TX: Facts supported warrantless entry for missing woman

Officers objectively had reason to believe that a missing woman might be in appellant’s apartment, and that was an exigency for an entry. One officer’s subjective belief they did not have enough was irrelevant. Pitonyak v. State, 253 S.W.3d 834 (Tex. App.-–Austin 2008):

Considered together, these facts strongly suggested that Jennifer’s disappearance was the result of foul play and pointed to appellant’s apartment as the most obvious place to look for her. Granted, there were no signs of foul play at the apartment. There had been no reports of shouts or gunshots coming from the apartment. No foul odor had been detected. But Jennifer had been missing without explanation for almost two days, appellant was her last known companion, her car was parked outside appellant’s apartment (as was appellant’s), and appellant had lied about having been with Jennifer on Tuesday night. If Jennifer was sick or injured or otherwise physically threatened, each passing moment increased the risk of death or serious injury. We conclude that a police officer standing in Sedwick’s shoes would have had an objectively reasonable belief that an emergency situation existed and that entry into appellant’s apartment was immediately necessary to protect or preserve Jennifer’s life or to avoid serious injury to her. See Brimage v. State, 918 S.W.2d 466, 503 (Tex. Crim. App. 1996) (op. on reh’g) (holding that emergency doctrine justified warrantless search to locate complainant or to find evidence that would lead to complainant’s discovery at different location).

That one or more Austin police officers subjectively believed that they did not have a legal reason to enter the apartment, and conveyed that belief to Sedwick, is irrelevant. It is not clear from the record whether the officer or officers who made the decision not to forcibly enter appellant’s apartment on that Thursday night knew all the pertinent facts and circumstances. In any event, an action is reasonable under the Fourth Amendment as long as the circumstances, viewed objectively, justify the action. Stuart, 126 S. Ct. at 1948 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978)). The question is not whether the Austin police subjectively believed that an emergency existed, but whether a police officer standing in Sedwick’s shoes and knowing what Sedwick knew would have been objectively warranted in believing that an emergency existed. We hold that he would have been.

“Premises” and outbuilding included a utility shed 25′ from defendant’s house within the fence on the property. Walls v. State, 179 Md. App. 234, 944 A.2d 1222 (2008).