Officers lacked exigent circumstances for entry, but the defendant consented anyway

Officers entered upon defendant’s porch with probable cause but the question of exigency was not adequately shown beyond maintaining the status quo. Defendant, however, consented to the entry. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007):

Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. The court of appeals then observed:

“Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone …. A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety.”

We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant’s home. The detectives’ response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disporportionate it may be to the perceived exigency.

Appellate court’s reliance on DWI videotape of his stop but its absence from that court’s record required remand for the tape to be included and re-evaluated. Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007).*