Thomas Paul Tucker v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-09-00046-CR
Thomas Paul TUCKER,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court No. CR08-11125
Honorable Spencer W. Brown, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting en banc: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 29, 2013
I dissent to the denial of en banc reconsideration without requesting a response.
Initially, I express disapproval of the officer’s admitted use of a minor traffic infraction to
circumvent the lack of probable cause requirement for a warrant to search Tucker’s home. Once
the citation was given pursuant to a valid traffic stop, it was illegal for the officers to further
detain Tucker and to ask whether he had drugs in his vehicle. Although, as the majority notes,
Tucker waived his challenge to the search of his vehicle, the majority fails to consider the
Dissenting Opinion 04-09-00046-CR
“totality of the circumstances” on the issue of voluntariness of the consent to search Tucker’s
home by disregarding the illegality of the subsequent detention and arrest, as well as the conduct
of the officers who, by their own admission, were motivated to gain access to Tucker’s home.
While deferring to an implicit finding that the trial court chose to believe Tucker’s statement that
his consent was “voluntary,” along with Officer Griffin’s denial that he used Tucker’s son to
coerce consent, the opinion’s analysis fails to consider “the totality of the circumstances.” After
remand, the opinion offers an additional summary of events reflected in the video, viewed in the
light most favorable to the trial court’s implied findings based on the credibility of the witnesses;
however, the record does not support, nor must we accept, an implicit finding that Tucker’s
consent followed a valid detention and arrest. Notwithstanding, I disagree that the totality of the
circumstances shows that Tucker’s consent was made voluntarily. Lastly, I agree with Judge
Alcala that “these are determinations properly left to the trial court as the fact finder” and that
further remand to the trial court might be required. Tucker v. State, 369 S.W.3d 179, 187 (Tex.
Crim. App. 2012) (Alcala, J., concurring) (citing Anderson v. City of Bessemer City, 470 U.S.
564, 574-75 (1985)); see also U.S. v. Guzman, 864 F.2d 1512, 1520 (10th Cir. 1988) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (district court made no findings of fact on
the issue of consent, which is a question of fact requiring remand to the trial court)).
In determining whether the officer’s conduct was “coercive” under the “totality of the
circumstances,” we should consider the following facts: (1) the ultimately uncorroborated “tip”
from an “anonymous source;” (2) the admittedly pre-textual traffic stop; (3) the illegal post-
citation detention; (4) the continued absence of probable cause to search the home; and (5) the
nature and conduct of the officers’ “investigation” and interrogation which they pursued to
obtain the consent to search Tucker’s home. Absent from the record is even a scintilla of
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Dissenting Opinion 04-09-00046-CR
evidence derived from the initial traffic stop and subsequent search to indicate the officers had
developed a reasonable suspicion that another violation was ongoing, particularly at Tucker’s
home, to warrant further detention and repeated questioning of Tucker for consent to search his
home.
The record shows that, on the day before the stop and search, Officer Hicks received an
anonymous tip that Tucker was selling marijuana from his home. The next day, Hicks conducted
surveillance on the residence in an effort to corroborate the anonymous report for approximately
one and one-half hour before he saw Tucker drive away in a white van and fail to use a turn
signal. Instead of continuing the surveillance and developing sufficient information to establish
probable cause to obtain a warrant to search Tucker’s house, Hicks instructed Officer Griffin to
stop Tucker for the minor traffic violation, as previously planned. Both Hicks and Griffin were
members of the Kerr County Sheriff’s Narcotics Division. It is undisputed that the officers
stopped Tucker hoping to gain probable cause to search the home. 1 When Tucker first exited the
van, he left the driver’s side door open and informed Griffin that his young son was inside the
van. Griffin indicated the stop would be brief and told Tucker to leave his child in the van. As
soon as Tucker provided his driver’s license to Griffin, he was patted down and then asked for
consent to search for weapons around the child. After Griffin patted down Tucker and found
nothing, Tucker asked if he could remove his son from the van because it had no air conditioning
and it was a hot day. Griffin again told Tucker to leave his son inside the van because the stop
would not take long, even though his usual practice is to get everyone out of a vehicle during a
traffic stop. The State did not articulate any facts to support a Terry pat-down search or safety-
1
Officer Griffin admitted at the suppression hearing that the officers’ ultimate goal in making the traffic stop was to
gain access to search Tucker’s residence. Griffin testified that the officers “hoped they would ‘gain some kind of
probable cause’ from the traffic stop that would allow them to search Appellant’s residence.” Tucker, 369 S.W.3d at
181.
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Dissenting Opinion 04-09-00046-CR
based request to search for weapons. See Terry v. Ohio, 392 U.S. 1, 30 (1968); see also Glazner
v. State, 175 S.W.3d 262, 265 (Tex. Crim. App. 2005) (pat-down permissible if officer believed
suspect was armed).
Indeed, it is more likely that the officers hoped to find evidence of drugs to give them
probable cause to continue the search, as hoped, or to otherwise achieve a “plain-view”
exception to the exclusionary rule. 2 Immediately after handing Tucker his traffic citation seven
minutes into the initial stop, Griffin asked Tucker if he had any drugs in the vehicle; Tucker
responded “no,” but was asked nonetheless for consent to search the vehicle. Again, absent from
the record are articulated facts or circumstances derived from those seven minutes suggesting to
the officers that Tucker committed any crime more serious than failing to use a turn signal or,
more particularly, was trafficking drugs from his home. Once an officer has resolved the initial
basis for the traffic stop and given the driver a warning or citation, any continued detention is
presumptively unreasonable without different information to justify the ongoing detention (e.g.,
facts supporting suspicion of drug trafficking). See U.S. v. Jenson, 462 F.3d 399, 407-08 (5th
Cir. 2006) (officers must ask for a driver’s consent to search before concluding other reasons for
the stop); U.S. v. Brigham, 382 F.3d 500, 508-09 (5th Cir. 2004) (en banc) (consent to search
obtained while waiting for computer background check, therefore not “involuntary”); U.S. v.
Valadez, 267 F.3d 395, 398 (5th Cir. 2001) (detention beyond time needed to write the citation
unreasonable); U.S. v. Shabazz, 993 F.2d 431, 442 (5th Cir. 1993) (conflicting answers to police
questioning and nervousness led officers to seek consent to search car); Guzman, 864 F.2d at
1519 (officer may not question driver about drugs after investigation for failure to wear seat belt
is complete). Hence, the record fails to support the trial court’s implied finding that the officers
had a reasonable suspicion derived from the initial traffic stop to detain Tucker after issuing the
2
The State neither urged nor proved an exception to the exclusionary rule.
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Dissenting Opinion 04-09-00046-CR
traffic citation or to question Tucker about drugs. Cf. Goudeau v. State, 209 S.W.3d 713, 719-20
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (after stop for suspicion of license-plate
violation, suspect’s bloodshot eyes, slurred speech, fumbling for insurance papers and an open
container of alcohol on seat beside suspect gave rise to reasonable suspicion that suspect had
been driving while intoxicated).
Further, after the officers claimed to find a “shake” of marijuana on the floorboard of the
passenger side of the vehicle, Tucker was thereafter handcuffed and asked to disclose any more
drugs before being taken to jail; he disclosed a small amount of marijuana in his shoe. He was
thereafter questioned at the scene for approximately seventeen minutes, during which time
officers negotiated and threatened Tucker for consent to search his home. The record reflects
that Tucker remained in handcuffs for the remaining time, but does not reflect that Tucker was
advised of his constitutional rights or could reasonably believe he could decline further
questioning. Any argument that the officers suspected Tucker was transporting drugs was
quickly dispelled after a search of the vehicle and his person revealed only a small misdemeanor
amount of marijuana. The officers’ detention continued until finally obtaining Tucker’s consent
to search his home, where they found a small misdemeanor amount of marijuana.
We must consider from the totality of the surrounding circumstances the characteristics
of the accused, along with the details of the interrogation. See Schneckloth, 412 U.S. at 226.
The record, including the videotape, reflects that Tucker exhibited characteristics that an
objectively reasonable person would view as one under duress—he was detained and repeatedly
expressed concern for his young son, from his exit from the van after the initial stop to even after
the marijuana was found in his shoe. Tucker’s repeated requests regarding his son during his
detention, sincere or not, clearly fueled the officers’ mode of interrogation to include threats to
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Dissenting Opinion 04-09-00046-CR
call Child Protective Services (“CPS”) and refusing to allow the mother to retrieve the child from
the scene. Contrary to the majority opinion, the fact that the entire stop lasted for only thirty-six
minutes and that the child was removed from the van at thirty-two minutes, does not mean an
objectively reasonable person, with no foreshadowing to know when the stop would end or if the
child would be released from the van, would not feel mental and emotional duress under these
circumstances. As the Supreme Court made clear in U.S. v. Sharpe, 470 U.S. 675, 685-87
(1985), the basis for and the circumstances surrounding the stop, rather than an arbitrary time
limit, govern the stop’s permissible length. Here, the detention, however brief, unreasonably
extended beyond the length necessary for its only legitimate purpose—the issuance of a citation
or warning for a turn signal violation.
In addition, the fact that the officers explicitly tied one action—Tucker giving consent to
a search of his home—to another action—whether they would call CPS if forced to get a search
warrant, tends to suggest the officers were well aware of the coercive effect of the presence of
Tucker’s child, whether inside the van or not. Griffin admitted at the suppression hearing that
Tucker attempted to negotiate his consent on the condition that his son be taken to his home.
Ultimately, Tucker’s refusing consent until given conditionally cannot reasonably be deemed as
voluntary in the legal sense. Furthermore, significant intervening circumstances occurred during
those “seventeen minutes”—(1) the officer refused to allow Tucker to call his wife to pick up
their son, claiming an “officer safety issue” 3 if more people came to the scene; (2) Tucker
repeatedly expressed concern for his son and asked officers to remove his son from the hot van;
(3) the officers stated that they “would not call CPS” if Tucker allowed a search of his home
without the requirement of a warrant; and (4) after thirty-two minutes following the initial stop,
3
The evidence, particularly the videotape, reflects no particular actions taken by the officers tending to corroborate a
“safety concern,” especially after Tucker was handcuffed and immediately placed in the patrol car.
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Dissenting Opinion 04-09-00046-CR
the officers removed the child from the van only after consent was obtained from Tucker. I
believe these undisputed facts, taken as a whole, can only be characterized as coercive words and
actions by the officers employed to circumvent the Fourth Amendment.
Lastly, by giving total deference to the testimony of a witness, who either denies coercion
or states his consent was voluntary, the majority suggests that testimonial evidence alone can be
determinative in our review and implies each witness used “coercion” and “voluntary” in the
legal sense to which deference should be given. I believe a reasonably objective person could
only conclude that, once Tucker was handcuffed without warnings or any indication he could
decline further questioning, together with the officers’ prolonged detention and repetitive
questioning following a valid yet pre-textual traffic stop and arrest for a misdemeanor offense,
the totality of the circumstances do not indicate an absence of coercion. In this case, the officers’
actions yielded “consent” before reasonable suspicion, much less probable cause, existed to
justify the officers’ actions. Most importantly, contrary to the majority opinion, it is the burden
of the State to prove a lack of coercion from an objective point of view; the burden is not on
Tucker to prove he was in fact coerced from a subjective one. See Tucker, 369 S.W.3d at 185;
see also Meekins v. State, 340 S.W.3d 454, 458-59 (Tex. Crim. App. 2011) (trial court must
assess the totality of the circumstances from the point of view of an objectively reasonable
person, including words, actions, or circumstantial evidence). “Consent coerced by any explicit
or implicit means is ‘no more than a pretext for the unjustified police intrusion against which the
Fourth Amendment is directed.’” Tucker, 369 S.W.3d at 185 (quoting Schneckloth, 412 U.S. at
228). Guided by the highest court, the Court of Criminal Appeals reiterated that, “two
competing concerns must be accommodated in determining the meaning of a ‘voluntary’
consent—the legitimate need for such searches and the equally important requirement of
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Dissenting Opinion 04-09-00046-CR
assuring the absence of coercion.” Tucker, 369 S.W.3d at 185 (quoting Schneckloth, 412 U.S. at
227). The opinion gives no weight to the evidence of why the officer initiated the traffic stop,
nor expresses concern with what the officers did—conduct and unreasonably prolong a routine
traffic stop to detain, question and search for evidence at a person’s home when the officer
lacked any legal basis to do so, or to assess appropriate weight against the State for the lack of
warnings given.
In conclusion, I dissent to the majority opinion because I believe it provides an
insufficient analysis of the “totality of the circumstances” standard on the issue of voluntariness.
I believe the record, including the videotape, reflects evidence of police conduct which a
reasonably objective person could only view as coercive. Even if the officers had requested
Tucker’s consent to search his van before giving him his citation, my view of the totality of the
circumstances in determining the issue of the voluntariness of consent remains the same.
Rebeca C. Martinez, Justice
PUBLISH
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