Opinion
CAUSE NO. 39104
08-08-2019
THE STATE OF TEXAS v. TAYLOR ANN RADKE
Roy DeFriend District and County Attorney Limestone County, Texas State Bar Number 05636250 200 West State Street, Suite 110 Groesbeck, Texas 76642 Phone: (254) 729-3046 Fax: (254) 729-5699 Email: roy.defriend@co.limestone.tx.us
STATE'S NOTICE OF APPEAL
COMES NOW the State of Texas, by and through her elected District and County Attorney, Roy DeFriend, and files this written Notice of Appeal in the above-entitled and numbered cause. The State hereby gives notice of its intention to appeal the pretrial Order Granting Defendant's Motions to Suppress entered in this Cause on July 22, 2019, pursuant to Texas Code of Criminal Procedure Article 44.01(a)(5) and the Rules of Appellate Procedure, to the Court of Appeals in Waco, McLennan County, Texas, and would show the following:
1.
On July 22, 2019, the trial court had a pretrial hearing on Defendant's Motion to Suppress Physical Evidence and Motion to Suppress Defendant's Statements. In relevant part, the Defendant sought to exclude:
a. The eight Hydrocodone pills seized by law enforcement officers in connection with the detention and arrest of the Defendant in this case or in connection with the investigation of this case.
b. Any of the Defendant's statements made to any law enforcement officers or others regarding the eight Hydrocodone pills seized in connection with this case.
II.
As the basis of exclusion of the physical evidence, the Defendant asserted that:
The search of the contents of the pill bottle was illegal as it violated the Defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas, in that the officers exceeded the scope of the warrant and therefore the 8 Hydrocodone pills that are alleged to have been seized as a result are inadmissible under Article 38.23 of the Texas Code of Criminal Procedure.Def.'s Mot. to Suppress Physical Evid. at 2.
As the basis of exclusion of the Defendant's statements, the Defendant asserted that:
The Defendant's statements regarding the alleged contraband found in the home were solicited in violation of Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure and should be suppressed under 38.23(a) of the same code as the product of an improper custodial interrogation.Def.'s Mot. to Suppress Def.'s Statements at 2.
III.
On July 22, 2019, the trial court entered its Order granting the Defendant's motion to suppress, stating in relevant part: "...came to be considered Jonathan Rivera's Motion to Suppress, and said motion is hereby Granted." The trial court signed a single order for Cause Numbers 39104 and 39084, which are companion cases. The State seeks to appeal this ruling granting a motion to suppress evidence in a case in which jeopardy has not attached.
IV.
The State has filed this written Notice of Appeal in the trial court on August 8, 2019, which is within 20 days of the date on which the trial court entered the Order the State seeks to appeal. Tex. Code Crim. Proc. Ann. art. 44.01(d); Tex. R. App. P. 26.2(b).
The hearing on this matter was recorded and a reporter's record will be requested from the court reporter, Sherry Current. Findings of Fact and Conclusions of Law have been requested of the trial court in accordance with the requirement that the Texas Court of Criminal Appeals established in State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006).
V.
This appeal is taken pursuant to Texas Code of Criminal Procedure, Article 44.01(a)(5), and I, the undersigned prosecuting attorney, hereby certify to the Court that this appeal is not taken for the purpose of delay and that the evidence is of substantial importance in the case.
VI.
The State requests a stay in the proceedings pending the disposition of this appeal.
Respectfully submitted,
/s/_________
Roy DeFriend
District and County Attorney
Limestone County, Texas
State Bar Number 05636250
200 West State Street, Suite 110
Groesbeck, Texas 76642
Phone: (254) 729-3046
Fax: (254) 729-5699
Email: roy.defriend@co.limestone.tx.us
CERTIFICATE OF SERVICE
This is to certify that on the 8th day of August, 2019, a true and correct copy of the foregoing document was served on: Raymond Sanders, Attorney for Appellee, by this Court's electronic filing system at raymond.sanders454@yahoo.com
/s/_________
Roy DeFriend
District and County Attorney
Limestone County, Texas
NO. 39104
DEFENDANT'S MOTION TO SUPPRESS DEFENDANT'S STATEMENTS
TO THE HONORABLE JUDGE OF SAID COURT:
DEFENDANT, TAYLOR ANN RADKE, submits the Defendant's Motion to Suppress Defendant's Statements, and asks the Court to hold a hearing whereas the Defendant will show as follows:
Procedural History
The Defendant allegedly committed the offense which is the subject of Cause No. 39104 on June 6, 2018. The Defendant was arrested as a result of this alleged offense and was charged by information for the offense of intentionally and knowingly possessing a controlled substance namely, Hydrocodone, in the amount of less than 28 grams on October 10, 2018.
Statement of Facts
On June 6, 2018, members of the Joint Criminal Apprehension Team executed a search warrant at 114 North Tucker Lane in Groesbeck, Texas.
The sole purpose of the warrant was to search for evidence pertaining to the escape of a prisoner by the name of Tristan Neason who had escaped on May 28, 2018. More specifically, the search warrant listed a pair of Smith and Wesson handcuffs or pieces of Smith and Wesson hand cuffs AND a pair of bolt cutters.
While executing the search warrant, Defendant TAYLOR ANN RADKE was ordered to sit down on the front porch of the home, and was not allowed to leave. She was then questioned by Officer John Blanco without ever being given her Miranda warnings and Officer John Blanco failed to inform the Defendant of her rights pursuant to Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure.
Argument
The Defendant's statements regarding the alleged contraband found in the home were solicited in violation of Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure and should be suppressed under Article 38.23(a) of this same code as the product of an improper custodial interrogation.
Miranda safeguards take effect whenever a person in custody is subjected to either express questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), See also Miranda v. Arizona, 384 U.S. 436, 444 (1966). Miranda prohibits the prosecution from using statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it shows the use of procedural safeguards sufficient to secure the privilege against self-incrimination. Innis, 446 U.S. 291 at 297. Custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 298 (quoting Miranda, 384 U.S. at 444 (1966)).
The protections afforded by Miranda are not limited to questioning related to the reason for the arrest. See Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503 (1968). In Mathis, the Supreme Court held that nothing in the Miranda opinion calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody. Id.
Additionally, Article 38.22 § 3(a)(2) provides that [n]o oral...statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:...
(2) prior to the statement...the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning...
The Fort Worth Court of Appeals held in State v. Stevenson that statements made to police officers concerning the location of a weapon used in a shooting were inadmissible because they were given during custodial interrogation. 784 S.W.2d 143, 144 (Tex.App.-Fort Worth 1990, no pet.). In Stevenson, the officers responded to a radio dispatch that a shooting had occurred. Id. Upon arrival at the scene, the officers saw two bodies lying on the ground, and the elderly defendant. Id. The first officer on the scene asked the defendant where the gunman was so that he could secure the scene and allow the ambulance crew to tend to the victims. Id. The defendant then reluctantly told the officer that he was the shooter, and that he had thought the victims were burglars. Id. At that point, the defendant explained that he had heart trouble, asked to sit down, and was allowed to sit on the porch. Id. A second officer arrived, and was asked by the first officer to watch the man on the porch as he was the shooter. Id. The second officer then asked the defendant where the gun was, and he told him the location. Id.
The Court in Stevenson held that the defendant "was in police custody at the time of his statements concerning the location of the gun because he was restrained in his freedom of movement to the degree associated with a formal arrest." Id. In reaching that decision the Court examined the factors with regards to the specific facts of the case. Id. The factors they looked at were whether probable cause to arrest existed, whether the defendant was the focus of the investigation, the subjective intent of the officers, and the defendant's subjective belief. Id.
In the present case, the interrogation of the Defendant was the equivalent of a custodial interrogation and any use of the Defendant's statements at trial would be unconstitutional since the officers failed to give the Defendant the required Miranda warnings, codified in Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure, prior to questioning.
Indeed, while the search was conducted, the Defendant was ordered by the police out of the house and was ordered to sit down on the front porch. Clearly, the Defendant was not free to leave and all of the Defendant's statements were in response to the officer's questioning. Therefore, the questioning of the Defendant was clearly what amounts to a custodial interrogation given that the Defendant was being detained and was not free to leave when she was questioned by police about the 8 hydrocodone pills that are alleged to have been found in the house.
Additionally, there is no evidence that the Defendant was Mirandized or in any way informed of her statutory rights prior to the interrogation as required by Article 38.22 § 3(a)(2) of the Texas Code of Criminal Procedure. Because of the officer's violation, the Defendant's statement should be suppressed pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure as the product of an illegal custodial interrogation.
CONCLUSION AND PRAYER
Any statements alleged to have been made by the Defendant regarding the 8 hydrocodone pills allegedly found in the home should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure because they were solicited in contravention of Article 38.22 § 3(a)(2) of this same code. For the foregoing reasons, the Defendant respectfully asks this court to find that the custodial interrogation of the Defendant was illegal, given that the Defendant was not informed of her rights prior to questioning, and order the suppression of the Defendant's statements in response to this improper questioning.
Respectfully submitted,
By:/s/_________
Raymond L. Sanders
ATTORNEY FOR DEFENDANT
Texas Bar No. 24105144
107 S. Railroad St.
Groesbeck, Texas 76642
Phone # (254) 729-5001
Fax. # (254) 729-500
raymond.sanders454@yahoo.com
Certificate of Service
This is to certify that on March 11, 2019, a copy of Defendant's Motion to Suppress Defendant's Statements was delivered to the District Attorney of Limestone County, Texas.
/s/_________
Raymond L. Sanders
NO. 39104
DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
DEFENDANT, TAYLOR ANN RADKE, submits the Defendant's Motion to Suppress Physical Evidence, and asks the Court to hold a hearing whereas the Defendant will show as follows:
Procedural History
The Defendant allegedly committed the offense which is the subject of Cause No. 39104 on June 6, 2018. The Defendant was arrested as a result of this alleged offense and was charged by information for the offense of intentionally and knowingly possessing a controlled substance namely, Hydrocodone, in the amount of less than 28 grams.
Statement of Facts
On June 6, 2018, members of the Joint Criminal Apprehension Team executed a search warrant at 114 North Tucker Lane in Groesbeck, Texas.
The sole purpose of the warrant was to search for evidence pertaining to the escape of a prisoner by the name of Tristan Neason who had escaped on May 28, 2018. More specifically, the search warrant listed a pair of Smith and Wesson handcuffs or pieces of Smith and Wesson hand cuffs AND a pair of bolt cutters.
While conducting the search of the house, officers allege to have found a pill bottle. The pill bottle in evidence is amber in color and it is impossible to determine the content of the bottle without opening the bottle. The officers in fact opened the bottle to inspect the contents and it is alleged that the pill bottle contained 8 hydrocodone pills. The pill bottle in evidence has no prescription label on it. The Defendant was charged with intentionally and knowingly possessing a controlled substance namely, Hydrocodone, in the amount of less than 28 grams.
Argument
The search of the contents of the pill bottle was illegal as it violated the Defendants rights under the Fourth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Constitution of the State of Texas, in that the officers exceeded the scope of the warrant and therefore the 8 Hydrocodone pills that are alleged to have been seized as a result are inadmissible under Article 38.23 of the Texas Code of Criminal Procedure
The search of the pill bottle was illegal because it exceeded the scope of the warrant. Due to the illegality of that search, the 8 Hydrocodone pills that are alleged to have been sized must be suppressed under article 38.23 of the Texas Code of Criminal Procedure.
Both the United States Constitution and the Texas Constitution provide that people have the right to be free from unreasonable searches and seizures. See U.S. Const. Amend. IV; Tex. Const. Art. I, § 9. The 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incrimination at last emerges. See Coolidge v. New Hampshire, 403 U.S. 443, at 466 (1971).
In Arizona v. Hicks, 480 U.S. 321 (1987), a bullet was fired through the floor of an apartment, striking and injuring a man in the apartment below. Id. Police officers arrived and entered respondent's apartment to search for the shooter, for other victims, and for weapons. Id. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask. Id.
One of the policemen noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Id. Suspecting that they were stolen, he read and recorded their serial numbers - moving some of the components, including a Bang and Olufsen turntable, in order to do so - which he then reported by phone to his headquarters. Id. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. Id. It was later determined that some of the other serial numbers matched those on other stereo equipment taken in the same armed robbery, and a warrant was obtained and executed to seize that equipment as well. Id. The defendant in Hicks was subsequently indicted for robbery. Id.
In Arizona v. Hicks, 480 U.S. 321 (1987), the Supreme Court held in a 6-3 opinion that the search was invalid because the policeman had only a "reasonable suspicion" -- i.e., less than probable cause to believe -- that the stereo equipment was stolen. Id. In his opinion, Justice Scalia stated that the distinction between 'looking' at a suspicious object in plain view and 'moving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. Id at 325. Further along in the Court's opinion Justice Scalia reasoned that, " A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the "plain view" doctrine would supplant that requirement. Id. at 328.
In summation, the Court in Arizona v. Hicks, found that the search and seizure of the stereo equipment that was moved and manipulated violated the Fourth and Fourteenth Amendment. Id.
In the case at bar, the officers were executing a search warrant for handcuffs and bolt cutters. No reasonable person would believe that hand cuffs or bolt cutters could be found inside a pill bottle. It was only after the officers pick up the pill bottle up, opened it, and looked inside was the identity of its content even known. In doing so, the officers were exceeding the scope of the warrant based on reasonable suspicion and without a warrant or probable cause. Therefore, the pill bottle and its contents must be suppressed and exclude from trial under article 38.23 of the Texas Code of Criminal Procedure.
The Defendant has standing to challenge search
The Defendant has standing to challenge the search of the home in which she was sleeping which exceeded the scope of the warrant. "An accused has standing, under both constitutional provisions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded." Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.App. 1996). In order to show standing, the accused must normally show that by his conduct, he exhibited an actual subjective expectation of privacy, and that circumstances exist under which society will recognize that expectation as objectively reasonable. Id.
The Court of Criminal Appeals laid out several factors that are relevant to the determination of whether the defendant had a subjective expectation that society is willing to recognize as objectively reasonable. Id. They include whether the accused had a property or possessory interest in the place invaded, whether he was at the place legitimately, whether he had complete control and the right to exclude others, whether he took normal precautions customarily taken by those seeking privacy, whether he put the place to a private use, and whether his claim of privacy is consistent with historical notions of privacy. Id.
In the case at bar, the Defendant had a possessory interest in the home because she was given permission to sleep there over night with unrestricted access. The Defendant was legitimately on the premises because she was given permission to be there. The fact that the Defendant had slept in the residence overnight demonstrates that she was putting the place to a private use. Due to all of the facts and circumstances surrounding the Defendant's use of the property, it is clear that she has standing to challenge the search.
CONCLUSION AND PRAYER
The alleged 8 hydrocodone pills allegedly found in the home should be suppressed under Article 38.23(a) of the Texas Code of Criminal Procedure because the search of the inside of a pill bottle exceeds the scope of the warrant that was issued to search the home for handcuffs and bolt cutters. For the foregoing reasons, the Defendant respectfully asks this court to find that the search and seizure of the physical evidence in this case is excluded from trial.
Respectfully submitted,
By:/s/_________
Raymond L. Sanders
ATTORNEY FOR DEFENDANT
Texas Bar No. 24105144
107 S. Railroad St.
Groesbeck, Texas 76642
Phone # (254) 729-5001
Fax. # (254) 729-500
raymond.sanders454@yahoo.com
Certificate of Service
This is to certify that on March 11, 2019, a copy of Defendant's Motion to Suppress Physical Evidence was delivered to the District Attorney of Limestone County, Texas.
/s/_________
Raymond L. Sanders NO. 39104 39084
STATE OF TEXAS
vs.
JONATHAN RIVERA
IN THE COUNTY COURT LIMESTONE COUNTY, TEXAS
ORDER
On 7/22/19, 2019, came on to be considered Jonathan Rivera's Motion to Suppress, and said motion is hereby
(Granted) (Denied)
/s/_________
JUDGE PRESIDING Date of Judgment or Other Order Appealed From: July 22, 2019 Name of Trial Court Judge: HONORABLE JUDGE RICHARD DUCAN Name of Court Recorder: JANICE LEDET, Deputy Clerk; jan.ledet@co.limestone.tx.us VIA JAVS ELECTRONIC RECORDING DEVICE Name and Address of Defense Attorney on Appeal: Raymond Sanders
107 S Railroad St.
Groesbeck, Texas 76642 Defense Attorney on Appeal: COURT APPOINTED Name and Address of Attorney(s) for the State on Appeal: HON. ROY DEFRIEND
200 WEST STATE STREET, STE. 110
GROESBECK, TEXAS 76642 Defendant Incarcerated? NO Appeal Bond: No Plea: NOT GUILTY Before: COURT Offense: POSS CS PG 3 < 28G
Statute For Offense: Article , Section 481.117(b) Punishment Assessed: N/A Kerrie Cobb
County Court Clerk
Limestone County, Texas By: /s/_________
Deputy August 9, 2019 10th Court of Criminal Appeals
VIA- TAMES RSP Re: 39104: State Of Texas vs. Taylor Ann Radke To Whom It May Concern: Enclosed is the Notice of Appeal, Motion to Suppress Defendant's Statements, Motion to Suppress Physical Evidence, Order Granting Motion to Suppress and appeal information sheet filed in the above styled and numbered cause. A copy of this letter is being forwarded to the Limestone County District Attorney's Office. should you have any questions, please do not hesitate to contact our office. Thank you and have a nice day. Sincerely, Kerrie Cobb, County Clerk
Limestone County, Texas By:/s/_________
Deputy Clerk CC: Raymond Sanders
107 S Railroad St
Groesbeck Texas 76642