Opinion
No. 04-09-00046-CR
12-12-2012
Thomas Paul TUCKER, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law, Kerr County, Texas
Trial Court No. CR08-11125
Honorable Spencer W. Brown, Judge Presiding
Opinion by: Rebecca Simmons, Justice Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
AFFIRMED
Appellant Thomas Paul Tucker was found guilty of the offense of possession of marihuana in an amount of less than two ounces within a drug-free zone. Tucker was assessed punishment at ninety-days confinement in the Kerr County Jail, a fine of $1,000.00, and court costs of $353.00. Tucker asserts the trial court erred in denying his motions to suppress because (1) the collected evidence was the "fruit" of an unlawfully prolonged detention, and (2) Tucker's consent to search was coerced, given under duress, and involuntary.
On July 28, 2010, we issued an opinion that affirmed the trial court's judgment. We noted that we did not review a video recording that the trial court did not review. However, in its June 20, 2012 opinion, the Court of Criminal Appeals reversed this court's judgment. Tucker v. State, 369 S.W.3d 179 (Tex. Crim. App. 2012). It remanded the appeal to this court with instructions to, inter alia, review the video recording and determine whether the evidence supports the trial court's implicit finding that appellant's consent was voluntary and its rulings denying appellant's motions to suppress evidence. Having reviewed the video recording as directed, we conclude that the record supports the trial court's implied findings and rulings. Therefore, we affirm the trial court's judgment.
BACKGROUND
On July 31, 2008, James Hicks, an investigator for the Kerr County Sheriff's Department's Narcotics Division, received information that an anonymous source had reported that Tucker was dealing marihuana from his house. The following day, Hicks saw Tucker leave his home in a white van. Hicks observed Tucker failing to use his turn signal when making a right-hand turn onto a street. Hicks immediately contacted Byron Griffin, also an investigator with the Kerr County Sheriff's Department's Narcotics Division, and directed Officer Griffin to stop Tucker for his traffic violation. Griffin did so.
As Tucker stopped his vehicle in a convenience store parking lot, Officer Johnson arrived at the scene to assist Griffin. The traffic stop and subsequent vehicle search was recorded by a video camera in Griffin's car. At Griffin's instruction, Tucker exited his van; he left the driver's door fully open. After Tucker gave his driver's license to Griffin, Griffin patted Tucker down and found nothing. Tucker then asked the officers if he could remove his young son from the van because it was hot and the van had no air conditioning. The officers responded that the stop would not take long and his son could remain in the van for the time being. Griffin issued Tucker a warning citation for the turn signal violation and returned Tucker's driver's license to him. The citation was given approximately seven minutes after the initial stop. For approximately one minute, Griffin and Tucker engaged in a short conversation about the warning citation. Griffin then asked Tucker if he had contraband in his vehicle. Tucker responded that he did not. Griffin asked Tucker if he could search the vehicle, and Tucker promptly gave his consent—less than nine minutes after the initial stop.
At that point, the officers began to search the vehicle. Griffin opened both rear cargo doors and then walked around to the driver's door. Johnson looked under the hood, then walked to the passenger's side and looked inside. Johnson immediately noticed small pieces of marihuana on the passenger's side floorboard. Griffin handcuffed Tucker and informed him that he was being detained for possession of marihuana. Griffin performed a second pat-down of Tucker and found nothing. Griffin informed Tucker that if he was taken to jail with "anything on him," he could be charged with a felony. Griffin asked Tucker if he had marihuana in his shoes; Tucker responded that he did. Griffin directed Tucker to remove his shoes. Griffin found a small plastic bag which contained 10.21 grams of marihuana. The officers found no other contraband on Tucker's person or in his vehicle. Tucker testified that he asked several times that his son be removed from the van, but the officers left Tucker's son inside the vehicle during the first thirty-two minutes of the thirty-six minute traffic stop.
After locating the marihuana in Tucker's shoe, Officer Griffin informed Tucker that they had information that he was selling marihuana from inside his residence, and Griffin asked permission to search Tucker's residence. Tucker responded that his two-year-old child was in the van and told Griffin that he would give his consent to search his residence if Griffin would take his son back to Tucker's residence. Griffin testified, "that's what happened." Tucker testified that he only gave consent to search the residence because the officers were using his son "as a pawn" to coerce him into giving consent to search his home. In the motion to suppress hearing, Tucker's counsel asked Griffin: "[I]sn't it true that you denied Mr. Tucker's right to take the child out of the vehicle until ultimately you got consent to search the house?" Griffin responded: "That's incorrect."
Tucker was charged with possession of less than two ounces of marihuana in a drug-free zone. Tucker filed two motions to suppress. One sought to suppress the evidence collected from the van; the other sought to suppress the evidence collected from his residence. Both motions were denied. Tucker pleaded nolo contendere to the single charge and this appeal followed.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When a question turns on credibility and demeanor, we view the evidence in the light most favorable to the trial court's ruling and give "almost total deference to a trial court's determination of the historical facts that the record supports." Guzman, 955 S.W.2d at 89; Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). We give the same deference to the trial court's rulings on mixed questions of law and fact "if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Guzman, 955 S.W.2d at 89; Montanez, 195 S.W.3d at 106. We review other mixed questions of law and fact and questions of law de novo. Guzman, 955 S.W.2d at 89; Montanez, 195 S.W.3d at 106. If no findings of fact were requested or filed, we "impl[y] the necessary fact findings that would support the trial court's ruling if the evidence (viewed in the light most favorable to the trial court's ruling) supports these implied fact findings." Kelly, 204 S.W.3d at 818-19; accord State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
MOTIONS TO SUPPRESS
Tucker does not challenge the validity of the initial traffic stop and detention. However, he asserts his detention was unlawfully prolonged and his consent to search his vehicle and his consent to search his residence were involuntarily given, leading to an illegal seizure of evidence from his vehicle and residence. We disagree.
A. Prolonged Detention
A traffic stop is a detention and must be reasonable. See Kothe v. State, 152 S.W.3d 54, 61-63 (Tex. Crim. App. 2004); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). To be reasonable, a traffic stop must have been justified when the person was initially stopped and must "last no longer than necessary to effect the purpose of the stop." Kothe, 152 S.W.3d at 63; accord Davis, 947 S.W.2d at 245. "[O]nce the reason for the stop has been satisfied, the stop may not be used [by police officers] as a 'fishing expedition for unrelated criminal activity.'" Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41 (1996) (Ginsburg, J., concurring)). However, an officer may ask for consent to search a vehicle even after the completion of the traffic stop, so long as the officer has not conveyed the message that compliance is required. Spight v. State, 76 S.W.3d 761, 767-68 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).
On appeal, Tucker concedes he was justifiably stopped by police for a turn signal violation. Approximately seven minutes after the stop began, Griffin can be heard on the recording stating that he is issuing Tucker a warning citation. After about seventy seconds of informal conversation between Griffin and Tucker, Griffin asks Tucker if he has anything in the van "I need to know about: guns, knives, hand grenades, nuclear weapons, hiding terrorists, any kind of narcotics" and adds "You don't mind if I take a look, do you?" Griffin testified that Tucker gave his consent to search the van.
Griffin's question does not indicate that Tucker's compliance with the search was required. See Kelly, 204 S.W.3d at 818-19. Further, the tone of Griffin's request captured in the video recording did not indicate "that compliance with the [search] might be compelled." See State v. Garcia-Cantu, 253 S.W.3d 236, 243 n.35 (Tex. Crim. App. 2008) (distinguishing an officer's conversational tone from a compulsory tone). Viewing the evidence, including the video recording, in the light most favorable to the trial court's ruling, and giving almost total deference to the trial court's determinations based on credibility and demeanor, we conclude that the record supports the trial court's implied finding that Tucker's detention was not unlawfully prolonged. See Kelly, 204 S.W.3d at 818-19 (implied findings); Guzman, 955 S.W.2d at 89 (deference); Simpson, 29 S.W.3d at 328 (consensual search after detention). Therefore, we turn to Tucker's argument that his consents to search his vehicle and residence were involuntary. See Spight, 76 S.W.3d at 767-68; Simpson, 29 S.W.3d at 329.
B. Coercion and Involuntariness of Consent
For consent to be valid, it must "'not be coerced, by explicit or implicit means, by implied threat or covert force.'" Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). Consent must be given freely, unequivocally, and without duress or coercion. Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). "The ultimate question is whether the suspect's will was overborne" by the officer's actions. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). We examine the voluntariness of a statement based on the totality of the circumstances. Id.; see Carmouche, 10 S.W.3d at 331. If the voluntariness of the consent is challenged at trial, the State must prove the voluntariness of a consent to search by clear and convincing evidence. Montanez, 195 S.W.3d at 105; Carmouche, 10 S.W.3d at 331. "If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding." Carmouche, 10 S.W.3d at 331; see Guzman, 955 S.W.2d at 89.
C. Consent to Search the Vehicle
Tucker argues that the officers' repeated refusals to remove his son from the hot van coerced him into giving consent to search the van. However, Tucker gave his consent to search his van less than nine minutes after the stop. Griffin testified, and the recording confirms, that only once during the first nine minutes of the stop did Tucker ask for his son to be removed from the van. The officers refused his request commenting that they did not expect the stop to take long. Furthermore, at the suppression hearing, Tucker stated he voluntarily gave the officers consent to search the vehicle. Considering the totality of the circumstances, we conclude that Tucker's will was not overborne by the officers' detention or questioning. See Creager, 952 S.W.2d at 856. Viewing the evidence in the light most favorable to the trial court's ruling, and giving appropriate deference to the trial court's determinations of credibility and demeanor that the record supports, we conclude that the evidence supports the trial court's implicit finding that Tucker knowingly, intelligently, and voluntarily consented to the search of his van. See Kelly, 204 S.W.3d at 818-19 (implied findings); Guzman, 955 S.W.2d at 89 (deference); see also Carmouche, 10 S.W.3d at 331 (voluntariness). The trial court did not err in denying Tucker's motion to suppress the evidence obtained from the stop and search of his van.
D. Consent to Search the Residence
Tucker also contends that the marihuana recovered from his house was the result of his coerced consent to search his residence. Tucker again points to the evidence regarding the stop of the van, the search of the van, and the delay in removing his son from the hot van to show that his consent to search his residence was coerced.
On review before the Court of Criminal Appeals, the parties agreed that Tucker was charged based on the marihuana discovered in his vehicle and on his person while he was in a drug-free zone (within 1,000 feet of a school). There were no charges stemming from the marihuana discovered at his residence.
In his briefs, Tucker emphasizes the coercive force exerted on him by the officers' refusal to remove his two-year-old son from his van on a hot summer day, especially because the van was not air conditioned. The recording reveals that from the time Tucker consented to the search of his van (approximately nine minutes after the initial stop) until his son was removed from the van (approximately thirty-two minutes after the initial stop), Tucker twice asked the officers to remove his son from the hot van. Tucker made both requests within a thirty-second period approximately sixteen minutes after the initial stop. The recording also provides information that weakens Tucker's assertions that he only consented to the search of his residence because of the coercive force of his son being held in a hot van. It shows Tucker left the driver's door fully open when he exited the van; Griffin fully opened both rear cargo doors at nine minutes after the initial stop; the passenger side doors were opened at least intermittently during the search of the van; at least one officer was within arm's reach of the child for more than half of the period of the search; the left rear cargo door was not closed until twenty-four minutes after the stop; the right rear cargo door was not closed until Tucker's son was removed from the van—at about thirty-two minutes after the initial stop; and there are no visual or aural indications that the child was in any distress. In fact, the recording reflects environmental sounds and the officers' conversations with Tucker, each other, and passers-by, but does not reflect any sounds made by the child.
Tucker also complained of additional coercive measures by the officers. After the officers searched the van, according to Tucker, Officer Griffin stated, "[w]e know you are selling pot out of your house. So either you can take us to it, and nobody will go to jail, and we won't call CPS, or we'll get a search warrant." Tucker stated he agreed to the residential search because he was told he would not go to jail that day if he cooperated. Griffin denied that he used Tucker's son as a pawn or promised Tucker anything. The trial court was faced with the conflicting testimony of Tucker's assertion that the officers used his son as a pawn to obtain Tucker's consent to search his residence, and Griffin's explicit denial of such allegations. Viewing the evidence, including the video recording, in the light most favorable to the ruling, and affording almost complete deference to the trial court's determination of historical facts that are based on its assessment of credibility and demeanor and are supported by the record, we conclude the record supports the trial court's implied finding that Tucker knowingly, intelligently, and voluntarily consented to the search of his residence. See Carmouche, 10 S.W.3d at 331; Cadoree v. State, 331 S.W.3d 514, 520 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
CONCLUSION
On remand, we have reviewed all of the evidence, including the video recording, under the appropriate standard of review. See Kelly, 204 S.W.3d at 818-19. We have examined the record to determine whether the evidence supports the trial court's implicit finding that appellant's consents were given voluntarily and its rulings denying appellant's motions to suppress evidence. We conclude that the record, including the video recording, supports the trial court's implied findings and rulings. See id. Therefore, we affirm the trial court's judgment.
Rebecca Simmons, Justice DO NOT PUBLISH