging law enforcement officials violated his constitutional and statutory rights against unreasonable search and seizure. HOLDING:Affirmed. The parties agree a warrantless search occurred; therefore, the state must meet the burden of proving that an exception to the Fourth Amendment justified the search of Hitchcock’s person. The officer testified he performed a Terrysearch to make sure there were no weapons. Given that the search occurred in the early hours of the morning, in an area about which officers had received reports of suspicious activity, and that one of the occupants of Hitchcock’s car had fled the scene only moments earlier, it is not unreasonable that a prudent person would find Gipson’s initial pat-down search of Hitchcock’s outer clothing justified. The more significant issue is whether Gipson’s search of Hitchcock’s pants pocket was justified. The state presents two alternative arguments to justify the search: 1. inevitable discovery; and 2. exigent circumstances. Gipson testified he searched Hitchcock and seized the cocaine before placing Hitchcock under arrest. Because there is no evidence in the record that might attenuate the connection between the discovery and the pre-arrest, invasive search, the state’s claim of inevitable discovery pursuant to a search incident to arrest is unpersuasive. Gipson testified that he believed the occupants of the car had been smoking marijuana based on the smoke and strong odor of marijuana emitted from the car’s window. When Gipson’s subsequent search of the car produced alcohol but no usable quantity of drugs, he reasonably deduced that Hitchcock and the female passenger might have concealed marijuana on their persons. “Law enforcement officers are permitted to draw logical inferences and make intelligent deductions based on a totality of the circumstances.” Small v. State, 977 S.W.2d 771 (Tex. App. � Fort Worth 1998, no pet.) (citing Jackson v. State, 745 S.W.2d 4 (Tex. Crim. App. 1988)). In light of the totality of the circumstances in this case, it is clear Gipson had probable cause to believe that any evidence of drugs on Hitchcock’s person could have been destroyed during the time it would have taken to obtain a search warrant. Not only is the odor of marijuana sufficient to constitute probable cause to search a defendant’s person, Ross v. State, 486 S.W.2d 327 (Tex. Crim. App. 1972), but also the need for preservation of evidence was considerable, and the physical intrusion experienced by Hitchcock was minimal. There was no error in denying Hitchcock’s motion to suppress. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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