TX4: Protective sweep after finding body outside was valid; second entry was not

Police responded to a 911 call and found a body outside. A cursory sweep of the interior was permissible, but a second entry was invalid. Also, defendant’s mobile home, hooked up to utilities, was not readily mobile, so the automobile exception did not apply. The trial court’s failure to suppress, however, was harmless considering that the product of the search was barely referenced at trial and the other evidence was overwhelming. Tollefson v. State, 352 S.W.3d 816 (Tex. App.—San Antonio 2011):

Tollefson argues because Barbara’s body was found outside his trailer, rather than inside as in Johnson, officers did not have consent to enter his trailer. Tollefson’s argument is persuasive. After the initial protective sweep of the trailer, it was unnecessary for law enforcement officials to re-enter the trailer to investigate the shooting or remove Barbara’s body. In comparison, the defendant in Johnson was still at the scene as officers continued to investigate and was, therefore, “in a position to revoke her consent had she wished to do so.” Johnson, 226 S.W.3d at 445. Officers took Tollefson to the Wilson County jail before Chief Deputy Deagen searched the trailer, so Tollefson was not in a position to deny consent.

We hold the emergency exception to the warrant requirement does not apply because after the initial protective sweep of Tollefson’s trailer, wherein the officers did not seize the evidence in question, officers did not have Tollefson’s implied consent to search his trailer. At the time of the second search, Tollefson had been removed from the scene and Barbara’s body was outside the trailer.