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Click here for the full text of this decision FACTS:On March 7, 2002, a Plano detective informed Detective Douglas Rush of the Corpus Christi Police Department of the location of a stolen laptop computer in Corpus Christi. The Plano detective informed Rush that the computer was equipped with an antitheft program which, when activated, would provide the address and phone number of the location where the computer was last used to access the internet. The Plano detective relayed to Rush that the computer had been used at 3129 Eisenhower in Corpus Christi the previous night. On this information, Rush and Detective Felix Gonzalez proceeded to the Eisenhower address, which was Ernest M. Gutierrez’s home. Before the detectives’ arrival, Gutierrez was smoking marijuana inside his house. When the officers arrived at the address, Gutierrez heard car doors close, saw the approaching officers out of his window, put out his marijuana cigarette and met the detectives on his porch, closing his front door behind him. Rush asked Gutierrez about the stolen computer. Gutierrez initially denied having the computer, but recanted and then admitted the computer was inside his house. While the conversation between Rush and Gutierrez was taking place, Gonzalez smelled marijuana and observed that Gutierrez had bloodshot eyes and was very nervous. Gutierrez told the officers he would go into the house and bring the computer out to the officers. Rush explained that he could not let Gutierrez go into the house alone, as a matter of officer safety and police policy. The detective asked Gutierrez if he and Gonzalez could enter the home. Gutierrez agreed, opened his door and re-entered his home. The detectives followed Gutierrez into his home. After Gutierrez and the detectives entered the threshold of the house, Gutierrez signed the consent to search form. Once inside, Gutierrez retrieved the computer and gave it to Rush. Both detectives noticed the odor of burnt marijuana and a marijuana cigarette in plain view on a table in the living room. The detectives continued a cursory visual search and found cash, a police scanner and several plastic baggies. The detectives called for assistance from narcotics officers. Upon their arrival, the narcotics officers conducted a thorough warrantless search of the Gutierrez’s house. This search resulted in the discovery of cocaine, cash, a pistol and ammunition, digital scales, and other drug paraphernalia. Subsequently, Gutierrez gave two statements regarding his possession of marijuana, cocaine, and the computer. Authorities later indicted Gutierrez for possession with the intent to deliver 400 grams or more of cocaine. He filed a pretrial motion to suppress the evidence, and the trial court held a hearing on the motion. At the hearing, Gutierrez argued that consent was not freely and voluntarily given and all evidence subsequently found in Gutierrez’s home was the fruit of the poisonous tree. After listening to the testimony of several witnesses, including Gutierrez, the trial court denied the motion. At trial, the legality of the search, specifically whether Gutierrez gave valid consent, was again litigated. The issue was submitted to the jury, which ultimately convicted Gutierrez. On appeal, Gutierrez alleged the consent obtained by the detectives, both prior to and after entry, was not voluntarily given. Without determining Gutierrez’s arguments regarding the voluntariness of his consent, the 13th Court of Appeals held that the police had ample probable cause and exigent circumstances to enter the home. HOLDING:Affirmed. To validate a warrantless search based on exigent circumstances, the CCA stated, the state must have probable cause to enter or search a specific location, and an exigency that requires an immediate entry to a particular place without a warrant must exist. In the context of warrantless searches, the CCA stated that probable cause exists “when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found.” Next, the CCA identified three categories of exigent circumstances that justify a warrantless intrusion by police officers, including: 1. providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2. protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3. preventing the destruction of evidence or contraband. The 13th Court found that probable cause and an exigent circumstance were both present when the police confronted Gutierrez on his porch. Specifically, the officers were aware that Gutierrez had possession of the stolen computer and possibly marijuana. The CCA agreed in principle. But the CCA concluded that the police nonetheless overreached. The exigency of the situation, the CCA stated, called for a measured police response to maintain the status quo. The detectives’ response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. Despite the police error, the CCA affirmed the 13th Court on grounds that Gutierrez gave consent to the search. It is true, the CCA stated, that the evidence indisputably establishes that the consent form was not signed until the detectives were already inside the Gutierrez’s home. But the detectives testified that they entered initially with oral consent from the Gutierrez. Reviewing the evidence in the light most favorable to the trial court’s ruling, the CCA held that the state satisfied its burden of proving, by clear and convincing evidence, that police obtained Gutierrez’s consent to the search voluntarily. OPINION:Price, J., delivered the opinion of the court in which Keller, P.J., and Meyers, Keasler, Hervey, Holcomb and Cochran joined. Johnson, J., concurred in the result. DISSENT:Womack, J., filed a dissenting opinion. “The Court of Appeals did not consider the issue of consent, so there is no basis for us to review that issue. We should remand the case to the Court of Appeals for it to consider the issue of consent. This would be in accordance with the structure of our judicial branch, and it would respect the authority of the court below. “It would, of course, take more time. But if we were concerned primarily with the quick disposition of this case, we should never have granted review, since the Court of Appeals’ unpublished opinion had no precedential authority for other cases, and its judgment for this case was correct. This presents the only other correct course of action: dismissal of the petition as improvidently granted.”

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