Hervey, J., filed a dissenting opinion in which Keller, P.J., and Keasler, J., joined.

I respectfully dissent. The Court holds, as a matter of state law, that the marijuana the police seized from the search of appellees' home should have been suppressed under Article 38.23(a) because the appellees were illegally arrested under Articles 14.01 and 14.05. This is an erroneous holding because no causal connection exists between the appellees’ arrests and the search of the appellees’ home resulting in the seizure of the marijuana. For purposes of determining whether the marijuana should have been suppressed under Article 38.23(a) the search of appellees’ home and their arrests are unrelated and have nothing to do with each other.

The police searched appellees' home pursuant to a validly issued, and untainted by any illegal arrest that may have occurred, search warrant that was based on probable cause to believe that marijuana would be found in appellees' home. But, because the State abandoned this search warrant theory and then lost on the warrantless search theory at the suppression hearing in the trial court, it would not be appropriate to reverse the trial court's ruling on the search warrant theory. See State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Cr.App. 1998) (appellate court generally should not reverse trial court's ruling on theory not presented to the trial court). Therefore, the search of appellees' home must be analyzed under the fiction that a warrantless search occurred even though it is undisputed that no warrantless search actually did occur.

As I understand it, the Court's opinion decides that the initial police entry into the appellees' home for the purpose of making a warrantless arrest of them was unlawful because the police lacked probable cause to believe that appellees had committed an offense in the presence of the police. See Article 14.01, 14.05. And, according to the Court's opinion, since this initial police entry into the appellees' home for the purpose of making these warrantless arrests was unlawful, then the police entry into the appellees' home for the purpose of searching it for marijuana must also have been unlawful. This, however, confuses the issue of the validity of appellees' warrantless arrests with the issue of the validity of the warrantless search of their home–neither of which have anything to do with the other for purposes of determining whether the marijuana found during the search of appellees’ home should have been suppressed under Article 38.23(a). Different considerations apply to each one of these legally distinct issues.

THE SEARCH OF THE HOME

No reasonable person can dispute that the odor of burnt marijuana inside the appellees' home provided the police with probable cause to believe that there was marijuana inside the appellees' home. See Moulden v. State, 576 S.W.2d 817, 819 (Tex.Cr.App. 1978) (odor of burnt marijuana in defendant's car provided police with probable cause to believe that there was marijuana in the car). Exigent circumstances also existed for the police to make a warrantless search of appellees' home since the marijuana evidence could have been destroyed or disposed of during the time it would have taken the police to get a warrant. Compare Taylor v. United States, 52 S.Ct. 466, 467 (1932) (no exigent circumstances existed to excuse police from obtaining a search warrant since "there was no probability of material change in the situation during the time necessary to secure such warrant").

A warrantless search of appellees' home, therefore, would not have violated the federal constitution. No state law provision would have prohibited this warrantless search either. That the appellees' may also have been illegally arrested under state law at the time of a warrantless search of their home is of no consequence in determining the validity of this warrantless search since any illegal arrest had no causal connection to the search of appellees' home and the seizure of the marijuana.¹ See Article 38.23(a) (requiring the suppression of evidence that is "obtained in violation" of the law); Johnson v. State, 871 S.W.2d 745, 749-51 (1994) (Article 38.23 requires the exclusion of evidence only when it is "obtained in violation" of the law).

APPELLEES' WARRANTLESS ARRESTS

Even if appellees’ warrantless arrests had some causal connection to the seizure of the marijuana from their home, the marijuana still should not have been suppressed because these warrantless arrests did not violate state law. The Court's opinion decides that Ian's initial warrantless arrest was unlawful because the police lacked probable cause to believe that he was in possession of marijuana, and that this initial arrest of Ian tainted Leo's subsequent arrest. However, a proper application of the probable cause standard requires a decision that the police had probable cause (more than a bare suspicion) to believe that Ian was in possession of marijuana based on their observing him in an area where marijuana had very recently been smoked. In Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App. 1997), this Court discussed the legal definition of probable cause:

While this principle [probable cause] is well-established, the Court [of Appeals] failed to appreciate the definition of probable cause. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. [Citation Omitted] The determination of the existence of probable cause concerns "the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." [Citation Omitted] Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. [Citations Omitted] The rule of probable cause seeks to accommodate the sometimes opposing interests of safeguarding citizens from rash and unreasonable police conduct and giving fair leeway to legitimate law enforcement efforts. [Citation Omitted].

On this record and under this legal standard of probable cause, the police could have reasonably determined that a fair probability existed that Ian was in possession of marijuana.

I, therefore, respectfully dissent.

Hervey, J.

Date Filed: October 23, 2002

Publish

¹

It is significant that the police did not seize the marijuana as a result of a search of the appellees themselves. It is also significant that the police did not seize the marijuana during the search of appellees' home because of anything the appellees told them during any illegal arrest. It, therefore, cannot be said that the seizure of the marijuana was in any way the "fruit" of an illegal arrest.