Opinion
No. 05-02-01296-CR.
Opinion Issued April 29, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law #2, Collin County, Texas, Trial Court Cause No. 2-83601-01. Affirmed.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
MEMORANDUM OPINION
The State appeals the trial court's order granting Jennifer Lynn Bynum's motion to suppress. In one issue, the State claims the trial judge abused his discretion in granting Bynum's motion to suppress because the marijuana found in her purse was discovered after Bynum admitted having drugs in her purse. The State claims that because Bynum's admission was made freely and not pursuant to a custodial interrogation, her statement was admissible in spite of the police officers' failure to give her the article 38.22 warnings regarding oral statements. See Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a)(2) (Vernon Supp. 2003). We disagree and affirm the trial court's order. In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. Tran v. State, No. 74,040, slip op. at 8, 2003 WL 1799013, at *4 (Tex.Crim. App. Apr. 2, 2003) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000)). We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge'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); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (we review mixed questions of law and fact de novo if the resolution of the ultimate questions does not turn on an evaluation of credibility and demeanor). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's application of law to the facts. Carmouche, 10 S.W.3d at 327; State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999); Guzman, 955 S.W.2d at 87. Absent an abuse of discretion, we may not disturb the trial judge'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 judge'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). Article 38.22 of the code of criminal procedure provides that no oral statement made as a result of a custodial interrogation shall be admissible against the accused unless "prior to the statement . . . the accused is given the [required warning] and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning. . . ." Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (Vernon Supp. 2003); see Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996) Miranda warnings and article 38.22 apply only to custodial interrogations). Thus, if a statement is made as a result of a custodial interrogation without the benefit of the required article 38.22 warning, the statement is inadmissible. See Dowthitt, 931 S.W.2d at 263. Evidence found as a result of an inadmissible statement is likewise inadmissible unless the taint between the statement and the evidence was sufficiently attenuated. See Jones v. State, 833 S.W.2d 118, 124 (Tex.Crim. App. 1992). Although the State argues Bynum's statement was admissible because Bynum was subject only to a temporary investigative detention, not a custodial interrogation, we disagree. A person is in custody "only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt, 931 S.W.2d at 254 (citing Stansbury v. Cal., 511 U.S. 318, 322 (1994)). In determining whether a person is in custody, we consider:
(i) Probable cause to arrest,
(ii) Subjective intent of the police,
(iii) Focus of the investigation, and
(iv) Subjective belief of the defendant.Dowthitt, 931 S.W.2d at 254 (citing Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App. 1990)). "[F]actors two and four have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials; the custody determination is based entirely upon objective circumstances." Dowthitt, 931 S.W.2d at 254. The court of criminal appeals has outlined four general situations which may constitute custody: (i) when the suspect is physically deprived of his freedom of action in any significant way, (ii) when a law enforcement officer tells the suspect that he cannot leave, (iii) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (iv) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). With respect to the first three situations, the restriction upon freedom of movement "must amount to the degree associated with an arrest as opposed to an investigative detention." Dowthitt, 931 S.W.2d at 255. What begins as a noncustodial detention, however, may become a custodial interrogation as a result of police conduct during the encounter. Dowthitt, 931 S.W.2d at 255. In the fourth Shiflet scenario, the officers' knowledge of probable cause must be manifested to the suspect. Custody is then established "if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Dowthitt, 931 S.W.2d at 255. In this case, Bynum was stopped by two Plano police officers, officers Sanders and Boyd, who stated she was being stopped for an expired registration sticker. When Bynum showed Sanders a current registration sticker which had not yet been affixed to the windshield, Sanders gave Bynum a written warning. As Bynum was preparing to leave, Sanders asked her if she had any contraband or weapons to which Bynum answered, "No." After telling Bynum she "needed to stay there for a little while longer," Sanders asked Bynum about her relationship with her passenger, a male of "African descent." In the meantime, Boyd asked Bynum's passenger for identification and ran a check on him. Bynum was subsequently told her passenger was being arrested for a "possible outstanding warrant." After arresting Bynum's passenger and searching the passenger compartment of the vehicle, Sanders told Bynum she had found marijuana in the ashtray of the car and that she knew Bynum was carrying marijuana. She told Bynum she was going to arrest her and take her to jail. The officer then instructed her to put her hands on her head while she searched her. Bynum testified she was not given any warnings or allowed to call an attorney. Sanders told Bynum that instead of continuing her search, "which [she] could have done," she would give Bynum "the opportunity to be honest with [Sanders] and to take care of the situation . . . [t]o be honest and tell [Sanders] if there was any more marijuana or contraband in the vehicle . . . [so the officer could] go ahead and retrieve it and be done with the search[.]" Sanders testified:
I told her that we had found marijuana in the vehicle. I told her this would be her opportunity to be honest with me and tell me if there was any more contraband in the car. That I wouldn't place her under arrest if she was honest with me and told me where it was. She said, yes, that was her marijuana and she had additional marijuana in her purse and where it was and what it consisted of. . . . [I did not arrest her because] I told her if she was honest with me, I wouldn't place her under arrest. She told me she was going to go to medical school, and I told her if she was honest, I wouldn't arrest her. And she didn't need that on her record.On cross-examination, Sanders admitted (i) Bynum was not free to go, (ii) based on Bynum's responses, Sanders found additional contraband that she had not previously discovered, and (iii) Bynum's statement regarding the marijuana was made without her being given the article 38.22 warnings. The judge then asked Sanders how the case ended up with the district attorney's office if she told Bynum she would not arrest her. Sanders replied, "No, I told her I would not arrest her. I didn't tell her I wouldn't file the charge." In light of these facts, we conclude, at the time she made the statement at issue in this case, Bynum was physically deprived of her freedom of action in a significant way. No officer told her she was free to leave and Bynum testified the officer told her she "needed to stay." Bynum was not free to leave and, in fact, was told she was going to be arrested. Under the circumstances here, we conclude officers Sanders and Boyd created a situation that would lead a reasonable person to believe that her freedom of movement was significantly restricted and that she could not leave. Thus, we conclude Bynum was in custody at the time she made the statement regarding the marijuana in her purse. Because she was in custody but had not been admonished under article 38.22, her statement is inadmissible. To the extent the State argues the arrest of Bynum's passenger justified the initial search of Bynum's vehicle which resulted in the discovery of marijuana in the ashtray and that the officers therefore had probable cause to search Bynum and her purse, we disagree. The evidence shows the officers arrested Bynum's passenger, a male individual of "African descent" who "was over the age of twenty-one," on a " possible outstanding warrant out of Dallas county" for a "curfew warrant." (Emphasis added.) During the hearing, however, the State did not offer as evidence any warrant for the arrest or detention of Bynum's passenger. Under these circumstances, we conclude the trial judge could have properly determined no warrant existed at the time Boyd arrested Bynum's passenger and, therefore, the search performed incident to his arrest was improper. See Ross, 32 S.W.3d at 855 ("Since the trial court was the sole judge of credibility, it was within the discretion of the trial court to accept or reject Agent Darnell's testimony and therefore within the discretion of the trial court to grant the motion to suppress."); see also Villarreal, 935 S.W.2d at138; Knisley, 81 S.W.3d at 483 (court of appeals must uphold trial judge's decision on motion to suppress if correct under any theory of law). Having determined Bynum's statement was the result of a custodial interrogation without the benefit of the article 38.22 warnings, we conclude the State's argument to the contrary lacks merit. We overrule the State's sole issue. We affirm the trial court's judgment.
The trial judge noted, "Ordinarily, in the past, in the 999 cases out of 1,000, the state would have introduced a certified copy of the arrest warrant. They haven't in this case."