State v. Ricardo Gonzalez ( 2004 )

  NUMBER 13-02-355-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

THE STATE OF TEXAS,                                                             Appellant,

v.

RICARDO GONZALEZ,                                                               Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Castillo, and Garza

Memorandum Opinion by Justice Yañez

          By one issue, the State challenges the trial court’s order granting appellee Ricardo Gonzalez’s motion to suppress. We affirm.

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. 

Standard of Review

          In reviewing a trial court’s ruling on a motion to suppress, we afford almost total deference to the trial court’s determination of the historical facts that the record supports, especially when the trial court’s findings turn on evaluating a witness’s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if resolving those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89. However, we review de novo questions of law and “mixed questions of law and fact” that do not turn on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89. Where, as here, no findings of fact are filed by the trial court, “we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 855.

          A review of a trial court’s ruling on a motion to suppress presents an application-of-law to fact question. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).

          The next question we resolve is whether determination of the issue “turns” on the credibility and demeanor of the witnesses. This Court has previously determined that a mixed question of law and fact presented when determining whether the State proved voluntary consent by clear and convincing evidence, under the totality of the circumstances, does not turn on an evaluation of credibility and demeanor. Reyes-Perez v. State, 45 S.W.3d 312, 315 (Tex. App.–Corpus Christi 2001, pet. ref'd); see also Vargas v. State, 18 S.W.3d 247, 253 (Tex. App.–Waco 2000, pet. ref'd). A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). This is not the case here, as none of the witnesses’ testimony, even if totally believed, is enough to decide the propriety of the order granting the motion to suppress. See id. Therefore, we will review the issue de novo. See id. 

          In his motion to suppress, appellee argued that the evidence should be suppressed because: (1) there was no warrant for the search; (2) there was no probable cause or consent to search from a person authorized to give such consent; (3) the search was based on illegally obtained evidence; and (4) the stop resulted in an illegal detention.

          On appeal, appellee alleges that: (1) he was stopped unlawfully because he did not violate any traffic laws; (2) the stop lasted longer than necessary and therefore resulted in an unlawful detention; (3) he only consented to a look “inside and around” the rig; (4) the officer did not identify what he was looking for; (5) the officer exceeded the scope of the consent given; (6) the consent was revoked; (7) no contraband was detected before consent was revoked; (8) the officers continued to search after consent was revoked; and (9) no search warrant was ever obtained. We first address whether appellee was authorized to give consent.

Authority to Consent

          The test to determine a legitimate expectation of privacy as to a particular accused is twofold: “first, did he exhibit by his conduct an actual, subjective, expectation of privacy, and second, if he did, was that subjective expectation one that society is prepared to recognize as reasonable.” State v. Bassano, 827 S.W.2d 557, 560 (Tex. App.–Corpus Christi 1992, pet. ref’d) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)); see also Minnesota v. Olson, 495 U.S. 91, 95 (1990). “A third party may properly consent to a search when he or she has equal control over and authority to use the premises being searched.” Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); see also United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority is not to be determined from the mere existence of a property interest. Matlock, 415 U.S. at 171; Maxwell, 73 S.W.3d at 281.

          A third party is able to consent to an inspection of property, and others with an equal or greater interest in that property have assumed the risk of such an inspection by granting permission to use the property to the third party. Maxwell, 73 S.W.3d at 281; Matlock, 415 U.S. at 171. It is reasonable to believe that the driver of a rig has the authority to consent to a search of that rig. See Maxwell, 73 S.W.3d at 282. In the present case, the appellee, as driver of the truck, had mutual control of the truck and therefore had the authority to consent to a search. See id.

                                                       Scope of Consent

          Consent to a search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamante, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997); Rangel v. State, 972 S.W.2d 827, 832 (Tex. App.–Corpus Christi 1998, pet. ref’d). Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of evidence, the Texas Constitution requires the State to prove by clear and convincing evidence that consent to a search was freely given. Carmouche, 10 S.W.3d at 331; Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Ibarra, 953 S.W.2d at 245; Cerda v. State, 10 S.W.3d 748, 751 (Tex. App.–Corpus Christi 2000, no pet.). To be valid, consent to a search must be positive and unequivocal and must not be the product of duress or coercion, either express or implied. Reasor, 12 S.W. 3d at 818 (citing Schneckloth, 412 U.S. at 219); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991).

          The extent of a search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251 (1991); Cardenas v. State, 857 S.W.2d 707, 711 (Tex. App.–Houston [14th Dist.] 1993, pet. ref’d); Reyes-Perez , 45 S.W.3d at 315; Cerda, 10 S.W.3d at 752. “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness–what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S. at 251; see also Cerda, 10 S.W.3d at 752.

          In the present case, appellee consented that the officer could “look inside and look around” the truck. It is undisputed that this consent was voluntary and uncoerced. See Carmouche, 10 S.W.3d at 331; see also Reasor, 12 S.W.3d at 818; Ibarra, 953 S.W.2d at 245; Cerda, 10 S.W.3d at 751. The record does not reflect that the trooper ever indicated the object of the search to appellee. See Jimeno, 500 U.S. at 251-52; See also Guzman, 955 S.W.2d at 89; Cardenas, 857 S.W.2d at 711; Cerda, 10 S.W.3d at 752.

          The trooper examined the inside and outside of the truck. He then requested consent to take the truck to the Pharr point of entry for further examination and requested consent for a canine search. While waiting for the canine unit, five to six more officers joined in searching the truck. One of the officers used tools to open a secret compartment in the sleeper unit, which revealed the contraband.

          In our review, we look to what a typical reasonable person would have understood from an exchange between an officer and a suspect. Jimeno, 500 U.S. at 251; see also Cerda, 10 S.W.3d at 752. For example, this Court has held that an objectively reasonable person would not view permission to search a vehicle for identification or vehicle registration as permission to search in the car trunk. See Gonzalez v. State, 869 S.W.2d 588, 591 (Tex. App.–Corpus Christi 1993, no pet.). Simple consent to search a house does not authorize, for example, forcibly breaking into a sealed attic space with a sledgehammer. See United States v. Ibarra, 965 F.2d 1354, 1359 (5th Cir. 1992).

          Similarly, consent to search a vehicle, without identifying the object of the search, does not authorize breaking into secret vehicle compartments. See id. We hold that a reasonable person would not view consent to “look inside and look around” the truck as conveying permission to enter the truck with tools to break open hidden compartments. See Jimeno, 500 U.S. at 251.

          Additionally, the officer never indicated that he was looking for narcotics. The scope of consent is generally defined by its expressed object. Jimeno, 500 U.S. at 251; Cardenas, 857 S.W.2d at 711; Reyes-Perez , 45 S.W.3d at 315; Cerda, 10 S.W.3d at 752. When an officer states that he is looking for narcotics and consent is given, it is reasonable to conclude that such consent includes containers that may contain drugs. See Jimeno, 500 U.S. at 251-52. There is no evidence in the record before us that appellee was told what the officers were searching for.

          An appellate court must sustain the trial court’s ruling if it is “reasonably supported by the record and is correct on any theory of law applicable to the case.” Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We hold that the search conducted by the officers exceeded the scope of Gonzalez’s consent. See Jimeno, 500 U.S. at 251. Accordingly, we overrule appellant’s issue and affirm the trial court's order granting the motion to suppress.   

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

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

Memorandum opinion delivered and filed this the

29^th day of July, 2004.