The United States Supreme Court has recently unanimously reaffirmed the principle that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home." Kirk v. Louisiana, ___ U.S. ___, 122 S.Ct. 2458; 153 L.Ed.2d 599 (2002)(No. 01-8419, 2002 WL 1359438, 2002 U.S. LEXIS 4682, delivered June 24, 2002). Quoting Payton v. New York, 445 U.S. 573, 590 (1980), Kirk reiterated that "because 'the Fourth Amendment has drawn a firm line at the entrance to the house ... [, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'" Id. (Internal deletion in original.) Tex. Code Crim. Proc., Art. 14.05 provides that "an officer making an arrest without a warrant may not enter a residence to make the arrest unless: 1) a person who resides in the residence consents to the entry; or 2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant." (Emphasis added.)

In this case, neither appellee nor any other resident consented to the officers' entry into the residence. By clear United States constitutional and Texas statutory authority, the warrantless entry into the residence was illegal unless there was probable cause plus exigent circumstances. As the majority concludes, the trial court could have reasonably concluded that the arresting officers did not have probable cause to believe that appellees had committed an offense in their presence. The probable-cause determination made by the trial court was fact-intensive and dependent upon witness credibility and demeanor, and the trial court was certainly in the best position to evaluate those facts and make the determination.

As Judge Cochran points out, the sky will not fall as a result of this Court's decision in the instant case. Our opinion today simply reinforces what most police officers in Texas assuredly already know - that they need a warrant, consent, or probable cause plus exigent circumstances to lawfully enter a person's home to make an arrest.

I join the majority opinion of the Court.

Johnson, J.

En banc

Filed: October 23, 2002

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