Nicholas G. Wisenbaker v. State ( 2010 )

i i i i i i
OPINION
No. 04-09-00365-CR
Nicholas G. WISENBAKER,
Appellant
v.
STATE OF TEXAS,
Appellee
From the County Court at Law, Kendall County, Texas
Trial Court No. 09-046-CR
Honorable Bill R. Palmer, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: February 10, 2010
AFFIRMED
This appeal arises from the denial of Nicholas G. Wisenbaker’s motion to suppress a search
of his residence that led to the seizure of marijuana. After the trial court denied his motion,
Wisenbaker entered a plea of guilty pursuant to a plea bargain, and he was sentenced to 365 days in
jail and fined $600.00, probated for nine months. Wisenbaker appeals the judgment, contending the
warrantless search of his residence violated the Texas and United States Constitutions and Texas
state law. We affirm the judgment.
04-09-00365-CR
BACKGROUND
The State charged Wisenbaker with possession of marijuana under two ounces, and alleged
in the information that the possession occurred within 1,000 feet of a school. See TEX . HEALTH &
SAFETY CODE ANN . §§ 481.121(b)(1) (Vernon 2003), 481.134(f) (Vernon Supp. 2009). Prior to
trial, the court conducted a hearing on Wisenbaker’s motion to suppress.
The State called only one witness at the hearing. Sergeant Steve Perez of the Boerne Police
Department testified that on January 21, 2009, at approximately 6:49 p.m., he was dispatched to a
residence in the City of Boerne. Wisenbaker’s neighbor, Jeffrey Smith, had called the police to
complain that Wisenbaker and some of Wisenbaker’s friends were smoking marijuana in
Wisenbaker’s house. Sergeant Perez met Smith on the street outside a privacy fence that enclosed
both the Wisenbaker and Smith residences,1 and Smith told Sergeant Perez he had seen Wisenbaker
smoking marijuana. Smith indicated that by looking though a hole in the fence, Sergeant Perez could
see Wisenbaker smoking marijuana. Smith told Sergeant Perez that Wisenbaker “constantly” had
people visiting and they were “always” smoking marijuana. Sergeant Perez peered through the fence
and could see through a sliding glass door that opened to a patio. He saw Wisenbaker inside the
house, holding what Sergeant Perez described as a “marijuana pipe.” Sergeant Perez estimated the
distance from the fence to the house was ten feet. Sergeant Perez testified he could not smell any
marijuana odor at that time and did not see Wisenbaker actually use the pipe.
1
… An exhibit admitted during the hearing shows a privacy fence that runs along the side of both houses,
separating the houses from the street. A common sidewalk leads from a gate in the fence and runs between the houses.
The front doors of the houses face each other and the sidewalk. W isenbaker’s patio door, through which Sergeant Perez
first saw W isenbaker, faces the privacy fence.
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Sergeant Perez consulted his supervisor about obtaining a search warrant based on his
observations. The supervisor told Sergeant Perez the process would take “a couple of hours.” It was
therefore decided the police would conduct a “knock and talk.” Sergeant Perez, accompanied by
another officer, went to the front door of Wisenbaker’s house. Sergeant Perez saw a sign attached
to the front door that read “Go around, use the other door.” Sergeant Perez and the other officers
walked down the sidewalk and around the house to the patio door — apparently the only other door
to the residence — through which Sergeant Perez had earlier seen Wisenbaker holding the marijuana
pipe. When he reached the patio, Sergeant Perez saw Wisenbaker on the couch facing the door with
the marijuana pipe still in his hand and saw a “thick” cloud of smoke inside the room. He also
smelled the odor of burnt marijuana coming from inside the house. Sergeant Perez made eye contact
with Wisenbaker, who immediately appeared startled and looked as if he was attempting either to
hide the pipe or to get up from the couch. Sergeant Perez testified that based on his experience, he
believed Wisenbaker was smoking marijuana and that the evidence would be destroyed if he waited
to get a search warrant. Sergeant Perez opened the sliding glass door and entered the room. Once
inside the room, he saw a bag of marijuana, pipes, and other paraphernalia on a coffee table. The
police seized the evidence.
At the conclusion of the hearing, the trial court denied the motion to suppress. The court
made numerous findings of fact2 and conclusions of law. The court’s fact findings included: Smith
2
… Some of the court’s findings of fact begin with, “Sergeant Perez testified” and follow with the content of
the testimony. Given the overall tenor of the findings of fact, we construe these as findings that the matters testified about
are true. Our conclusion is compelled in part by the rule that we imply findings of fact that support the court’s ruling
if those facts are supported by the record. See State v. Kelly, 204 S.W .3d 808, 818-19 (Tex. Crim. App. 2006).
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told Sergeant Perez he believed Wisenbaker was smoking marijuana that night; Smith’s belief was
based on his observations of Wisenbaker both that night and in the past; while standing outside the
curtilage of the residence, Sergeant Perez saw Wisenbaker holding a marijuana pipe; police first
went to Wisenbaker’s front door, but were directed by a sign on the door to go around the house and
use the other door; when Sergeant Perez reached the patio, he could clearly see through the sliding
glass door; Sergeant Perez saw a cloud of smoke in the room and Wisenbaker on the couch holding
a marijuana pipe; Sergeant Perez smelled the odor of burnt marijuana coming from within the
residence; Wisenbaker saw the police officers on the patio and immediately reacted; Sergeant Perez
saw Wisenbaker attempt to conceal the marijuana pipe; and Sergeant Perez, based on his experience
gained by involvement in at least one hundred marijuana cases, believes marijuana can be easily
concealed or destroyed. The trial court concluded the officers’ actions in going onto the curtilage
of the residence were reasonable based on seeing drug paraphernalia; their proceeding onto the patio
as directed by the sign was reasonable; there was probable cause to believe evidence of a crime or
contraband would be found inside the residence; and exigent circumstances existed that made the
entry into and search of the premises reasonable under the totality of the circumstances.
STANDARD OF REVIEW
We review the trial court’s ruling on a motion to suppress under an abuse of discretion
standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in the
light most favorable to the trial court’s ruling and will reverse only if the ruling is outside the zone
of reasonable disagreement. Id. We give almost total deference to the trial court’s determination
of historical facts, especially those based on an evaluation of the witnesses’ credibility and
demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the
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trial court’s application of the law of search and seizure to the facts. Wiede v. State, 214 S.W.3d 17,
25 (Tex. Crim. App. 2007). We will sustain the trial court’s ruling “if it is reasonably supported by
the record and is correct on any theory of law applicable to the case.” Dixon, 206 S.W.3d at 590.
APPLICABLE LAW
The State contends the warrantless entry into Wisenbaker’s house was justified by exigent
circumstances. To uphold the search in the face of a Fourth Amendment challenge, both probable
cause and exigent circumstances must have existed. See Gutierrez v. State, 221 S.W.3d 680, 685
(Tex. Crim. App. 2007). “Probable cause to search 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 of a crime or evidence of a crime will be found.”
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005) (quoting McNairy v. State, 835
S.W.2d 101, 106 (Tex. Crim. App. 1991)). In reviewing the evidence, we consider the “totality of
the circumstances” known to the police at the time of the search. Illinois v. Gates, 462 U.S. 213, 238
(1983). The circumstances supporting a finding of probable cause may include flight or similar
evasive conduct. See Pyles v. State, 755 S.W.2d 98, 109 (Tex. Crim. App.), cert. denied, 488 U.S.
986 (1988). The circumstances may also include attempts to discard or conceal items. See United
States v. Wadley, 59 F.3d 510, 512-13 (5th Cir. 1995), cert. denied, 519 U.S. 895 (1996); Arnold v.
State, 831 S.W.2d 556, 559 (Tex. App.—Austin 1992, pet. ref’d).
If probable cause is present, exigent circumstances justifying a warrantless search exist if
“the police could reasonably have concluded that evidence would be destroyed or removed before
they could obtain a search warrant.” McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App.
1991). The same facts used in the probable cause analysis may be relied upon in determining exigent
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circumstances. See Parker v. State, 206 S.W.3d 593, 601 (Tex. Crim. App. 2006).
DISCUSSION
Wisenbaker does not complain of the trial court’s conclusions that there was probable
cause to search and that the police acted reasonably in using a common sidewalk to attempt to talk
with the occupants of the house. Rather, Wisenbaker challenges the trial court’s conclusion that
the warrantless entry was justified by exigent circumstances. We agree with the trial court’s
conclusions.
The police received information from Smith that he believed Wisenbaker was smoking
marijuana. See State v. Nelson, 228 S.W.3d 899, 903 (Tex. App.—Austin 2007, no pet.) (holding
“unsolicited information regarding a crime in progress provided by a citizen who has no relationship
with the police and who makes herself accountable by providing contact information is inherently
reliable”). Sergeant Perez corroborated Smith’s information by looking through a hole in the fence
and seeing Wisenbaker holding what the officer believed, based on his past experience, was a
marijuana pipe. This information resulted in probable cause to believe Wisenbaker possessed drug
paraphernalia. See TEX . HEALTH & SAFETY CODE ANN . § 481.002(17)(L) (Vernon Supp. 2009)
(defining drug paraphernalia to include glass pipe), § 481.125(d)(Vernon 2003) (declaring possession
of drug paraphernalia with intent to inhale or otherwise introduce a controlled substance into the
human body a Class C misdemeanor). The officers were free to use the sidewalk common to the
residences and approach Wisenbaker’s front door in an attempt to contact him. See Cornealius v.
State, 900 S.W.2d 731, 733 (Tex. Crim. App. 1995) (holding “nothing in our Constitutions
prevent[s] a police officer . . . from knocking politely on any closed door”); Bouyer v. State, 264
S.W.3d 265, 270 (Tex. App.—San Antonio 2008, no pet.) (police may knock on front door of a
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private home without implicating Fourth Amendment). When the police encountered the sign on
the front door directing them to use the “other door,” the police acted reasonably in walking on the
sidewalk until they came upon the sliding glass door on the patio — the “other door.” Once there,
Sergeant Perez again observed Wisenbaker holding a marijuana pipe, smelled the odor of burnt
marijuana, and saw a cloud of smoke inside the residence. These observations created probable
cause to believe people were currently smoking and therefore in possession of marijuana,3 and that
evidence of the crime — the marijuana — could be destroyed by the act of smoking. We hold the
officers had probable cause to search and that exigent circumstances existed at the time the police
entered the room through the patio door and observed marijuana in plain view on the table.4
Accordingly, the trial court did not err in denying the motion to suppress.
The judgment of the trial court is affirmed.
Steven C. Hilbig, Justice
PUBLISH
3
… Possession of marijuana is not an offense unless a person possesses a “usable quantity.” See T EX . H EALTH
& S AFETY C O D E A N N . § 481.121(a) (Vernon Supp. 2009). If a person is smoking marijuana, one would expect to find
a “usable quantity” of marijuana until it is entirely consumed.
4
… Although W isenbaker refers to article I, section 9 of the Texas Constitution in his brief, he does not provide
separate argument or authorities for his contention under the Texas Constitution. Accordingly, we do not address it. See
Muniz v. State, 851 S.W .2d 238, 251-52 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993). W isenbaker also argues
his motion to suppress the marijuana should have been granted pursuant to article 38.23(a) of the Texas Code of
Criminal Procedure. See T EX . C O D E C RIM . P RO C . A N N . art. 38.23(a) (Vernon 2005). However, the argument is premised
on the contention that the entry into and search of the premises was unconstitutional; a contention we have rejected.
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