James Earl Brown v. State

No. 04-98-00165-CR James Earl BROWN, Appellant v. The STATE of Texas, Appellee County Criminal Court No. 3, Dallas County, Texas Trial Court No. MB-95-68411-C Honorable Dan Wyde, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Tom Rickhoff, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: August 18, 1999 AFFIRMED James Earl Brown was tried by the court and convicted of possession of marihuana. He was sentenced to thirty days confinement, probated over six months, and a fine of $300. On appeal, Brown contends that the trial court erred in denying his motion to suppress illegally obtained evidence. Because we find the evidence at issue was lawfully obtained, we affirm the judgment of the trial court. Factual and Procedural Background On December 1, 1995, Officer Troy Klingle Smith arrested James Earl Brown for possession of marihuana. The court conducted a pre-trial hearing on Brown's motion to suppress, at which Brown alleged that the marijuana which formed the basis of the charges against him was the fruit of an illegal search. The trial court overruled Brown's motion to suppress and likewise overruled Brown's objections to the marihuana evidence during trial. Officer Smith was the only witness to testify at both the suppression hearing and the trial. Officer Smith testified that, before beginning his patrol on December 1, 1995, he was approached by an undercover narcotics officer who informed him that an individual was selling drugs out of a local motel where Officer Smith had recently made several drug arrests. Officer Smith and his partner went to the motel that evening, concealed themselves behind a van in the parking lot, and observed the location for suspicious activity. Officer Smith testified that in a period of ten or fifteen minutes two separate individuals approached room number 12, knocked on the door, entered the room, and exited the room approximately a minute and a half later. Officer Smith noted that this activity is consistent with the buying and selling of narcotics. Furthermore, he testified that he heard the second individual who entered the room say, "Hurry up, the police are coming," before she entered. Because he suspected that narcotics were being sold, Officer Smith approached room number 12 to investigate. He knocked on the door and Brown opened it. Officer Smith testified that he immediately smelled burning marihuana when Brown opened the door. Brown took two steps backwards and sat down on a bed with his hands underneath him. Officer Smith stepped inside the room and asked, "Have you all been smoking marihuana in here?" Brown replied, "Yes, we had a blunt," which Officer Smith knew to mean a type of marihuana cigarette. Officer Smith then asked Brown to stand up so that he could ensure that Brown did not have any weapons. When Brown got off of the bed, Officer Smith saw a clear plastic bag containing marihuana on the bed. Brown admitted that the marihuana was his. Argument and Authority Brown argues that the trial court erred in admitting evidence of the marihuana because it was obtained via a warrantless search in violation of the Fourth Amendment. See U.S. Const. amend. IV (establishing rights of U.S. citizens to be free from unreasonable searches and seizures). Specifically, Brown contends that the search was based on an unsubstantiated tip, instigated with no probable cause to believe a violation of the law was occurring, and performed without his consent. Because Officer Smith was the only witness to testify in this case and he did not contradict himself, the legal and factual questions presented do not turn on an evaluation of the witnesses' credibility and demeanor. Accordingly, we review the trial court's decision de novo. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We begin by recognizing that a motel guest is entitled to protection against unreasonable searches of his motel room. See Fontenot v. State, 792 S.W.2d 250, 254 (Tex. App.­Dallas 1990, no pet.) (citing Stoner v. California, 376 S.W.2d 483 (1964). However, the evidence presented does not convince us that there was an illegal search of the motel room in this case. The evidence indicates that Officer Smith and his partner were in a public parking lot investigating a tip from another police officer regarding a motel where there was a history of drug trafficking. Because the parking lot was public, the officers had a legal right to be there. See Leffall v. State, 680 S.W.2d 683, 685 (Tex. App.­Fort Worth 1984, pet. ref'd) (finding that parking lot of an apartment complex known to police as a location for narcotics transactions was a public place). During his investigation, Officer Smith observed activity that, based upon his experience as a police officer, he believed was consistent with the sale of drugs. Officer Smith's observation of suspicious activity corroborated the narcotics officer's tip and, when coupled with Officer Smith's prior knowledge of the motel's history, justified further investigation. "When a police officer observes suspicious activity, he or she not only has a right but has a duty to investigate." Bobo v. State, 805 S.W.2d 493, 496 (Tex. App.­Houston [14th Dist.] 1991), reversed in part on other grounds, 843 S.W.2d 572 (1992). Accordingly, Officer Smith continued his investigation by approaching the door to room number 12 and knocking. Anyone, be it law enforcement officer or common citizen, has the right to approach and knock on the front door of a dwelling with the honest intent of asking questions of the occupant. See Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App. 1989); see also Fontenot, 792 S.W.2d at 253 (noting that nothing in either the federal or state constitutions prevents a police officer from knocking politely on any closed door). Once Brown opened the door, the smell of marihuana emanating from his room gave Officer Smith reason to investigate further. The smell of burning marihuana is sufficient to lead a reasonable officer to believe that an offense is being committed in his presence. See Sherer v. State, 502 S.W.2d 143, 144 (Tex. Crim. App. 1973); see also Meredith v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. 1980); Johnson v. State, 481 S.W.2d 864, 866 (Tex. Crim. App. 1972). The investigation was further warranted when Brown admitted to committing an offense by acknowledging that he had been smoking marihuana. Finally, when Officer Smith asked Smith to get off of the bed so that he could check for weapons, he saw a bag of marihuana in plain view. Because it is not a search to observe that which is in open view, we conclude that there was no illegal search in this case. See Sherer, 502 S.W.2d at 144; Fontenot, 792 S.W.2d at 253-54; Leffall, 680 S.W.2d at 685. Therefore, the trial court did not err in concluding that the evidence seized was not the fruit of an illegal search. See Meredith, 603 S.W.2d at 873. The judgment of the trial court is affirmed. KAREN ANGELINI JUSTICE DO NOT PUBLISH