Affirmed and Memorandum Opinion filed January 4, 2024

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, Texas

Trial Court Cause No. D39114

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 trial court abused its 

discretion by denying appellant’s Motion to Suppress Evidence because the police 

lacked probable cause to enter appellant’s residence without a warrant or exigent 
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circumstance. We affirm.

Background

At approximately 12:40 p.m. on December 24, 2018, Corsicana police 

department officers were dispatched to “The Arbors” apartment complex. This was 

in response to receiving an anonymous tip from a resident of the complex that 

there was the smell of marijuana emanating from apartment 1912.

Officer Self knocked on the door of apartment 1912 and stood outside with

Officer Bland and Sergeant Parker. Approximately one minute after knocking the 

first time, Officer Self knocked again, and, appellant’s girlfriend, Tiana Appleton 

answered the door. Officer Self told Appleton that there was a complaint 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 either a 

candle or from the hair dying she had been doing that day. Appleton stepped away 

from the door leaving it partially open. Officer Self told the other officers that he 

could not smell because his nose was stuffed up. According to Officer Self’s 

testimony, Sergeant Parker told Officer Self that he smelled marijuana. In its

findings of fact, the trial court found that both Sergeant Parker and Officer Bland 

smelled marijuana emanating from the apartment when Appleton partially opened 

the door.

Sergeant Parker pushed the door open amid Appleton’s verbal insistence 

that the officers needed to have a warrant to enter. The officers entered the 

residence and performed a protective sweep of each room of the apartment. No 

evidence was located during the sweep. While waiting inside the residence, 

officers requested a search warrant.

While awaiting the search warrant, appellant arrived outside the apartment 
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barefoot and told police that he was a resident of apartment 1912. It was later 

found that appellant had exited apartment 1912 by kicking out a window screen 

and climbing out the window at the rear of the apartment. Appellant told police 

that if any drugs were found during the search, they belonged to him.

At approximately 2:05 p.m., a search warrant was issued. Police searched 

the apartment and found narcotics and marijuana (the contraband at issue in the 

original motion to suppress). Appellant was subsequently charged with Possession 

of a Controlled Substance (1-4g).

The trial court determined that there was probable cause justifying a 

warrantless entry into appellant’s apartment based upon the initial complaint and 

the smell of marijuana emanating from the apartment. The trial court denied

appellant’s Motion to Suppress Evidence and Statements Pursuant to an Illegal 

Search.

Appellant pled guilty and was sentenced to 10 years deferred probation.

Findings of Fact and Conclusions of Law

After considering the evidence and applicable law, the trial court denied the 

Appellant’s Motion To Suppress. The trial court made the following findings of 

fact and conclusions of law:

Findings of Fact

1. On December 24, 2018, Corsicana Police Department Officers Michael Self, 

Alexandra Bland, and Trent Parker responded to a resident complaint of the smell 

of marijuana emanating from an adjacent apartment occupied by Sebastian Udom 

and Tina 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 smelled 
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marijuana emanating.

4. Officer Self could not smell marijuana due to congestion but could smell 

something.

5. Officers pushed opened the door and made a warrantless entry conducting a 

protective sweep of the apartment for other occupants of the apartment.

6. Officers secured the residence and waited for a search warrant to be obtained in 

order to conduct a search of the apartment for illegal drugs.

7. Upon the execution of the search warrant, illegal drugs were seized.

Conclusions of Law

1. Based on the complaint made and two of the officers smelling marijuana 

emanating from the apartment, officers had probable cause to make a warrantless 

entry into the residence to secure it for officer safety and to protect against the 

possible destruction of evidence.

2. Although a warrantless entry was made, the officers did not search the apartment

until 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 Appeal

In a single issue, appellant argues that the trial court abused its discretion by 

denying appellant’s Motion to Suppress. Appellant argues that there was no 

probable cause or exigent circumstances to support a warrantless search of 

appellant’s residence based on the odor of marijuana alone. Appellant argues that 

this evidence should be excluded as fruit of the poisonous tree since the search was 

illegal. The State argues that there was probable cause for entry to appellant’s 

residence based on the odor of marijuana and anonymous complaint of the odor by 

an apartment resident. The State contends that the initial protective sweep, which 

did not reveal any evidence, was not a search. The State also contends that the 

subsequent search of the residence was pursuant to the search warrant that was 

issued while officers were in the apartment but before they conducted a search that 
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resulted in the finding of contraband.

Appellant contends that the entirety of the situation is a search, from the 

initial entry through the search conducted under the subsequently issued search 

warrant. This is an inappropriate conflation of the search under the warrant with 

the initial entry and protective sweep. Further, appellant does not challenge the 

legitimacy of the search warrant 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 bifurcated standard of review. State v. Torres, 666 S.W.3d 735, 

740 (Tex. Crim. App. 2023). We afford almost total 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 mixed questions of law and fact which do not turn 

on an assessment of credibility and demeanor, 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 evidence and all reasonable inferences 

are viewed in the light most favorable 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, 666 S.W.3d 659, 

667 (Tex. Crim. App. 2023). 

At a suppression hearing, 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 choose to believe 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 court “is afforded the strongest 

legitimate view of the evidence 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 & Analysis

A warrantless entry into a residence is presumptively unreasonable.

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). When a 

defendant moves to suppress evidence based on a warrantless search, the State has 

the burden of showing that probable cause existed at the time the search was made 

and that exigent circumstances requiring immediate entry made obtaining a 

warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App.

1991). Probable cause exists when reasonably trustworthy circumstances within 

the knowledge of the police officer on the scene would lead him to reasonably 

believe that evidence of a crime will be found. See id. If probable cause exists, 

exigent circumstances may require immediate, warrantless entry by officers who 

are preventing the destruction of evidence or contraband. Gutierrez, 221 S.W.3d at 

685. We address the State's argument regarding this circumstance.

In the determination of if the initial entry into appellant’s residence was 

illegal, we look first to if probable cause was established then to if there was an

exigent circumstance. Both are required for a warrantless entry. Parker v. State, 

206 S.W.3rd 593, 597 (Tex. Crim. App. 2000). “If either probable cause or exigent 

circumstances are not established, a warrantless entry will not pass muster under 

the Fourth Amendment.” Id. 

Probable Cause

The State argues that the odor of marijuana and anonymous tip were 
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sufficient to establish probable cause to enter appellant’s apartment. The odor of 

marijuana alone can provide probable cause. State v. Le, 463 S.W.3d 872, 879 

(Tex. Crim. App. 2015); see 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 crime will be found 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, the relevant findings of fact establish probable cause. A resident of the 

apartment complex reported a marijuana odor emanating from appellant’s 

apartment, and two officers smelled the odor of marijuana emanating from the 

apartment after Appleton partially opened the door. Therefore, the trial court did 

not err in a determination that probable cause existed.

Exigency

Without the exception of exigency, probable cause alone does not justify a 

warrantless search or entry of the residence. Parker, 206 S.W.3rd at 597; see also 

Turrubiate v. State, 399 S.W.3d 147, 156 (Tex. Crim. App. 2013) (“A police 

officer who enters a home without a warrant merely because he had probable cause 

to believe contraband was in that home ... violates the Fourth Amendment.”). As 

such, an exigent circumstance must have existed to make the initial warrantless 

entry into appellant’s apartment legal.

The State asserts that, even without a warrant, their initial entry and 

protective sweep are validated through the exigency exception to prevent the 

destruction of evidence. Turrubiate, 399 S.W.3d at 149 abrogated by Igboji v. 

State, 666 S.W.3d 607 (Tex. Crim. App. 2023). However, the smell of marijuana

alone is not enough to give rise to exigency. Id. Further, exigency is not 
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manufactured by an officer announcing to the occupants of a suspected dwelling 

that there is a police investigation occurring. Id. However, the odor of marijuana

when 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 tip and the 

officers’ declarations regarding the smell of marijuana emanating from appellant’s 

apartment. When opening the door to speak with the officers, Appleton did not 

make furtive movements, no contraband or paraphernalia came into view, and the 

officers were unaware of appellant exiting out of the window until well after their 

entry to the apartment.

We find there to be no exigent circumstance legitimating the warrantless 

entry into appellant’s residence. Since both probable cause and exigent 

circumstances are required for a warrantless entry, the trial court erred in declaring 

the entry legal.

Probable Cause for the Search Warrant

However, probable cause does establish a valid basis for the search warrant

that was issued after the illegal entry. The odor of marijuana alone can provide 

probable cause to support a search warrant. Le, 463 S.W.3d at 879; see also

Estrada, 154 S.W.3d at 609.

“If the presence of odors is testified to before a magistrate and he 

finds the affiant qualified to know the odor, and it is one sufficiently 

distinctive to identify a forbidden substance, this Court has never held 

such a basis insufficient to justify issuance 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 (1948)).
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While there is a viable probable cause to issue the search warrant prior to the 

entry, the warrant could be tainted if it was based upon any information gleaned 

from the illegal initial entry and protective sweep.

Evidence Suppression and the Exclusionary Rule

Absent proof of a recognized exception to the warrant requirement, evidence 

obtained in violation of the federal or state constitutions, or a state statute, and 

without a warrant should be suppressed. See Tex. Code Crim. Proc. art. 38.23(a). 

Thus, all direct and indirect products of a search or seizure should be suppressed 

when illegal conduct has been established and it is also shown that the evidence in 

question “has been come at by exploitation of that illegality.” Wong Sun v. United 

States, 371 U.S. 471, 484, 488 (1963); see Wehrenberg v. State, 416 S.W.3d 458, 

464 (Tex. Crim. App. 2013); see State v. Iduarte, 268 S.W.3d 544, 550–51 (Tex. 

Crim. App. 2008). The defendant bears the initial Article 38.23(a) burden to show 

a “causal connection” between the illegality and the evidence seized or found by a 

search and sought to be suppressed. See Wehrenberg, 416 S.W.3d at 468; Pham v. 

State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005).

Here, appellant does not directly contest the subsequently issued search 

warrant. However, given that the contraband evidence was found pursuant to the 

warrant, we must question if that evidence should be excluded as fruit of an illegal 

search (the initial entry and protective sweep) or if the taint of that search does not 

extend to the search under the search warrant. Tex. Code Crim. Proc. Ann. art. 

38.23; see also Wehrenberg, 416 S.W.3d at 468.

“[T]he federal exclusionary rule generally requires suppression of both 

primary evidence obtained as a direct result of an illegal search or seizure, as well 

as derivative evidence acquired as an indirect result of unlawful conduct.” 
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Wehrenberg, 416 S.W.3d at 464 (citing Segura, 468 U.S. at 804). However, there 

are several exceptions to this rule, including the “independent source” doctrine. Id.

“At its core, the independent source doctrine provides that evidence derived from 

or obtained from a lawful source, separate and apart from any illegal conduct by 

law enforcement, is not subject to exclusion.” Id. at 465 (citing Murray v. United 

States, 487 U.S. 533, 537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984)). In 

other words, “notwithstanding a prior instance of unlawful police conduct, 

evidence actually discovered and obtained pursuant to a valid search warrant is not 

subject to suppression, so long as the police would have sought the warrant 

regardless of any observations made during the illegal [conduct].” Id. at 465–66 

(citing Segura, 468 U.S. at 813–15). “Thus, in determining whether challenged 

evidence is admissible under the independent source doctrine, the central question 

is ‘whether the evidence 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, appellant contends that the contraband evidence should have been 

excluded given that the evidence was the product of an illegal search, conflating 

the initial entry with the search occurring after the warrant’s issuance. However, 

the warrant was not based on any information gleaned during that entry and 

protective sweep. Rather, the search warrant affidavit provides only information 

gleaned prior to the entry. As such, the search warrant has a legitimate basis 

untainted by the illegal entry. Thus, the exclusionary rule is inapplicable given that 

there is an independent source legitimating the search conducted under the search 

warrant and the evidence found during that search.

The search-warrant affidavit provided sufficient evidence of probable cause 

to support the issuance of a warrant and did not rely upon information obtained in 

the initial entry and protective sweep. Because the warrant was not tainted by the 
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illegal entry, we find that the trial court did not abuse its discretion denying 

appellant’s motion to suppress.

Conclusion

We affirm the trial court’s judgment.

 /s/ Tracy Christopher

 Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Jewell.

Do Not Publish – Tex. R. App. P. 47.2(b)