ARMANDO LUNA HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed October 24, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01147-CR
No. 05-88-01148-CR
 
No. 05-88-01149-CR
............................
ARMANDO LUNA HERNANDEZ, Appellant
v.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F88-83279/80/81-QH
.................................................................
O P I N I O N
 
Before Justices McClung, Thomas and Whittington
Opinion By Justice Thomas
                Armando Luna Hernandez was convicted of three counts of felony theft upon his plea of guilty and was sentenced to five years' confinement, probated, and a $300.00 fine in each case. In two points of error, Hernandez contends that the trial court erred in overruling his motion to suppress evidence because (1) the State failed to establish that an emergency exception to the warrant requirement existed, and (2) the officers exceeded the permissible scope of their search. We disagree and affirm the trial court's judgment.
 
FACTUAL BACKGROUND
        At approximately 2:10 a.m., while on routine patrol, Dallas Police Officers Jeffery Lee Hein and Ron Caldwell observed a car driving through the parking lot of a closed business park. After responding to an unrelated call, they returned and saw the same car parked in front of a business toward the back of the business park. Officer Hein had patrolled this area at night for over one year and it was his experience that none of the businesses were open at that time of night. The name on the door of the business in question showed it to be an electronics store. There were two doors to the business. One was a glass entrance door which the officers checked and found to be unlocked. The other was a damaged bay door which was also unlocked. The officers opened the glass entrance door and yelled "police" several times to see if someone was there. After getting no response, the officers called for back up units.
        While waiting for additional officers, a Latin male carrying a tire iron came around from the back of another business walking towards them from a field. When he saw the officers he dropped the tire iron and ran. Officer Caldwell chased the unidentified male, while Officer Hein stayed at the front of the business. Officer Hein looked through the glass door of the business and noticed that some ceiling tile had fallen down and debris was still falling. At about that time, Officer Thormann arrived. Officers Hein and Thormann saw Hernandez raise up from behind a desk inside the business and run toward the back bay area. They radioed that they had someone inside the business and ordered a police dog to help secure the premises. The officers yelled several times for Hernandez to come out, but got no response. A canine officer arrived at which time Hernandez came out of the building with his hands in the air. Hernandez told the officers that he worked there. In order to determine whether there was anyone else inside, the officers walked into the business. At that time, they saw various car parts throughout the bay area.
        Officer Caldwell returned to the building after an unsuccessful chase of the unidentified male. Upon seeing the car parts, Caldwell told the other officers that they appeared to match a stripped gold Cutlass automobile that was in the nearby field. The officers could see the vehicle identification number on one of the parts and it matched the vehicle identification number on the stripped car. A check revealed that the Cutlass had been reported stolen. They then notified the auto theft unit which, while securing the parts from the Cutlass, observed parts to two other stolen vehicles.
WARRANTLESS SEARCH
        Hernandez alleges in his first point of error that the police made an unjustified warrantless search of the business premises. He contends that the State failed to establish an emergency exception to the warrant requirement and, therefore, the evidence should have been suppressed. We disagree. It is well established under the fourth and fourteenth amendments of the United States Constitution that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. Katz v. U.S., 389 U.S. 347 (1967); Kolb v. State, 532 S.W.2d 87 (Tex. Crim. App. 1976). The five basic exceptions to the warrant requirement are: (1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk. Kolb, 532 S.W.2d at 89 n. 1. This case involves probable cause to search with exigent circumstances.
        In order for a warrantless arrest or search to be justified under this exception, the State must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of a warrant impractical. Scott v. State, 531 S.W.2d 825 (Tex. Crim. App. 1976). Probable cause for a search exists where the facts and circumstances known to the officer upon reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that the search will produce evidence pertaining to a crime. Smith v. State, 542 S.W.2d 420 (Tex. Crim. App. 1976). The duty of the reviewing court is to look to the totality of the circumstances to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action. Eisenhauer v. State, 754 S.W.2d 159, 164         (Tex. Crim. App.), cert. denied, 109 S. Ct. 127 (1988). Exigent circumstances are those circumstances sufficient to excuse an officer from the requirement of obtaining a warrant to conduct a search for which he has probable cause. Ringel, Searches and Seizures, Arrest and Confessions, § 10.1 (1989). The emergency doctrine falls under the heading of an exigent circumstance. The emergency doctrine has been applied in many varying circumstances, however they all fall into one of three categories: (1) to render aid or assistance to persons whom they reasonably believe to be in distress or in need of assistance; (2) to prevent the destruction of evidence or contraband; (3) to protect officers from other suspects or persons whom they reasonably believe may be present, and if so, they reasonably believe may be armed and dangerous. Stewart v. State, 681 S.W.2d 774, 777 (Tex. App.--Houston [14th District] 1984, pet. ref'd). Courts must use an objective standard of reasonableness in assessing an officer's belief that a warrantless search or entry was justified by an emergency. Bray v. State, 597 S.W.2d 763, 765 (Tex. Crim. App. 1980). The reasonableness of the emergency entry is to be judged by the circumstances as they existed at the time the decision was made to enter rather than being affected by whatever condition was found inside. Winslow v. State, 742 S.W.2d 801, 804 (Tex. App.--Corpus Christi 1987, pet. ref'd). Further, the burden of proof is on the State to show that the warrantless search or entry fell within the emergency doctrine. Bray, 597 S.W.2d at 765.
        Officer Hein, a policeman for approximately eleven and a half years, had been patrolling this area at night for over one year. He testified that it had been his experience that the business park was closed that time of night. When Officers Hein and Caldwell saw a car driving through the closed business park, they became suspicious and decided to investigate further. They saw the car parked in front of an electronics business toward the back of the business park. Having found both doors to the business open, the bay door with damage and getting no response when they yelled into the business, they believed a burglary was in progress and called for additional units. While waiting for cover to arrive, an unidentified male came from behind the back of another business, away from a field carrying a tire iron. This unidentified man ran upon seeing the officers. Looking back through the glass door, Officer Hein noticed that someone had apparently fallen through the ceiling. Hernandez then ran to the back area after he saw the police officers.
        Looking at the totality of the circumstances, we hold there was a substantial basis for concluding that probable cause existed to believe a burglary was being or had been committed. A police officer is authorized to rely on his training and knowledge whether or not he gains it from personal experience in the field, formal training or on-the-job training via other, more experienced officers. Gonzales v. State, 648 S.W.2d 684 (Tex. Crim. App. 1983). The facts and circumstances known to Officers Hein and Caldwell were based on first-hand knowledge and was information that would lead a police officer of reasonable caution and prudence to believe a search was necessary to possibly prevent a burglary and would produce evidence pertaining to a crime. Further, we hold that exigent circumstances existed under the emergency doctrine to excuse the officers from obtaining a search warrant. The warrantless entry was justified to protect the officers from other suspects that may have been present, armed and dangerous. Having just seen a person with a tire iron run from the scene and seeing damage to the bay door, it was not unreasonable to believe that others might be present with similar or dangerous instrumentalities. In addition, Officer Hein testified that someone had apparently fallen through the ceiling. It was not unreasonable to believe that Hernandez was in need of aid or assistance from the fall. The State has therefore met its burden of proof on probable cause to search where exigent circumstances existed under the emergency doctrine. We accordingly overrule the first point of error.
SCOPE OF THE SEARCH
        In the second point of error, Hernandez asserts that the evidence seized should have been suppressed because the officers exceeded the permissible scope of their search. Officer Hein testified that upon entering the bay area, he saw car parts. Thus, it appears that they were in plain view. Three conditions must be met to invoke the plain view exception to the warrant requirement: (1) the initial intrusion must be proper so that the police have a right to invoke that doctrine; (2) the discovery of the evidence must be inadvertent; and (3) it must be immediately apparent to the police that they have evidence of a crime before them. Texas v. Brown, 460 U.S. 730, 737 (1983); Snider v. State, 681 S.W.2d 60, 63 (Tex. Crim. App. 1984).
        We have already held that the initial entry into the business was justified. The record supports the conclusion that the discovery of the car parts was inadvertent. Inadvertence does not require the police to be totally dumbfounded or surprised by the discovery of the incriminating evidence; this requirement is met if the police did not initiate the encounter specifically planning to look for the evidence. United States v. Freeman, 685 F.2d 942, 954 n. 7 (5th Cir. 1982). The third requirement for the "plain view" doctrine requires probable cause that the items are evidence of a crime. Arizona v. Hicks, 480 U.S. 321, ___ (1987); Miller v. State, 667 S.W.2d 773, 776 (Tex. Crim. App. 1984). Probable cause exists when facts available to an officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime. Brown, 460 U.S. at 742.
        Officer Caldwell returned to the building from the field where he had chased the unidentified suspect. Upon entering the bay area and seeing the car parts, he stated that they appeared to match a stripped gold Cutlass that he observed in the field. Officer Caldwell had probable cause to believe that the car parts observed in the bay area, taken together with the stripped car in the field, were evidence of a crime. Thus, we conclude that the car parts were properly seized as evidence in plain view and the officers did not exceed the permissible scope of their search. We overrule the second point of error and affirm the trial court's judgments.
 
 
 
 
 
                                                          
                                                          Linda Thomas
                                                          Justice
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
881147OF.U05
 
 
 
File Date[12-04-89]
File Name[881147]