DuBose v. State , 1996 Tex. Crim. App. LEXIS 17 ( 1996 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant filed a motion to suppress evidence, claiming that he had not consented to a warrantless search of his person. After the trial court denied the motion, appellant pled guilty to possession of less than 28 grams of methamphetamine and “true” to two enhancement paragraphs. The trial court assessed punishment at 30 years confinement. Appellant appealed the denial of his motion to suppress evidence. The First Court of Appeals held that the trial court had erred, reversed the judgment and remanded. DuBose v. State, 864 S.W.2d 656 (Tex.App.—Houston [1st] 1998). We granted the State’s petition for discretionary review to determine whether the court of appeals erred in holding that appellant did not voluntarily consent to the search of his shoes.¹ Rule 200(e)(8). Tex.RApp.Pro.,

In Arcila v. State, 834 S.W.2d 357, 360 (Tex.Cr.App.1992), we discussed this Court’s role in reviewing decisions by the courts of appeals. We held that as a general policy, this Court will not interfere with an appellate court decision as long as the court of appeals, in reviewing the trial court, used the correct legal standard, considered all relevant evidence in the record, and afforded proper deference to the trial court as primary factfinder. In the instant case the court of appeals applied the correct legal standard and considered all relevant evidence, but failed to afford deference to the trial court’s ruling. In effect, the court of appeals engaged in a sort of de novo appellate review. Instead, it should have determined whether the trial court, in finding the search to be consensual and therefore denying the motion to suppress evidence, abused its discretion.² In the premises, Arcila does not require us to defer to the court of appeals’ ruling.

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At the suppression hearing, the trial court heard testimony from two Houston police officers involved in the search, Officers Daniel Rosales and G.A. Flowers, and from appellant. Officer Rosales testified that he and Officer Flowers set up surveillance outside of appellant’s residence. When appellant and his companion drove up and got out of their car, the officers approached them. Rosales asked appellant if he was “holding.”³ Appellant assured Rosales he was not and offered to allow Rosales to “check” him.⁴ Rosales searched appellant’s pockets and outer clothing but found nothing. Rosales then asked appellant if they could go inside so he could check underneath appellant’s pants. Appellant responded, “There’s no problem with that,” and the group entered appellant’s residence. There, Rosales asked appellant to pull down his pants. Appellant complied, but Rosales did not find any drugs. After appellant pulled his pants back up, Rosales asked appellant to take off his shoes. When appellant took off his right shoe, Rosales saw a plastic baggie fall from the shoe. Rosales picked up the baggie and appellant admitted that it contained methamphetamine. Rosales then placed appellant under arrest.

Officer Flowers’ testimony was similar to that of Rosales. Flowers testified that appellant consented to the entire search, outside and inside of the residence. Flowers testified that when they entered the residence, he pulled out his gun for safety. While Rosales searched appellant, Flowers kept the gun in his hand, but down by his side. According to Flowers, he never pointed his gun at appellant.

Appellant testified that he never consented to be searched, either outside or inside the house. Officer Flowers had already drawn his gun when the officers approached. When appellant told them he did not have any drugs, the officers searched him outside without his consent. The officers then directed him to go inside so that they could do a strip search. The baggie of methamphetamine, which the officers seized, did not fall out of appellant’s shoe, but rather was already under the couch.

II.

The trial court found that appellant voluntarily consented to the entire search. DuBose, 864 S.W.2d at 660. The court of appeals, however, held that appellant had voluntarily consented to only part of the search. In analyzing the scope of appellant’s consent, the court of appeals broke down the search into “discrete segments.” It held that the trial court’s finding that appellant consented to the outer body search outside of his residence was supported by the record, which showed appellant voluntarily agreed by both his words and his actions. Id. The trial court’s finding that appellant had consented to the search under his pants was supported by the record, which showed that appellant verbally gave his consent to that search request while still outside of the residence and before any weapons were drawn. Id.

However, the court of appeals held that the trial court’s finding that appellant had consented to the search of his shoes was not supported by the record. The court of appeals based this holding on its finding that the search of the shoes went beyond the scope of appellant’s consent to the outer body search and his consent to the search under his pants. Furthermore, no additional consent was given for the search of the shoes. Appellant’s removal of his shoes, upon request and without any objection, did not constitute voluntary consent because Officer Flowers had already drawn his gun, creating a coercive atmosphere. The court of appeals concluded: “No evidence in the record supports that consent was freely given at the point of the search when appellant was moved inside and weapons were produced.” Id., at 661.

III.

The State must prove, by clear and convincing evidence, that consent to a search was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968); Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972), overruled on other grounds, Kolb v. State, 532 S.W.2d 87, 89 n. 2 (Tex.Cr.App.1976). For consent to be voluntary, it must not be the product of duress or coercion, actual or implied. See Paulus v. State, 633 S.W.2d 827, 850 (Tex.Cr.App. [Panel Op.] 1981); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Cr.App.1991), cert. denied, — U.S. -, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). Whether the consent to search was in fact voluntary is to be determined from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, 863 (1973); Johnson v. State, 803 S.W.2d 272, 286 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991).

Even when an individual voluntarily consents to a search, an officer’s authority to perform the search is not without limit. May v. State, 582 S.W.2d 848, 851 (Tex.Cr. App. [Panel Op.] 1979). The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297, 303 (1991); May, 582 S.W.2d at 851; Montoya v. State, 744 S.W.2d 15, 25 (Tex.Cr.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). The standard for measuring the scope of consent is that of “objective” reasonableness — what the typical reasonable person would have understood by the exchange between the officer and the individual. Jimeno, 500 U.S. at 251, 111 S.Ct. at 1803-04, 114 L.Ed.2d at 302.

At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses, as well as the weight to be given their testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Cr.App. [Panel Op.] 1980); Allridge, 850 S.W.2d at 492. The trial judge is also the initial arbiter of the legal significance of those facts. See Tex.R.Cr.Evid., Rule 104(a); Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1990) (Opinion on rehearing on Court’s own motion). The court of appeals is to limit its review of the trial court’s rulings, both as to the facts and the legal significance of those facts, to a determination of whether the trial court abused its discretion. Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990). Even if the court of appeals would have reached a different result, as long as the trial court’s rulings are at least within the “zone of reasonable disagreement,” the appellate court should not intercede. Montgomery, 810 S.W.2d at 391.

IV.

The trial court denied appellant’s motion to suppress evidence. In finding that appellant consented to the entire search, the trial court must have resolved any factual disputes germane to consent in favor of the State.⁵ The court of appeals did not dispute the trial court’s resolution of the historical facts. Instead, the court of appeals proceeded to analyze the legal significance of those facts by breaking down the search, and the corresponding consent, into “discrete segments.” Based on this analysis, the court of appeals found that appellant did not voluntarily consent to the search of his shoe. However, this does not afford proper deference to the trial court. The appellate court should not defer merely to the trial court’s findings regarding the historical facts but also to the trial court’s conclusions regarding the legal significance of those facts. It would appear that when the trial court analyzed the legal significance of the historical facts it did not break down the search, and the corresponding consent, into discrete segments. See n. 6, ante. The real question for the court of appeals was whether it would have been rational for the trial court to analyze the search in any way other than in discrete segments. For example, would it have been rational for the trial court to look at this search, and the consent, not in discrete segments, but rather as one continuous occurrence, which began outside of the residence and continued inside? Would it have been rational, under this analysis, for the trial court to find that when appellant gave his consent to be searched, the police reasonably understood this to cover all reasonable means for determining whether appellant was in possession of narcotics — including checking inside appellant’s pants, to which appellant readily acceded, and later removing his shoes? Only by viewing the facts myopically was the court of appeals able to conclude there was “no evidence” to support the trial court’s conclusion that “consent was freely given at the point of the search when appellant was moved inside and weapons were produced.”⁶

When the courts of appeals analyze a trial court’s denial of a motion to suppress evidence they must be deferential to the trial court’s judgment, not only as to the historical facts, but also as to the legal conclusions to be drawn from the historical facts — at least so long as it appears the trial court has applied the correct standard of law to those historical facts. They should reverse the trial court’s decision only for an abuse of discretion; that is to say, only when it appears that the trial court applied an erroneous legal standard, or when no reasonable view of the record could support the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion.

Because it appears the court of appeals conducted a de novo review of the record, instead of deciding whether the trial court abused its discretion in this manner, we vacate its judgment and remand the cause for further analysis and disposition not inconsistent with this opinion.

1 . The State's ground for review states:

"The First Court of Appeals erred in holding that the trial court could not reasonably have found that appellant voluntarily consented to the search of his shoe.”

2 . "The State does not merely dispute the treatment of the facts by the court of appeals, see Arcila v. State, 834 S.W.2d 357, 360 (Tex.Crim.App.1992), but the standards of review employed by the court of appeals in reviewing those facts.” State’s Brief on PDR at pg. 6 n. 1.

3 . Officer Rosales testified that “holding,” in this context, means being in possession of narcotics.

4 .Officer Rosales testified on cross examination that the full exchange was as follows:

“Q: [defense counsel] And then exactly what words were asked for a consent? What question did you put toward him for a consent? A: I just asked him again — I said, ‘Chuck, are you sure you’re not holding?’

'Rosey, I’m not holding. You can check me if you want to.’

I said, 'You don’t mind if I search you?’

And he said, ‘No, sir.’ ”

5 . Since the trial court did not make any written findings, we can only infer from the conclusion reached what the factual findings must have been.

The State's and appellant’s positions were irreconcilable, viz: the State claimed that appellant had consented to every part of the search and appellant categorically denied that he had consented to any search. For the trial court to have found appellant consented to the entire search, it must have believed the officers’ testimony and disbelieved appellant’s.

6 . The scope of consent is generally defined by its expressed object. See p. 496, ante. Here Officer Rosales asked appellant if he could search his person for narcotics. It would not be unreasonable to expect that one’s "person” would include, inter alia, one’s shoes, especially when narcotics, which can many times be hidden in small areas, are the express object of the search.

Also, under this analysis, it would not be unreasonable to view the drawn weapon inside the residence as not vitiating the voluntariness of the consent. The court of appeals held, under its "discrete segments” analysis, that no evidence supported that consent was freely given at the point when appellant was moved inside and weapons were produced. However, viewing this as one continuous occurrence, the consent to search appellant’s person for narcotics had already been given outside of the residence, before the gun was drawn. Under this view the drawing of the gun would not necessarily affect the voluntariness of the previously given consent. While ”[t]he display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent,” Lowery v. State, 499 S.W.2d 160, 168 (Tex.Cr.App.1973), it is only a factor to be considered in the "totality of the circumstances” and is not alone dispositive. Cf. Meeks v. State, 692 S.W.2d 504, 509 (Tex.Cr.App. 1985) (whether or not in custody is only a factor); Id.., at 510 (whether or not informed had right to refuse consent is only a factor). Furthermore, it is not the presence of a coercive factor which makes consent involuntary but rather that the consent was given as a result of the coercion.