Erik Johnson v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00892-CR
Erik JOHNSON,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 316873
Honorable Timothy Johnson, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice (concurring in the judgment only)
Delivered and Filed: September 28, 2011
AFFIRMED
Appellant Erik Johnson was charged by information with possession of marijuana, two
ounces or less. Johnson filed a motion to suppress evidence seized from his apartment alleging
that the evidence was inadmissible because it was obtained without a warrant, consent, probable
cause, or exigent circumstances. The trial court held a hearing on the motion to suppress and
denied the motion. Thereafter, Johnson pled nolo contendere and was sentenced to forty days in
jail and a $1,000.00 fine. Johnson appealed.
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In two issues, Johnson argues the trial court erred in denying the motion to suppress
because (1) the evidence was seized as a result of an unlawful, warrantless entry into his
apartment without consent, probable cause, or exigent circumstances; and (2) even if the initial
entry was valid, the subsequent search was unlawful. We affirm.
BACKGROUND
Viewed in the light most favorable to the trial court’s ruling, the evidence shows that on
February 1, 2010, Bexar County Sheriff’s Deputies Richard Mendez and Dennis Miranda were
dispatched to Johnson’s apartment complex for a keep-the-peace call. Johnson’s roommate, Scott
Huggins, had called the sheriff’s office stating Johnson and Huggins had experienced a “falling
out.” Huggins asked for officers to stand by and ensure no altercation took place while Huggins
removed his belongings from the apartment he shared with Johnson. Huggins indicated he was
afraid for his safety because Johnson had weapons and a grenade in the apartment.
When the officers arrived at the apartment complex, they found Huggins, who appeared
to be upset, waiting in the parking lot. Johnson then came out of the apartment and met Huggins
and the officers in the parking lot. Johnson asked the officers why they were present. One of the
officers stated they were there at Huggins’s request to make sure nothing happened while
Huggins moved out of the apartment. Johnson volunteered to stay in the parking lot with the
officers while Huggins removed his belongings from the apartment. The officers informed
Johnson they were not going to remain in the parking lot, but were going to stand by and ensure
Huggins’s safety while he removed his belongings from the apartment.
When it was clear that the officers were not going to remain in the parking lot, Johnson
took off up the stairs in an apparent attempt to reach the apartment before anyone else. Alarmed
by this, the officers increased their pace and caught up to Johnson as he was entering the
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apartment. Upon entering the apartment, Mendez smelled the odor of marijuana. However,
because Huggins had mentioned weapons and a grenade, Mendez’s main concern was safety.
Once inside, Mendez conducted a protective sweep of the apartment to ensure the safety
of the officers and Huggins. Mendez approached a locked door that Johnson identified as his
bedroom. Johnson advised Mendez there was another man, a third roommate, in the bedroom.
Mendez asked that the door be unlocked so he could complete the protective sweep. After
several unanswered knocks, Johnson yelled for the bedroom door to be opened. A man opened
the door, then went into an adjoining bathroom and locked the door behind him. Mendez
knocked on the bathroom door and asked the man to come out. The man stated he was taking a
shower. Mendez advised him that if he did not open the door, it would be kicked in. The man
then opened the door and emerged fully clothed.
At this point, Mendez turned to Johnson and advised him, “Look, I’ve been doing this job
for a long time. I already know something’s going on.” In response, Johnson fell to the floor and
started crying, saying, “I’m sorry. I’ve never done this. It’s in the closet.” Mendez directed the
three roommates to stay in the living room with Miranda, and he returned to Johnson’s bedroom
to check the inside of the closet. Upon opening the closet door, Mendez discovered several
marijuana plants.
STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress, an appellate court must view
the evidence in the light most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006). When a trial court makes explicit fact findings, the appellate court
determines whether the evidence supports these fact findings. Id. The appellate court then
reviews the trial court’s legal ruling de novo unless the trial court’s supported-by-the-record
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explicit fact findings are also dispositive of the legal ruling. Id. We must uphold a trial court’s
ruling on a motion to suppress if there is any valid theory of law applicable to the case, even if
the trial court did not base its decision on that theory. State v. Steelman, 93 S.W.3d 102, 107
(Tex. Crim. App. 2002).
INITIAL ENTRY
In his first issue, Johnson argues that the trial court erred in denying his motion to
suppress because the marijuana was seized as a result of an unlawful warrantless entry into his
residence without consent, probable cause, or exigent circumstances.
The Fourth Amendment prohibits unreasonable searches and seizures. Welch v. State, 93
S.W.3d 50, 52 (Tex. Crim. App. 2002). The entry into a residence by police officers is a “search”
for purposes of the Fourth Amendment. Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim.
App. 2010). Searches conducted without a warrant are unreasonable per se under the Fourth
Amendment, subject only to only a few specifically established and well-delineated exceptions.
Welch, 93 S.W.3d at 52. One recognized exception is when voluntary consent to search has been
given. Id. Generally, when cotenants or joint occupants live at a residence, either tenant may give
law enforcement officers consent to search the premises as long as that tenant has control over
and authority to use the premises. See Jones v. State, 119 S.W.3d 766, 787 (Tex. Crim. App.
2003). However, the United States Supreme Court has held that “a physically present
inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of
the consent of a fellow occupant.” Georgia v. Randolph, 547 U.S. 103, 122-23 (2006).
In the present case, the trial court found (1) Huggins gave the officers consent to enter the
apartment, (2) Johnson did not give the officers consent to enter the apartment, and (3) Johnson
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expressed a desire that the officers not enter the apartment. These findings are supported by the
record.
Relying on Randolph, Johnson argues Huggins’s consent was invalidated by Johnson’s
objection to the officers entering the apartment. See id. In Randolph, police were called to the
home of a husband and wife in the midst of a custody battle over their son. Id. at 107. Once on
the scene, the wife informed the police that her husband was a drug user and that if the officers
went into the couple’s home they would find cocaine. Id. The wife then gave the police consent
to search the home. Id. When the police asked the husband for consent to search the home, he
unequivocally refused. Id. The officers then entered the home over the husband’s protest,
searched the home, found cocaine, and charged the husband with possession of cocaine. Id. The
trial court refused to suppress the cocaine, but was later reversed by the state court of appeals and
the state supreme court. Id. at 107-08. Ultimately, the United States Supreme Court held the
wife’s consent was invalidated by the husband’s unequivocal objection to the warrantless entry.
Id. at 122-23.
Nevertheless, the Supreme Court in Randolph recognized that circumstances may exist in
which an unequivocal objection from one inhabitant would not invalidate consent from another
inhabitant. The Supreme Court specifically cited situations of domestic violence as an exception
to its holding:
No question has been raised, or reasonably could be, about the authority of the
police to enter a dwelling to protect a resident from domestic violence; so long as
they have good reason to believe such a threat exists, it would be silly to suggest
that the police would commit a tort by entering, say, to give a complaining tenant
the opportunity to collect belongings and get out safely, or to determine whether
violence (or threat of violence) has just occurred or is about to (or soon will)
occur, however much a spouse or other co-tenant objected. (And since the police
would then be lawfully in the premises, there is no question that they could seize
any evidence in plain view or take further action supported by any consequent
probable cause, see Texas v. Brown, 460 U.S. 730, 737-739 (1983) (plurality
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opinion).) Thus, the question whether the police might lawfully enter over
objection in order to provide any protection that might be reasonable is easily
answered yes. See 4 LA FAVE § 8.3(d), at 161 (“[E]ven when ... two persons quite
clearly have equal rights in the place, as where two individuals are sharing an
apartment on an equal basis, there may nonetheless sometimes exist a basis for
giving greater recognition to the interests of one over the other.... [W]here the
defendant has victimized the third-party ... the emergency nature of the situation
is such that the third-party consent should validate a warrantless search despite
defendant’s objections” (internal quotation marks omitted; third omission in
original)). The undoubted right of the police to enter in order to protect a victim,
however, has nothing to do with the question in this case, whether a search with
the consent of one co-tenant is good against another, standing at the door and
expressly refusing consent.
Id. at 118-119.
The circumstances in this case fit within the exception recognized by the Supreme Court
in Randolph. Here, the officers were called by Huggins to protect him while he moved out of the
apartment he shared with Johnson. The officers were told by Huggins that he and Johnson had
had a dispute, that Johnson had weapons and a grenade in the apartment, and that Huggins feared
for his safety. The officers observed Huggins’s and Johnson’s demeanor and behavior. They saw
that Huggins was upset and noted that Johnson was eager to gain access to the apartment before
them. The officers entered the apartment for the sole purpose of allowing Huggins the
opportunity to collect his belongings and move out of the apartment safely. Based on these
circumstances, the officers’ initial entry into the apartment was legal. We, therefore, overrule
Johnson’s first issue.
PROTECTIVE SWEEP
In his second issue, Johnson argues that even if the officers’ initial entry into the
apartment was legal, their subsequent actions resulting in the discovery of the marijuana were
unlawful. According to Johnson, if the police wanted to search anywhere in the apartment other
than Huggins’s bedroom, they needed to get a search warrant or valid consent for further
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searching. Johnson further argues that by looking in his bedroom closet, the officer exceeded the
scope of any protective sweep. The State counters that it was reasonable and lawful for the
officer to have looked inside the closet where the marijuana plants were found.
A “protective sweep” is a “quick and limited search of the premises” “conducted to
protect the safety of police officers or others.” Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim.
App. 2000) (quoting Maryland v. Buie, 494 U.S. 325, 328 (1990)). Protective sweeps are
generally conducted incident to an arrest, but the absence of an arrest does not preclude a
protective sweep, even in a defendant’s home. United States v. Gould, 364 F.3d 578, 584-86 (5th
Cir. 2004), abrogated on other grounds by Kentucky v. King, 131 S. Ct. 1849, 1859 (2011). For
the sweep to be valid, the police must not have entered the home illegally, and their presence
must be for valid law enforcement purposes. Id. at 587. A legitimate protective sweep must be
supported “‘by a reasonable, articulable suspicion…that the area to be swept harbors an
individual posing a danger to’ those on the scene,” and may be no more than a “‘cursory
inspection of those spaces where a person may be found.’” Id. (quoting Buie, 494 U.S. at 1099-
1100); see also Reasor, 12 S.W.3d at 817 (“[A] police officer may sweep the house only if he
possesses an objectively reasonable belief, based on specific and articulable facts, that a person
in that area poses a danger to that police officer or to other people in the area.”). Finally, the
sweep must “‘last[] no longer than is reasonably necessary to dispel the reasonable suspicion of
danger.’” Gould, 364 F.3d at 587 (quoting Buie, 494 U.S. at 1099).
As previously determined, the officers entered Johnson’s apartment legally and for a
valid law enforcement purpose. Moreover, Huggins’s initial claim of weapons and a grenade in
the apartment provided a basis for the officer to conduct an initial protective sweep of the
apartment to ensure the safety of the officers and Huggins. Thereafter, the presence of another
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individual, who was first concealed in Johnson’s bedroom and later in an adjoining bathroom,
provided a basis for expanding the scope of this protective sweep. Finally, Johnson’s statement
indicating, “It’s in the closet,” further justified the officer’s action in opening Johnson’s closet
door. Under these circumstances, the officer could have formed a reasonable, articulable
suspicion that a dangerous or armed individual was in the closet and posed a danger to those on
the scene. See Pace v. State, 318 S.W.3d 526, 534 (Tex. App.—Beaumont 2010, no pet.)
(holding officer who was lawfully in the appellant’s house was justified in following appellant
into the bedroom based on a concern for the officer’s own safety). We, therefore, overrule
Johnson’s second issue.
CONCLUSION
We conclude that the trial court did not err in denying Johnson’s motion to suppress. We,
therefore, affirm the judgment of conviction.
Karen Angelini, Justice
DO NOT PUBLISH
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