Opinion
No. 09-08-00458-CR
Submitted on March 16, 2010.
Opinion Delivered July 7, 2010. DO NOT PUBLISH.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 08-02-01660-CR.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Melvin Glen Benner appeals the trial court's denial of his motion to suppress. After the trial court denied his motion to suppress evidence, Benner pled guilty to possession of child pornography and was sentenced to sixteen years confinement in the Texas Department of Criminal Justice, Institutional Division. We affirm the judgment of the trial court.
BACKGROUND
While on duty, Officer James Kellerman of the Conroe Police Department and his partner, Officer Steven Walls, were dispatched on "an agency assist" to execute an arrest warrant issued by another county for Melvin Benner. Kellerman testified that prior to arriving at the location he did a history check which revealed that Benner "was dealt with several years earlier for having child porn on [his] computer. . . ." Benner was living in an "efficiency-type shed," that was "a little smaller" than the size of a hotel room and located on the back side of a residence, which he rented from the homeowner. The officers arrived at Benner's residence around 3:00 in the afternoon. The officers spoke with the homeowner and then proceeded to the apartment where Benner was living. Kellerman testified that the "door to the efficiency was open" and he "called out for Mr. Brenner [sic], and he responded[,]" and indicated he was inside the apartment. According to Kellerman, after Benner indicated he was in the apartment, the officers stepped inside. Kellerman testified that Benner was lying on the bed in the efficiency apartment in his boxer shorts. Kellerman explained that the officers told Benner why they were there and Benner stated that he knew he had an outstanding warrant and asked if he could put on some pants. While Benner was putting on his pants, Walls pointed out to Kellerman that there was drug paraphernalia, including "a crack pipe and a syringe on the nightstand." Walls also radioed to dispatch to have them ascertain the nature of a bottle of unmarked pills. Benner stated that the syringe was used for "diabetic medication." Kellerman testified that he noticed what appeared to be a pair of child's underwear posted up on Benner's dresser. Kellerman also observed a map of Texas on the wall with a pin in it and a picture of a young boy affixed to the map. Kellerman stated that while scanning the room for "other paraphernalia or drugs" he noticed a folder that had "nude pictures hanging out of it." Kellerman testified that he believed the pictures to be child pornography. Kellerman stated that he saw a child's genitals in an exposed photograph before he ever touched the folder. Kellerman opened the folder to the page that was exposed and observed the pictures. Kellerman testified that he then closed the folder and Benner was taken into custody and read his Miranda rights. At the hearing on the motion to suppress, photographs of Benner's apartment that were taken by Conroe Police Department's Crime Scene Unit were admitted into evidence. A photograph was admitted showing the folder, with a photograph of a nude boy sticking out of the folder. The folder was on top of a small dresser in an opening that served as a closet. The prosecutor asked Kellerman, "was [the picture] sticking out [of the folder] approximately like we saw from the images?" Kellerman responded that the pornographic picture "wasn't quite that far out." "I couldn't see the [child's] whole face. It was just — basically, I could see the genitals." According to Kellerman, the folder "was rather thick, and there were papers kind of [sticking] out [in] every direction." Kellerman stated that he opened the folder, saw pornographic pictures of four children, closed the folder, then handcuffed Benner who had finished getting dressed. The crime scene investigation unit photographed and seized the drug paraphernalia and folder with the pornography. Walls also testified at the suppression hearing. According to Walls, while Benner was getting dressed Walls noticed the drug paraphernalia on the nightstand besides Benner's bed. Walls stated that he was not watching Kellerman when Kellerman discovered the folder. Walls testified that Kellerman showed him a picture of what appeared to be teenage boys who were totally nude. Thereafter, Kellerman closed the folder and read Benner his rights. Kellerman did not recall taking the photograph out of the folder and showing it to Walls. Walls testified that he and Kellerman were in Benner's apartment for about fifteen minutes. Benner disputed the officers' testimony as to how the photographs were discovered. Benner described his apartment as a "garden shed that's been converted into an efficiency apartment." He testified that the officers "just walked into the apartment" and said they were there to execute a warrant. Benner stated that he acknowledged that he thought he had an outstanding warrant and asked the officers to hand him his pants. After Benner put on his pants he was read his Miranda rights and handcuffed. Benner stated that he slid on some shoes and as the officers turned to leave, one officer noticed the syringe on his nightstand. According to Benner, while he initially thought the syringe was a diabetic syringe, he testified at the hearing that "[i]t was a syringe [he used] to shoot medicine down [his] cat's throat." Benner testified that after the officers noticed the syringe on the nightstand, they sat him down in a chair and began searching his apartment. Benner stated that one officer questioned him about a picture in his apartment of a young boy, threw his "mattress up into the air," and continued "just looking around." According to Benner, the other officer asked him about pills he had in an unmarked bottle. Benner stated that he had 200 pills, and "three different kinds" of medications in the pill bottle. Benner stated that one of the officers stepped up onto his bed, "reach[ed] over and start[ed] going through the closet," specifically the nightstand. Benner testified that the officer "pulled the drawer out and rummage[d] through the drawer and slam[med] it shut." According to Benner, "the folder . . . with the pornography in it was underneath a stack of books and magazines and a Conroe-Montgomery County phone book." Benner testified that the photographs taken of his apartment did not accurately depict where the folder was when it was found and that it had been "arranged" for the purpose of the crime scene unit's photograph. Benner further testified that the officer who found the folder opened it up and rummaged through it and then threw it down on his bed. According to Benner, the officer did not "close it back up and put it back where it was." Benner filed a motion to suppress the child pornography that was seized from this apartment. After a hearing, the trial court denied the motion. In four issues on appeal Benner argues the trial court: (1) erred in denying Benner's motion to suppress evidence found during an illegal search and seizure; (2) erred in finding that the search of Benner's residence was the result of a lawful search and seizure; (3) abused its discretion in denying Benner's motion to suppress; and (4) abused its discretion in finding that the search of Benner's residence was the result of a lawful search and seizure. As his issues are all based on the trial court's denial of his motion to suppress, we will address them together.STANDARD OF REVIEW
When the trial court makes findings of fact after denying a motion to suppress we must determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports the trial court's fact findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). Where the trial court's fact findings are based on an evaluation of the credibility and demeanor of the witnesses and the findings are supported by the record, we give "almost total deference" to the trial court's determination of historical facts. Id. We give the same amount of deference to mixed questions of law and fact when the resolution of those questions turns on the credibility and demeanor of the witnesses. Id. When such questions do not turn on the credibility and demeanor of the witnesses we review the trial court's application of the law de novo. Id. An appellate court must view the record and draw all reasonable inferences therefrom in the light most favorable to the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Furthermore, the appellate court must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.ANALYSIS
At the conclusion of the hearing on the motion to suppress, the trial court made oral findings. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (Oral findings of fact and conclusions of law may be considered by the reviewing court); see also State v. Ross, 32 S.W.3d 853, 858 (Tex. Crim. App. 2000) ("[N]on-prevailing party . . . should attempt to get the rationale for the trial court's ruling on the record through either a verbal explanation at the hearing or express findings[.]"). The trial court denied Benner's motion to suppress on the basis of the plain view doctrine. We must consider the trial court's findings with appropriate deference to the trial court. See Keehn, 279 S.W.3d at 334. The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. amend. IV; Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). A person "protected from government invasion by the Fourth Amendment" can only claim the protection of the Fourth Amendment if that person has "a legitimate expectation of privacy" in the invaded place. Id. at 541. The burden to prove a legitimate expectation of privacy rests with the defendant. Villarreal, 935 S.W.2d at 138. The proper inquiry under the Fourth Amendment is whether the search or seizure was reasonable under the totality of the circumstances. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998). Searches conducted without a warrant are per se unreasonable, however, "seizing contraband in plain view does not run afoul of the Fourth Amendment." Walter, 28 S.W.3d at 541. The Texas Court of Criminal Appeals explained:[T]he "plain view" doctrine is not really an "exception" to the warrant requirement because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Simply put, "the State's intrusion into a particular area cannot result in a Fourth Amendment violation unless the area is one in which there is a constitutionally protected reasonable expectation of privacy."Id. "[I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no `search' within the meaning of the Fourth Amendment." Bouyer v. State, 264 S.W.3d 265, 269 (Tex. App.-San Antonio 2008, no pet.) (citing Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)). Seizure of evidence falls within the scope of the plain view doctrine when the evidence establishes (1) law enforcement officials had a right to be where they were when they observed the item in plain view; and (2) it was "immediately apparent" to the law enforcement officials that the item seized "constitutes evidence, that is, there is probable cause to associate the item with criminal activity." Walter, 28 S.W.3d at 541. On appeal, Benner argues that the police officers did not have a right to be in his apartment because the officers "did not have actual notice of the arrest warrant out of Caldwell County." Benner argues that the officers "were only informed of the warrant by [Benner's] landlord" and they did not confirm the warrant until after Benner was taken into custody. Kellerman testified at the suppression hearing that he and Walls received a dispatch from the Conroe police department to assist Caldwell County on execution of the warrant. Walls testified to the same. Benner did not object to this testimony at the suppression hearing. To the contrary, Benner testified that when the officers told him they were there to execute a warrant, he responded by stating that he believed he had an outstanding warrant in Caldwell County. Benner conceded at the hearing on the motion to suppress that the officers had a warrant for Benner's arrest. A valid arrest warrant provides an officer the authority to enter the residence of the person named in the warrant in order to execute the warrant. Morgan v. State, 963 S.W.2d 201, 203 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (citing Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Officers executing an arrest warrant must have a " reasonable belief that the suspect resides at the place to be entered . . . and [a] reason to believe that the suspect is present" at the residence at the time the warrant is executed. Id. at 204. Both officers testified that they entered the residence to execute an arrest warrant after receiving a dispatch to do so from the police department. Walls testified that when they arrived at the residence they spoke with the homeowner who informed them that Benner was residing in an efficiency apartment in the back of the house. When the officers approached Benner's apartment the door was open. Kellerman testified that he called out to Benner who responded that he was there. This evidence is sufficient to support a finding that the officers had a reasonable belief that Benner was residing in the apartment, as well as a reasonable belief that he was in the apartment at the time they entered. We conclude the officers had a right to be where they were when the child pornography was observed. Though Benner does not specifically address the plain view doctrine on appeal, he argues that the officers discovered the pornography during an improper "warrantless search" of his apartment. According to the testimony of Kellerman, the apartment was an efficiency apartment and the drug paraphernalia and folder with exposed pornography were in plain view in the room where Benner was taken into custody. Kellerman testified that the room was "probably 8-foot by 8-foot" and there was "a bed on the floor." Kellerman stated that there was no door on the opening which served as a closet. Kellerman, explained "it's all right there together. The bed is pushed up against [the closet]." Photographs of Benner's apartment showing the bed, closet, and dresser where the folder was observed, were admitted at the suppression hearing. According to Kellerman he stepped on Benner's bed and saw the folder "in plain view." Walls testified that "[t]here was a nightstand or something beside the bed and [Kellerman] observed . . . [the] folder[.]" According to Walls, nothing in the room had to be moved to observe the drug paraphernalia or the folder on the dresser. At the conclusion of the suppression hearing, the trial court stated that it did "not believe" and would "not find factually" that the folder at issue exposed photographs that "show[ed] genitals," as testified to by Kellerman. However, the court did find that the exposed photograph reflected nude body parts of what appeared to be a child. The court concluded that the nature of the exposed photograph, coupled with Kellerman's knowledge that Benner had previously possessed child pornography, and Kellerman's observation of a pair of child's underwear and a picture of a young boy in Benner's apartment, created sufficient probable cause to associate the exposed photograph with criminal activity. "Police officers do not have to know or be certain that an item in plain view is incriminating before seizing it; rather, they must have probable cause to believe the item is associated with criminal activity." Simmonds v. State, 51 S.W.3d 445, 449 (Tex. App.-Texarkana 2001, no pet.). Probable cause exists when the facts available would warrant a person of reasonable caution to believe that the item constitutes evidence of a crime. Id. In Simmonds, the officer testified that after entering the defendant's hotel room he noticed a picture on a drafting table "on plain white paper that was upside-down" that appeared to be "an image of a young child in a sexual pose [and] partially nude." Id. at 447. The officer testified that he took a step closer to the picture and looked at it from directly overhead and "confirmed his suspicion that the picture was child pornography." Id. On appeal, the defendant argued that a search had occurred because the picture the officer turned over "could not have been identified as child pornography from a face-down position." Id. at 448. Based on the officer's testimony that "he could see what looked like child pornography before he turned the picture over," the trial court held that no search occurred and the incriminating character of the picture provided probable cause to seize the photograph. Id. at 450. Likewise, here we find the evidence in the record sufficient to support the trial court's finding that the folder in plain view exposing an image of part of a child, when considered along with Benner's history and other items in Benner's apartment, gave the officer probable cause to associate the folder and its contents with criminal activity. See Simmonds, 51 S.W.3d at 449. Therefore, both elements of the plain view test are satisfied. See Walter, 28 S.W.3d at 541. The trial court did not err in denying the motion to suppress. We overrule issues one through four and affirm the judgment of the trial court. AFFIRMED.