Payton Tyler Ross v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00461-CR
___________________________
PAYTON TYLER ROSS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR17-0824
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Introduction
Around midnight on August 17, 2017, police stopped a black 2007 Hummer
H2 that was going 12 miles over Interstate 20’s posted 70 mile-per-hour speed limit.
Appellant Payton Tyler Ross was the Hummer’s passenger. After the driver, “Betty,”
consented to Weatherford Police Officer Kayla Callaway’s request to search the
vehicle, Officer Callaway found a third party’s driver’s license inside a wallet on the
passenger’s seat and then two ecstasy pills in a second wallet located inside a purse on
the passenger-side floorboard.
Based on those two pills, Ross was charged with possession of a controlled
substance in the amount of less than one gram. After the trial court denied her
motion to suppress, she pleaded guilty in exchange for four years’ deferred
adjudication community supervision and a $1,000 fine, among other terms and
conditions. In a single issue, Ross complains that the trial court erred by denying her
motion to suppress. We affirm.
II. Suppression Hearing
Officer Callaway was the sole witness who testified at the suppression hearing.
Her account mirrored the video footage from her body camera, which the trial court
admitted into evidence and reviewed during the hearing.
Immediately after Officer Callaway walked up to the Hummer’s driver’s side
door, she asked Betty for her driver’s license and insurance, and while she waited for
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Betty to retrieve the items, Officer Callaway asked, “Who’s been drinking?” Betty
replied, “Not me.”1 Officer Callaway also asked Ross, who was also a minor, for her
identification. After receiving both women’s IDs, Officer Callaway informed Betty
that she had been stopped for speeding. Betty said that the vehicle belonged to her
mother.
Officer Callaway asked Betty where they had been going, and Betty replied that
she lived just down the road. When Officer Callaway asked Betty where they had
been coming from, Betty replied, “Wal-Mart, actually,” and said that they had just left
Wal-Mart. At that point, Officer Callaway asked them to “hang tight” and walked
back to her patrol vehicle with their ID cards.2 A plainclothes detective, who had
been standing by the passenger door of the Hummer with a flashlight, walked back to
join Officer Callaway.3
Betty was subsequently given a citation for “Driving Under the Influence –
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Minor.”
2
During a traffic stop, an officer may request the driver’s license, vehicle
registration, and proof of insurance, and the officer may run a computer check on that
information. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). An officer
may ask drivers and passengers about matters unrelated to the stop’s purpose so long
as the questioning does not measurably extend the stop’s duration. Id.
3
Officer Callaway testified that prior to the traffic stop, she had been waiting on
the north side of I-20 to assist some detectives who were watching vehicles at the
Love’s truck stop “in reference to some narcotics activity.” The detectives were in an
unmarked vehicle behind the Hummer. When Officer Callaway’s body camera
footage began, a voiceover dispatch advised, “Primary suspect is not in this vehicle.”
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When Officer Callaway returned to the Hummer, she asked Betty for her age.
Betty said that she was 20 years old and shook her head “no” in response to Officer
Callaway’s second question about drinking. Officer Callaway asked Betty to turn off
the vehicle and get out of the car so that she could check her eyes. Officer Callaway
inquired as to how Betty knew Ross, and Betty told her that Ross was one of her best
friends.
Once Betty was outside of the Hummer, Officer Callaway questioned her again
about where they had been coming from, and Betty repeated what she had said
before, “Wal-Mart.” Officer Callaway asked her how long ago they had left Wal-Mart,
adding, “[B]ecause you didn’t just leave Wal-Mart.” Betty responded that after they
left Wal-Mart, they went to Love’s.
Officer Callaway then asked Betty if there was any alcohol in the vehicle, and
Betty said, “No, feel free to check,” and waved expansively toward the vehicle.
Officer Callaway also asked if there “[was] anything in the vehicle that [was] not
supposed to be?” and Betty replied, “No, ma’am.” Officer Callaway then directed
Betty to stand by the patrol vehicle and approached the Hummer’s passenger side.
When she reached the vehicle, Officer Callaway called out, “Ms. Ross, will you step
out here for me, please, ma’am?” After Ross emerged, Officer Callaway directed her
to stand outside by Betty. Ross complied, and Officer Callaway began her search of
the vehicle.
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Officer Callaway’s body camera footage revealed a Michael Kors purse on the
passenger-side floorboard, a wallet on the passenger seat, and a plugged-in cell phone
on the passenger seat. When Officer Callaway opened the wallet that was on the
passenger seat, she found a driver’s license that belonged to neither Betty nor Ross.4
Officer Callaway walked back to the two women and asked them who “Casey”
was. Betty replied, “That’s a friend of mine, her ID got lost, and I had it for her . . . .
I had it, and so that’s why I kept it.”5 Officer Callaway then returned to the vehicle,
finished searching the first wallet, and then reached into the Michael Kors purse and
pulled out another wallet. Inside that wallet, she found a social security card with
Ross’s name on it, what appeared to be a male’s identification card, and a “small, clear
plastic baggie[] with two pills that [she] believed to be Ecstasy or MDMA.”
After discovering the two pills, Officer Callaway returned to the two women
and handcuffed Ross, telling her that it was “for what [Officer Callaway] found in
[her] wallet.” On Officer Callaway’s way back to the Hummer to continue her search,
Betty could be heard telling the plainclothes detective, “I did not know that she had
anything on her . . . .”
4
Officer Callaway also looked at a social security card and a bank card in the
wallet, but the video does not reflect whose name was on either item.
5
Casey’s license reflected that she lived in Abilene and was older than 21. Betty
said that Casey was “in college right now.”
5
During cross-examination, Officer Callaway agreed that at the time Betty
consented to the search of the vehicle, Betty was outside the vehicle and Ross was still
inside the vehicle. Officer Callaway also testified that she knew when she searched
the Michael Kors purse that it belonged to Ross, not Betty, because she had seen a
social security card with Ross’s name on it.6 She also agreed that she did not ask Ross
for consent to search the purse. And, finally, she agreed that she would have allowed
Ross to take her purse out of the vehicle with her if Ross had requested it.
III. Discussion
In her single issue, Ross complains that the trial court erred by denying her
motion to suppress because the scope of Betty’s consent to search for alcohol did not
extend to Ross’s purse and wallet; Betty had neither actual nor apparent authority to
consent to the search of Ross’s purse and wallet because she did not share access to
or have control over or mutual use of Ross’s purse; Ross was never asked if she
consented to the search and was led away from the vehicle such that she could not
observe the search of her purse and wallet; and the State had no other way to meet its
burden of probable cause to search the vehicle because the traffic stop was based on
speeding and Betty’s consent to search was predicated only upon suspicion of DWI.
Ross asserts that as soon as Officer Callaway saw that the purse belonged to Ross, she
6
Officer Callaway’s body camera footage reflected that she did not see the
social security card with Ross’s name on it until after she began searching the purse
but before she found the two pills.
6
should have stopped and asked Ross if she could search her purse and wallet and that
the search became unlawful when Officer Callaway failed to make further inquiry
about consent “between seeing [Ross’s] i.d. and social security card and the two pills.”
The State responds that assuming Ross preserved her complaint for our review
when she informed the trial court at the beginning of the hearing that she was “just
contesting specifically the scope of the search,” the trial court did not err by denying
her motion because Ross left her purse in the vehicle, which was subject to a lawful,
global grant of consent to search by the driver “and was based on probable cause to
believe that evidence of alcohol and identifying information possession was present.”
Specifically, the State contends that when Ross left the vehicle without her purse,
“said purse became just another container inside the vehicle which the driver’s global,
unfettered and presently unchallenged grant of consent controlled over [Ross’s]
‘subservient’ rights to decide whether a search would take place therein and what
form said search would take.”
A. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial
court’s decision, we do not engage in our own factual review. Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.
App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of
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the witnesses’ credibility and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to the
trial court’s rulings on (1) questions of historical fact, even if the trial court
determined those facts on a basis other than evaluating credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on evaluating credibility and
demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09
(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the witnesses’
credibility and demeanor, we review the trial court’s rulings on those questions
de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim.
App. 2005); Johnson, 68 S.W.3d at 652–53.
B. Exceptions to Warrant Requirement
Voluntary consent to a search is an exception to the warrant requirement, and
it may be given orally or by action, or shown by circumstantial evidence. Valtierra v.
State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010). If the consent to search is open-
ended, a reasonable person has no cause to believe that the search will be limited in
some way. Id. at 449. We must take into account any express or implied limitations
or qualifications attending consent that establish the permissible scope of the search
in terms of such matters as time, duration, area, or intensity. State v. Weaver, 349
S.W.3d 521, 526 (Tex. Crim. App. 2011). A person’s silence in the face of an officer’s
further actions may imply consent to that further action. Id.; Lemons v. State, 298
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S.W.3d 658, 662 (Tex. App.—Tyler 2009, pet. ref’d) (“Appellant’s failure to object to
Thornhill’s continued search of his phone after bestowing on him such general
consent to search was an indication that Thornhill’s search was within the scope of
Appellant’s initial consent.”). And, generally, with regard to consent to search a
vehicle, unless an officer’s investigation reveals more information about the social
hierarchy within a vehicle, once the driver has consented to the search, no other
consent is necessary or pertinent. State v. Copeland (Copeland I), 399 S.W.3d 159, 164
(Tex. Crim. App. 2013) (listing examples of what might change the positions of the
occupants in a vehicle’s hierarchy with regard to consent); see State v. Copeland (Copeland
II), 501 S.W.3d 610, 612 (Tex. Crim. App. 2016) (“In the first appeal, we held that
Copeland could not deny consent for police to search the vehicle when the driver and
registered owner of the vehicle did consent to the search.”).
Another exception to the warrant requirement is that police may lawfully
search an automobile if they have probable cause to believe that the vehicle contains
evidence of a crime. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008) (citing
Wiede, 214 S.W.3d at 24), cert. denied, 555 U.S. 1154 (2009). Probable cause to search
exists when there is a “fair probability” of finding inculpatory evidence at the location
being searched. Id. If this exception applies, then the police may search “every part
of the vehicle and its contents that may conceal the object of the search.” Id. (citing
United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 2173 (1982)). And police
officers with probable cause to search a car for evidence of a crime may inspect
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passengers’ belongings found in the car that are capable of concealing the object of a
search. Wyoming v. Houghton, 526 U.S. 295, 307, 119 S. Ct. 1297, 1304 (1999). In our
determination of whether probable cause for a search exists, we examine the events
leading up to the stop or search and then decide whether these historical facts, viewed
from the standpoint of an objectively reasonable police officer, amount to reasonable
suspicion or to probable cause. Robino v. State, 548 S.W.3d 108, 114 (Tex. App.—
Texarkana 2018, no pet.) (citing Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct.
1657, 1661–62 (1996)).
C. Analysis
Ross was inside the vehicle when Betty, who was outside of the vehicle, granted
consent to search the vehicle to Officer Callaway, first by telling Officer Callaway, in
response to her question about alcohol in the vehicle, to “feel free to check,” and then
stating, in response to Officer Callaway’s question about whether there was anything
else in the vehicle that was not supposed to be there, that there was not. When Betty
told the officer to “feel free to check,” she gestured broadly at the vehicle. Therefore,
the trial court could have interpreted Betty’s physical gesture and her negative
response to “anything else” as granting a search that was not limited to the original
inquiry about alcohol. See Valtierra, 310 S.W.3d at 448. Such an unlimited scope of
consent is supported by Betty’s lack of objection when the first fruit of Officer
Callaway’s search was the discovery of an additional driver’s license—belonging to
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neither Betty nor Ross—in a wallet found on the passenger’s seat. See Weaver, 349
S.W.3d at 526.
Once Officer Callaway found the third-party’s driver’s license, she had
probable cause to search the other containers inside the car for similar contraband.7
See Tex. Penal Code Ann. § 32.51 (“Fraudulent Use or Possession of Identifying
Information”), § 37.10(a)(6) (stating that a person commits an offense if he possesses
7
This case is unlike those that Ross cites in which the State failed to prove that
a male driver had a legitimate privacy interest in, had exercised equal control over, or
had the authority to jointly use a female passenger’s purse that was in the car at the
time of a search. Cf. Blythe v. State, No. 05-07-00813-CR, 2008 WL 4756909, at *3
(Tex. App.—Dallas Oct. 31, 2008, no pet.) (mem. op., not designated for publication)
(holding that the trial court should have suppressed the evidence found in appellant-
passenger’s purse when the State failed to prove that the male driver had a legitimate
privacy interest in, exercised equal control over, or had the authority to jointly use
appellant-passenger’s purse that was in the car at the time of the search to which he
had consented); Stokvis v. State, 147 S.W.3d 669, 670–72 (Tex. App.—Amarillo 2004,
pet. ref’d) (concluding that the search of Stovkis’s purse was improper when no one
asked her for permission to search her purse and no evidence in the record suggested
that the male driver, who had consented to the search, had exerted or claimed to exert
some aspect of control over or an interest in the purse). Nor is it like those in which
an officer first asked to whom a bag belonged and then searched it without the
consent of the party claiming it. Cf. May v. State, 582 S.W.2d 848, 851–52 (Tex. Crim.
App. [Panel Op.] 1979); State v. Krall, No. 13-12-00469-CR, 2013 WL 6547388, at *1
(Tex. App.—Corpus Christi Aug. 1, 2013, no pet.) (mem. op., not designated for
publication).
Here, the record does not reflect that Officer Callaway knew the purse on the
passenger-side floorboard was Ross’s before she removed a wallet from it and found
Ross’s social security card inside that wallet. Nothing in the record reflects that a
second purse was in the vehicle owned by Betty’s mother. Thus, until Officer
Callaway saw Ross’s social security card, the purse she was searching could have
belonged to Betty, to Betty’s mother, to Ross, or based on the extra ID found in the
wallet on the passenger seat, to some other person.
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a governmental record with knowledge that it was obtained unlawfully); Tex. Transp.
Code Ann. § 521.451 (prohibiting possession of a driver’s license that one knows is
fictitious or has been altered); Tex. Alco. Bev. Code Ann. §§ 106.07(a), .071 (setting
forth the Class C misdemeanor offense of a minor presenting any document that
indicates that she is twenty-one years of age or older to a person engaged in selling or
serving alcoholic beverages); Houghton, 526 U.S. at 302, 119 S. Ct. at 1301 (explaining
that when there is probable cause to search for contraband in a car, a passenger’s
personal belongings, just like the driver’s belongings or containers attached to the car
like a glove compartment, are “in” the car); Schenk v. State, No. 05-14-00207-CR, 2015
WL 1243401, at *7 (Tex. App.—Dallas Mar. 16, 2015, pet. ref’d) (mem. op., not
designated for publication) (“The glaring omission from the facts of Stokvis is the
presence of drugs or other contraband found inside the vehicle providing probable
cause to search other items inside the car.”); see also Dahlem v. State, 322 S.W.3d 685,
689 (Tex. App.—Fort Worth 2010, pet. ref’d) (reciting that probable cause to search
exists when reasonably trustworthy facts and circumstances within the officer’s
knowledge would lead persons of reasonable prudence to believe that an
instrumentality of a crime or evidence pertaining to a crime will be found and that if
probable cause justifies the search of a lawfully stopped vehicle, it justifies the search
of every part of the vehicle and its contents that may conceal the object of the search).
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Viewing the evidence in the light most favorable to the trial court’s ruling, we
cannot say that the trial court erred by denying Ross’s motion to suppress. See Wiede,
214 S.W.3d at 24–25. Accordingly, we overrule Ross’s sole issue.
IV. Conclusion
Having overruled Ross’s sole issue, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 27, 2019
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