Johnson, Barbara Bell

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0534-05

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BARBARA BELL JOHNSON, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS CASS COUNTY

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   Cochran, J., delivered the opinion of the Court, in which Keller, P.J., Womack, Keasler, Hervey and Holcomb, JJ., joined. Johnson, J., filed a concurring opinion, in which Meyers and Price, JJ., joined.

O P I N I O N

Appellant called 911 and asked the police to come to her home because she had just shot her husband in self-defense. The police came and found her husband dead on the living room floor. While appellant sat in a patrol car, officers conducted a preliminary investigation, took photographs, made notes, and gathered up the appellant's gun. At trial appellant argued that the evidence obtained during this initial investigation should be suppressed because the officers did not have a warrant. The court of appeals held that the officers were entitled to enter appellant's home twice under the emergency aid and protective sweep doctrines, and that the officers could testify to the evidence they had seen in plain view at that time. ⁽¹⁾ The court also held that the officers' third warrantless entry into the home was illegal, and that the spent shell casing they seized during that entry was improperly admitted, but that its admission was harmless. ⁽²⁾ In this Court, appellant argues that "the court of appeals erred in failing to overrule the district court's denial of petititoner's motion to suppress evidence obtained as a result of an illegal general search of her home." We conclude that the trial court's original rationale for overruling appellant's motion to suppress was correct: By calling 911 and asking the police to come to her home, appellant consented to the police entry and to their initial investigation of the death of her husband. Therefore, we affirm the judgment of the court of appeals, but on a different rationale.

I.

Appellant called 911 shortly before midnight. She was hysterical. She kept saying, "Come, come. I killed him." She told the dispatch operator, "Sweetheart, come on." The dispatch operator said, "I can't come if you don't tell me where you are." Appellant gave directions on how to find her house, ending with "I'm the third house on the right." Then she said, "I need to get my clothes on. I need to get dressed." She kept repeating, "I just shot my husband." She said she shot him "through the heart." She cried that he had beaten her, and now "he cannot do this to me anymore . . . . I just killed that son of a bitch." When asked what kind of a gun she used, she told the dispatcher that it was a "380." When the dispatch operator asked her if her husband was still alive and to check his pulse, she said, "I'm afraid to touch him. If he's alive, he'll kill me." Later she exclaimed, "He twitched," and "he's like a bull of a man." She cried impatiently, "Come on, baby, bring someone out here to me." When the dispatch operator told her that "They're on the way," she said "I called people before and I never pressed any charges. . . . Somebody come here." The dispatcher told her, "Present yourself in the doorway with your hands up, okay, because [the officers] won't know if you don't have that gun or not." The dispatch officer then asked, "Do you live by the radio station?" "No, no. It's farther down. . . . Let me tell you how to get to my house. . . . I have my lights on. . . . I'm at the door." The dispatcher said, "Do not go to that door with that gun." When the dispatcher finally told her, "There is an officer on your street right now. I need you to stand on your front porch," appellant responded, "I don't have a porch. I'll stand in my garage. . . . He's coming, he's coming." And Officer Jones then arrived.

Officer Jones handcuffed appellant for safety's sake, placed her in his patrol car, and went inside to find appellant's dead husband. He made a brief protective sweep of the house and saw the .380 pistol that appellant had used to shoot her husband on the kitchen counter. He came back outside and called the paramedics. They arrived shortly thereafter, and they all went back inside the home. About fifteen minutes later, investigators from the sheriff's office arrived and moved appellant to another patrol car because Officer Jones had to leave. The sheriff's deputies went inside appellant's home to begin an initial investigation into the shooting. While the patrol video and audio camera recorded her, ⁽³⁾ appellant continued to explain why she shot her husband and asked one of the officers, "Is there anything you want me to show you or tell you or anything in that house? I'll do it. I mean I know the house." At no time did she suggest that she wanted the officers to get out of her house or to end their crime scene investigation.

During the midtrial suppression hearing outside the presence of the jury, appellant argued that the "emergency aid doctrine" ⁽⁴⁾ would not permit the officers to make their third warrantless entry into appellant's home. It was during this entry that they collected her gun and a spent shell casing, took photographs of the living room and bedroom, and made measurements of the rooms. ⁽⁵⁾ Although he also addressed the emergency aid doctrine, the trial judge focused primarily on the issue of consent. He asked, "Well, what do you make of the defendant's statement on the tape where she volunteers to the officer, 'Do you want me to go back in and show you where we were standing and that sort of thing?'" He later said,

And I do think that the defendant's statement, though it was made in custody, I think it's clear from the tape that it was a voluntary statement. In fact, after she had invoked her right to counsel and the lieutenant left her alone in the car, she called him back to the car to specifically ask him if he wanted her to go into the house and help him, to show him where some things were and where they'd been standing and that sort of thing. So I think it was clear and unequivocal that she was voluntarily consenting to help him perform a search of the house.

The trial judge denied the motion to suppress evidence, ruling that (1) appellant had consented to the search, and (2) in any event, the majority of the evidence obtained was admissible because it was in plain view when Officer Jones first entered appellant's home and conducted a lawful protective sweep of the area.

After hearing all of the evidence, the jury rejected appellant's claim of self-defense ⁽⁶⁾ and found her guilty of murder. It sentenced her to fifteen years' imprisonment.

The court of appeals affirmed the conviction and sentence. Appellant once again argued the "emergency aid doctrine," so the court of appeals focused upon that issue. It held that Officer Jones was justified in his first two entries into appellant's home "under the emergency aid and protective sweep doctrines, to determine whether anyone inside the house needed assistance or endangered anyone else" and to confirm the death of appellant's husband. ⁽⁷⁾ "What was seen in plain view during those two legitimate entries was properly the subject of testimony by the individuals who participated in those entries." ⁽⁸⁾ The court of appeals then stated that the third entry was not authorized by the emergency aid doctrine, and thus the evidence collected during that entry was inadmissible to the extent that it had not been in plain view during the first two entries. ⁽⁹⁾ However, the court of appeals concluded that the admission of this evidence was harmless beyond a reasonable doubt because "[t]he only ultimate issue before the jury was whether the shooting was in self-defense," and the "improper evidence was simply where the spent shell casing came to rest behind a chair. " ⁽¹⁰⁾

The court of appeals did not address the trial judge's first ruling: Appellant consented to the limited investigatory search of her home. We address that issue and determine that the trial judge did not err in denying appellant's motion to suppress.

II.

The Fourth Amendment protects individuals "against unreasonable searches and seizures." ⁽¹¹⁾ A warrantless police entry into a person's home is presumptively unreasonable unless it falls within the scope of one of a few well-delineated exceptions. One such exception is a consensual entry. ⁽¹²⁾ Typically, whether consent is voluntary turns on questions of fact and is determined from the totality of the circumstances. ⁽¹³⁾ For that reason, a finding of voluntary consent is reviewed only for an abuse of discretion. ⁽¹⁴⁾ The operative inquiry is whether the evidence presented at the suppression hearing fairly supports the trial court's finding of voluntary consent by clear and convincing evidence. The standard for measuring the scope of consent "is that of 'objective' reasonableness" or what the ordinary reasonable person would have understood under the same circumstances. ⁽¹⁵⁾

Numerous courts across the nation have addressed the scenario in which someone calls 911 and requests police to come to his home (or apartment, hotel room, or other location) because of an emergency or to investigate a crime. ⁽¹⁶⁾ In Brown v. State, ⁽¹⁷⁾ this Court discussed extensively the issue of "implied" consent to search in this situation. The evidence in Brown showed that the defendant called the police (and others) to say that he had just found his wife dead in their detached garage. ⁽¹⁸⁾ He asked the police dispatcher to send a squad car and ambulance to his home, and he said that someone must have "robbed his wife because her purse was missing." ⁽¹⁹⁾ When the police arrived, they escorted him to a patrol car "to calm down and stay warm until the investigators could speak with him." ⁽²⁰⁾ The defendant talked with the investigators and discussed his activities earlier that day while other officers searched the house, photographed the inside, and examined the contents of a purse in the bedroom. ⁽²¹⁾ In Brown, we cited and summarized numerous decisions from other states and concluded that, by calling 911 to report his wife's murder in their garage and requesting police and ambulance assistance, the search of the defendant's house "was a search pursuant to implied consent." ⁽²²⁾ In sum, when a homeowner makes a 911 call and requests immediate assistance because of an emergency, he is indicating his consent to (1) the arrival and entry

of the responding officers to resolve that emergency and, (2) absent any evidence of the revocation of that consent, an objectively reasonable limited investigation by the responding officers into the emergency that the homeowner reported.

III.

The primary difference between the situation in Brown (and in several of the other cases cited in Brown) and the present one is that in many of those cases, the defendant "either states or suggests that [the crime] was committed by a third person." ⁽²³⁾ In the present case, appellant did not suggest that someone else killed her husband; from the very beginning she announced that she had shot "the son of a bitch" because he beat her and she wasn't going to take it any more. Throughout, her position has been that she acted in self-defense. We do not see how the fact that she claimed self-defense when she called 911 rather than saying that a third person had shot her husband would make her consent to come into her home to assist her any less valid. This is a factual difference without a legal distinction in this particular case. Whether the 911 caller says that a third person shot the deceased or that she justifiably or accidentally shot the deceased, the caller's position is self-exculpatory, and she seeks immediate aid. ⁽²⁴⁾ Here appellant screamed and begged for the police to come to her home, she repeatedly provided them with directions, she repeatedly told them that she had shot her husband as she was urging them to hurry to her assistance. They did exactly what she asked them to do. This is not illegal conduct. Because appellant was still at the scene as the officers continued to investigate and saw them going into her home, she was clearly in a position to revoke her consent had she wished to do so. She did not; she did the opposite. She offered to go back into her home with the officers and help them. ⁽²⁵⁾

A second possible difference between Brown and the present situation is that appellant claims that the police made three "separate" entries into her home. In Brown, the officers entered and never left until they were done with their investigation. Although the officers in the present case may have gone in and out of the door three times during their initial investigation, the lawfulness of a search is not determined by the number of times that officers cross the threshold. Rather, it is whether the officers are engaged in objectively reasonable conduct under the circumstances. ⁽²⁶⁾ Here, appellant apparently claims that the police, having responded to appellant's 911 call, come into her house, taken a look around, should have left her deceased husband on the floor while they departed to obtain a search warrant even though she had asked them to come and never suggested that they leave. When we stated in Brown, "This implied consent ⁽²⁷⁾ is valid only for the initial investigation conducted at the scene and does not carry over to future visits to the scene," ⁽²⁸⁾ we were not speaking of the number of times that an officer stepped over the threshold during that initial investigation. Instead, we were referring to later distinct "visits" to the home after the initial investigation (and removal of the body in a fatal shooting) is complete. ⁽²⁹⁾

The Brown caveat ("that the individual either states or suggests that it was committed by a third person") might well act as an appropriate brake upon the scope of a law enforcement search when the owner of the premises affirmatively summons police. But the responding officers' search in this case was limited in scope and objectively reasonable under the circumstances. ⁽³⁰⁾ These officers did not rummage through closets, open drawers, paw through purses, or otherwise invade appellant's privacy interests in her home. ⁽³¹⁾ They came when she called and did nothing other than find her husband's body, take photographs of the living-room shooting scene and their bedroom, collect the gun with which appellant said she used to defend herself, and gather up a shell casing from that gun. All of these items, except the shell casing, were in "plain view" during their initial, cursory investigation of the fatal shooting and are activities entirely consistent with any initial shooting investigation.

The situation might well be different had the scope of the search of appellant's home been more intrusive than that found legal in Brown. There the police responded to a shooting death in the defendant's detached garage, but the officers searched inside the defendant's purse (mistakenly thinking it belonged to the deceased who appellant said might have been the victim of a robbery) located in the bedroom inside the house proper. The privacy interest invaded in Brown was significantly greater than that in the present case. Arguably, a homeowner who makes a 911 call reporting a shooting and asking for immediate police assistance does not, by that single act, consent to the responding police searching through his bedroom belongings. But by making such a call, surely the objectively reasonable homeowner envisions that the responding police will enter his home, view the scene, take pictures of that scene, and make a cursory search for relevant evidence directly relating to the homeowner's emergency call. ⁽³²⁾

Under these circumstances, we uphold the trial court's denial of appellant's motion to suppress based upon her consent to search. Consent was one of the two bases for the trial judge's ruling, ⁽³³⁾ and he was legally and factually correct. We therefore affirm the court of appeals's judgment.

Delivered: June 13, 2007

Publish.

1.

Johnson v. State, 161 S.W.3d 176, 180 (Tex. App.-Texarkana 2005).

2.

Id.

3. Although both the video and audio were running, the video camera was pointed toward the front windshield, so only appellant's voice was heard as she was seated in the backseat of the patrol car.

4.

See Mincey v. Arizona, 437 U.S. 385 (1978).

5. Officer Copeland testified that when he entered appellant's home at about 12:45 a.m., he saw little sign of a disturbance other than the coffee table being slightly askew. He did not find any evidence of a weapon that the deceased might have used. He stated that the placement of the coffee table, the victim's body, contact blood on the floor, and transfer blood on a chair pillow indicated that the deceased was shot while sitting in the chair and that he had then slumped over or tried to stand up but hit the coffee table as he fell to the floor.

6. Appellant testified that her husband had verbally and physically abused her on many occasions. She said that "he had been pushing me and slinging me around like a rag doll." She skinned her elbow as a result of his knocking her up against the corner of the fireplace. Appellant said that she had bought the .380 years ago and kept it stored in her car, her bedroom, or the living room. She said that she and her husband had been arguing about money that evening and that "[h]e told me he was going to break my neck, and he came up out of the chair and started toward me" so she picked up the gun from the fireplace mantel, began to run from him, and shot him without looking. She testified that she intended to shoot him, but that she did not mean to kill him.

7. 161 S.W.3d at 181.

8.

Id.

9.

Id. at 185-86.

10.

Id. at 187.

11.

U.S. Const. amend. IV.

12.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

13.

Id. at 227-29 (concluding that "voluntariness is a question of fact to be determined from the totality of all the circumstances").

14.

See Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006) (holding that the reviewing court must decide whether, "after affording almost total deference to the trial court's determination of historical facts that are supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing evidence" that a defendant voluntarily consented to a search).

15.

Florida v. Jimeno, 500 U.S. 248, 251 (1991).

16.

See, e.g., State v. Flippo, 575 S.E.2d 170, 178-83 (W.Va 2002) (collecting cases; "hold[ing] that when a person summons the police to a dwelling he/she owns, possesses, or controls, and that person states that a crime was committed against him/her or others by a third person at the premises, he/she implicitly consents to a search of the premises reasonably related to the routine investigation of the offense and the identification of the perpetrator, absent a contrary limitation imposed by the person summoning the police"); State v. Fleischman, 754 P.2d 340, 341, 344 (Ariz. 1988) (same; when deceased's husband (or someone acting at his request) called 911, told them that his wife had been shot at their restaurant, and asked for help, court found implied consent for a two-hour search of restaurant while defendant-husband was taken for questioning and fingerprinting "to eliminate him as a suspect"); Thompson v. State, 384 N.W.2d 461, 463-64 (Minn. 1986) (same); see 4 Wayne R. LaFave, Search and Seizure § 8.1(l) at 122 & n. 322 (4^th ed. 2004) (citing Brown and Flippo as example of "unobjectionable instances of actual consent being established by circumstantial evidence").

17. 856 S.W.2d 177 (Tex. Crim. App. 1993).

18.

Id. at 179.

19.

Id.

20.

Id.

21.

Id. The officers originally thought that the purse belonged to the defendant's deceased wife, but, in fact, it belonged to the defendant, and it contained a cash register receipt that helped prove that the defendant's exculpatory story was false. Id.

22.

Id. at 180-83.

23.

Id. at 182.

24.

See, e.g., Steigler v. State, 277 A.2d 662, 667 (Del. 1971) (defendant appeared fully cooperative with police who arrived to investigate his burning home in which three people had died; "One can hardly expect the police to get a search warrant for a house or building when the owner is obviously cooperative and gives every appearance of being the victim, rather than the perpetrator, of a crime."),   vacated on other grounds, 408 U.S. 939 (1972); State v. Fredette, 411 A.2d 65, 67-70 (Me. 1979) (consensual search when defendant frantically called police and reported that someone had just shot her husband and then fully cooperated with responding officers; "[h]er conduct throughout conveyed only approval and encouragement of the police in their search"); State v. Koedatich, 548 A.2d 939, 956-58 (N.J. 1988) (when defendant called police and reported that he had been stabbed while driving his car, court found "implied voluntary consent" to seize and search his car for evidence relating to that stabbing; defendant initiated the police contact and adopted a "'cooperative posture in the mistaken belief that he could thereby divert or prevent police suspicion of him'").

25.

See Fredette, 411 A.2d at 68 (rejecting defendant's argument that she did not consent to later warrantless entries into her home after she had called police for immediate assistance for her dying husband; noting that, after she was "informed that the officers were in the process of searching her home, Mrs. Fredette then said, '[If] you find anything out there, would you let me know?' At no time during this conversation did Mrs. Fredette indicate any objection to the continued search of her home but, to the contrary, indicated a desire to know what the results might be.").

26. The Supreme Court recently reiterated in

Brigham City v. Stuart, 126 S.Ct. 1943, 1948 (2006), that "[a]n action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.'" Id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). In Brigham City, as in the present case, officers who made a warrantless entry into a private home acted reasonably under the circumstances. In that case, the officers entered the home under the "emergency aid doctrine," while here the officers entered both to provide emergency aid and with appellant's consent.

27. We agree with Professor LaFave, that a homeowner's 911 call requesting immediate assistance at his home is not an example of "implied" consent to enter the home, it is "actual" consent shown by circumstantial evidence. 4 LaFave, § 8.1(l) at 122 & n. 322.

28.

Brown, 856 S.W.2d at 182.

29.

See, e.g., Michigan v. Tyler, 436 U.S. 499, 509-11 & n. 6 (1978) ("In determining what constitutes a 'reasonable time to investigate,' appropriate recognition must be given to the exigencies that confront officials serving under these conditions, as well as to individuals' reasonable expectations of privacy"; concluding that an entry into a home to fight a fire requires no warrant, "and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches.").

30.

See Fredette, 411 A.2d at 69. In Fredette, the appellate court rejected the defendant's contention that her frantic call to police asking them to assist her husband who had been shot in their home did not constitute consent to search her home later that day for additional evidence.

The defendant not having expressly limited her consent to the police presence to either time, space, or purpose, we must consider whether the police who responded to her plea for assistance should have understood from all the circumstances that Mrs. Fredette desired only a limited search of her home. We conclude that knowing all of the existing factual circumstances, the police could reasonably understand that Mrs. Fredette had placed no limitation upon her consent for the search of her home.

Id. The court quoted from an earlier case, State v. Koucoules, 343 A.2d 860, 868 (Me. 1974), concerning the proper scope of a consensual search:

A consent search is a limited and conditional search only insofar as the consenting party has expressly stated, or, under the reasonable man standard in the light of all the existing circumstances, is deemed in fact to have impliedly attached, certain limitations under which the officers are authorized by him to search. The character of the search is determined by the scope of the authorization as understood by reasonable men having knowledge of all the existing factual circumstances, and not by any limitational rule of law applicable to all consent searches.

31.

Compare Mincey v. Arizona, 437 U.S. 385, 389 (1978) (officer's "emergency" search of shooting scene "lasted four days, during which period the entire apartment was searched, photographed, and diagramed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 200 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained.") (footnote omitted).

32.

See Brigham City, 126 S.Ct. at 1947 (noting that "the ultimate touchstone of the Fourth Amendment is 'reasonableness'").

33. It was appellant, not the trial judge, who relied upon

Mincey v. Arizona, 437 U.S. 385 (1978) and its "emergency aid doctrine." The court of appeals simply followed appellant's lead in its analysis rather than the lead of the able trial judge.