William Richard Knight v. The State of Texas--Appeal from 409th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WILLIAM RICHARD KNIGHT, )

) No. 08-05-00337-CR

Appellant, )

) Appeal from the

v. )

) 409th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20050D01771)

)

O P I N I O N

Appellant William Richard Knight was charged by indictment with the offense of possession of a controlled substance, to wit: cocaine having an aggregate weight, including adulterants and dilutants, of four grams or more but less than 200 grams. Appellant pled guilty to the offense and, in accordance with the plea agreement, the trial court sentenced Appellant to 8 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a notice of appeal and the trial court certified Appellant=s right to appeal the denial of his pretrial motion to suppress the evidence.

Appellant=s court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Appellant=s counsel, however, proposes one arguable issue in the brief.

Appellant=s counsel has mailed a copy of counsel=s brief to Appellant, a copy of the motion to withdraw as counsel, and a letter informing Appellant of his right to examine the appellate record and file a pro se brief.

MOTION TO SUPPRESS

The arguable issue presented in counsel=s brief is whether the trial court erred by denying Appellant=s motion to suppress evidence because the police officers who entered Appellant=s hotel room lacked probable cause to enter and search the room and did not have Appellant=s consent to search.

Standard of Review

We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-9 (Tex.Crim.App. 1997). Under this standard, we give almost total deference to the trial court=s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Factual Background

On the evening of March 3, 2005, El Paso police officers responded to a call from the clerk of the Mesa Inn Motel, who contacted the police after an occupant in a room had contacted the front desk stating that someone was trying to kill him. The property manager told responding officer Allan Eddington that the caller had said, AThey=re trying to get me, they=re trying to kill me,@ and then had hung up. The front desk clerk called back to the room and received a busy signal. The manager then went to the room, knocked several times, but received no response. Fearing for the occupant=s safety, the manager then attempted to use the master key to gain entry into the room, but found that the door had been barricaded from the inside. At that point, the manager alerted the front desk to contact the police.

Acting on this information, the responding police officers went to the room, knocking forcefully on the door while identifying themselves as police officers, both in English and Spanish. When they received no response, they attempted to open the door by force, but were unable to open the door more than an inch because there was something large and heavy blocking the door. The police officers could hear a muffled cough from the room. Because the property manager was leery of the officers breaking and damaging the door, the officers asked Fire Department personnel, who had also responded, if they could use the department=s ladder in order to make an outside approach from the window, as the room was on the second floor. The police officers found that the window was closed with the shades drawn. Concerned that this was a suicide or that someone was being held against his will, the police officers broke the window and made a forced entry into the room.

Upon entry, the officers announced themselves as police officers. As they entered, Appellant exited from the bathroom area, shouting, AThey=re trying to get me, they=re trying to kill me.@ Appellant complied with the officers= command to lie on the ground, while one of the officers removed the dresser that was blocking the door. Another officer took Appellant into custody while other officers began making a sweep of the room for additional persons.

After Appellant had been checked out by emergency personnel, he was sitting on the edge of the bed and was non-responsive, except for repeating his earlier statements. Because Appellant was non-responsive, the officers began looking for identification and weapons in addition to looking for other people that might be in the motel room. During the search, officers observed in plain view on one nightstand a small folded piece of paper, which contained a white powdery substance they believed to be cocaine, and part of a plastic bag, which contained a white powdery residue, on the other nightstand. After determining Appellant was the sole occupant and having found narcotics in plain view, the officers decided to arrest Appellant and subsequently conducted a search inside to arrest, which included looking into furniture drawers, closets, and the bathroom for concealed persons, possible weapons, and additional narcotics.

Warrantless Search

Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures. See U.S.Const. amend. IV; Tex.Const. art. I, ' 9. Warrantless searches are per se unreasonable unless they fall under one of a few exceptions. Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App. 1994)(plurality op. on reh=g); Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App. 1984). To justify a warrantless search of a residence under the emergency doctrine exception, the State must show that: (1) the officer had probable cause at the time the search was made; and (2) the officer had an immediate reasonable belief that he or she must act to Aprotect or preserve life or avoid serious injury . . . .@ See Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct 2408, 2413, 57 L. Ed. 2d 290 (1978); Brimage, 918 S.W.2d at 500-02; McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991). The emergency doctrine applies when the police are acting in their limited community caretaking role to Aprotect or preserve life or avoid serious injury,@ not in their Acrime-fighting A role. Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App. 2003), quoting Mincey, 437 U.S. at 392, 98 S. Ct. at 2413.

In determining whether a warrantless search is justified under the emergency doctrine, we apply an objective standard of reasonableness which looks at the officer=s conduct and takes into account the facts and circumstances known to the officer at the time of the entry. See Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998); Brimage, 918 S.W.2d at 501. Furthermore, we look to ensure that the warrantless search is strictly circumscribed by the exigencies that justify its initiation. Laney, 117 S.W.3d at 862. If the emergency doctrine applies, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Id.; Mincey, 437 U.S. at 393, 98 S. Ct. at 2413; Brimage, 918 S.W.2d at 501.

In this case, the motel clerk received a call from the occupant of Appellant=s room, who told the clerk, AThey=re trying to get me, they=re trying to kill me.@ After several failed attempts to make contact with the occupant by phone and by entry, the property manager told the motel clerk to contact the police for assistance. Acting on this information that they received when they make initial contact with the property manager, the police went to Appellant=s room, identified themselves as officers, and knocked forcefully on the door, but received no response. When they tried to open the door, they found that it was barricaded from within and they could hear a muffled cough from the room. Out of concern that there was a suicide in progress or that someone within was being held against his will, the officers made a forced entry into the room through the window. As the officers entered, Appellant exited the bathroom area, shouting, AThey=re trying to get me, they=re trying to kill me.@ After removing the barricade, officers began a protective sweep of the motel room.

We agree with Appellant=s counsel that based on the facts and circumstances known to the officers at the time of the initial entry and search, they could have reasonably believed that they had to enter and search Appellant=s room in order to protect or preserve life or prevent serious injury. Once in the room for a legitimate emergency activity, the officers saw narcotics on the nightstands in plain view and this evidence was lawfully seized. See Laney, 117 S.W.3d at 862; see also Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000)(Aplain view@ doctrine requires that: (1) law enforcement officials have a right to be where they are, that is, not in violation of the Fourth Amendment; and (2) it be immediately apparent that the item seized constitutes evidence, that is, probable cause to associated the item with criminal activity). Further, we also agree that the search of the furniture in the room was reasonable as a search incident to Appellant=s arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969)(search incident to arrest permits an officer to search the arrestee and the area within his immediate control in order to remove any weapons for officer safety or to prevent concealment or destruction of evidence). Therefore, we conclude the trial court did not err in denying Appellant=s motion to suppress the evidence. Appellant=s sole issue is overruled.

Independent Review of Record

We have carefully reviewed the entire record and counsel=s brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal. We affirm the trial court=s judgment.

April 27, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)