TX4: Exigent circumstances didn’t support entry where officer searched for evidence, not the exigency

Exigent circumstances did not justify the warrantless entry and subsequent search of defendant’s home by the officer, and therefore the trial court erred by granting defendant’s motion to suppress, because the officer’s testimony did not support a concern for the safety of the child but instead showed that his reasons for entering and his actions upon entry were focused on preserving evidence. The officer did not search for the child but instead handcuffed defendant and interrogated him about whether he was in possession of marijuana. The totality of the circumstances did not reveal any evidence from which it would be reasonable to infer that any exigency existed requiring a warrantless entry into defendant’s home. Turrubiate v. State, 415 S.W.3d 433 (Tex. App. – San Antonio 2013), on remand from Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013):

Even if we could infer from Lopez’s somewhat ambiguous testimony that either he or the officer went to look for a child once inside the apartment, this does not support any implied finding that exigent circumstances existed at the time of the warrantless entry. See Parker, 206 S.W.3d at 600 (“[T]he determination of whether an officer has … exigent circumstances to enter a person’s home without a warrant is a factual one based on the sum of all information known to the officer at the time of entry.” (emphasis added)). In other words, the fact that the officer may have searched once inside does not retroactively supply the requisite exigent circumstances justifying the warrantless entry to begin with when, as here, there was no evidence presented that Officer Chavarria knew about the possibility of a child inside before making entry.