Opinion
No. 05-03-01281-CR.
Opinion issued March 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-85279-02. Reversed and Remanded.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
The State of Texas brings this appeal of the trial court's order granting a pretrial motion to suppress evidence. The State charged Jacob Daniel Belous with possession of marihuana in an amount less than two ounces. After hearing a pretrial motion to suppress by way of affidavits, the court granted the motion to suppress. The State brings this appeal, contending the court erred in granting the motion. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2004). We reverse the trial court's order. Belous was a passenger in a car driven by Jessica Higgins. Officer Gino Ruatta initiated a traffic stop of Higgins's car for driving at excessive speed. Ruatta requested identification from both Higgins and Belous, and she gave the identification information to communications. Officer C.D. Mayfield informed Ruatta that Belous was "well known for narcotics"-Mayfield had previously issued a citation to Belous for possession of drug paraphernalia. Mayfield went to the location as a back-up officer. Ruatta, having determined there was no reason for the excessive speed, issued a verbal warning to Higgins. After Ruatta issued the warning, she requested consent to search Higgins's car. Higgins consented, and Mayfield conducted the search, finding marihuana seeds in the crevices of the front passenger seat and "Zig Zag" rolling papers. Ruatta performed a "Terry Frisk" on Belous and asked to look in his wallet. Belous complied, opened his wallet, then returned it to his pants pocket. Belous then stated he would consent to no further searches until he spoke to an attorney. Mayfield, however, reached into Belous's pocket, retrieved the wallet, and searched through it. Mayfield discovered .15 ounces of marihuana in the wallet, and he arrested Belous. Belous was charged with possession of marihuana in an amount less than two ounces. Before trial, Belous filed a motion to suppress all evidence, including the .15 ounces of marihuana found in his wallet. In his motion, Belous asserted the warrantless search that produced the marihuana violated the Fourth Amendment, the Texas Constitution, and the code of criminal procedure. The court heard the motion via affidavits and granted the motion. In its order, the court stated that once the vehicle occupants had been identified and the matter of the excessive speed had been addressed, "there was no other lawful reason for the contact and detention to continue" and there was no reasonable suspicion to hold, question, search, or otherwise obstruct Higgins. Therefore, the court ruled, no request to search the car should have been sought. The State appeals the order and argues that after the traffic stop was concluded, the officers did not need reasonable suspicion to request to search Higgins's vehicle. We review a trial court's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial court's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Absent an abuse of discretion, we may not disturb the trial court's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial court's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). The trial court premised its ruling by stating the voluntariness of Higgins's consent to search the car was irrelevant because the officers should not have asked for consent. The State argues this finding is "contrary to established principles of search and seizure law that a search pursuant to voluntary consent is lawful" and cites Brimmage v. State, 918 S.W.2d 466, 480 (Tex.Crim.App. 1994). Although the State does not separate this as an issue on appeal, we review every subsidiary question fairly included in briefs. See Tex.R.App.P. 38.1(e). Accordingly, we address this dispositive issue. "Consent to search is one of the well-recognized exceptions to the constitutional requirements of both a warrant and probable cause." Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000) (citations omitted). The State, however, must prove the voluntariness of a consent to search by clear and convincing evidence. See id. The trial court must consider the totality of the circumstances surrounding the statement of consent to determine whether consent was voluntary. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). Factors the courts have considered include the person's youth, education, and intelligence, the warnings about constitutional rights the person was given, the length of the detention, the repetitiveness of the questioning, and the use of force including handcuffing and weapons. Reasor, 12 S.W.3d at 818. An illegal detention is not sufficient in and of itself to poison the fruits of that detention if the taint from the illegal detention is removed by voluntary consent, shown voluntary by clear and convincing evidence. See Rosalez v. State, 875 S.W.2d 705, 721 (Tex. App-Dallas 1993, pet. ref'd). We conclude, therefore, that the circumstances involved in the detention of Higgins and Belous are a factor in voluntariness and were not-standing alone-sufficient cause to grant the motion to suppress. Accordingly, the trial court abused its discretion in granting the motion to suppress under this reason. We reverse the trial court's granting of the motion to suppress. Although we review the trial court's application of search and seizure law de novo, we give deference to the court's determination of facts. See Carmouche, 10 S.W.3d at 327. Here, the trial court based its decision to grant the motion to suppress on the preliminary issue of the detention of Belous and Higgins. The court never made additional factual determinations regarding the affidavits as relevant to Mayfield's assertion of finding the marihuana seeds; neither Belous's nor Ruatta's affidavit's mentioned marihuana seeds being found in the vehicle. It is the trial court's role to be the fact finder, and we will give deference to the court's factual determinations, including when the court is reviewing information solely from affidavits. See Manzi v. State, 88 S.W.3d 240, 242-44 (Tex.Crim.App. 2002). Without factual determinations, we cannot apply the law to the facts, specifically as to deciding whether the consent to search the car was sufficiently attenuated from the detention, and if so, whether zig zag papers, or the zig zag papers and seeds, provided sufficient probable cause articulated by Mayfield to justify Mayfield's warrantless search of Belous's wallet. Accordingly, we remand for further considerations in light of our opinion.
The factual background in this case is derived from affidavits filed by Belous and the two Allen police officers involved in the traffic stop. We provide the recitation of the information for purposes of clarity only; we have not made factual determinations as to the weight to be given to the information in the affidavits.
We recognize that if an officer has probable cause to arrest, he may search a person incident to that arrest. See State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App. 1999). However, an officer's "hunch, suspicion or good faith perception" is not enough. See Lunde v. State, 736 S.W.2d 665, 667 (Tex.Crim. App. 1987).