TX2: Defense argument at “Catch-22”: If he lived there, arrest warrant good enough to enter; if not, other person consented

Defendant’s argument about the place entered being his home was a “Catch-22” for him. If he lived there, the arrest warrant authorized entry to get him, and the plain view was valid. If he didn’t, the other occupant had authority to consent, which she did. Collins v. State, 2015 Tex. App. LEXIS 4165 (Tex. App. – Ft. Worth April 23, 2015):

To comply with Payton v. New York, officers who execute an arrest warrant must have a “reasonable belief that the suspect resides at the place to be entered … and have reason to believe that the suspect is present”8 at the time the warrant is executed. This rule of law presents something of a Catch-22 for Appellant. If the trial judge believed Appellant’s version of the facts, Appellant was a resident of the home, and the police were lawfully in the home and bedroom under the arrest warrant for him. An arrest warrant authorizes entry into a defendant’s own residence when there is reason to believe that the defendant is within. And, if Lisa was a resident of the house where the officers executed the arrest warrants for Appellant and Lisa, as her driver’s license indicates in State’s Exhibit 42, the arrest warrant for Lisa authorized entry into her residence (and therefore the bedroom) to execute her arrest warrant. Because the police were lawfully inside the bedroom, there was no impediment to executing Appellant’s arrest warrant or seizing the evidence. If neither Appellant nor Lisa was a resident of that house, Betty’s consent validly authorized the officers’ entry into the home and bedroom.

That is, whether because of consent or because they were executing arrest warrants where Appellant or Lisa lived, the officers were lawfully in the bedroom to execute the arrest warrants and required no additional search warrant to discover the firearm, magazine, and items of clothing. The officers were therefore authorized to seize weapons and evidence plainly visible while they were executing the arrest warrants. We overrule Appellant’s first and second issues.