TX2: That the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances

The fact that the defendant was “going to” or “fixing to” manufacture meth is not exigent circumstances. Actual manufacturing required. Wehrenberg v. State, 385 S.W.3d 715 (Tex. App. – Ft. Worth 2012):

Thus, whether it was the odor of ether, ether running on the ground, or the observance of articles associated with the ongoing manufacture of methamphetamine, in each of the three preceding cases, officers observed facts that led them to believe that someone was actively manufacturing methamphetamine. This fact was significant to the exigent-circumstances inquiry because it sustained the officers’ belief that the destruction or removal of evidence was imminent—a result that could have occurred due to the inherent volatility associated with the active manufacture of methamphetamine.

Here, unlike the officers in Rhiger, Walsh, and Wilson, Investigator Montanez did not testify that he observed anything that led him to believe that someone was actively manufacturing methamphetamine at the residence. Instead, the record demonstrates (1) that Investigator Montanez had information that the occupants of the residence were “going to” or “fixing to” manufacture methamphetamine, and (2) that officers arrived at the residence and entered without a warrant. Therefore, notwithstanding that a fire was alleged to have previously occurred at some point at the residence as a result of manufacturing methamphetamine, in the absence of any evidence that could have led the officers to believe that someone was actively manufacturing methamphetamine, officers could not have reasonably concluded that the destruction or removal of evidence was imminent due to either the inherently volatile nature of manufacturing methamphetamine or the inevitable “destruction” of various chemicals when combined to manufacture methamphetamine. See, e.g., State v. Meeks, 262 S.W.3d 710, 726-27 (Tenn. 2008) (holding that hazards posed by actively operating methamphetamine lab created exigent circumstances justifying warrantless search); Williams v. State, 995 So.2d 915, 921 (Ala. 2008) (“Based on the inherent dangers of an operating methamphetamine lab, we now hold that discovery of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a warrantless search” (emphasis added)); State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007) (holding that exigent circumstances justified warrantless entry because officers observed facts demonstrating that manufacturing methamphetamine was “in progress”); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007) (“[T]he court did not clearly err by finding that a search was justified by the exigent circumstances created when an active methamphetamine lab was found in the trunk of a car ….” (emphasis added)). Although probable cause existed at the time of the warrantless entry, there is nothing in the record to indicate that the officers were confronted with a “now or never”-type situation, one in which they had to act before obtaining a warrant in order to head off the possible destruction or removal of evidence caused by the volatility inherently associated with the actual manufacture of methamphetamine. See Roaden, 413 U.S. at 505, 93 S. Ct. at 2802; State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158, 161 (N.M. Ct. App. 2008) (reasoning that “mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home” (emphasis added)). Contrary to the State’s argument, the first, second, and fifth McNairy criteria do not support a conclusion that exigent circumstances justified the warrantless entry. Accordingly, we may not affirm the trial court’s denial of Wehrenberg’s motion to suppress on this ground.