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computers. Since the affidavit established sufficient facts to allow a finding of probable cause, the trial court was
entitled to deny defendants suppression motion.

The defendant also contended that the evidence in the case against him was insufficient to prove that he
was in possession of the admittedly pornographic images found on his desktop computer. Specifically, he
complained that he had bought the computer second-hand; that the pictures were found in a space on the
computer where deleted items are stored; and that the viruses on the computer could have allowed the images to
be stored without the defendants knowledge. The States computer forensics examiner confirmed that ten images
were found in the free space of the computer where deleted items are stored, and that it was impossible to say
where they had come from, or how they were placed on the computer. The photos might have been viewed
intentionally, or they may have popped up while a user was looking at another website. Because the computer
contained various viruses, it was possible that pornography could have been stored on the computer, which had
been purchased at a flea market, without the user s knowledge. The examiner could not determine when the files
were viewed.

In order to be convicted of possessing something, it must be proven beyond a reasonable doubt that the
accused intentionally or knowingly exercised care, custody, or control over the object. A rational jury could not
find that the defendant possessed child pornography images found in the free space of his computer. While the
search warrant used to obtain the evidence in this case was based on an affidavit sufficient to establish probable
cause, the defendant should not have been convicted of possessing the
images found on his desktop computer. His convictions for the offenses of sexual assault and indecency
with a child were supported by the evidence.

Wise v. State, 2011 WL 754415 (Tex. App. Fort Worth).

SEARCH AND SEIZURE POLICE-CREATED EXIGENCY

Police officers set up a controlled buy of crack cocaine outside an apartment complex. After the sale, the
seller moved away quickly, walking through a breezeway and into the complex. Fearing the suspect would get
away, officers hurried to intercept him before he entered an apartment, but as they entered the breezeway, they
heard a door shut and smelled the strong odor of burnt marijuana. They saw two apartments, but didnt know
which one the suspect had entered. Believing the marijuana smell was coming from the apartment on the left, the
officers banged on the door as loud as [they] could and announced, This is the police or Police, police,
police. In response to the banging, the officers heard people moving around inside the apartment, causing them
to believe that the occupants were about to destroy drug evidence. After announcing their intention to enter the
apartment, the officers kicked in the door and went inside. They found the defendant, his girlfriend, and a guest
who was smoking marijuana, all in the front room. During a protective sweep, the officers discovered marijuana
and powder cocaine in plain view. In a subsequent search, they found crack cocaine, cash, and drug
paraphernalia. It was later discovered that the drug dealer actually lived in the other apartment, on the right. The
defendant was charged with drug trafficking. He moved to suppress the evidence, but the motion was denied.
The trial court found that the odor of marijuana produced probable cause, and that the warrantless entry was
justified by exigent circumstances, the likely destruction of evidence. The defendant appealed the denial of his
suppression motion, arguing that the police created the exigent circumstances by banging on the apartment door,
knowing that it probably would cause the inhabitants to try to destroy evidence. One state appeals court affirmed
the conviction, but the state supreme court reversed, holding that police cannot deliberately create the exigent
circumstances with the bad faith intent to avoid the warrant requirement. The state supreme court also observed
that if it was reasonably foreseeable that the investigative tactics employed by the police would create the
exigent circumstances, that exigency could not be the basis for a warrantless entry and search. The prosecution
petitioned the U.S. Supreme Court for certiorari, which was granted.

A Peace Officer’s Guide to Texas Law 57 2013 Edition