Parker v. State

In light of evidence falling within four of the five remaining factors referenced in McNairy, the court concludes 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.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On April 2, 2001, officers from the Muleshoe Police Department and Bailey County sheriff’s office went to the 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. The 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 told the 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. The appellant tried to close the door, but an officer stuck his foot in the doorway and told the appellant that the officers were going to secure the residence. The 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 the appellant and the 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. The 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 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 fine. HOLDING:Affirmed. The 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 applied, 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. The court inquires 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, the court reviews 1. the degree of urgency and 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. McNairy v. State, 835 S.W.2d 101 (Tex.Crim.App. 1991). In addition to the evidence supporting probable cause, 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, the court concludes 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. OPINION:Johnson, C.J.; Johnson, C.J., and Reavis and Campbell, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.