No.

THE STATE OF TEXAS			   §	IN THE _______ COURT
						   §

V.						   §	OF
						   §
JOHN DOE					   §	____________COUNTY, TEXAS

DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE

TO THE HONORABLE JUDGE OF SAID COURT:
	DEFENDANT, JOHN DOE, submits the following in support of the defendant’s Motion to Suppress evidence, which was respectfully submitted to this court on the _____ day of _______ 2004.
Procedural History

	The Defendant allegedly committed the offense which is the subject of Cause No. _______ on September 28, 2003.  The Defendant was arrested as a result of this offense, and was charged by information for the offense of Possession of Marijuana less than two ounces on December 9, 2003.
Statement of Facts
					
	On September 28, 2003, Officer Kelley Pirkle responded to a complaint about a loud party at Defendant’s house.  As the officer came up the stairs, Defendant’s neighbor exited Defendant’s apartment and told the officer that he told Defendant to turn his music down.  The neighbor then knocked on Defendant’s door and opened it.  The report does not contain evidence that anyone responded to the neighbor’s knock.  When the door was opened, the officer allegedly saw evidence of contraband on the coffee table.  Based on this observation, the officer entered Defendant’s apartment through the open door.  Upon entering, the officer spoke with Defendant, who was in the front room.  Defendant advised the officer that he lives in the apartment and his roommate was out of town.  Officer Pirkle then called for assistance and Officer Billingsley was dispatched to Defendant’s apartment.  Upon his arrival, Officer Billingsley allegedly found other contraband that was not immediately apparent to Officer Pirkle.
Argument
			
I.  The initial entry and search of Defendant’s apartment was illegal because the arresting officer did not have a warrant to search the premises or probable cause to suspect that a particular individual committed the offense; and pursuant to Article 38.23 of the Texas Code of Criminal Procedure the evidence should be suppressed.

	Article 38.23 of the Texas Code of Criminal Procedure states that any evidence seized as a product of an illegal search must be suppressed.  The initial entry into the Defendant’s apartment, and the warrantless search of the residence by the officers was illegal because it was not based on a warrant or probable cause.  Warrantless searches are presumed to be invalid.  See Fancher v. State, 659 S.W. 2d 836, 839 (Tex.Crim.App. 1983).  The State has the burden to prove the reasonableness of the search.  See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App. 1986).

	Under Article 14.05, Texas Code Crim. Proc., an officer may not enter a residence to make a warrantless arrest unless “the arrest may be lawfully made without a warrant” and the person consents or there are exigent circumstances.  “A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions.”  State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002) (citing Beverly v. State, 792 S.W.2d 103, 104-105 (Tex.Crim.App. 1990); Lunde v. State, 736 S.W.2d 665, 666 (Tex.Crim.App. 1987)(plurality opinion)).
	Even if the officer saw marijuana in plain view before entering Defendant’s apartment, the arresting officer lacked the probable cause necessary to allow a warrantless search of the premises since she had no reason to suspect a particular individual in the apartment of possessing marijuana.  The police report indicates that the officer entered Defendant’s apartment merely based or her observation of possible contraband on the coffee table and the alleged odor of marijuana.  Further, the evidence suggests that the officer witnessed the Defendant in the same room with the alleged contraband after entering the apartment.  Therefore, the officer could not have reasonably suspected the Defendant of any criminal activity prior to entering the apartment.  Because the officer failed to establish probable cause with respect to the Defendant prior to entering his apartment, the search was illegal and any evidence obtained should be suppressed pursuant to Article 38.23.
II.  Since the arresting officers did not have the Defendant’s unequivocal consent to enter the apartment, any evidence seized during the search should be suppressed as the product of an illegal search under Article 38.23 of the Texas Code of Criminal Procedure.

	The State has the burden of showing that consent was freely and voluntarily given.  Howe v. State, 874 S.W.2d 895, 901 (Tex.App.–Austin 1994, no pet.).  The burden of proving that the consent was freely and voluntarily given cannot be discharged by showing no more than acquiescence by the Defendant.  See Id.  Moreover, the consent must be positive and unequivocal.  Id.  The State must prove by a preponderance of the evidence that consent is free and voluntary.  Dortch v. United States, 199 F.3d 193, 198 (5th Cir. 1999).  When acting under color of office, a police officer must have sufficient legal basis for intruding into a person’s home.  Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).  Valid consent may be obtained by a third party when at the time of the search, the officer reasonably believes that party to possess common authority over the premises.  Whisenhunt v. State, 122 S.W.3d 295, 299 (Tex.App.–Houston [1st Dist.] 2003) (citing Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801 (1990)).  In Whisenhunt, the court found apparent authority where the defendant’s roommate gave the officer consent to search the defendant’s bedroom.  Id.  However, if officers faced with an ambiguous situation fail to make further inquiry into the authority to consent, the State has not met its burden of proof.  Id.
	The arresting officer in the present case entered the Defendant’s residence illegally since she did not have unequivocal consent to enter.  According to the police record, the arresting officer never requested consent to enter Defendant’s apartment and none was given by Defendant.  Additionally, the arresting officer had no reason to think that Defendant’s neighbor had common authority over the premises since the neighbor told the officer that he lived in a different apartment prior to opening Defendant’s door.  Therefore, Defendant’s neighbor had no apparent authority to give the officer consent to enter Defendant’s apartment.  Since the officer did not receive valid consent to enter Defendant’s apartment, the subsequent search was illegal and any evidence obtained from the search should be suppressed.
III.  Even if the officer saw Defendant possessing marijuana in her presence, the plain view doctrine does not apply in this case because the officer unlawfully obtained a view of the inside of Defendant’s apartment when Defendant’s neighbor opened Defendant’s apartment door for the officer.

	The “Plain View Doctrine” is an exception to the warrant requirement that allows an officer to arrest an individual without a warrant when an offense is committed in the officer’s presence or view.  Tex. Code Crim. Proc. Art. 14.01(b)., Steelman, 93 S.W.3d at 107.  An offense is deemed to have been committed in an officer’s presence or view when any of his senses make him aware of the offense.  Id. (citing Clark v. State, 35 S.W.2d 420, 422 (1931)).  However, the information gathered by the senses of the officer must give him reason to believe that a particular person has committed the offense.  Id. (citing Muniz v. State, 851 S.W.2d 238, 251 (Tex.Crim.App. 1993)).  The doctrine further requires that the officer lawfully be at the vantage point from which he sees contraband in plain view and that the officer immediately recognize the item as evidence of criminal activity.  Martinez v. State, S.W.3d 677, 685 (Tex.Crim.App. 2000).  Additionally, an individual inside his home has a subjective expectation of privacy which is protected by the Fourth Amendment when his activities are conducted behind closed doors.  See Rodriguez v. State, 653 S.W.2d 305, 307 (Tex.CrimApp. 1983).  In Rodriguez, the court held that the defendants who left the apartment door open while smoking marijuana had no subjective expectation of privacy; because activities that are knowingly exposed to the public are not protected by the Fourth Amendment  See Id. (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511 (1967).
	The “Plain View Doctrine” does not apply in the present case because the officer’s view into Defendant’s apartment was obtained when an individual not authorized to consent to a search opened Defendant’s door.  Unlike the appellant in Rodriguez, the door of the present Defendant’s apartment was closed when the officer arrived.  Defendant’s closed door indicates his subjective expectation of privacy, which was breached when the neighbor opened the door for the officer.  See Police Report.  If the neighbor had not opened Defendant’s door, the officer would not have had the view which she obtained of Defendant’s front room.  Thus, since Defendant did not knowingly expose his activities to the public, the view of his front room was protected under the Fourth Amendment and any evidence obtained through the search should be suppressed.  See Id.
IV.  There were no exigent circumstances which would authorize a warrantless search, since the officer had no reason to believe that evidence would be destroyed or removed or that she was in any apparent danger.

	Even if the officers had probable cause to suspect the Defendant, the record shows no exigent circumstances which would allow a warrantless search.  Although, probable cause often authorizes an officer to arrest an individual without a warrant, probable cause without consent or exigent circumstances, does not allow the officer to enter a residence without a warrant.  Tex. Code Crim. Proc. Art. 14.05.  Facts which would otherwise constitute grounds for issuance of a search warrant do not necessarily authorize a warrantless search.  Barocio v. State, 117 S.W.3d 19 (Tex. App–Houston [14th Dist.] 2003).  Further, the Fourth Amendment affords an individual a higher expectation of privacy within his private dwelling.  Id.  To demonstrate exigency of circumstances, it is necessary to prove that “the police could have reasonably believed that evidence would be destroyed or removed before they could obtain a search warrant.”  Id. (quoting Covarrubia v. State, 902 S.W.2d 549, 553 (Tex.App.–Houston [1st Dist.] 1995, pet. ref’d)).  The court in Barocio held that the mere presence of marijuana in the defendant’s house was not an exigent circumstance which authorized a warrantless search.  117 S.W.3d at 25.  Additionally, exigent circumstances purposely created by the police, such as sending a Defendant inside to retrieve identification, do not satisfy the exigency requirement.  See Barocio, 117 S.W.3d at 25.
	In the case at bar, the mere presence of marijuana in Defendant’s apartment did not constitute an exigent circumstance.  Defendant spoke to the officer and was cooperative when the officer entered Defendant’s apartment.  Nothing in the police report indicates that the officer had reason to think she was in danger or that the alleged evidence would be destroyed or removed from Defendant’s apartment.  Additionally, to effectuate a proper search and conserve any potential evidence, the officer arguably, could have called for a search warrant and stayed at Defendant’s apartment until a warrant arrived prior to entering Defendant’s apartment.  Since there were no exigent circumstances that made obtaining a search warrant impractical, the warrantless search was illegal; and any evidence obtained in the search should be suppressed under Article 38.23 of he Texas Code of Criminal Procedure.
CONCLUSION AND PRAYER

	The evidence seized in the warrantless search of Defendant’s apartment should be suppressed under Article 38.23 of the Texas Code of Criminal Procedure as the product of an illegal search.  Since the plain view doctrine is inapplicable in this case, and the arresting officer had neither Defendant’s consent or exigent circumstances the search did not fulfill the requirements of Article 14.05 of the Texas Code of Criminal Procedure.  For the foregoing reasons, Defendant respectfully asks this court to hold that the search and seizure of Defendant’s apartment was illegal and suppress all evidence gained as a result of that illegality.

Respectfully submitted,

By:________________________________________

CERTIFICATE OF SERVICE
	
	This is to certify that on _____day of _______ 200_, a copy of Defendant’s Brief in Support of Defendant’s Motion to Suppress was delivered to the Criminal District Attorney of____________ County, Texas.

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