IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. SOL DAVID BARRON, Appellant. vs.

Transcription

1 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS SOL DAVID BARRON, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 7 of Dallas County, Texas The Honorable Mike Snipes, Judge Presiding Cause No. F Y APPELLANT'S BRIEF Counsel of Record: DAVID M. JORDAN STATE BAR NO W. NORTHWEST HIGHWAY, SUITE 3125 DALLAS, TEXAS (FAX) ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL PARTIES TO THE JUDGMENT: APPELLANT: Sol Barron APPELLEE: Craig Watkins, Dallas County Criminal District Attorney 133 N. Riverfront Blvd., LB 19 Dallas, TX PRESIDING JUDGE: Mike Snipes DEFENSE TRIAL COUNSEL: David M. Jordan TRIAL PROSECUTOR: Casey Blair (Motion to Suppress) Travis Wiles (plea) APPELLATE COUNSEL: David M. Jordan 2351 W. Northwest Highway, Suite 3125 Dallas, Texas 75220

3 TABLE OF CONTENTS page STATEMENT OF THE CASE 1 ISSUES PRESENTED ON APPEAL-ISSUE ONE... 1 STATEMENT OF THE FACTS... 2 ISSUE ONE, RESTATED.. 4 ARGUMENTS AND AUTHORITIES.. 4 A. FOURTH AMENDMENT B. TEXAS LAW... 5 APPLICATION TO INSTANT CASE. 9 CONCLUSION PRAYER 12 CERTIFICATE OF SERVICE... 13

4 INDEX OF AUTHORITIES CASE UNITED STATES PAGE Kyllo v. United States, 533 U.S. 27, 31, 150 L. Ed. 2d 94, 121 S. Ct (2001) 4 Kirk v. Louisiana, 536 U.S. 635, 153 L. Ed. 2d 599, 122 S. Ct (2002)..4, 5 Payton v. New York, 445 U.S. 573, 590, 63 L. Ed. 2d 639, 100 S. Ct (1980)...4, 5 United States v. Gross, 2010 U. S. App. LEXIS (6 th Cir. October 19, 2010) 5 Ybarra v. Illinois, 540 U.S. 366, (2003)..7 Johnson v. U.S., 333 U.S. 10, 13, 92 L. Ed. 436, 68 S. Ct. 367 (1947) 8 TEXAS Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) 4 Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)...4 Beverly v. State, 792 S.W.2d 103, (Tex. Crim. App. 1990)..5, 6 Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987)...5 Gutierrez v. State, 221 S.W.3d (Tex. Crim. App. 2007)...7 Parker v. State, 206 S.W.3d 593, (Tex. Crim. App. 2006).7 Clark v. State, 117 Tex. Crim. 153, 35 S.W.2d 420, 422 (1931).7 Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).8 Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978).8 State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)...8

5 NEW YORK Tolentino v. New York, No (cert pending USCT)...5 STATUTES TEX. CODE CRIM. PROC. ANN. art (Vernon 2005).. 11, 12 TEX. CODE CRIM. PROC. ANN. art (Vernon 2005)..6, 10, 12 TEX. CODE CRIM. PROC. ANN. art (Vernon 2005) 6, 7, 11 U.S.CONSTITUTION Fourth Amendment.4,5, 11

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW, Sol Barron, Appellant, and respectfully submits this brief urging error from a conviction for the offense of possession of methamphetamine. STATEMENT OF THE CASE Barron was indicted for the third degree felony offense of possession of a controlled substance, to-wit: methamphetamine in the amount of more than one gram but less than four grams, a violation of TEX. HEALTH & SAFETY CODE ANN (a) (Vernon 1994); TEX. HEALTH & SAFETY CODE ANN (c) (Vernon 1994). (CR: 2). The indictment included one enhancement paragraph alleging a prior conviction. (CR: 2). The trial court denied Barron's motion to suppress evidence. (CR: 4; RR-1: 30). 1 Subsequently, Barron accepted a plea bargain offer of four years deferred adjudication probation and a $2,000 fine. (CR: 11-14; 18-19; RR-2: 6). Notice of Appeal the Court's decision on the Motion to Suppress was timely filed. (CR: 24, 25). ISSUES PRESENTED ISSUE ONE THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS. 1 The reporter's record from the Suppression Hearing on February 16, 2010 will be referred to as "RR-1". The reporter's record from the guilty plea will be referred to as "RR-2". 1

7 STATEMENT OF THE FACTS Officer Rudy Chavez responded to a domestic disturbance at a motel in Irving. (RR- 1: 5). Amanda Jackson responded to his knock; she had no apparent or visible injuries. (RR- 1: 6, 10-11, 15). Chavez, without a warrant or an invitation, entered the room when he saw Barron seated on a sofa. (RR-1: 6). Chavez told Jackson he was coming in the room. (RR- 1: 13). No one told him he could come in the room. (RR-1: 14). Chavez testified that prior to entering the room, he saw drug paraphernalia (a bong) in plain view through the open door; the bong was on the television. (RR-1: 6-7, 11). Chavez also smelled a strong odor of marijuana. (RR-1: 6). Defense Exhibits 1 and 3, photos of the motel room, prove that Chavez could not see the bong from the door of the room. (RR-1: 12-14, 21, 27). The sofa where Barron was seated is nowhere near the television. (RR-1: 12). Once Chavez obtained Barron s identification, he discovered that Barron had outstanding warrants from Grand Prairie. (RR-1: 7-8). Upon searching Barron for weapons, Chavez discovered a baggie of methamphetamine in Barron s pants pocket. (RR-1: 9-10). Amanda Jackson was in the motel room with Barron when police arrived. (RR-1: 18). She answered Chavez s knock and upon opening the door, kept her hand on the doorknob. (RR-1: 19). She did not open the door very wide. (RR-1: 21). Chavez began stepping into the room but she did not move. (RR-1: 19-20). She told him he could not come in, but he forced her out of the way and came in. (RR-1: 20). The bong was on the television and could not be seen from the front door and there was no mirror reflecting the television; it could only be seen when one entered the room. (RR-1: 21-22, 27). There was no marijuana 2

8 smell emitting from the room because they had not smoked in the room. (RR-1: 22, 26). When Chavez patted Barron down, he held his hand on Barron s pocket and said, Oh, what s this? (RR-1: 23). Jackson then heard an extended conversation between Chavez and his supervisor who advised Chavez to call Grand Prairie and have them activate the warrants for Barron. (RR-1: 23-24). After Barron was arrested and taken to jail, officers searched the room. (RR-1: 25). Jackson only consented to this search after Chavez told her he could get a warrant and she was not free to leave. (RR-1: 25). SUMMARY OF THE ARGUMENT The officers had no reasonable suspicion or probable cause to enter the motel room once they determined that Jackson had no visible injuries and that there was no domestic disturbance. There was no suspicious activity and it was impossible for Officer Chavez to see the drug paraphernalia (a bong) from outside the room. Thus, Chavez had no reason to believe that Barron had committed or was committing an offense. Furthermore, the odor of burnt marijuana did not provide him with probable cause to enter the room. Therefore, the trial court erred in denying Barron s motion to suppress evidence. 3

9 ISSUE ONE, RESTATED THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS. ARGUMENTS AND AUTHORITIES Standard of Review The appellate court reviews the trial court s ruling on a motion to suppress under a bifurcated standard of review, giving almost complete deference to the trial court s findings of historical fact supported by the record and reviewing de novo the trial court s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Relevant Authorities A. Fourth Amendment A private dwelling is a sacrosanct place in search and seizure law. As Justice Scalia recently stated for the United States Supreme Court: "'At the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31, 150 L. Ed. 2d 94, 121 S. Ct (2001). The United States Supreme Court has recently unanimously reaffirmed the principle that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home." Kirk v. Louisiana, 536 U.S. 635, 153 L. Ed. 2d 599, 122 S. Ct (2002). Quoting Payton v. New York, 445 U.S. 4

10 573, 590, 63 L. Ed. 2d 639, 100 S. Ct (1980), Kirk reiterated that "because 'the Fourth Amendment has drawn a firm line at the entrance to the house...[, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'" Id. (internal deletion in original). In United States v. Gross, 2010 U. S. App. LEXIS (6 th Cir. October 19, 2010), the Court held that the discovery of a valid arrest warrant did not dissipate the taint of the illegal stop. The Court stated, We... hold that, where there is a stop with no legal purpose, the discovery of a warrant during that stop will not constitute an intervening circumstance. On November 15, 2010, the United States Supreme Court granted certiorari in Tolentino v. New York, No In that case, Tolentino was stopped for playing music too loudly. When the police ran a computer check, it was discovered that his driver s license was suspended; he was arrested. Tolentino conceded that his identity was not suppressible 2, but argued that his pre-existing DMV records were suppressible because they were only discovered as the fruit of an illegal stop. B. Texas Law A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions. Beverly v. State, 792 S.W.2d 103, (Tex. Crim. App. 1990); 2 See INS v. Lopez-Mendoza, 468 U.S (1984). 5

11 Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987) (plurality opinion). In Beverly, this Court explained that: The test for probable cause for a warrantless arrest under [article 14.01(b)] is whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. 792 S.W.2d at 105 (some punctuation omitted.) One of the statutory exceptions, Article 14.01(b), provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." TEX. CODE CRIM. PROC. ANN. art (b) (Vernon 1967). Another statutory exception, Article 14.03(a)(2) provides that an officer may arrest without a warrant a person believed to have committed assault resulting in bodily injury and he has reason to believe there is a danger of further bodily injury to that person. TEX. CODE CRIM. PROC. ANN. art (a)(2) (Vernon 2005). Another statutory exception, Article 14.03(a)(4) provides that an officer may arrest without a warrant a person who the peace officer has probable cause to believe has committed an offense involving family violence. TEX. CODE CRIM. PROC. ANN. art (a)(4) (Vernon 2005). TEX. CODE CRIM. PROC. ANN. art provides, in pertinent part: [A]n officer making an arrest without a warrant may not enter a residence to make the arrest unless: (1) a person who resides in the residence consents to the entry; or 6

12 (2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant. TEX. CODE CRIM. PROC. ANN. art (Vernon 1987) (emphasis added). The Court of Criminal Appeals recently summarized the approach to be taken when examining the validity of a warrantless search: To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. First, there must be probable cause to enter or search a specific location. In the context of warrantless searches, 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." Second, an exigency that requires an immediate entry to a particular place without a warrant must exist.... If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. Gutierrez, 221 S.W.3d at (citations omitted) (emphasis added). The same facts which give rise to probable cause may also be relevant to an analysis of exigent circumstances. See Parker v. State, 206 S.W.3d 593, (Tex. Crim. App. 2006). Where the standard is probable cause, a search... must be supported by probable cause particularized with respect to that person. Ybarra v. Illinois, 540 U.S. 366, (2003). An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. Clark v. State, 117 Tex. Crim. 153, 35 S.W.2d 420, 422 (1931). However, the information afforded to the officer by his 7

13 senses must give the officer reason to believe that a particular suspect committed the offense. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993). This Court has recognized that "odors alone do not authorize a search without a warrant." Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978), quoting Johnson v. U.S., 333 U.S. 10, 13, 92 L. Ed. 436, 68 S. Ct. 367 (1947). In State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002), officers were investigating a tip that drug dealing was occurring at the Steelman 3 home. When officers arrived, they peeked in the blinds and observed no illegal activity, but saw four men seated in the living room. In response to the officer s knock, Ian opened the front door, stepped outside and closed the door behind him. When he did so, the officers smelled the odor of burnt marijuana. When asked for identification, Ian told them he would have to get it from inside. Ian opened the door, walked inside and attempted to close the door. One of the officers placed his foot in the door to prevent it from closing. The officers burst through the door and placed all four occupants under arrest. A narcotics officer arrived on scene and was denied consent to search the residence. He obtained a search warrant two hours later and, upon searching the house, found marijuana. In affirming the trial court s suppression of the evidence, the Court wrote: Given the evidence before it, the trial court in the instant case could have reasonably concluded that the arrest of Ian was not lawfully made without a warrant because the arresting officers did not have probable cause to 3 Both Leo Steelman and Ian Steelman, father and son, were charged with this offense. 8

14 believe that Ian had committed an offense in their presence. Since the officers had no authority to make a warrantless arrest under article 14.01(b), they had no authority (under article14.05) to enter the residence without a warrant and conduct a search, and any evidence seized as a result of those illegalities was tainted and subject to suppression. Id. at Application to the Instant Case Officer Chavez responded to a domestic disturbance call at a motel. (RR-1: 5). The call was made by the motel clerk who said the occupants of a particular room were yelling. (RR-1: 16-17). Notably, Chavez did not testify that he heard any arguing or yelling or sounds as if a disturbance or physical altercation was occurring in the room. When Chavez knocked on the door, Amanda Jackson opened it. (RR-1: 6, 10, 19). When Jackson answered the door, she had no visible injuries and did not appear in distress. (RR-1: 10-11, 15). She kept her hand on the door. (RR-1: 19). Chavez saw Barron seated on a sofa inside the room. (RR-1: 6, 11). Barron also had no visible injuries. (RR-1: 16). Chavez testified that he did not ask to enter the room, but told them he was coming in because he smelled burnt marijuana. (RR-1: 13, 14). Jackson, however, testified that when Chavez asked to come in, she told him she preferred he not come in the room. (RR-1: 19). Thus, Chavez did not have consent to enter the room. Chavez pushed Jackson out of the way and forcibly entered the room. (RR-1: 20). Chavez conducted a pat down search of Barron and obtained his identification. (RR-1: 7, 14). 9

15 Chavez testified that he smelled the odor of burnt marijuana and saw a bong on the television in plain view from outside the room. (RR-1: 6-7, 11). However, the photographs of the room, Defense Exhibits 1-3, refute this testimony. The television could not be seen from outside the room. (RR-1: 12, 21-22). Thus, Chavez could not see the bong. Subsequently, warrants for Barron s arrest were confirmed out of Grand Prairie and he was arrested for the warrants and drug paraphernalia. (RR-1: 9). A search incident to arrest yielded a baggie of methamphetamine in Barron s pocket. (RR-1: 9-10). Chavez had neither an arrest or search warrant when he arrived at the motel. Chavez had no reasonable suspicion, much less probable cause, that any illegal activity was occurring in the motel room. Chavez was responding to a call that people were yelling in a particular room of the motel; the caller did not say that an assault was occurring. (RR-1: 5, 16-17). Chavez did not hear any signs of a domestic dispute (yelling or physical altercation) when he arrived. When Jackson answered the knock, she had no visible signs of injury and neither did Barron. (RR-1: 10-11, 15, 16). Chavez did not ask Jackson whether she was the victim of a domestic disturbance. Thus, Chavez had no reason to believe that an assault or family violence had occurred and the exception provided by Article 14.03(a)(2) and (4) is not applicable. There were no exigent circumstances which demanded Chavez enter the room. Rather, Chavez told Jackson he was coming in because he smelled burnt marijuana. (RR-1: 13, 14). He barged into the room, forcibly pushing her aside as he entered. (RR-1: 20). As evidenced by the photos, it was only after he entered the room that he observed the bong. 10

16 Barron acknowledges that almost total deference is given to the trial court s determination of credibility. However, in this situation Chavez s credibility is refuted by the photographs of the motel room (Defense Exhibits 1-3) which demonstrate that he could not see the bong and the television from outside the room. Thus, the trial court s determination that Chavez was credible is incorrect and should not be given deference by this Court. Conclusion This case is directly analogous to Steelman. The odor of burnt marijuana did not allow Chavez to enter the motel room and investigate. Chavez had no probable cause to believe that Barron had committed an offense in his presence. Since Chavez had no authority to make a warrantless arrest under article 14.01(b), he had no authority under article14.05 to enter the residence without a warrant and conduct a search. Furthermore, Defense Exhibits 1-3 refute his testimony that he saw the bong in plain view from outside the room. Any evidence seized as a result of those illegalities was tainted and subject to suppression. Thus, pursuant to the Fourth Amendment, the evidence should have been suppressed because there was no probable cause or exigent circumstances for Chavez to enter the motel room. The subsequent discovery of the valid arrest warrants from Grand Prairie did not dissipate the taint of the illegal entry. Furthermore, Chavez did not have probable cause to arrest Barron and the statutory exceptions, Articles and 14.03, are inapplicable. No exigent circumstances existed which required Chavez to enter the room. It was not necessary for him to enter the room to prevent an assault. Neither Jackson nor Barron consented to Chavez s entry. In fact, Chavez 11

17 told them he was coming in and forced his way in. Only after Chavez was inside the room could he have seen the bong. The smell of marijuana did not mean that Barron had committed an offense in Chavez s presence (he was not smoking a joint when Chavez entered). Thus, Chavez illegally entered the room without probable cause and exigent circumstances. The trial court erred in denying Barron s motion to suppress the evidence. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that his conviction will be reversed and the case remanded for a new trial. Respectfully submitted, DAVID M. JORDAN STATE BAR NO W. NORTHWEST HIGHWAY, SUITE 3125 DALLAS, TEXAS (FAX) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief has been served on the Dallas County Criminal District Attorney, Appellate Division, 133 N. Riverfront Blvd., LB-19, Dallas, Texas , by depositing in the United States mail, postage prepaid, on December 14, David M. Jordan 12