IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




Nos. 1022-00 and 1023-00

 

THE STATE OF TEXAS

v.


LEO STEELMAN and IAN STEELMAN, Appellees



ON THE STATE'S PETITION FOR DISCRETIONARY
REVIEW FROM THE ELEVENTH COURT OF APPEALS
TAYLOR COUNTY

Holcomb, J., delivered the opinion of the Court, in which Meyers, Price, Johnson, and Cochran, JJ., joined. Johnson, J., filed a concurring opinion. Cochran, J., filed a concurring opinion, in which Meyers, J., joined. Womack, J., concurred in the result. Keller, P.J., filed a dissenting opinion, in which Hervey, J., joined. Keasler, J., filed a dissenting opinion, in which Hervey, J., joined. Hervey, J., filed a dissenting opinion.

OPINION



Texas Code of Criminal Procedure 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." The issue presented in this case is whether the odor of burnt marijuana emanating from a residence, coupled with an anonymous tip that drug dealing was taking place at that residence, gave police officers probable cause to believe that the person who opened the door of the residence had committed an offense in the officers' presence and thus permitted the officers to enter and arrest everyone inside the home.

I

On April 21, 1998, the Abilene Police Department received an anonymous tip that drug dealing was taking place at the residence of Ian and Leo Steelman, appellees. (1) In response, the department dispatched three officers to the scene. Upon arrival, the officers proceeded to the front door of the residence. Before they got to the front door, however, the officers peered into the house through a crack in one of the window blinds. They observed no illegal activity. They merely saw four men sitting in a living room. (2) The officers then proceeded to knock on the front door.

Ian opened the door, stepped outside, and closed the door behind him. When Ian opened the door, the officers smelled the odor of burnt marijuana. The officers asked Ian for identification. Ian informed the officers that he would have to retrieve his identification from inside the house. He then opened the door, walked back through it, and attempted to close it behind him. At that point, one of the officers placed his foot in the doorway and prevented Ian from closing the door. The officers then burst through the doorway, handcuffed all of the occupants, including Leo, and placed them all under arrest.

At that point, the officers contacted narcotics agent David Varner. Varner arrived at the scene and smelled marijuana inside the residence. After asking for, but not receiving, appellees' consent to search the residence, Varner left to obtain a search warrant. In his search warrant affidavit, Varner asserted that probable cause existed to believe that the occupants of the residence were in possession of marijuana. Approximately two hours after the officers initially entered the residence, Varner obtained a search warrant, searched the residence, and found marijuana.

On July 16, 1998, a Taylor County grand jury indicted appellees for misdemeanor possession of marijuana. See Tex. Health & Safety Code 481.121(b). Appellees filed a motion to suppress the marijuana. In their motion, appellees argued that both the warrantless arrests and the search of the residence pursuant to the warrant were illegal under the Texas Constitution and state statutory law, namely Texas Code of Criminal Procedure article 14.01(b). They further argued that because the initial arrest of Ian and the subsequent arrest of Leo were illegal, any evidence acquired thereafter was tainted by that illegality and, therefore, should be suppressed under Texas Code of Criminal Procedure article 38.23. See Irvin v. State, 563 S.W.2d 920, 924 (Tex.Crim.App. 1978) (Article 38.23 mandates the suppression of the fruits of an illegal arrest).

At the suppression hearing, the State argued that once a police officer smells burning marijuana and determines which house it is coming from, the officer has probable cause to arrest the occupants and search that house. (3) The trial court attempted to clarify the State's position, and the following exchange took place:

COURT: You're proceeding under [the] search warrant here, aren't you?

PROSECUTOR: No, sir, this is a warrantless search.

The State then continued its argument:

So, your honor, the - I guess to summarize our position, these officers went there on a tip, went there where you or I could go, where anybody could go, knock on the door, smelled marijuana coming from the residence, that gives them probable cause to believe that marijuana is present and the cases say that they can then search for that marijuana.

They go inside the residence, secure the residence, make the arrest, ask for consent, do not get it, then make application for a search warrant. The affidavit speaks for itself. The officer, again, presents his probable cause to believe that the marijuana was there. He says he smelled it and I forgot how many other officers he put in his affidavit say that they smelled it there and the Justice of the Peace finds probable cause, signs the warrant and the warrant is executed and the evidence is seized.

That's our basis for the search that was conducted, Your Honor.



At that point, the trial court attempted again to clarify the State's position:



COURT: As I understand the State's argument is they say the facts of this case would justify the search without a warrant, is that correct?



PROSECUTOR: Well, your honor, that and I present the warrantless cases to get the officers in the house in the first place. I mean, I believe that that is sort of a seizure of the house.



COURT: Do you think [based on] the facts of this case they had to get a search warrant?



PROSECUTOR: Your Honor, I haven't thought about it in that light, I'll be honest with the Court. I'm going on the basis that they went inside the residence based upon the probable cause of smelling the marijuana. And I'll be honest, I haven't thought about it in the light that you are.



COURT: That's the way I understand your argument that they didn't even need a search warrant once they're there and smelled the marijuana. Thus, it is clear that, even though appellees' argued that both the warrantless arrests and the search pursuant to the warrant were illegal, the State contended that the evidence should not be suppressed solely because the warrantless arrest and warrantless search were legal. The State, for whatever reason, choose not to rely upon the search warrant.

At the conclusion of the suppression hearing, the trial court granted appellees' motion to suppress. The trial court concluded that because the officers did not have probable cause to believe that either Ian or Leo had committed an offense in their presence, the warrantless arrests of Ian and Leo were illegal, and therefore, any evidence seized during the subsequent search of the residence was tainted and should be suppressed. (4) The State appealed the trial court's ruling.

On appeal, the State made two distinct arguments. The State argued first that "the odor of burning marijuana that escaped from the residence when [Ian first opened the door] provided probable cause [to believe] that the offense of possession of marijuana was being committed in the officers' presence." The State argued second, for the first time, that "even if the warrantless arrest was improper ... the search under the search warrant was proper because neither the probable cause to search, nor the marijuana evidence was the 'fruit' or product of the arrest." The Eleventh Court of Appeals disagreed with the State and upheld the trial court's ruling suppressing the marijuana. State v. Steelman, 16 S.W.3d 483 (Tex.App.- Eastland 2000). The court of appeals reasoned (1) that the warrantless arrests of appellees were illegal because the officers did not have probable cause to believe that the appellees had committed an offense in their presence and (2) that "the issuance of the search warrant did not attenuate the taint from the [initial] illegal search and arrest." We granted the State's petition for discretionary review to determine whether the court of appeals erred. See Tex. R. App. Proc. 66.3 (b).

In its brief to this Court, the State argues that the warrantless arrests of appellees, and the subsequent search of their residence, were reasonable under both the State and Federal Constitutions and valid under one of the warrant exceptions in the Texas Code of Criminal Procedure. However, appellees, in their motion to suppress, did not make a federal constitutional argument concerning the warrantless arrests. Instead, appellees made a state statutory argument and a state constitutional argument. (5) They argued that the arrests were illegal, and any fruits of the arrest were tainted, because (1) the arrests were "without a valid warrant and without probable cause," (6) and (2) the arrests were unreasonable under Article I, section 9 of the Texas Constitution. The trial court elected to grant the motion to suppress based upon Article 14.01(b). The trial court expressly concluded that "[a]n officer may not arrest a person without a warrant unless he observes such person is committing an offense." On appeal, the State argued that the arrests were legal under Article 14.01(b). Neither the State nor appellees, in their briefs to the court of appeals, made any mention of Article I, section 9. At that point, the parties abandoned the state constitutional argument. Therefore, as to the legality of the warrantless arrests and search, only the state statutory argument is properly before us.

In its brief to this Court, the State also argues that "even if the entry and arrest are deemed illegal, the 'taint' of the entry and arrest does not reach backward to the lawfully-obtained probable cause on which the search warrant is based." Indeed, we have recognized that even if an illegal warrantless arrest taints subsequently acquired evidence, such evidence need not be suppressed if the State can show that the taint has been attenuated (e.g. by an otherwise valid search warrant). See Bell v. State, 724 S.W.2d 780 (Tex.Crim.App. 1986). However, as previously noted, the State did not present this argument to the trial court. At the suppression hearing, the State specifically limited its argument to one theory of law: that there was probable cause to justify a warrantless arrest and warrantless search. Because the State did not present its other theory (that even if the warrantless arrest was illegal, it did not taint the search pursuant to the warrant) to the trial court, the State cannot rely on that theory on appeal. State v. Mercado, 972 S.W. 2d 75,78 (Tex.Crim.App. 1998).

In sum, the only issue before us today is whether, under the applicable provisions of the Texas Code of Criminal Procedure, the officers had probable cause to (1) make a warrantless arrest of appellees and (2) to conduct a warrantless search of the Steelman residence.

III

In considering a trial court's ruling on a motion to suppress, an appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543-544 (Tex.Crim.App. 1990).

In this case, the arrest of Ian took place after the officers burst into his residence. But, under state law, an officer may not enter a residence to make a warrantless arrest unless "the arrest may be lawfully made without warrant" and the person consents or there are exigent circumstances. Tex. Code Crim. Proc. art. 14.05 (emphasis added). Before we can consider whether the officers had authority to enter the residence under Article 14.05, we must first determine whether the initial arrest of Ian could be lawfully made without a warrant. (7)

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, 104-105 (Tex. Crim. App. 1990); Lunde v. State, 736 S.W.2d 665, 666 (Tex.Crim.App. 1987) (plurality opinion). One of those 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." 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.)

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, 35 S.W.2d 420, 422 (1931). However, the information afforded to the officer by his 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).

Consider again the facts and circumstances before the officers that night. There is an unsubstantiated, anonymous tip that someone at the Steelman residence is dealing drugs. The officers walk up to the house, peer into the house through a small crack in the window blind, and, by their own admission, observe no criminal activity. They then knock on the door. Ian steps out and closes his door. They smell the odor of marijuana in the air but not on Ian himself. (8) Given those circumstances, what did the officers have probable cause to believe? Certainly they had probable cause to believe that someone, somewhere, was or had been smoking marijuana. But, did the mere smell of marijuana in the air give the officers probable cause to believe that Ian possessed marijuana? No. 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 (1947). (9) Why, then, did the officers burst into the house? What offense, if any, did they observe Ian committing? The State argues that given the anonymous tip and the odor of burned marijuana, the officers had probable cause to believe an offense, possession of marijuana, (10) had been committed in their presence. We disagree.

First of all, a mere anonymous tip, standing alone, does not constitute probable cause. Ebarb v. State, 598 S.W.2d 842, 845 (Tex.Crim.App. 1980) (on motion for rehearing); see also Glass v. State, 681 S.W.2d 599, 601 (Tex.Crim.App 1984). In this case, the tip, that someone at the residence was dealing drugs, did not amount to anything. The tip was never substantiated, and none of the occupants were ever charged with drug dealing. See Tex. Health & Safety Code 481.120.

Second, the mere odor of burning marijuana did not give the officers probable cause to believe that Ian had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home. See Johnson, 333 U.S. at 13. An arresting officer must have specific knowledge to believe that the person to be arrested has committed the offense. Muniz, 51 S.W.2d at 251. Professor LaFave explains:

"[T]he detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place. Illustrative is People v. Harshbarger,[321 N.E.2d 138, 140-141 (1974)], where police, upon detecting the strong smell of burning marijuana in a house, arrested all four of the men found therein, resulting in the discovery of amphetamines on the person of a guest. The court could 'find no justification for defendant's arrest at the time it was made, nor for the search of his person occurring sometime subsequent thereto at the stationhouse. The officers had never seen or heard of defendant before. He was merely one of four persons sitting in the living room of a house in which the officers thought they smelled burning marijuana. They had no idea which one of them, or for that matter, if any of them had actually been smoking marijuana. Nor did defendant by his actions, furtive or otherwise, give any indication that he may have been violating the law. In effect, defendant's arrest was prompted by a mere suspicion that someone must have been smoking marijuana because of the odor believed to be present, and therefore, the best thing to do was arrest and search everybody.'" W. LaFave, Search and Seizure 3.6(b) (1996 & Supp. 2002).



Similar to the situation described above, the officers in this case had no idea who was smoking or possessing marijuana, and they certainly had no particular reason to believe that Ian was smoking or possessing marijuana.

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 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. Therefore, the Court of Appeals did not err in upholding the trial court's decision to grant the appellees' motion to suppress.

We affirm the judgment of the Court of Appeals.



DELIVERED OCTOBER 23, 2002

PUBLISH

1. Leo Steelman is the father of Ian Steelman. Unless otherwise noted, we will henceforth refer to the Steelmans by their first names.

2. Moreover, the trial court found that, even after the officers entered the residence, "[n]one of the officers observed any marijuana or other contraband inside the residence." It was not until they secured a search warrant, some two hours later, that they found marijuana.

3. The burden was on the State to show that the arrest was within an exception to the warrant requirement. Bell v. State, 724 S.W.2d 780, 786 (Tex.Crim.App. 1986).

4. The trial court made the following conclusions of law: (1) "An officer may not arrest a person without a warrant unless he observes such person is committing an offense," and (2) "Once an officer arrests a person without a warrant or without observing an offense, any evidence obtained should be suppressed."

5. Under state law, there are two primary ways to attack a warrantless arrest. An accused may make a constitutional argument under Article I, section 9 of the Texas Constitution or he may make a statutory argument under Texas Code of Criminal Procedure articles 14.01 - 14.05. If the accused makes a state constitutional argument, then the proper inquiry is "the reasonableness of the search or seizure under the totality of the circumstances." Hulit v. Sate, 982 S.W.2d 431, 436 ( Tex. Crim. App. 1998). If the accused makes a statutory argument, the proper inquiry is (1) whether there was probable cause with respect to that individual and (2) whether the arrest fell within one of the statutory exceptions. Beverly v. State, 792 S.W.2d 103, 104-105 (Tex. Crim. App. 1990); Lunde v. State, 736 S.W.2d 665, 666 (Tex.Crim.App. 1987) (plurality opinion).

6. Although appellees did not actually cite Texas Code of Criminal Procedure articles 14.01-14.05 in their motion, the language used in their motion to suppress plainly implied a statutory argument.

7. Both the trial court and the court of appeals concluded that the arrest was not lawfully made without a warrant because the arresting officers did not have probable cause to believe that Ian had committed an offense in their presence.

8. At the suppression hearing, Officer Vines was asked if the odor of marijuana could have come form Steelman's clothes. He replied, "No, sir, it was a strong smell [that seemed to come from the inside of the residence]."

9. Johnson speaks in terms of warrantless searches. Here, we are discussing a warrantless arrest. However, the actual arrest of Steelman took place after the warrantless entry into the residence, which can be thought of as a warrantless search for the person to be arrested. See G. Dix & R. Dawson, 40 Texas Criminal Practice and Procedure 9.11 (2d ed. 2001).

10. See Tex. Health & Safety Code 481.121(b)(3).