TX9: Entry was without PC, but for officer safety, so plain view not suppressed

The police lacked probable cause to enter the defendant’s home on the totality of circumstances. There was a valid justification for officer safety, so the entry and plain view inside is not suppressed. Pace v. State, 318 S.W.3d 526 (Tex. App. – Beaumont 2010)* [TX website under maintenance today]:

We conclude the totality of the circumstances in this case did not give the officer probable cause to enter the residence. Officer Clack knew about the residence and its occupants. The police had responded to harassment and noise calls there in the past. Other than the allegation from an unidentified source of drug use in front of children in the home, there was no specific information regarding appellant’s current possession of drugs. See State v. Hoffman, 293 S.W.3d 633, 636 (Tex. App.–San Antonio 2009, pet. ref’d) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)); see also United States v. Scroggins, 599 F.3d 433, 444 (5th Cir. 2010) (“[T]he government cites no authority to support the proposition that police may stop and frisk an individual in his own home based on the same indications of criminality that would allow the detention elsewhere. The Terry doctrine was developed to determine when police could ‘detain individuals on the street.'”) (quoting United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)). Moreover, after the officer talked with Ms. Pace by telephone, he knew that the child was with her in her vehicle and not at the residence. Appellant’s retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence. See Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). “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 government intrusion.” Id.

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A reasonable, articulable suspicion of danger may justify a limited, cursory inspection to dispel the suspicion. See United States v. Scroggins, 599 F.3d at 444-45. The trial court’s finding that the officer entered the bedroom to ensure his safety is supported by testimony in the record; the officer had a right to be there. Having followed appellant for the purposes of dispelling the suspicion of danger, the officer observed the evidence in plain view. See Randolph, 547 U.S. at 118; Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citing Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)) (Under the “plain view” doctrine, law enforcement must have a right to be where they are, and it must “be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity.”). The trial court did not abuse its discretion in denying the motion to suppress.