Trina Lynn Olguin v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TRINA LYNN OLGUIN,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.	' ' ' ' '  '	No. 08-02-00241-CR Appeal from the 244th District Court of Ector County, Texas (TC# C-29,057)

MEMORANDUM OPINION

Trina Lynn Olguin appeals the trial court=s denial of her motion to suppress evidence and her motion to suppress unlawful stop, detention and arrest.  After the denial of these motions, Olguin pleaded guilty to possession of a controlled substance, to wit: cocaine, in an amount of four grams or more but less than two hundred grams, and received a sentence of eight years= confinement, probated, a 180 day suspension of her driver=s license, and payment of a fine.  We affirm.

Facts

On April 20, 2001, Officer Kelly Cecil stopped a Plymouth Neon driving forty-four miles per hour in a thirty mile per hour zone.  As he approached the vehicle on the corner of West 20th and Santa Monica, Trina Lynn Olguin, the driver, stuck her head out of the window and started talking to him.  When the officer asked for her license and insurance, Olguin said she had it in her trunk.  After looking through the trunk, Olguin told the officer that she could only find her birth certificate.

As Officer Cecil was looking at the birth certificate, he explained to Olguin that he could smell the odor of marijuana coming from the inside of her car.  He also noticed that she was Afidgety, kind of hyper, and I don=t know if you want to call it nervous, whatever, just kind of bouncing around a little.@ After Olguin told him there was no reason for the smell of marijuana to be coming from the car, Officer Cecil kept talking with her.  Then he noticed the smell of marijuana coming from her.  He asked her if she had been smoking marijuana that day. She said no.  She then told the officer that she had just left her boyfriend=s house for lunch.  When asked if her boyfriend or anyone else was smoking marijuana there, she told the officer that she was at her cousin=s house and that the cousin was smoking marijuana.

Officer Cecil asked if she had any narcotics in the car.  She said no and offered to let the officer check her bag. No narcotics were found in her bag. He then asked if she had any narcotics in her car.  She answered no.  When Officer Cecil asked if he could search the car, Olguin walked to the door, which was open, but did not respond verbally.  When he asked a second time, Olguin just looked at him.  The third time, he asked if she would mind if he searched the car.  She said no, and he began his search.  There was no written consent, but the interaction was videotaped. When the officer stepped to the open driver=s door, he found a half-burned marijuana cigarette in the handle of the door panel.  At that point, Olguin was arrested and handcuffed.  She was then read her Miranda rights. After Olguin responded that she understood her rights, Officer Cecil escorted her to the back of his cruiser.

Officer Cecil continued to search the car; checking the pockets of a jacket in the passenger seat, he found a pack of cigarettes, some money, and a plastic bag containing what appeared to be cocaine.  A field test confirmed that the substance in the bag was cocaine.  The cocaine in the plastic bag was packaged in fourteen individually wrapped balls of cocaine with an aggregate weight of seventeen grams.  In the right pocket of the jacket was a small amount of marijuana and some rolling papers.

As they were driving to the law enforcement center, Olguin told Officer Cecil that she was getting dizzy and that her hands and feet were swelling.  He asked if she wanted an ambulance, but she declined.  He also asked her how long she had been using cocaine.  Olguin told him that she had been doing cocaine since she was seventeen years old, but Anot as bad as she=s been doing it now.@ She also told the officer that the cocaine was for personal use and that she bought it for $400.  At no point did Olguin indicate to the officer that she wanted to invoke her right to remain silent.  The video recording continued while he transported her.

Olguin was indicted for the possession of cocaine.  After a hearing, Judge Watkins denied the motion to suppress the evidence from the search.  Olguin entered an open plea to possession, and received a sentence of eight years= confinement, probated, a 180 day suspension of her driver=s license, and payment of a fine.

Consent to search was voluntary

Point of Error One contends the trial court abused its discretion by denying Olguin=s motion to suppress when the State failed to prove, by clear and convincing evidence, that appellant=s consent to search her vehicle was clear and unequivocal.  The basis of Olguin=s argument is that the first two times that Officer Cecil requested permission to search her car, Olguin did not verbally respond in the affirmative or negative.  Only on the third request, in which the officer asked if Olguin Awould mind@ if he looked in the car did she give permission.  Counsel for the appellant presents the first two responses as refusals to give consent.  We cannot agree.  Although multiple requests are considered by the courts in determining whether consent is voluntary, there is no rule that bars officers from making more than one request for permission to search, particularly in the face of indefinite responses.

Standard of review

In reviewing a trial court=s ruling on a motion to suppress evidence, an appellate court applies a bifurcated standard.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). We give almost total deference to the trial court=s determination of historical facts, and review de novo the court=s application of the law of search and seizure.^[1]  Id. Due weight should be given to the inferences made by the trial judge.  Guzman, 955 S.W.2d at 87.

The law of voluntary consent

Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued on probable cause is per se unreasonable, subject to a few well-established exceptions.  Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable case.  Carmouche, 10 S.W.3d at 331 (citing Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043-44).  In order for consent to search to be valid under the Fourth Amendment it must be voluntary, not coerced by explicit or implicit means.  Id. (citing Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Schneckloth, 412 U.S. at 228, 93 S.Ct. at 2048, 36 L.Ed.2d 854; Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991)). Consent must be shown to be positive and unequivocal, and there must not be any duress or coercion.  Id.  Consent is not established by A>showing no more than acquiescence to a claim of lawful authority.=@ Id. (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968)).

The burden of proving that consent to search was freely given falls on the State. Although the Federal Constitution only requires that the State prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution imposes a higher standard, requiring the State to show by clear and convincing evidence that consent to search was freely given.  Id.; State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997).

Voluntariness of consent is determined by looking at the Atotality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.@ Reasor, 12 S.W.3d at 818 (citing Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047).  A number of factors enter the determination of whether the consent was voluntarily given for the search:  whether the consenting person is in custody; whether he or she was arrested at gunpoint; whether the person was informed that he or she did not have to consent; the constitutional advice given to the accused; the length of detention; the repetitiveness of the questioning; and the use of physical punishment.  Laney v. State, 76 S.W.3d 524, 532 (Tex. App.--Houston [14th Dist.] 2002, pet. granted) (citing Carmouche, 10 S.W.3d at 331; Reasor, 12 S.W.3d at 818).  Courts also consider the characteristics of the person given consent in the determination. These include the youth, education, and intelligence of the accused.  Id. (citing Reasor, 12 S.W.3d at 818).

Applying the law to these facts

Olguin was in her mid-twenties at the time of her arrest.  There is no indication that she lacked any capacity, other than the fact that she may have been under the influence of marijuana and she was feeling dizzy after she was arrested.  Although appellant was not in a situation in which she would have felt free to leave, she had been stopped for speeding.  Further, the officer was not on a fishing expedition to find contraband in the car of a person stopped for speeding.  Rather, he was reacting to a smell of marijuana coming from the car. Olguin was not arrested until after she gave consent to search the car and the officer found a half-burned marijuana cigarette in the driver=s side panel of the door. At no time does the officer draw a gun or physically restrain Olguin.

Olguin makes much of the fact that there were three requests before she gave permission for the officer to search the vehicle.  Notably, there was no definitive verbal response refusing consent. Although the officer did not tell her that she did not have to consent to a search, this alone is not determinative. Carmouche, 10 S.W.3d at 332-33 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059).  The trial judge, after viewing the videotape of the stop, did not find the first two responses to be refusals that would disprove the voluntariness of her response when the officer asked if she would mind if he searched. Officer Cecil asked appellant three times, in various forms, if he could search the vehicle.  He did not begin the search until Olguin=s permission was given.  Appellant responded with clarity only on the third moment, when he asked if she Awould mind. . .@ Her first two non-verbal responses cannot be characterized as asserted refusals; rather, they appear to be moments of assessing her situation and deliberating whether to give consent.

Olguin further argues that she was answering no after a series of questions to which she had answered Ano@ previously.  Citing to United States v. Montilla, 739 F.Supp. 143 (W.D.N.Y. 1990), she argues that merely answering a series of questions with either a positive or negative response such as this does not constitute informed consent.  This case was reversed by the U.S. Court of Appeals for the Second Circuit, finding that consent was voluntarily given.  United States v. Montilla, 928 F.2d 583 (2nd Cir. 1991).  That aside, the defendant in Montilla spoke primarily Spanish, and gave a Ayes@ answer after a series of questions that also elicited a response of Ayes.@ It was unclear to the trial judge in that case that the response was an affirmative grant of permission or Aused simply as an acknowledgment of what the person had to say and that the listener [was] waiting for more details.@  Montilla, 739 F.Supp. at 145.  Olguin has not been shown to have been similarly situated.  Even if she were, the higher court rejected this reasoning.   We overrule the first point of error.

Issue not preserved for appeal

In her second point of error, Olguin contends that the trial court abused its discretion by denying her motions when the officer interrogated her while she was in custody without the benefit of Miranda warnings.  Looking at the record, the trial court did not rule on the Miranda issue:

THE COURT:  Well, I think there was, based on the evidence that I heard and saw, there was consent for the search--to allow the search.  I am concerned that the Miranda warnings weren=t given after the arrest, unless I missed something.  He didn=t read all the warnings to her.

I think at this time, as far as pretrial, what I am going to do is allow the evidence that was seized based on the consent to be admissible and will deny that.

Now, I have a concern about the statements that were said after the arrest and with her Miranda rights being read to her completely and I=m going to reserve the right to rule on that prior to the time of trial.  Maybe--maybe I=m seeing something no one else is.  I am concerned about that part of it.

Maybe we may have a short pretrial before we have the actual trial on that part.  In the tape, I don=t believe all the Miranda warnings were read to Ms. Olgin, [sic] unless I missed it. 

Defense counsel made no objection to the lack of a ruling on the Miranda issue.  Thus, the issue is not properly preserved for appeal. No action by the trial court can be read as implicitly ruling on the issue.  Tex. R. App. P. 33.1.  Because of this, the issue is not properly preserved for appeal. The second point of error is overruled.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

September 18, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1]In Carmouche, the Court of Criminal Appeals deviated in the amount of deference given to the trial court=s determination with regard to videotape evidence because it did Anot pivot >on an evaluation of credibility and demeanor.=@ Carmouche, 10 S.W.3d at 332. In that case, however, Athe videotape present[ed] indisputable visual evidence contradicting essential portions of [Officer] Williams= testimony.@  Id. The Court explained, AIn these narrow circumstances, we cannot blind ourselves to the videotape evidence simply because Williams= testimony may, by itself, be read to support the Court of Appeals= holding.@  Id. Although the parties interpret the events on the tape differently in the present case, the testimony of the officer is not in such conflict with the evidence on the video.