undercover officer left apartment, ostensibly to retrieve money, gave secret signal to police, who stormed apartment
How later courts described this case
- undercover officer left apartment, ostensibly to retrieve money, gave secret signal to police, who stormed apartment
- “Otherwise inadmissible evidence should not be made admissible simply because the police misconduct was not too reprehensible.”
Written by the judges who cited it.
The opinion
MIRABAL, Justice,
concurring.
I concur with Justice Hutson-Dunn’s opinion. I write separately because, in my opinion, there is no need to “consider a new theory on appeal” in this case. The theory advanced by the State in the trial court was a perfectly valid one.
The State argued in the trial court, and presented evidence showing, that probable cause and exigent circumstances existed warranting the forcible entry into appellant’s apartment without a warrant. This case is controlled by McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991), and Covarru- *30 bia v. State, 902 S.W.2d 549, 554 (Tex.App.—Houston [1st Dist.] 1995, pet.ref'd).
As in McNairy and Covarrubia, the trial court in the present case could have reasonably concluded from the evidence that the police officers reasonably believed that appellant and his wife were able to dispose of the cocaine. Officer Redman testified cocaine was water soluble and easily disposed of, and he was concerned about appellant’s cautious attitude. Appellant boasted that he had been in the business of selling drugs for a long time without being caught. This indicated that appellant would try to destroy the cocaine. Appellant and his wife knew the police were outside, and the cocaine actually could have been destroyed or removed in a matter of minutes. The police heard a shot fired from appellant’s apartment. Accordingly, the trial court did not abuse its discretion when it overruled appellant’s motion to suppress because the possible destruction of the evidence provided an adequate exigent circumstance warranting the forcible entry into appellant’s apartment without a warrant.
I would affirm the judgment for this reason.
SCHNEIDER, C.J., joins this concurring opinion.