I join the majority opinion. I write separately only to point out what this case is not about.

This case is not about police officers who hear a gunshot inside a home and rush to investigate. That scenario clearly invokes the emergency doctrine and permits officers to enter a private home for the purpose of seeing if someone needs immediate assistance. ⁽¹⁾

I concur fully with the dissents' review of the standards for probable cause for searches in public places. I do not agree that this standard is appropriate in the present situation. This case is not about whether the odor of burning marijuana gives police officers the right to temporarily detain someone to investigate whether that person possesses marijuana. ⁽²⁾ Numerous Texas cases have addressed that issue. ⁽³⁾ As the court of appeals explicitly stated, that situation is clearly distinguished from the present one.

I would agree with the dissents that these officers had sufficient probable cause to temporarily detain Ian Steelman, outside his home, to determine whether he actually possessed marijuana in the officers' presence as they stood outside the home. But the officers did not do that.

This case is about the right of citizens to be left alone in the privacy of their homes. ⁽⁴⁾ As the court of appeals stated, both the United States Constitution and Texas statutory law require police officers to obtain a warrant before arresting a person inside his home absent a few, clear exceptions. ⁽⁵⁾ This is a case about officers who rushed into a person's home and arrested all of the occupants based solely upon an anonymous tip and the smell of burnt marijuana emanating from an open door. This is also a case in which a trial judge exercised his discretion and prerogative to disbelieve certain testimony. ⁽⁶⁾

The trial court in this case made explicit findings of fact which included findings that some of the testimony by the police was "incredible" and noting that the credible officers saw no marijuana, other contraband, or paraphernalia-not even an ash tray-- in plain view once inside the house. ⁽⁷⁾ Premised upon his factual findings, the trial court's two conclusions of law, as they applied to the present factual scenario, were:

1) "An officer may not arrest a person without a warrant unless he observes such person 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."

In its opinion, the court of appeals noted that "[t]he State argues that the trial court abused its discretion by concluding that the police officers made an unlawful arrest. The State contends that the odor of burnt marijuana gave rise simultaneously to probable cause to arrest and to search for the marijuana." ⁽⁸⁾ The court of appeals noted that all of the cases the State relied upon involved the search of automobiles, and correctly concluded that "[t]he police are given greater discretion to perform warrantless searches of automobiles because of their mobile nature." ⁽⁹⁾ That is correct, but this case has nothing to do with a vehicle search.

The court of appeals noted that Officer Vines testified that "smelling like burnt marijuana is not itself a crime." ⁽¹⁰⁾ The issue before the trial judge, before the court of appeals, and before this Court is: What crime did Ian Steelman commit in the officers' presence that gave them the right to barge into his home, arrest him and three other men, and hold them for several hours while another officer obtained a search warrant? The trial judge, the court of appeals, and now this Court have all found that Ian Steelman had committed no crime in the officers' presence. Therefore, the officers could not enter his home uninvited. ⁽¹¹⁾ Nor could they arrest him and his three friends in the living room.

In deciding this case, the court of appeals aptly quoted Justice Robert Jackson writing in Johnson v. United States. ⁽¹²⁾ There, as here, police officers received an anonymous tip of drug use. In Johnson the officers went to a hotel room. Here they went to a private home. There, as here, the investigating officers smelled the "distinctive and unmistakable" odor of burning contraband. There, opium, here marijuana. There, as here, the police knocked, then entered without permission. There they searched, here they arrested four people and waited hours for a search warrant. Justice Jackson stated:

At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant....If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant....

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime....Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. ⁽¹³⁾

The words of Justice Jackson are as valid today as they were fifty years ago. The sky did not fall as a result of his opinion in Johnson. It will not fall as a result of the opinion in this case.

Therefore, I join in the opinion and the judgment of the majority.

Cochran, J.

Filed: October 23, 2002

Publish

1. Brimage v. State, 918 S.W.2d 466, 500-501 (Tex. Crim. App. 1996)(opinion on reh'g); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978).

2. The court of appeals quoted and distinguished Levine v. State, 794 S.W.2d 451, 453 (Tex. App. - Amarillo 1990, no pet.):

Indeed, probable cause to search a validly stopped vehicle without a warrant exists when the searching officer, experienced in detecting the odor of marijuana, smells burnt marijuana emanating either from the vehicle itself, or from the person of the driver who has emerged from the vehicle, or from both.

(Citations omitted). As the court of appeals correctly noted, that case did not apply to the present situation because these officers did not search a car. 16 S.W.3d at 488-89. Apparently, the dissents would define homes simply as stationary cars for purposes of search and seizure law.

3. The court of appeals in this case duly noted some of our cases on that issue in its opinion, 16 S.W.3d at 488. See Meeks v. State, 692 S.W.2d 504 (Tex. Crim. App.1985); Miller v. State, 608 S.W.2d 684 (Tex. Crim. App. 1980); Luera v. State, 561 S.W.2d 497 (Tex. Crim. App.1978); Duff v. State, 546 S.W.2d 283 (Tex. Crim. App.1977); Leonard v. State, 496 S.W.2d 576 (Tex. Crim. App.1973).

4. As the court of appeals put it: "A private dwelling, on the other hand, is a sacrosanct place in search and seizure law." 16 S.W.3d at 488. As Justice Scalia recently stated for the United States Supreme Court: "'At the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31 (2001). That is what this case is about: Ian Steelman's right to close the door and retreat into his own home. The legal issue in this case is: did the trial court and court of appeals both err, as a matter of law, in ruling that these officers made an "unreasonable governmental intrusion" into that home on that day under those circumstances?

5. See 16 S.W.3d at 487-88.

6. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) ("[i]n a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record").

7. The court of appeals stated: "[t]he findings of facts entered by the trial court indicate that the trial court found [one officer's] testimony to be incredible." 16 S.W.3d at 487. For example, this officer testified that he saw smoke coming out of the open door and that he saw a marijuana cigarette in an ash tray on the coffee table. The trial court did not believe this testimony. The trial court's findings were that there was no smoke coming out of the front door and that there was no marijuana in plain view anywhere. It is not irrational for a judge to be skeptical of testimony concerning the smell of marijuana when there is no discernible source of that smell.

The testimony in this case is remarkably similar to that in another recent case from the same jurisdiction, Radford v. State, 56 S.W.3d 346 (Tex. App. - Eastland 2001, no pet.). In that case, as in the present one, police officers received an anonymous tip. In Radford, the tip was of "people shooting up narcotics" at a certain home. When they arrived at that house and the defendant opened the door, the police officers smelled the odor of burning marijuana. They entered but they did not find any marijuana, ash trays, residue, or any other contraband in sight. There, as here, the officers arrested everyone, obtained a search warrant and, upon a full search found, not a bit of marijuana, but rather methamphetamine.

8. 16 S.W.3d at 487.

9. Id. at 488.

10. Id. at 487.

11. Even if the officers had detained Ian Steelman to investigate the smell of burnt marijuana as he stepped outside his home, they still would not have had the right to enter his residence to make a "protective sweep" or any other nonconsensual search if they had, in fact, discovered marijuana in Mr. Steelman's possession as he stood outside. See Reasor v. State, 12 S.W.3d 813, 816-17 (Tex. Crim. App. 2000).

12. 333 U.S. 10 (1948).

13. 333 U.S. at 13-14.