Amazing.

Under the majority opinion, if the officers had heard a gunshot followed by a loud groan inside the house, they would not have had probable cause to arrest the person answering the door. After shutting the door behind him, he could have walked calmly to his car, driven away, and flown to Tierra del Fuego, with the officers powerless to stop him.

To understand why the majority's result is so wrong, it is helpful to review the concept of probable cause. Black's Law Dictionary states that probable cause "...amounts to more than mere suspicion but less than evidence that would justify a conviction." ⁽¹⁾ So what is required is certainly less than proof beyond a reasonable doubt, clear and convincing evidence, or a preponderance of evidence. It is defined as "[a] reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime." ⁽²⁾

Over 50 years ago, the Supreme Court elaborated on probable cause. In Brinegar v. United States, ⁽³⁾ the Court stated that, "[i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."

The Court noted that "this means less than evidence which would justify condemnation or conviction." ⁽⁴⁾ Instead, probable cause exists when the facts within the police officers' knowledge -- where they had reasonably trustworthy information -- are "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." ⁽⁵⁾ The Court explained that, "[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." ⁽⁶⁾

The Court has reminded us since then that probable cause requires only a probability or substantial chance of criminal activity and not a prima facie showing of such activity. ⁽⁷⁾

Other courts have further elaborated on the concept. The First Circuit notes that "[t]he probable cause standard does not require the officers' conclusion to be ironclad, or even highly probable. Their conclusion that probable cause exists need only be reasonable." ⁽⁸⁾ The Seventh Circuit has stated that, "[i]n recognition of the endless scenarios confronting police officers in their daily regimen, courts evaluate probable cause not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer--seeing what he saw, hearing what he heard. In practice, then, it can be said that probable cause--the area between bare suspicion and virtual certainty--describes not a point but a zone, within which reasonable mistakes will be excused." ⁽⁹⁾ And our own Fifth Circuit has said that "[p]robable cause must be judged not with the logic of cold steel, but with a common sense view to the realities of everyday life." ⁽¹⁰⁾

Indeed, even we have recognized that "[p]robable cause requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence." ⁽¹¹⁾ We have also recognized that "reasonable inferences" arising from the evidence may be considered in determining whether probable cause existed. ⁽¹²⁾

With all this in mind, let us look at the facts as set out in the majority opinion. The police had a tip that drug dealing was taking place at the residence. They looked in the window and saw four men inside. They went to the front door and knocked. So far, so good. Nothing in our law prevents any officer from knocking politely on any closed door. ⁽¹³⁾

When Ian Steelman opened the door, the officers smelled the odor of "burnt marijuana." The anonymous tip was thus corroborated. Now, possession of marijuana is a crime, and the majority agrees that the officers had probable cause to believe that a crime had been committed. Of course, the marijuana did not spontaneously ignite. Somebody inside was smoking or had smoked it. And in order to burn it, one must possess it.

The fact that Ian Steelman stepped outside rather than inviting the officers inside might not increase their cause for suspicion, but it certainly did not reduce it. And the fact that he attempted to shut the door behind him when retrieving his identification did not help him, either.

When the officers first smelled the marijuana emanating from the residence, they had probable cause--not proof beyond a reasonable doubt, not clear and convincing evidence, not a preponderance of evidence--but probable cause to suspect that each person in that house possessed marijuana. That belief might subsequently prove to be mistaken, but we do not judge probable cause by hindsight. Affirmative links must be established, but that occurs at trial.

The Court discounts these facts and their inferences because of the three other people in the home. The Court concludes that the officers could not differentiate between the respective culpability of Steelman as compared with the other three individuals and, therefore, no probable cause existed with respect to Steelman. The only authority the Court cites for this approach is an isolated Illinois district court case from 1974, ⁽¹⁴⁾ as quoted in Professor LaFave's Search & Seizure treatise. ⁽¹⁵⁾ But there is a wealth of authority against the majority's approach. Indeed, other states that have addressed this issue - Alabama, Arkansas, Colorado, Florida, Iowa, Oregon, Pennsylvania, and Wisconsin - have concluded that the police will have probable cause to arrest each of the individuals suspected of criminal activity, even without knowing for certain which of them is guilty.

A good starting point is the Supreme Court of Arkansas's opinion in Brunson v. State. ⁽¹⁶⁾ In that case, the defendant was a passenger in a car that was lawfully stopped. The officer smelled marijuana. Based on that odor, the officer searched each person in the car and found marijuana on the defendant. The defendant argued that the search was made without probable cause. The court disagreed, stating that "upon smelling the marijuana or its smoke emanating from the vehicle, Detective Breckon had probable cause to believe that an offense had been or was being committed in his presence. Quite simply, the smell of the marijuana or its smoke emanating from a vehicle constitutes facts and circumstances sufficient to warrant a person of reasonable caution to believe that a controlled substance has been or is being possessed or delivered or both, and, thus, that a violation of law has occurred or is occurring." ⁽¹⁷⁾ The court concluded that the officer "had probable cause to arrest [both of] the occupants of the vehicle." ⁽¹⁸⁾ The court was "not persuaded" by the defendant's argument "that an individualized suspicion or cause is required to arrest each occupant under the facts and circumstances presented in this case." ⁽¹⁹⁾ The court explained that "[s]uch an argument would lead to the illogical conclusion that none of the four occupants could have been arrested even though the smell of marijuana or its smoke was emanating from the enclosed space of the vehicle where all four occupants were present." ⁽²⁰⁾

Last year, the Supreme Court of Iowa expounded the notion. In State v. Horton, ⁽²¹⁾ the defendant was a passenger in a vehicle lawfully stopped for a license plate violation. When questioned about contraband in the truck, the driver stated that there were marijuana cigarettes in the ashtray. The police eventually arrested both the driver and the defendant based on those cigarettes. On appeal, the defendant argued that her lawyer had been ineffective in failing to challenge the search of her person as being incident to an unlawful arrest. She argued that the cigarettes in the truck failed to give the police probable cause to arrest her as opposed to the driver.

The Court disagreed. The court pointed out LaFave's lengthy discussion of the degree of probability required to arrest when police are investigating a crime and have information which points to more than one person. ⁽²²⁾ The court quoted LaFave's hypothetical case from the Torts Restatement:

A sees B and C bending over a dead man, D. B and C each accuse the other of murdering D. A is not sure that either B or C did the killing, but he has a reasonable suspicion that either B or C killed D. A is privileged to arrest either or both. ⁽²³⁾

The Iowa Court explained that, for probable cause to exist, "the police need not have firm evidence which might lead to a conviction, or even to an indictment, but merely sufficient information to cause a reasonable man to believe that the defendant was involved in a crime." ⁽²⁴⁾ The court concluded that "a reasonably cautious person would be warranted in believing Horton was in possession of marijuana, and this satisfies the test for probable cause to arrest and search her." ⁽²⁵⁾ As a result, the defendant's trial counsel had not been ineffective because a motion to suppress would not have been successful.

In Blake v. State, ⁽²⁶⁾, the Alabama Court of Criminal Appeals held that the odor of burning marijuana coming from a vehicle provides probable cause both to search the vehicle and to arrest the occupants of the vehicle. The Court explained, "Under the facts of this case, where two persons were sitting in the front seat of an automobile, we do not believe that an individualized suspicion was required to arrest either Blake or his passenger. To require such individual suspicion in all cases would be to say that even where the odor of burning marijuana is emanating from the relatively close confines of an automobile -- therefore clearly justifying a search of the automobile -- if the occupants of the vehicle have the foresight to quickly secrete the controlled substance in their pockets, they may drive away after the search of the vehicle proves fruitless." ⁽²⁷⁾

The Supreme Court of that state agrees that when the police have probable cause to believe that either or both of two people have committed a crime, they have probable cause to arrest both of them. In State v. Johnson, ⁽²⁸⁾ the police gathered information indicating that either the defendant or his girlfriend injured her child in such a way as to cause the child's death. Although the trial court had concluded that it was not "any more reasonable" to suspect the defendant than his girlfriend, the Supreme Court held that "[p]robable cause to arrest one person, however, does not depend on a lack of probable cause to arrest another person." ⁽²⁹⁾ The court explained that "[t]he level of evidence needed for a finding of probable cause is low. An officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." ⁽³⁰⁾

The same was made clear by the Supreme Court of Wisconsin. In State v. Mitchell, ⁽³¹⁾ the defendant and his companion were in a parked car. When the police officer asked them if there was a problem, he smelled burned marijuana and saw smoke in the vehicle. He arrested both men for possession of marijuana. The court concluded that "[b]ased on the presence of both the odor of marijuana and the smoke, Officer Smith had reason to believe that defendant, his passenger, or both had been smoking marijuana, and thus possessing, marijuana. The fact that there were two occupants in the vehicle is not fatal to a finding of probable cause to arrest defendant because probable cause does not mandate that it is more likely than not that the defendant committed the offense." ⁽³²⁾ The officer was not required to know with certainty at the arrest stage which of the two people possessed the marijuana; he had probable cause to arrest both of them for that offense.

In Commonwealth v. Chase, ⁽³³⁾ Pennsylvania's Superior Court reached the same result. There, an undercover officer radioed his partner to tell him that he had just purchased drugs from a black man in a blue shirt at the corner of Tackawanna and Orthodox. The other officer then arrived at the scene, where he saw two black men, both in blue shirts. The defendant ran, and the officer arrested him. The court found that the officer had probable cause to arrest the defendant. The court pointed out that "in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same 'beyond a reasonable doubt' standard which we apply in determining guilt or innocence at trial." ⁽³⁴⁾ The court there specifically rejected the trial court's statement that "you cannot have probable cause to think that both are guilty when it is clearly a crime committed only by one person." ⁽³⁵⁾ In rejecting that conclusion, the superior court stated, "We do not agree that the police could never have probable cause to arrest two persons if only one person has committed the crime. While the law requires that probable cause have a fairly narrow focus, thereby precluding, for example, dragnet operations, we do not believe that the focus must in all situations narrow down to a single suspect. . . . Under some circumstances, there may be probable cause to believe that either of two suspects was the perpetrator of the criminal act." ⁽³⁶⁾

Oregon agrees. In State v. Jordan, ⁽³⁷⁾ the police received a tip from an informant that a fugitive (the defendant) was living in a particular house. They went to the house to execute the arrest warrant. Once there, they arrested one person, believing that she might be the fugitive, but they were unsure. They continued to look in the house and eventually found the real fugitive, whom they arrested. The defendant argued that once the police arrested the first person, they had no probable cause to continue looking in the house. The court disagreed, noting that "[t]he underlying assumption of defendant's theory is that probable cause is finite and, if it is expended on one suspect, there cannot be enough left for another suspect." ⁽³⁸⁾ The court found that theory untenable, using for support Professor LaFave's hypothetical case discussed earlier. ⁽³⁹⁾

The Colorado Supreme Court is also in line. In People v. Sutherland, ⁽⁴⁰⁾ the defendant and his driving companion were at the hospital following a fatal automobile collision in which their car collided head-on with another vehicle. The police officer did not know which of the two had been driving, so he had the hospital staff draw the blood of both of them. The court concluded that "under the circumstances of this case where two persons each claimed the other was the driver of a vehicle involved in a suspected criminal offense, the officer had reasonable grounds to obtain a blood sample from each suspect. We hold that the officer had probable cause to arrest the defendant and to obtain a blood specimen without the consent of the defendant." ⁽⁴¹⁾

And the same is true of Florida. In State v. Hernandez, ⁽⁴²⁾ officers drove past a large group of people who smelled like marijuana. The court held that "[t]he odor of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and, therefore, to search each person who was present." ⁽⁴³⁾

Judge Cochran implies that there was some dispute about whether the officers actually smelled marijuana. Her concurring opinion points out that the trial court found "some of the testimony by the police was 'incredible.'" ⁽⁴⁴⁾ Significantly, though, the testimony which the judge found unbelievable had nothing to do with the odor of marijuana. On the contrary, the judge explicitly found that "[w]hen the door was opened, Officers Vines and Craft smelled the odor of burned marijuana" and, when they went in the home, they "again smelled the odor of burned marijuana." This finding is supported by the testimony of both those officers.

What the trial judge did not believe was Officer Craft's testimony that he saw a marijuana cigarette in an ashtray inside the home. Not believing this testimony, the judge found that "[n]one of the officers observed any marijuana or other contraband inside the residence." That finding, of course, has nothing to do with our analysis of whether the police had probable cause to enter the home.

The majority's reference to Art. 14.05 implies that it may find it relevant to the probable cause analysis that this case involved entry into a person's home. This is certainly Judge Cochran's view in her concurring opinion. She cites the opinion of the court below for the proposition that police officers must obtain a warrant before arresting a person inside his home "absent a few, clear exceptions." ⁽⁴⁵⁾ As the court of appeals acknowledged, one of those "exceptions" is when the police have probable cause plus "the existence of exigent circumstances such as the threat of the imminent destruction of evidence." ⁽⁴⁶⁾

At this point, let me point out, to use Judge Cochran's words, "what this case is not about." ⁽⁴⁷⁾ It is not about whether the "emergency doctrine" ⁽⁴⁸⁾ or exigent circumstances existed for the police to enter the Steelmans' home. Nobody has argued any emergency doctrine in this case. Moreover, Steelman himself has never contested the existence of exigent circumstances to enter the home.

At the suppression hearing, two officers testified to the existence of exigent circumstances. Officer Vines testified that "the main reason for handcuffing them [was] . . . to prevent any evidence from being destroyed." Additionally, during Officer Craft's testimony, the prosecutor asked whether the evidence could have been destroyed in the amount of time it would take to obtain a search warrant, and Officer Craft responded, "Oh, yes, sir." The prosecutor followed up by asking whether it would have been "practical in your mind to . . . stand outside the residence while another officer went to procure a search warrant?" To which Officer Craft responded, "No, sir . . . for the reason that . . . we need to . . . make sure they don't destroy any evidence." During arguments, the prosecutor argued that exigent circumstances existed based on these officers' testimony that the marijuana could have been destroyed. Steelman never contested the prosecutor's argument on this point.

On appeal to the court of appeals, Steelman never argued that the police lacked exigent circumstances to enter the home. His entire argument was that the police lacked probable cause and reasonable suspicion to knock on the door and enter the home. In the court of appeals' opinion, exigent circumstances to enter the home was not an issue. The court set forth the State's argument as being that probable cause existed for the arrest and the search, then proceeded to analyze whether probable cause did exist. ⁽⁴⁹⁾ The court concluded that the officers did not have probable cause to arrest or search. ⁽⁵⁰⁾ While the court stated that a search of a home requires both probable cause and exigent circumstances, ⁽⁵¹⁾ that comment was the only mention in the opinion of that requirement; the court's analysis and conclusion focused on what it perceived to be the lack of probable cause.

In our Court, the State argues that the police had probable cause to arrest and search and that there were exigent circumstances justifying entering the home. Steelman responds that the police lacked reasonable suspicion and probable cause. Again, Steelman does not contend that the police lacked exigent circumstances. This case is simply not about exigent circumstances - it is about probable cause.

What the majority fails to grasp is that probable cause is probable cause, whether it be to search or arrest in a car, on the street, or in a residence. Either the police have it or they don't. And whether they had it is all that is before us in this case. But nNeither Art. 14.05 nor the fact that Steelman was arrested in his home changes the probable cause analysis.

Judge Cochran's concurrence says that "[t]his case is about the right of citizens to be left alone in the privacy of their homes." ⁽⁵²⁾ To do what? The majority answers that question in no uncertain terms: it is the right to be left alone to smoke and possess marijuana in the privacy of their homes with no interference from the police, even if the police have probable cause to believe (correctly in this case) that the citizens are doing so. If you knock on a door, someone opens it, and you smell burning marijuana wafting from inside the house, you must leave the inhabitants to smoke it in peace.

The ramifications of the majority's opinion take one's breath away. Consider the hypothetical case set out on the first page of this opinion. Suppose the officers look in the window and see four men sitting at a poker table. There is a pistol in the middle of the table. One of the men is slumped over the table, his head face down on it. Gun smoke lingers in the air. No one says a word. The three living poker players would be free to leave, because in the majority's view, there is no probable cause to believe that any one of them committed an offense.

Or take the apocryphal story of the officer spotting a car weaving all over the road. The officer chases the car, siren blaring, red lights flashing. There are three people in the car. It pulls off the road suddenly, and the two front seat occupants jump into the back seat before the officer comes to a stop.

The officer walks up to the car and asks, "Which one of you was driving?"

The three reply in unison, "Guess!"

Under the majority's view, none could be arrested.

The examples could go on and on. Suffice it to say that today's opinion will affect hundreds of thousands of future cases, because according to the majority, anytime there are two or more people involved at a crime scene, and there is any ambiguity as to which of them is the perpetrator, officers lack probable cause to arrest any of them. This is preposterous.

Does the majority think that marijuana prosecutions are somehow different from other cases, and that its holding will be limited to cases involving marijuana? If so, what is so different about possession of marijuana? The Legislature has made it a crime, to be sure. But the Court's opinion thumbs its nose at the Legislature. It is as if we say today, "Ha! Ha! You can make smoking marijuana a crime, but we can make it impossible to arrest anyone for it!"

How often is it that facts similar to the ones in this case arise in a police officer's daily work? I suspect that it is often. And when these situations arise, there is usually not one guilty person standing off to the side with a "Guilty" sign on his head. Until today, the police were permitted to arrest those people when they reasonably believed they were participating in a crime. Under today's opinion, these previously reasonable arrests will no longer be possible.

The majority couches its opinion in terms of statutory law, but this case has nothing to do with our state statutes because the statutes are satisfied. This reminds me of the old riddle: How many legs does a dog have if you call its tail a leg? The answer, of course, is four. Calling a tail a leg does not make it a leg. And calling this a statutory issue does not make it so. This case is about probable cause, pure and simple.

The messages of the majority's opinion, lest they be lost, are these: In Texas, we say to criminals, "The only way you will get caught for breaking the law is if you act alone. If you act with a group of other lawbreakers, we will never be able to tell which of you is guilty at first glance, so we will not arrest any of you. Be sure to stay in a group, and you will be untouchable." And we also say, "Feel free to smoke marijuana in your own home - we would not dare stop you."

Perhaps the majority is confusing probable cause with the quantum of proof needed to convict at trial. It is hard to tell. Regardless, the majority erects barriers to arrest, search, and seizure that go far beyond those required by our Constitutions, statutes or case law.

I dissent with all the vigor at my command.

DATE DELIVERED: October 23, 2002

PUBLISH

1. Black's Law Dictionary, 7^th Ed. 1218 (West 1999).

2. Id.

3. 338 U.S. 160, 175 (1949).

4. Id. at 175 (internal quotation marks omitted).

5. Id. at 175-76 (internal citations and quotation marks omitted).

6. Id. at 176.

7. Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); Spinelli v. United States, 393 U.S. 410, 419 (1969); Beck v. Ohio, 379 U.S. 89, 96 (1964).

8. United States v. Winchenbach, 197 F.3d 548, 555-556 (1^st Cir. 1999).

9. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7^th Cir. 1994) (internal citations and quotation marks omitted), cert. denied, 513 U.S. 1128 (1995).

10. United States v. Agostino, 608 F.2d 1035, 1037 (5^th Cir. 1979).

11. Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App.), cert. denied, 531 U.S. 980 (2000); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

12. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991).

13. Cornealius v. State, 900 S.W.2d 731, 733 (Tex. Crim. App. 1995).

14. People v. Harshbarger, 24 Ill. App. 3d 335, 321 N.E.2d 138 (Ill. App. Ct. 1974).

15. 2 William LaFave, Search & Seizure § 3.6(b) (3d ed. 1996).

16. 327 Ark. 567, 940 S.W.2d 440 (Ark. 1997), cert. denied, 522 U.S. 898 (1997).

17. Id. at 571, 940 S.W.2d at 441-42.

18. Id. at 572, 940 S.W.2d at 442.

19. Id.

20. Id.

21. 625 N.W.2d 362 (Iowa 2001), cert. denied, 122 S.Ct. 288 (2001).

22. Id. at 365-66.

23. LaFave, supra, at § 3.2(e).

24. Horton, 625 N.W.2d at 365 (internal citations and quotation marks omitted).

25. Id. at 367.

26. 772 So.2d 1200 (Ala. Crim. App. 2000).

27. Id. at 1206-07.

28. 682 So.2d 385 (Ala. 1996).

29. Id. at 387.

30. Id. at 387-88 (internal citations and quotation marks omitted).

31. 167 Wis. 2d 672, 482 N.W.2d 364 (Wis. 1992).

32. Id. at 684, 482 N.W.2d at 368.

33. 394 Pa. Super. 168, 575 A.2d 574 (Pa. Super. Ct. 1990).

34. Id. at 172, 575 A.2d at 576.

35. Id. at 175-76, 575 A.2d at 577-78.

36. Id. at 176, 575 A.2d at 578 (citations and internal quotations omitted). See also Commonwealth v. Bunch, 329 Pa. Super. 101, 477 A.2d 1372, 1378-82 (Pa. Super. Ct. 1984) (evidence that three of four individuals in a car had committed robbery provided the probable cause required to justify the arrest of all four occupants).

37. 36 Ore. App. 45, 583 P.2d 1161 (Or. Ct. App. 1978), aff'd, 288 Ore. 391, 605 P.2d 646 (Or.), cert. denied, 449 U.S. 846 (1980).

38. Id. at 48, 583 P.2d at 1163.

39. Id. at 49, 583 P.2d at 1163.

40. 683 P.2d 1192 (Colo. 1984).

41. Id. at 1196 (internal citations omitted).

42. 706 So.2d 66 (Fla. Dist. Ct. App. 1998).

43. Id. at 67.

44. Concurring opinion, slip op. at 3.

45. Id.

46. State v. Steelman, 16 S.W.3d 483, 489 (Tex. App. - Eastland 2000).

47. Concurring opinion, slip op. at 1.

48. Id. at 1-2.

49. Steelman, 16 S.W.3d at 487-89.

50. Id. at 488-90.

51. Id. at 489.

52. Concurring opinion, slip op. at 2.