In the March-April 2013 issue of this journal, I wrote about loud parties with lots of weed and exigent circumstances. The article focused on the recent Supreme Court of the United States opinion in Kentucky v. King.1
Since that time, the Texas Court of Criminal Appeals has taken its shot at the issue in Turrubiate v. State:2 “In King, the [U.S. Supreme] Court held that, when probable cause and exigent circumstances exist, police officers may enter a home without a warrant, even when their conduct created the exigency, as long as the officers did not create the exigency by violating or threatening to violate the Fourth Amendment.” The Supreme Court did not reach the ultimate question as to whether there actually were exigent circumstances,3 but the Court of Criminal appeals did. And it held that the State must “show proof of imminent destruction based on affirmative conduct by those in possession of narcotics in a particular case.”4
The new Texas case
In Turrubiate v. State the defendant’s girlfriend reported that the defendant smoked marijuana around her child. A family protective services officer approached the defendant’s residence and smelled marijuana after knocking on the door. The family services officer returned with a sheriff’s deputy. The deputy also smelled “a very strong, fresh odor of marijuana coming from the crack in the door,” the court wrote. “In light of his suspicion to believe that there was possible marijuana in the house, the deputy determined that entry was required to prevent the marijuana from being destroyed and to preserve it for use in prosecution. He thought that if he left to obtain a warrant, it would make the evidence available for destruction.”5
The court addressed only the risk of destruction of evidence, rather than other possible exigent circumstances (such as risk to the child) because the court of appeals didn’t address any other issues.
The Court of Criminal Appeals interpreted King to establish a requirement that “the record shows proof of imminent destruction based on affirmative conduct by those in possession of narcotics in a particular case.” I suggested (in my previous article) that this requirement could be satisfied by the officer testifying on the record to hearing the sound of a toilet flushing.
In Turrubiate, the Court of Criminal Appeals held that “the State’s approach would abandon the requirement that the record affirmatively show facts that reasonably indicate exigent circumstances that a defendant was attempting to, or would attempt to, destroy evidence, … [essentially] permit[ting] a presumption that an occupant will attempt to destroy illegal narcotics merely because he possesses them and is aware of the presence of police, and there is an odor of marijuana.” With this new case, the Court of Criminal Appeals overruled a five-factor test from McNairy v. State, noting that these factors “no longer adequately assist a court in determining whether the record shows an exigent circumstance.”6
So what facts are good enough? The court held that the presence of officers and the smell of marijuana alone were not enough. The answer is really going to be, “It depends on your facts.” The court did give non-binding guidance by citing to examples in existing caselaw.7
After Kentucky v. King, the Texas Court of Criminal Appeals decided that exigent circumstances for the destruction of evidence means “proof of imminent destruction based on affirmative conduct by those in possession of narcotics.” The odor of marijuana and police presence on the scene alone will not justify a warrantless search. The court did not decide whether the interest in protecting the child from the marijuana was an exigent circumstance because the lower court did not address the issue. I hope this update to the previous article helps clarify those issues in light of this recent CCA decision.
1 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011).
2 No. PD-0388-12 (Tex. Crim. App. 2013). See King at 1858.
3 Id. at 12. The state court in King, on remand, held that “facts in that case, which included … sounds of things being moved inside the apartment, did not establish exigent circumstances.” King v. Commonwealth, 386 S.W.3d 119, 122-23 (Ky. 2012, pet. for cert. filed).
4 Id. at 9.
5 Id. at 4.
6 Id. The five (now overruled) factors were: 1) the degree of urgency involved and the amount of time necessary to obtain a warrant, 2) a reasonable belief that the contraband is about to be removed, 3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, 4) information indicating that the possessors of the contraband are aware that the police are on their trail, and 5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. McNairy, 835 S.W.2d at 107.
7 See e.g., Gutierrez v. State, 221 S.W.3d 680, 683 (Tex. Crim. App. 2007) (exigent circumstances existed where 1) officers had a tip that the appellant had a stolen computer; 2) the appellant saw officers arrive at his home and met them outside; 3) officers smelled marijuana from inside the home; 4) officers questioned him about the computer; 5) he admitted having the stolen computer; 6) he “had bloodshot eyes and looked very nervous”; and 7) he said he would go inside and retrieve the computer while officers remained on the porch); Estrada v. State, 154 S.W.3d 604, 605-06 (Tex. Crim. App. 2005) (exigent circumstances where officer smelled marijuana, knocked and announced, then heard people “running” inside, and, after no one answered, he saw two vehicles quickly exiting the driveway); United States v. Mata, 517 F.3d 279, 289 (5th Cir. 2008) (exigent circumstances existed where officers knew that 1) occupants possessed contraband “with absolute certainty”; 2) they “had only hours” before the occupants would deliver the drugs; 3) numerous cars were entering and exiting the premises; and (4) “individuals were conducting counter surveillance—keeping an eye out for law enforcement”); United States v. Jones, 239 F.3d 716, 721 (5th Cir. 2001) (exigency where officers suspected but were not certain that criminal activity was occurring within home, knocked, and saw firearm in plain view within reach of occupant when he opened the door), cert. denied, 534 U.S. 861 (2001).