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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-12-00514-CR

NO. 09-12-00518-CR

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MICHAEL WADE PACHE, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 221st District Court 

Montgomery County, Texas

Trial Cause No. 11-09-09587 CR, Counts 1 and 2

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OPINION 

Michael Wade Pache was indicted for two drug offenses: possession with 

intent to deliver/manufacture a controlled substance (methamphetamine) and 

possession of marijuana. Challenging the officers’ entry into and search of his 

home, Pache filed a motion to suppress. After the trial court denied his motion, he 

pleaded guilty under a plea bargain. The trial court sentenced Pache to six years in 
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prison on the methamphetamine offense and 105 days in state jail on the marijuana 

offense. Pache appeals from the denial of his motion to suppress.

We conclude that the officers had probable cause to believe that a crime had 

been or was being committed in the residence, and that there were exigent 

circumstances permitting entry into the home. We affirm the trial court’s judgment. 

STANDARD OF REVIEW

We review the trial court’s denial of a motion to suppress under a bifurcated 

standard. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We afford 

almost total deference to the trial court’s determination of facts. Id. The trial court 

is the sole arbiter of questions of fact and of the weight and credibility to give 

testimony. Id. When a trial judge makes written findings of fact, the reviewing 

court examines the record in the light most favorable to the ruling and upholds 

those fact findings so long as they are supported by the record. Id. We review de 

novo the legal significance of the facts as found by the trial court. Id.

THE FACTS

Sergeant David Womack received a tip from an informant that narcotics 

were being sold out of a particular trailer home. Womack contacted officers 

Thompson and Pieper regarding a “knock-and-talk on the residence.” The three 

officers arrived in separate vehicles. The gate to the property was open. The 
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officers testified they did not see any “no trespassing” signs as they drove through 

the gate. They drove up a dirt driveway to the trailer. Womack and Thompson 

went to the front door. Detective Pieper went to the back yard.

Womack and Thompson testified that when they got to the front door, they 

could smell a very strong odor of marijuana coming from inside the trailer. Pache 

answered the door and Womack identified himself. Thompson testified Pache tried 

to slam the door, but for safety reasons, Thompson prevented him from shutting 

the door. Pache ran through the trailer. Deputy Thompson tackled Pache in the 

trailer. Pache was handcuffed, and Womack and Thompson put him in a chair.

Lieutenant Cash arrived at the scene, and Pache was informed of his rights. Cash 

asked Pache for consent to search the trailer. Pache consented to the search.

Detective Pieper, the officer stationed in the back yard, testified that when 

she went to the side of the property, she noticed that the curtains in the trailer’s 

back window were open, and she saw marijuana plants. She explained that as soon 

as she heard the commotion inside the trailer, she ran to the front door and went 

inside. She testified that she and the other officers did not walk through the trailer 

prior to Pache’s consent to the search, and that once consent was given, Pache told 

them where things were.
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Two defense witnesses testified they remembered the presence of a “no 

trespassing” sign by the gate at the entrance to the property, and the sign had been 

there for a long time. Pache testified that the sign was on his property. He 

explained that he took pictures a few days after he was arrested and released from 

jail on these charges, and that those pictures show the sign. Pache further testified 

that he did not consent to the search. He explained he answered the officers’ knock 

on the door and then refused to let them come in and talk to him. They entered 

anyway.

WARRANTLESS ENTRY

Pache argues the trial court erred in denying his motion to suppress because 

the officers entered his property without a warrant. He asserts that his yard is 

curtilage, and constitutionally protected from the officers’ presence on his 

property. He contends his consent was tainted by the illegal entry, and involuntary.

The State maintains that probable cause and exigent circumstances gave the 

officers authority to enter the home and that Pache voluntarily consented to the 

search of his home.

An officer’s warrantless entry into a home is presumptively unreasonable. 

Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013). At the Fourth 

Amendment’s “‘very core’ stands ‘the right of a man to retreat into his own home 
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and there be free from unreasonable governmental intrusion.’” Florida v. Jardines,

133 S.Ct. 1409, 1412, 185 L.Ed.2d 495 (2013) (quoting Silverman v. United States, 

365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). The area immediately 

surrounding and associated with the home -- the curtilage -- is part of the home 

itself for Fourth Amendment purposes. Id. at 1414. As the Court explained, “This 

right would be of little practical value if the State’s agents could stand in a home’s 

porch or side garden and trawl for evidence with impunity; the right to retreat 

would be significantly diminished if the police could enter a man’s property to 

observe his repose from just outside the front window.” Id. Nonetheless, the 

Supreme Court reaffirmed its holding that “[a] police officer not armed with a 

warrant may approach a home in hopes of speaking to its occupants, because that is 

‘no more than any private citizen might do.’” Id. at 1412 (quoting Kentucky v. 

King, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011). There is an “implicit license 

typically permit[ting] the visitor to approach the home by the front path, knock 

promptly, wait briefly to be received, and then (absent invitation to linger longer) 

leave.” Id. at 1415. Under the circumstances here, Womack and Thompson could 

go to the front door and knock. 

But did they have the authority to enter the home? In the context of a 

warrantless entry and search, the State has the burden of showing that probable 
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cause existed at the time the search was made and that exigent circumstances 

requiring entry into the home made obtaining a warrant impracticable. Turrubiate, 

399 S.W.3d at 151. Probable cause exists if reasonably trustworthy circumstances 

within the knowledge of the officers on the scene would lead them to reasonably 

believe that evidence of a crime will be found. Id. If probable cause exists, there 

may be exigent circumstances that require immediate, warrantless entry by an 

officer. Id. Examples of exigent circumstances include providing aid to persons 

whom law enforcement reasonably believe are in need of it; protecting an officer 

from persons reasonably believed to be present, armed, and dangerous; or 

preventing the destruction of evidence. Id. The State argues that Pache was going 

to destroy evidence.

The odor of marijuana and the tip that narcotics were being sold out of the 

residence led the officers to believe a crime was being committed. See Parker v. 

State, 206 S.W.3d 593, 596-601 (Tex. Crim. App. 2006) (totality of 

circumstances). But probable cause is not enough to permit entry into the home. As 

the Court of Criminal Appeals explained in Turrubiate, exigent circumstances are 

not present to permit an officer’s entry into the home just because the officer, who 

has identified himself as an officer and made his presence known to the occupant,

has probable cause to believe that there are illegal narcotics in a home, and a
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noticeable odor of marijuana is emanating from the home. Turrubiate, 399 S.W.3d 

at 152. The Court rejected an approach based on “generalizations regarding the 

behavior of individuals who are in possession of illegal narcotics, namely, that they 

will take immediate action to destroy evidence if the police are at their door and an 

odor of marijuana fumes is present.” Id. The record must show proof regarding the

imminent destruction of evidence based on affirmative conduct by those in 

possession of narcotics in a particular case. Id. at 153. 

The only facts purportedly establishing exigent circumstances in Turrubiate 

were the odor of marijuana and the defendant’s knowledge that a police officer was 

at his door. Id. at 154. “Lacking [wa]s the additional evidence discussed in King of 

attempted or actual destruction based on an occupant’s movement in response to 

the police knock. We require some evidence of exigency beyond mere knowledge 

of police presence and an odor of illegal narcotics.” Id. at 154 (citation and 

footnote omitted).

Womack had a tip that narcotics were being illegally sold out of the home. 

The officers went to the home. The trial judge was free to believe the officers’ 

testimony that they saw no signs forbidding trespass. The odor of an illegal drug 

was emanating from the trailer. Once Pache opened the door and saw the officers, 

he started running through the trailer. Given the context, the officers could 
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reasonably believe and the trial court could reasonably conclude Pache was trying 

to get to the illegal drug and destroy it. We conclude Thompson and Womack had 

probable cause that a crime was being committed and that exigent circumstances 

necessitated their immediate entry into the home. It was reasonable to believe that 

a delay to obtain a warrant would result in the destruction of the evidence. If an 

officer has probable cause coupled with an exigent circumstance, the Fourth 

Amendment will tolerate a warrantless search. Gutierrez v. State, 221 S.W.3d 680, 

685 (Tex. Crim. App. 2007); see also King, 131 S.Ct. 1849 at 1862 (“Occupants 

who choose not to stand on their constitutional rights but instead elect to attempt to 

destroy evidence have only themselves to blame for the warrantless exigentcircumstances search that may ensue.”).

Relying on Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio 

2011, no pet.), Pache contends that the front yard and back yard of his property are 

curtilage in which he has an expectation of privacy. See Jardines, 133 S.Ct. at 

1414 (describing curtilage as the area immediately surrounding and associated with 

the home); State v. Betts, 397 S.W.3d 198, 206-07 (Tex. Crim. App. 2013). He

specifically argues that Detective Pieper was not authorized to enter the back yard 

without a warrant and that a search occurred, because Pieper observed the 

marijuana plants through the window. But events that occurred at the front door 
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gave the officers authority to enter the home, and there is testimony in the record 

that the search for the evidence in the trailer was not conducted until after Pache 

was notified of his rights and had given consent to the search.

Pache argues the consent was involuntary because the officers’ entry into his 

home was illegal, and that the taint in the illegality had not dissipated by the time 

consent was given. We have rejected his argument that the entry was illegal. We 

overrule Pache’s issue. The trial court’s judgments are affirmed.

AFFIRMED.

____________________________________

 DAVID GAULTNEY

 Justice

Submitted on August 8, 2013

Opinion Delivered October 16, 2013

Publish

Before McKeithen, Gaultney and Kreger, JJ.