Jarrod Earl Johnson v. State ( 2006 )

Opinion filed August 31, 2006

Opinion filed August 31, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00146-CR

                                                    __________

                                JARROD EARL JOHNSON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR29992

                                                                   O P I N I O N

Jarrod Earl Johnson appeals his conviction by the court of the offense of possession of a controlled substance, cocaine, in an amount of less than one gram.  The court assessed his punishment at confinement for two years in the Texas Department of Criminal Justice, State Jail Division, suspended on community supervision for five years; a fine of $500; confinement in a court residential treatment facility for an indeterminate term not to exceed twenty-four months and confinement in jail as a condition of community supervision for ten days; and an additional seventy-five days in jail or until Johnson was transferred to a court residential treatment facility, whichever occurs first.  Additionally, the trial court suspended Johnson=s driver=s license for a period of 180 days.  Johnson contends in four points on appeal that the trial court erred by overruling his motion to suppress evidence of the cocaine police officers found in his apartment.  We affirm.

Johnson has contended in all four of his points on appeal that the trial court erred by overruling his motion to suppress evidence of the cocaine police officers found in his apartment.  We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  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 (Tex. Crim. App. 2000).  We also review the trial court=s determination of facts de novo if mixed questions of law and fact do not turn on a witness=s credibility.  The burden of proof is initially on a defendant who seeks to suppress evidence on the basis of a Fourth Amendment violation.  Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).  Once a defendant produces evidence that defeats the presumption of proper police conduct, the burden shifts to the State.  Id.  A defendant meets this burden by establishing that a search or seizure occurred without a warrant.  Id.  Therefore, once a defendant has established that a search or seizure occurred and that no warrant was obtained, the burden of proof shifts to the State. Id.  If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant.  Id. at 10.     At the hearing on Johnson=s motion to suppress, Officer Geovarsy Mitchell of the Midland Police Department testified that, on the evening of May 12, 2004, he went to the Metro Inn and contacted Tracie Wagaman, a suspect in a theft at another motel.  He stated that during their conversation Wagaman indicated that someone named Jay, whom Officer Mitchell knew to be Johnson, was her source for obtaining crack cocaine.  Officer Mitchell suggested that Johnson was part of a small narcotics ring operating at the Renaissance Apartments.

Wagaman, agreeing to attempt to obtain cocaine from the Renaissance group, placed a phone call that was answered by a female named Felicia.  Wagaman agreed to meet the female at a 7-Eleven to purchase $200 worth of cocaine.  The female was to be in a green car belonging to a third person.  Mitchell related that he sought assistance from other officers after the meeting had been arranged. 

Officer Mitchell testified that, after he saw Johnson and a female arrive in a green car, he motioned to the female to come to him.  He said Johnson and the female denied being together.  Officer Mitchell identified the female as Sabrina Kalinoski, who had a cousin named Felicia.  No cocaine was found on either Johnson or Kalinoski, nor was any found in the green car or the 7-Eleven.

Officer Mitchell related that Kalinoski told him that she had recently seen a stash of cocaine in Johnson=s apartment, offering to take him back there. He said that, after they arrived at Johnson=s apartment, Kalinoski started kicking and knocking on the door, saying, AShe=s flushing the dope.  If you don=t open the door, the dope=s gonna go.@  Officer Mitchell testified that, after obtaining a key to the apartment by a pat-down search of Johnson, he entered the apartment for the limited purpose of securing the residence.  He acknowledged that, after Kalinoski told him the dope was in the cabinet, he opened it and saw three crack rocks.  He stated that at that point they closed the residence and sought a search warrant. The affidavit supporting the warrant was admitted into evidence.  Officer Bill Anderson of the Midland Police Department testified that he found and seized the cocaine in Johnson=s apartment pursuant to the search warrant.

In Johnson=s four points of error, he complains that the trial court erred by overruling his motion to suppress because of the following various acts by police prior to obtaining the search warrant:  (1) obtaining Johnson=s apartment key from his pocket without a search warrant; (2) entering his apartment without probable cause and exigent circumstances; (3) creating any exigent circumstances prior to entering his apartment without a warrant; and (4) opening his cabinet during the warrantless search of his apartment, thereby exceeding the scope of the protective sweep of the residence.    

The State acknowledges that the finding of cocaine during the warrantless search constituted an illegal search.  Johnson acknowledges in his brief that the cocaine was finally obtained pursuant to a warrant.  Relying on Wong Sun v. United States, 371 U.S. 471 (1963), Johnson argues that the information used to substantiate the warrant and upon which the warrant was based was obtained unlawfully and is fruit of the poisonous tree.  We find Wong Sun to be distinguishable.  In Wong Sun, the Court held that certain evidence should have been suppressed because it was obtained as a result of an arrest conducted without a warrant and without probable cause.  Id. at 479.  It is not a situation where the evidence introduced at trial was subsequently obtained independently by a valid arrest warrant based upon probable cause.

The police officers had certain information available to them prior to the time that they entered the apartment.  That same information was used later to obtain a warrant to search the property. It is important to note that the affidavit for the search warrant that was presented to the magistrate in this case did not contain any information which the officers might have obtained when they first entered the apartment.  The magistrate who issued the search warrant was limited to assessment of probable cause as stated in the affidavit.  Elardo v. State, 163 S.W.3d 760 (Tex. App.CTexarkana 2005, pet. ref=d).  Therefore, being so limited, the issuing judge could not base his finding of probable cause upon anything which occurred inside of the apartment before the issuance of the warrant.  The search of the apartment was conducted pursuant to a search warrant, the validity of which has not been challenged by appellant except for his Afruit of the poisonous tree@ argument.  Once the State established the existence of a search warrant, it became appellant=s burden to come forward with evidence showing that the search was unreasonable.  Appellant did not meet that burden. We overrule points one through four. 

The judgment is affirmed.

PER CURIAM

August 31, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.