Aff

irmed and Memorandum Opinion filed January 4 , 202 4

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00945

- CR

SEBASTIAN UDOM , Appellant

V.
THE STATE OF TEXAS , Appellee
On Appeal from the 13th District Court Navarro County, Tex as Trial Court Cause No. D3 9114

MEMORANDUM OPINION Appellant Sebastian Udom was convicted for Possession of a Controlled Substance (1

- 4g) and sentenced to 10 years deferred probation. See Tex. Health & Safety Code § 481.116(c). Appellant contends that the tr i al court abused its d is cretion by denyi ng appellant ’ s M otion to S uppress E vidence because the police lacked p robable cause to enter appella nt ’ s residence without a warrant or exigent2

circumstance

. We affirm

. Background
A t approximately 12: 4 0 p.m. o n D ecember 24, 20 18 , Corsi can a police department officers were dispa tched to “ T he Arbors ” apartment co mplex . This was in response to receiving an anonymous ti p from a resident of the compl ex that there was the smell of marijuana emanating f rom apa rt ment 1912

. Officer Self knocked on th e door of apartment 1912 and stood outside with Officer Bland and Serg eant Parker

. Approximately one minute after knocking the first time, Officer Self k noc ked again, and , appellant ’ s girlfriend, Tiana Appleton

an swered the door. Officer Self told A pple t on that there was a complain t of the smell of marijuana

. Appleton stated that she was the sole occupant of the apartment, no marijuana was present, and if there was a smell , it was ei ther a candle or from the hair d ying she had been doing that day. App let o n st epped away from the door leaving it partiall y open . Officer Self told the other officers that he could not smell because his nose was stuff ed up

. Accor ding to Off icer Self ’ s testi mony, Sergeant Parker told O fficer Self that he smelled marijuana

. In it s f indin gs of fact, t he trial court found that both Sergeant Parker and Officer Bland smelled marijuana emanating from the apartment wh en Appleton partial ly opened the door.
Se rgeant Parker push ed the door op en amid Appleton ’ s verbal insistence that th e o f

fi cers needed to have a wa rrant to enter . The officers entered the residence and performed a prote ctive sweep of each room of the apartment

. No evidence was located during the sweep. While waiting ins ide the residence , officers requested a search warrant

. W hile awaiting the search warrant, appellant arrived out side th e apartment3

barefoot and told police th at he was a resident of apartment 1912. It was lat er found that appellant had exited apartment 1912 by ki cking out a window screen and cli mbing out the w in d ow at the rear of the apartment

. Appellant told police that if any drugs were found during the search, they belonged to him.
At a pp roximately 2 :05 p.m

. , a search warrant was issued. Police searched
t he ap ar tment and found narcotics and marijuana ( the co nt raband at issue in the original motion to suppress )

. Appellant was subsequently charged with Poss ession of a Controlled Substance (1

- 4g).
The trial court de termined that there was probable cause j us tifying a warrantl ess entry into a ppellant ’ s apartment b ased upon the initial complain t and the s mell of marijuana emanating from th e apartment. The trial court denied appellant ’ s M otion to S uppress Evidence and Statements Pursuant to a n Illegal Search

. A ppellant ple d guilty and was sent enced to 1 0 years defe rr ed probation.

Findings of Fact and Conclusions of Law After considering the evidence and applicable law, the trial court denied the Appella nt ’ s Motion To Suppress

. The trial court made the following find ings of fact and conclusion s of law :
Fi n din g s of Fa ct 1. On December 24, 2018, Corsicana Police Depa rtment Officers Michael Self, Alexandra Bland, and Trent Parker responded to a resident complaint of the smell of marijuana emanating from an adjacent apartm ent occupied by Sebastian Udom
an d Tin a Appleton. 2. Officers approached and knocked on the door of the apartment of which the complaint was made. 3. Appleton partially opened the door where Officers Bland and Parker smelled4

marijuana emanating. 4. Officer Self could not smell marijuana d ue to congestion bu t could smell something. 5. Officers pushed ope ned the door and made a warrantless entry conducting a protective sweep of the apartment for other occupants of the apartment. 6. Officers secured the reside nce and waited for a search warra nt to be obtained i n order to conduct a search of the apartment fo r illegal drugs. 7. Upon the execution of the search warrant, illegal drugs were seized. C onclusions of Law 1. Based on the complaint made and two of the officers smelling marijuana emanatin g fro m the apartm en t, officers had probable cause to make a war rantless entry into the residence to secure it for officer safety and to protect against the possible destruction of evidence. 2. Although a warrantless entr y was made, the officers did not search t h e apartment
u ntil after a search warrant was obtained. 3. The Defendant did not meet his burden on his Motion To Suppress All Evidence And Statements Made Pursuant To An Illegal Search

. 4. The Defendant's Motion to Suppress should be denied. Issue on Appe a l In a sin gl e issue, appellant argues that the trial cou rt abused its disc retion by denying appellant ’ s M otion to S uppress . Appellant argues that ther e was no probable cause or exig ent circumsta nces to support a w arrantless search of appellant ’ s residenc e based on t he odor of mar iju an a alone. Appellant arg ues that this evidence should be exc luded as fruit of the poi sonous tree since the search was illegal. T he S tate argues t hat t here was probable cause for entry t o appe llant ’ s

re sidence based on the odor o f marijuana a nd anonymous complaint of the o dor by

a n apart ment re siden t. The S tate contends that the initia l protective sweep , which did not reveal an y evidence , was not a search

. The S tate also conten ds that t he subsequent search of the residence was pu r suant to th e search warrant that was issued while officers were in the apartment but before they conducted a search that5

resulted in the finding of contraband

. A p pe llant contends that the entirety of the situation is a search , from the initial entry thr o ugh the sea rc h conducted under the subsequently issued search
warrant. This is an inap propriate conflation of the search under the warrant with the initial entry and protective sweep. Further, appellant does not cha llenge the legi timacy of the search warr a nt directly

. As such , we look to the initial entry and protective sweep and their distinction from the search under the search warrant.
Standard of Review We review a trial court's ruling on a motion to suppress for abuse of discretion under a bifurcat ed standard of r eview

. State v. Tor re s , 666 S.W.3d 735, 740 (Tex. Crim. App. 2023). We afford almost tota l deference to the trial court's determinations based on an assessment of credibility and demeanor. Id . We review pure questions of law, as well as mix ed questions o f law a nd fact which do not turn on an assessment of credibility and d emeanor, on a de novo basis. Id

. In other words, de novo review applies when the facts are undisputed. Guzman v. State , 995 S.W.2d 85, 89 (Tex. Crim. App. 1997). The eviden ce and all rea so nable inferences

are viewed in the light most f avorable to the trial court's ruling, and the trial court's ruling must be upheld if it is reasonably supported by the record and is correct under a theory of law applicable to the case. State v. Espinosa , 6 66 S.W. 3d 659, 667 (Tex . Crim. App. 2023).
At a suppression hear ing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). A trial court may c hoose to bel ie ve or to disbelieve all or part of a witness 's testimony at the hearing. See Baird v. State , 398 S.W.3d 220, 226 (Tex. Crim. App. 2013) ( citing State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim.6

App. 2000)). The prevailing party in the trial cou rt “ i s afforde d the strongest legitimate view of the evid ence and all reasonable inferences that may be drawn from that evidence. ” Id. ( quoting State v. Garcia

- Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). Law & Analys is A warrantless entry i nto a re si dence is pre su mptively unreasonable. Gutierrez v. State , 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). When a de fendant moves to suppress evidence based on a warran tless search, the State has the burden of showing that probable cause existed at the t ime th e search was m ad e and that exigent circumstances requiring immediate e ntry made obtaining a warrant impracticabl e. McNairy v. State , 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause exists when reasonably trustworthy circumstances within the k now le dge of the p ol ice officer on the scene would lead him to reasonably believe that evidence of a crime will be f ound. See id . If probable cause exists, exigent circ umstances may require immediate, warrantless entry by officers who

are preventing the destru ct ion of evide nc e or contraband. Gutierrez , 221 S.W.3d at 685. We address the State's argument regarding this circu mstance

. In the determination of if the initial entry into appellant ’ s residence was illegal, we look first to if probable cause was establ is hed then to i f the r e was an exi gent circumstance

. Both are required for a warrantless entry. Parker v. State , 206 S .W. 3 rd 593, 597 (Tex. Crim. App

. 2000). “ If either probable cause or exigent circumstances are not esta blishe d, a w arrantless entry will n o t pass muster u nd er the F ourth Amend m ent

. ” Id

. P robabl e Cause
The S tate argues that the odor of mar ijuana and anonymous tip were7

sufficient to establish probab le cause to enter appellant ’ s apartment

. T he odor of marijuana alone can provide probable cau se

. State v. Le , 4 63 S.W.3d 872, 879 (Tex. Crim. App. 2015) ; s ee also Estrada v. State , 154 S.W.3d 604, 609 (Tex. Crim. App. 2005). Probable cause exists if, under the totality of the circumstances, there is fair probability that contraband or evidence of a c rime will be fo un d at a specified location. State v. McLain, 337 S.W

. 3d 268, 272 ( Tex

. Crim

. App . 2011). It is a flexible, non

- demanding standard. Id.
Here, t he relevant findings of fa ct establish probable cause . A resident of the apartment complex re p ort ed a marijuana od or emanating from appella nt ’ s apartment , and two officers smelled the odor of marijuan a emanating from the apartment after Appleton partially o pened the door. Therefore , the trial court did

n ot err i n a determination that probable cause e x isted

. Exigency

W ithout the exception of exigency , probable cause alone does not justify a warrantless search or entry of the residence. Parker , 206 S .W. 3rd at 59 7 ; s ee al so Turrubiate v. State , 399 S.W.3d 147, 156 (Tex. Crim. App. 2013) (“A police offi cer who enters a h om e without a warrant merely because he had probable cause to believe contraband was i n that home ... violates the Fourth Amendment.”)

. As such , a n exigen t circumstance must have exi st ed to make the initial warrantless entry in to ap p ellan t ’ s ap artment lega l.
The S tate asserts that , even without a warrant, their initial entry and protective swe ep are validated through the exigency exception to pre vent the destruction of evidence. Turrubiate , 399 S.W.3d at 149 abrogated by Igboji v. State , 66 6 S.W.3d 607 (Tex

. Crim. App. 2023)

. However , the s mell of marijuana alone is not enough to give rise to exigency. Id

. Further, ex igency is not8

manu factured by an officer announcing to the occupants of a sus pected dwelling that the re is a police inv e stiga tion occurring

. Id

. How ever, t he odor of marijuana whe n combined with other factors can give rise to an exigency exception. Parker , 206 S.W.3d at 600

. Here , there are no other factors other than an anonymous ti p and the offi cer s ’ declarations regardin g the smell of marij uan a emanating from appellant ’ s apartmen t

. When opening the door to speak with the officers, Appleton did not make furtive movement s, no c ontraband or paraphernalia came into view , and the off icers were unaware of appellant exiting out of th e window until wel l after their entry to the apartment.
We find there to be no exig ent circumstance legitimating the warrantless entry in to appellant ’ s r esidence. Since both pro bable cause a nd exigen t circumstances are requ ired for a warrantless entry , the trial court erred i n declaring the entry legal

. Probable Cause for the Search Warrant
However, pro bable cause does establish a valid basis for the search warr ant that was issued after the illegal entry. T he odor of marijuana alone can provide probable cause to support a se ar c h warr ant. Le , 463 S.W.3d at 879 ; s ee also Estrada , 154 S.W.3d at 609

.

“ I f the presence of odors is testified to befo re a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden sub st a nce, t his Court has never held such a basis insufficient to justify issua n ce of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.” Le , 463 S.W.3d at 879 ( citing Johnson v. United States , 333 U .S. 10, 13 (1 94 8 ) )

.9

Wh ile there is a viable probable cause to issue the search warrant prior to the entry , the warrant could be tain ted if it was based upon any information gle aned from the illegal initial entry and protective sweep.
Ev i dence Suppression and the Exclu si o nary R ule Absent proof of a recognized exception to the warra nt requirement, evidence obtained in violation of the federal or state constitutions, or a state statut e, and without a warrant should be suppressed. See Tex. Code Crim. Proc. art. 38.23(a). T hu s , all direct and indirect products of a search or seizure sho uld be suppressed when illegal conduc t has been established and it is also shown that the e vidence in
q uestion “has been come at by exploitation of that illegality.” Wo ng Sun v. United States , 3 7 1 U.S. 471, 484, 488 (1963); s ee Wehrenberg v. State , 416 S. W.3d 458, 464 (Tex. Crim. App. 2013); s ee State v. Iduarte , 268 S.W.3d 544, 550

– 51 (Tex. Crim. A pp. 2008). T he defendant bears the initial Article 38.23(a) burden to show a “causal connection” b e tween t he illegality and the evidence seized or found by a search and sought to be suppressed. See Wehr enberg , 416 S.W.3d at 468; Pham v. State , 175 S.W.3d 7 67, 772 (Tex . Crim. App. 2005).
Here, a ppellant does not directly contest the subsequently issued s earch

w arrant

. However, given that the contraband evidence was found pursuant to the warrant, we must question if that evide nce should be excluded as fruit of an illegal search ( the initial entry and protecti ve sweep) or if the taint of that search does n o t
exten d to the search under the search warrant

. Tex. Code Crim. Proc. Ann. art. 38.23 ; s e e also Wehrenberg , 416 S.W.3d at 468

. “[T]he federal exclusionary rule generally requires suppression of both primar y evidence obtained as a direct result of an il l e gal s ea rch or seizure, as well as derivativ e evidence acquired as an indirect result of unlawful conduct.”10

Wehrenberg , 416 S.W.3d at 464 ( citing Segura , 468 U.S. at 804 ). However, there are several exceptions t o this ru le, including the “independen t sour c e ” doctr ine. Id

. “At its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from a ny illegal conduct by law enforcement, is not subject to exclu sion.” Id . at 465 ( citing Mur ray v. U nited States , 487 U.S. 533, 537 (1988); Nix v. Williams , 467 U.S. 431, 443 (1984) ). In othe r words, “notwithstanding a prior instance of unlawful police conduct, evidence actually discovered and obtained pursua nt to a valid search warrant is not

su bject to suppr ession, so long as the police would have sought the warrant regardless of any observa tions made during the illegal [conduct].” Id . at 465

– 66 ( citin g Segura , 468 U.S. at 813

– 15 ). “Thus , in determining whether challenged

ev idence is admissible under th e inde pendent source doctrine, the central question is ‘whether the ev idence at issue was obtained by independent legal means.’ ” Id . at 465 ( quoting United States v. May , 214 F.3d 900, 906 (7th Cir. 2000) ).
Here, a ppella nt contends that the contraband e vi dence should have been exclu ded given that the evidence was the product of an illegal search , conflating the initial entry with the search occurring after the wa rrant ’ s issuance

. However,
t he warrant was not based on any information gle aned during that e nt ry an d protective sweep. Rather, the search warrant affidavit provides on ly information gle ane d prior to the entry. As such , the search warrant has a legitimate basis untainted by the illegal entry. Thus, the ex clusionary rule is inapplicable given tha t th ere i s an independent source legitimating the sear ch conducted und er the search
warrant and the evidence found during that search.

T he search

- warrant affidavit provided sufficient evidence of pro bable caus e to support the issuanc e of a warrant and did no t rely upon information obtai ned in the initial entry and protec tive sweep

. B ecause the warrant was not tainted by the11

illegal entry , we find that the trial court did not abuse its discretion d enyi ng appella nt ’ s motion to suppress.
Conclusion
We affirm th e trial court ’ s judgment.

/ s/ Trac y Christopher Chief Justice

Panel consists of Chief Justice Chris topher and Justices Wise and Jewel l. Do Not Publish

– Tex. R. App. P. 47.2(b)