Reyes-Perez v. State ( 2001 )

Dissenting Opinion by

Justice DORSEY.

Reyes-Perez appeals the trial court’s denial of his motion to suppress contending that the cocaine was seized as the result of an unlawful search. I would find that, giving due regard to the trial court’s historical findings of fact, the evidence is sufficient to show that Reyes-Perez consented to the search. Accordingly, I would uphold the trial court’s denial of the motion to suppress.

When reviewing a trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving “almost total deference to a trial court’s determination of historical facts” and reviewing de novo the court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim. App.2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). When the trial court does not make explicit findings of historical fact, we review the evidence in a light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327-28. “In other words, we will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion.” Id. at 328. Then, we conduct a de novo review of the lower court’s application of the relevant Fourth Amendment standards. Id.

The trial court in this case made no explicit historical fact findings. Therefore, we assume that it made those implicit findings that support its conclusion. At the hearing on the motion to suppress, the State presented the testimony of the three police officers on the scene when Reyes-Perez was stopped and searched. Deputy Sheriff Roger Tumlinson testified that he initially stopped Reyes-Perez after clocking him on radar traveling 81 miles per hour. He said that Reyes-Perez exited his vehicle and they both walked to the back of the vehicle to get out of the way of traffic. Deputy Tumlinson stated that Reyes-Perez produced a Mexican driver’s license and it became apparent that his English was broken. Tumlinson said that his English was “very broken, but [they] managed to communicate.” He said that Reyes-Perez spoke to him in broken English rather than Spanish, and that they communicated “mostly by gestures.”

Tumlinson said that after Reyes-Perez produced his driver’s license and insurance, the officer asked him if he was carrying anything illegal in his vehicle. Tumlin-son said that at that point, Reyes-Perez said, “No, you look.” The officer testified further:

When he said that, he walked up to the car and opened the door on the car. I began to look in the car and he made a gesture with his hands for me to look. He said, “Look. You look.” He opened the door and done like that (indicating) and I began to look in the car. At that time the Deputy with me asked him if he had anything in the trunk and he retrieved the keys himself out of the ignition and opened the trunk and gestured again.

Tumlinson said that Reyes-Perez made a gesture as if to be indicating to the interior of the trunk. Tumlinson explicitly denied asking Reyes-Perez to get the keys and open the trunk. Tumlinson said that while searching the inside of the vehicle, he found on the floorboard on the right rear passenger’s side, what appeared to be a battery holder. About the time he found that, the other officer found a yellow plastic bottle in the trunk that appeared to contain an acid-like substance. Tumlinson said that they asked him if he was hiding anything under the hood and if they could look and he said, “no he wasn’t hiding anything, that we could look,” but Tumlin-son said that “at the same time his eyes got very big, his mouth basically dropped open, and he began to sweat immediately.”

Tumlinson said that when they looked under the hood, the smell of battery acid was so strong it made his eyes water. He noticed that it was a particular type of battery that he had been trained to recognize as one frequently used for transporting drugs. At that point, Tumlinson called for a Spanish interpreter. Before the interpreter arrived, he opened the caps on the top of the battery with a screwdriver and ran a screwdriver down in it. He found that the screwdriver would only go down about four inches, which indicated to him that there was something blocking it. After testing the battery with the screwdriver, he handcuffed Reyes-Perez.

When the interpreter arrived, they brought Reyes-Perez to the right front of the vehicle and asked him in Spanish what was in the battery. He responded that he did not know. They asked if they could remove the top of the battery and look inside. He shook his head to indicate, ‘Tes.” When they looked inside the battery, they saw a package containing approximately a kilo of cocaine.

Sheriffs Deputy David Kuntschik, who was the second officer involved in the stop and search, also testified. He offered little new information, but corroborated Tumlin-son’s version of the facts. Also, Highway Patrolman Robert Ynclan testified consistently with both officer’s version of the facts. Ynclan was the interpreter called to the scene to translate when they sought to search inside the battery.

The defense offered the testimony of Reyes-Perez. His testimony sharply contradicted that of the officers in some key respects. First, he said that the officer asked him to get out of the car and show him what was in the trunk. He said that immediately after stopping him and checking his licence, the officer asked him if in Spanish if he was carrying any “pistols or drugs.” He said no. He did not say that he told the officers to look for themselves. He said that the officers made him stand with his back to his own vehicle, with his hands on their patrol car. He said that he couldn’t see them searching his ear. He specifically denied giving the officers consent to search his car. Also, Reyes-Perez said that he did not know he was free to leave while the officers were searching his car, or he would have done it. Reyes-Perez also testified that the laws in Mexico are different and that he was unaware of his rights upon being stopped by an American police officer.

The protections afforded by the Fourth Amendment may be waived by an individual who consents to a search. Kolb v. State, 532 S.W.2d 87, 89-90 (Tex.Crim.App.1976). When the State relies on consent to justify a warrantless search, it must show by clear and convincing evidence that appellant’s consent was freely and voluntarily given. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991). The consent must be shown to be positive and unequivocal, and there must not be any duress or coercion. Allridge, 850 S.W.2d at 493; Meeks v. State, 692 S.W.2d 504, at 509 (Tex.Crim.App.1985). Whether a consent to search was in fact voluntary is a question of fact to be determined from the “totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Juarez v. State, 758 S.W.2d 772, 776 (Tex.Crim. App.1988). Texas follows this test.

The trial court, as the finder of fact, was free to believe the officers’ testimony and disbelieve that of Reyes-Perez. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App. 1996). We must afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. The officers both testified that upon asking only a few questions, Reyes-Perez volunteered to let them look into the vehicle. They testified that he opened the trunk without being asked. Reyes-Perez clearly consented, according to the officers’ version of the facts. The trial court believed the officers’ version in overruling the motion to suppress. I would affirm.

Justice NELDA Y. RODRIGUEZ and Retired Justice ROBERT J. SEERDEN join in this dissent.