No. 01-07-00590-CR
Opinion issued February 7, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1081579.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
TERRY JENNINGS, Justice.
After the trial court denied the motion to suppress evidence of appellant, Michael Eugene Smith, he pleaded guilty to the offense of possession of a controlled substance, namely methamphetamine, in an amount more than 200 grams but less than 400 grams. Appellant also pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses. Pursuant to appellant's plea agreement with the State, the trial court assessed appellant's punishment at confinement for 30 years. In two points of error, appellant contends that the trial court erred in denying his motion to suppress evidence as he did not voluntarily consent to a search of his residence and in not excluding his statements made to police officers that he had methamphetamine in his residence as they were the product of a custodial interrogation. We affirm.
Factual Background
In his motion to suppress evidence, appellant asserted that he was "arrested and searched without a valid warrant and/or probable cause and exigent circumstances," in violation of the Fifth and Fourteenth Amendments to the United States Constitution and article 1, section 9 of the Texas Constitution. He further asserted that the use of any illegally obtained evidence violated Texas Code of Criminal Procedure article 38.23. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). At the hearing on appellant's motion, Houston Police Officer Frank Scoggins testified that he had previously received information from a confidential source that appellant was selling methamphetamine and that he had methamphetamine concealed in his house. Scoggins conducted surveillance of appellant for several days. One morning, appellant left his house, drove to a business a few blocks way, and walked inside the business. In an attempt to avoid divulging his confidential source, Scoggins and other officers "decided to confront appellant and see if he would cooperate in the investigation with [them]." The officers approached appellant inside the business, identified themselves, asked appellant to "step aside and talk to [them]," and told appellant that they had information that he was selling methamphetamine. Appellant, who was "free to leave" and "not under arrest," agreed to cooperate, stepped to the side of the service counter, and admitted that he had five ounces of methamphetamine in his house. Appellant told the officers that he wanted "to leave his son and wife out of" the investigation, which the officers agreed to do. After appellant agreed to sign a consent to search his house, the officers and appellant left the business. The officers gave appellant a consent form, and he read the consent form, confirmed he understood it, and signed it. Appellant then rode to his house in a car driven by another officer, and Scoggins drove appellant's van to appellant's house. Scoggins explained that the officers did not threaten or handcuff appellant and he was "not under arrest." The State introduced into evidence the "voluntary consent for search and seizure," in which appellant stated that he gave consent to Officer Scoggins and Officer Fred Wood to search his house, he understood that he had "the right to refuse to give this consent," and that "no promises, threats, force, physical nor mental coercion" had been used against him. After arriving at appellant's house, Scoggins, Wood, and other officers followed appellant inside. Appellant led the officers into the bedroom, where appellant recovered and unlocked a lock box, which contained methamphetamine and cash. On cross-examination, Scoggins explained that none of the officers were in uniform or marked cars at the time that they confronted appellant. He denied threatening appellant or his family and maintained that appellant was not under arrest until after appellant showed him the methamphetamine. Although Scoggins stated that "after [appellant] told me that he had five ounces, he wasn't going to walk away," he explained that he might have then gone to get a search warrant if appellant had not cooperated. Appellant would have been "free to go" even after he admitted to having the five ounces. Although the officers "patted down" appellant for weapons, no officer "held" appellant as he and the officers exited the business. Scoggins kept his weapon concealed, and although one of the five officers may have been wearing a police vest, none of the others did. Scoggins conceded that the officers did not inform appellant of his legal rights. Houston Police Officer Fred Wood testified that after he, Officer Scoggins, and Officer Cargill questioned appellant inside the business for a few minutes, the officers and appellant went outside, appellant admitted to having several ounces of methamphetamine at his house, and appellant cooperated and signed a form in which he consented to the search of his house. Wood explained that appellant was not handcuffed or under arrest as they drove back to his house. When the officers and appellant arrived at appellant's house, appellant took the officers inside to a bedroom and opened a lock box, which contained methamphetamine and cash. On cross-examination, Wood agreed that when the officers approached appellant at the business, there were three officers standing near appellant and there were other officers who were probably inside the business. He noted that appellant was not under arrest and none of the officers touched appellant as they left the business. When asked whether appellant was "free to leave," Wood stated that it was Scoggins's decision and Wood was not privy to Scoggins's entire conversation with appellant. Wood explained that appellant was asked to ride with the officers to his house in accord with the officers' preferred practice under the circumstances. He noted that appellant was arrested and advised of his legal rights after appellant revealed the methamphetamine. Houston Police Officer Cargill testified that he and Officer Scoggins approached appellant inside a business, Scoggins told appellant that they had been conducting an investigation, and the group stepped outside. Appellant admitted to having five ounces of methamphetamine inside his house and agreed to allow the officers to search his house. Cargill stated that appellant, who was not under arrest and not threatened, read and signed the consent form voluntarily, rode with Cargill back to appellant's house, led the officers to the bedroom, and unlocked a box containing methamphetamine. On cross-examination, Cargill denied holding appellant or telling appellant that he "could do this the hard way or the easy way." Cargill explained that after appellant admitted to possessing five ounces of methamphetamine, the officers probably would not have released appellant. He noted that the officers had "detained" appellant and asked for his consent to search the house. Cargill agreed that appellant was not allowed to drive his own car to his house and that one of the officer's had taken appellant's car keys. In contrast to the officers' testimony, appellant testified that, as he stood inside the business, Officer Scoggins grabbed his elbow, showed him a badge, and told him to come outside to talk. Four or five police officers, one of whom was wearing a police vest, took him outside, and they were yelling. Officer Scoggins, who still had appellant by the elbow, said, "We're going to do this the hard way or the easy way." Appellant stated that this encounter lasted about ten minutes. The officers then took all of appellant's personal property without his permission, including his wallet and keys. The officers were "all around appellant," appellant was not free to leave, and he felt that he was under arrest. Appellant denied admitting that he had methamphetamine in his house. The officers told appellant that he would either sign the consent form or they would go to appellant's house, "tear it up," and "take everybody to jail." Appellant explained that he was in fear for his family because the officers threatened them with arrest. Appellant further testified that he could see the officers' guns and one of the officers had his hand on his gun as he told appellant to sign the consent form. The officers did not allow him to read the consent form, they did not explain it to him, and he signed it under duress. Appellant stated that one of the officers had his gun and badge showing during the incident, but appellant agreed that none of the officers ever pointed a gun at him. When appellant and the officers arrived at appellant's house, the officers asked appellant's son to open the door, and his son refused. Appellant cooperated, let the officers in, and subsequently opened the lock box containing the methamphetamine. Barry Ransom, an acquaintance who went to school with appellant, testified that as he drove up to the business, he saw appellant coming out of the business with several police officers, and appellant looked frightened. The officers had a "grip" on appellant, and Ransom thought appellant had been arrested. As he drove by, Ransom heard one of the officers say, "We can do this the hard way or the easy way," and he heard appellant profess his innocence. The trial court denied the motion to suppress. Standard of Review
In reviewing a trial court's ruling on a motion to suppress evidence, our standard of review is bifurcated: we give almost total deference to a trial court's determination of historical facts and review de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We review the evidence in the light most favorable to the trial court's ruling, and when, as here, the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007). Consent
In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence "because the consent to search form was not executed voluntarily." Appellant asserts that the actions of the officers "amounted to duress or coercion." Appellant notes that five officers confronted and surrounded appellant, all were armed, and one had a jacket stating "police," thus making an "overwhelming display of police authority." The Fourth Amendment grants individuals "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. There is a "strong preference for searches to be administered pursuant to a warrant," and "the search of a residence without a judicially authorized warrant is presumptively unreasonable." Gutierrez, 221 S.W.3d at 685. However, consent, when voluntarily given, provides an exception to the warrant requirement. Id. at 686. "The validity of a consensual search is a question of fact, and the State bears the burden to prove by clear and convincing evidence that consent was obtained voluntarily." Id. This burden includes proving that consent was not the result of duress or coercion. Id. In determining if the State has met its burden, we examine the totality of the circumstances. Id. at 686-87. Here, Officer Scoggins testified that because a confidential source informed him that appellant was selling and concealing methamphetamine, he and several other officers approached appellant inside a business to seek appellant's cooperation. Appellant agreed to talk, admitted to having five ounces of methamphetamine, and asked the officers to leave his family out of the investigation. The officers agreed to appellant's request, and appellant consented to the search of his house. After the officers and appellant exited the business, the officers gave appellant a consent to search form. Although the officers conducted a "pat down" of appellant for weapons, he was never restrained or threatened, and the officers' weapons were concealed. Only after appellant had read the consent form, which stated that he had the right to refuse consent, appellant confirmed that he understood it and signed it. Appellant then traveled in an officer's car to appellant's house, and Officer Scoggins drove appellant's van to the house. Upon arrival, appellant led the officers to a bedroom where he revealed his methamphetamine. Officers Wood and Cargill offered consistent testimony, especially in regard to the consent issue. Wood testified that he and the other officers questioned appellant inside the business for a few minutes, the officers and appellant exited, appellant admitted to having several ounces of methamphetamine at his house, and appellant signed the consent to search his house. When the officers and appellant arrived at appellant's house, appellant led the officers to a bedroom where he revealed his methamphetamine. Wood confirmed that none of the officers held appellant as they exited the business and that appellant was not under arrest until after showing them the methamphetamine. Cargill testified that he and Scoggins approached appellant inside a business, all the men stepped outside, appellant admitted to having five ounces of methamphetamine inside his house, appellant consented to a search of his house, and appellant read and signed the consent form voluntarily. Cargill denied holding or threatening appellant. Although appellant offered conflicting testimony supporting his assertion that he consented to the search under duress or coercion, we presume that the trial court resolved the disputed testimony against him. See id. at 687. Reviewing the evidence in the light most favorable to the trial court's ruling, we hold that the State satisfied its burden of presenting clear and convincing evidence that appellant's consent was obtained voluntarily. Accordingly, we further hold that the trial court did not err in denying appellant's motion to suppress evidence. We overrule appellant's first point of error. Custodial Interrogation
In his second point of error, appellant argues that the trial court erred "in not excluding statements made by appellant, including his statements concerning how much methamphetamine was at appellant's house and the consent form, because they were the product of custodial interrogation and no Miranda warnings were given." Appellant asserts that he was actually under arrest "from the time the officers told him they knew he was concealing methamphetamine inside his house." Appellant further asserts that he was surrounded by the officers and that a reasonable person in his position would not have felt free to leave. The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself[.]" U.S. CONST. amend. V. "Informing an accused of his legal rights "safeguard[s] an uncounseled individual's constitutional privilege against self-incrimination during custodial interrogation." Herrera v. State, No. PD-1986-05, 2007 WL 4146707, at *3 (Tex.Crim.App. 2007). "[C]ustodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). When determining custody for Miranda purposes, we apply a reasonable person standard. Id. Thus, a person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Id. The defendant bears the initial burden of proving that a statement was the product of custodial interrogation. Herrera, 2007 WL 4146707, at *4. The State has no burden unless the record as a whole clearly establishes that the defendant's statement was the product of custodial interrogation by an agent for law enforcement. Id. A trial court's custody determination presents a mixed question of law and fact, and we afford almost total deference when questions of historical fact turn on credibility and demeanor. Id. Conversely, when questions of historical fact do not turn on credibility and demeanor, we will review a trial court's custody determination de novo. Id. Here, viewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court could have reasonably concluded that appellant was not subjected to a custodial interrogation. The officers testified that they approached appellant inside a business, sought appellant's cooperation in the methamphetamine investigation, and appellant immediately agreed to cooperate. Appellant then admitted to possessing a small amount of methamphetamine and consented to a search of his house, possibly in exchange for the officer's agreement to his request to leave his family out of the investigation. According to the officers, they never threatened or restrained appellant in any way during this incident. Accordingly, we hold that the trial court did not err in not excluding appellant's admission that he had methamphetamine in his house and his consent to a search of his house. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.