Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The evidence from the suppression hearing showed that two sheriff’s deputies (Wyatt and Kirsch) had probable cause to suspect a possible, ongoing burglary of appellant’s home. While on patrol, these deputies noticed an illegally parked car, with its driver’s door open and the keys in the ignition, in front of a home. When they approached the home to investigate, they saw pry marks on the front door lock and a surveillance camera aimed at the front door. The deputies knocked on the front door. While waiting for someone to answer the door, they heard a lot of noise inside the home, and they smelled burnt marijuana. Kirsch testified that, in his experience, it would not be unusual for burglars to smoke marijuana in a home that they were burglarizing. Several minutes later, appellant opened the door, and the odor of burnt marijuana became stronger. The deputies repeatedly requested appellant’s identification. At this point, the testimony of the deputies conflicted. Wyatt testified that appellant refused to provide identification and that he detained appellant on the porch while Kirsch entered the home to conduct a “protective sweep” and to investigate “the smell of marijuana.” Kirsch testified that appellant eventually indicated that his identification was inside the home. Kirsch told appellant to get his identification. Kirsch and Wyatt followed appellant when he went inside the home. Kirsch testified that he followed appellant to investigate the marijuana odor and the possible burglary. Once inside the home, the deputies saw the marijuana in plain view. They eventually learned that the home belonged to appellant and that appellant was not a burglar when appellant’s wife arrived and identified appellant. The court of appeals accepted the deputies’ testimony that they entered the home to investigate the odor of burnt marijuana and a possible burglary. The court of appeals also accepted that the deputies had probable cause to believe that appellant was burglarizing the home when they detained appellant on the porch. Relying on this court’s decision in Steelman v. State, 93 S.W.3d 102 (Tex.Cr.App. 2002), the court of appeals decided that the odor of burnt marijuana alone did not justify the warrantless entry into the home. The court of appeals also decided that, while police can enter a home to investigate a burglary in progress, they may not do so “after detaining the sole suspect.” HOLDING:The judgment of the court of appeals was reversed and the judgment of the trial court was affirmed. The court noted that this case is distinguishable from Steelman because, unlike in Steelman, the deputies entered the home based on more than just the odor of burnt marijuana. They also had probable cause to suspect a possible, ongoing burglary, and exigent circumstances allowed them to enter the home without a warrant to investigate the situation further. Also, the Court of Criminal Appeals did not agree with the decision of the court of appeals that police may not enter a home to investigate a possible burglary after detaining what ultimately turns out to be the sole suspect in the burglary. The court agreed with the analysis of the dissenting opinion in the court of appeals: “Kirsch testified that he was investigating a possible burglary of appellant’s home when he made the warrantless entry. The possibility that a burglary is in progress or has recently been committed may provide officers with exigent circumstances to justify a warrantless entry. Because suspects or victims may still be in the residence, and because there is an immediate and urgent need to protect the resident and his property, the warrantless police entry may be justified as exigent depending upon the specific circumstances of the case. For example, police may properly enter to look for other perpetrators or victims. Indeed, as one federal court has observed, it would”defy reason’ to force officers to leave the scene of a possible burglary-in-progress to obtain a warrant thereby”leaving the putative burglars free to complete their crime unmolested.’” This opinion was also consistent with Estrada v. State, S.W.3d slip op. at 10-11 (Tex.Cr.App. No. PD-1629-03, delivered January 26, 2005), the court stated. OPINION:Barbara P. Hervey, J., delivered the court’s opinion.

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?


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.

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