Opinion
No. 10-16-00215-CR No. 10-16-00216-CR
10-18-2017
MICHAEL BERNARD, Appellant v. THE STATE OF TEXAS, Appellee
From the 13th District Court Navarro County, Texas
Trial Court No. D35845-CR From the 13th District Court Navarro County, Texas
Trial Court No. D35916-CR
MEMORANDUM OPINION
In one issue in appellate cause numbers 10-16-00215-CR and 10-16-00216-CR, appellant, Michael Bernard, challenges his convictions for unlawful possession of a controlled substance in an amount greater than four grams but less than 200 grams with intent to deliver and endangering a child. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2017); see also TEX. PENAL CODE ANN. § 22.041(e) (West 2011). Specifically, Bernard complains that the trial court erred by denying his motion to suppress evidence seized during a purportedly illegal search of his vehicle. We affirm the judgment of the trial court in appellate cause number 10-16-00216-CR as modified. We also affirm the judgment in appellate cause number 10-16-00215-CR.
A review of the record shows that the judgment pertaining to Bernard's conviction for endangering a child incorrectly references the operative criminal statute as section 22.04(e) of the Penal Code, which governs injury to a child, elderly individual, or disabled individual. See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2016). The correct statute for endangering a child is section 22.041 of the Penal Code. See id. § 22.041 (West 2011). Because a court of appeals has authority to correct and reform a judgment to make the record speak the truth when it has information to do so, we modify the trial court's judgment of conviction in appellate cause number 10-16-00216-CR to reflect that the statute for the offense is section 22.041 of the Penal Code. See id.; see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).
I. MOTION TO SUPPRESS
In his sole issue in both appeals, Bernard contends that the trial court erred by denying his motion to suppress evidence, especially a prescription-pill bottle that contained methamphetamine, because law enforcement did not have probable cause to search the vehicle. We disagree.
A. Standard of Review
We review the trial court's ruling on a motion to suppress evidence for an abuse of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give "almost total deference" to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial court's determination of the law and it application of law to facts that do not turn upon an evaluation of credibility and demeanor. Id. When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
When ruling on a motion to suppress evidence, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling on a motion to suppress, we view all of the evidence in the light most favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures by government officials. U.S. CONST. amend. IV; see Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts a presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). Here, it is undisputed that the search was conducted without a warrant; therefore, we must examine whether the search was reasonable.
Whether a search is reasonable is a question of law that we review de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by examining the totality of the circumstances. Id. at 63. It requires a balancing of the public interest and the individual's right to be free from arbitrary detentions and intrusions. Id. A search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically defined and well-established" exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
B. The Evidence
At the hearing on the motion to suppress, several law-enforcement officers testified about the events surrounding the stop and subsequent search of Bernard's vehicle. Specifically, Corsicana Police Department Detectives Paul Jock, Kenneth Dunagan, and Garrett Harrell testified that, during the daylight hours of September 18, 2014, they noticed an unfamiliar gray van parked at the residence of Rory Myers Sr.—an individual with a history of possession and distribution of illegal narcotics. Detective Jock noted that Rory Myers Jr., an individual who was recently placed on probation for possession of narcotics, was also usually at the residence and that law enforcement had previously received information that "Mexia Mike" had been bringing methamphetamine to Navarro County from another county. In any event, the detectives, all of whom were riding in the same Corsicana Police Department pick-up truck, continued to conduct surveillance on the residence. Shortly thereafter, the detectives noticed an individual later identified as Bernard get into the gray van and drive westbound on 2nd Avenue in Corsicana. After noticing that Bernard had violated the Transportation Code by failing to wear his seatbelt, Detective Jock, the driver of the pick-up truck, activated the emergency lights and siren of the pick-up truck. Bernard drove approximately seven blocks before he stopped his vehicle—an action that the detectives viewed as unusually long and suspicious, especially given that there were numerous places for Bernard to pull over and stop. During the pursuit of Bernard, the detectives observed Bernard leaning over to the right of his seat and repeatedly looking in the rearview and side mirrors at them. Detective Jock noted that Bernard's behavior after the emergency lights and sirens were activated was consistent with hiding narcotics, hiding a weapon, or destroying evidence.
Eventually, Bernard stopped his van, and the detectives approached. Detective Dunagan went to the driver's door, while Detective Harrell went to the passenger door. Detective Dunagan asked for Bernard's driver's license and proof of insurance, and Bernard responded that he had an occupational license. However, Bernard was unable to produce an actual occupational license, the required log accompanying the occupational license, or proof of insurance—all of which constituted violations of the Transportation Code, as noted by the detectives.
While Bernard spoke with Detective Dunagan, Detective Harrell approached the passenger door of Bernard's van. Detective Harrell testified that when he walked up to the passenger-side window, Bernard motioned for him to open the door, which Detective Harrell did. After opening the door, Detective Harrell immediately noticed an orange prescription-pill bottle with a label that had been scratched off or was faded. Based on his training and experience, Detective Harrell recalled that illegal narcotics were often transported in old prescription-pill bottles. Later, Bernard admitted that he did not have a prescription.
Thereafter, Bernard was asked to exit the van, and the detectives noticed that Bernard had a wad of cash in his hand. Due to a concern about weapons, especially in light of Bernard's furtive movements prior to the stop, the detectives searched the area around and under the driver's seat. Near the driver's seat, the detectives recovered the prescription-pill bottle that Detective Harrell saw from the passenger side of the vehicle. Inside the prescription-pill bottle was a crystal substance that appeared to be methamphetamine inside a plastic bag.
Eventually, Bernard was placed under arrest. After which, the detectives discovered a set of digital scales in Bernard's pocket. The detectives stated that large sums of cash and digital scales are commonly used by people in the drug business. With regard to their interactions with Bernard, the detectives recounted that Bernard was nervous, shaking, had rapid speech, and provided some nonsensical answers. The detectives also noticed a young child in the backseat of the van.
C. Seizure of the Prescription-Pill Bottle
Though characterizing the stop as pre-textual, Bernard concedes that the detectives had reasonable suspicion for the stop based on the seatbelt violation. However, the crux of Bernard's argument is that the detectives did not have probable cause to search the vehicle, especially given that Detective Harrell purportedly opened the passenger door and leaned into Bernard's van without his consent.
One of the exceptions to the Fourth Amendment warrant requirement is a search conducted pursuant to a person's voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 854 (1973); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011). The validity of a consent to search is a question of fact to be determined from all the circumstances. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). A person's consent to search can be communicated to law enforcement in a variety of ways, including by words, actions, or circumstantial evidence showing implied consent. Johnson v. State, 226 S.W.3d 439, 441 (Tex. Crim. App. 2007) (reasoning that calling 911 and asking for police assistance constituted implied consent for police to enter defendant's home and investigate a homicide); Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004) (holding that a hand gesture made towards an officer was sufficient consent for the officer to enter the defendant's home). "But the Fourth . . . Amendment[] require[s] that a consent not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048; Maxwell, 73 S.W.3d at 281. The trial judge must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent to search was voluntary or coerced. Schneckloth, 412 U.S. at 233, 93 S. Ct. at 2050.
Courts review the totality of the circumstances of a particular police-citizen interaction from the point of view of an objectively reasonable person, without regard for the subjective thoughts or intents of either the officer or the citizen. Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d 370, 378 (1985) ("Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time the challenged action was taken.") (quoting Scott v. United States, 436 U.S. 128, 136, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)). The ultimate question is whether the person's "will ha[s] been overborne and his capacity for self-determination critically impaired," such that his consent to search must have been involuntary. United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976) (quoting Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047).
Whether consent was voluntary is a fact question and must be analyzed based on the totality of the circumstances. Meekins, 340 S.W.3d at 460. Trial courts may consider numerous factors in the voluntariness analysis. See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000) (noting factors that the Supreme Court has taken into consideration in determining whether consent is voluntary). Because issues of consent are necessarily fact intensive, a trial court's finding of voluntariness must be accepted on appeal unless it is clearly erroneous. See Juarez v. State, 758 S.W.2d 772, 779 (Tex. Crim. App. 1988) ("Voluntariness is a question of fact to be determined from the totality of the circumstances, and we accept the trial court's finding unless it is clearly erroneous") (internal citation omitted), overruled on other grounds by Boyle v. State, 820 S.W.2d 122, 125 (Tex. Crim. App. 1989).
Here, Detective Harrell testified that Bernard gestured for him to open the passenger-side door. When shown the video from his body camera, Detective Harrell also noted that:
At the very beginning[,] you couldn't see him motioning[,] but I heard myself even say, oh. I got up there[,] and I stopped and I say, oh, and then I opened it. I don't know any other explanation. I mean if somebody's doing this[,] and I'm beside the vehicle[,] I'm going to open the door.Presumably, based on these statements, Detective Harrell reenacted Bernard's gesture for the trial court to consider.
On this record, the trial court was in the best position to decide whether the gesture described by Detective Harrell demonstrated that Bernard consented to Detective Harrell opening the passenger-side door of the van. See Gallups, 151 S.W.3d at 201; see also Guzman, 955 S.W.2d at 87. Therefore, based on the totality of the circumstances, we cannot say that the trial court's implicit conclusion that Bernard consented to Detective Harrell opening the passenger-side door of the van was clearly erroneous. See Meekins, 340 S.W.3d at 460; Juarez, 758 S.W.2d at 779.
Next, we must examine whether seizure of the prescription-pill bottle was reasonable. Under the plain-view exception to the warrant requirement, an officer may lawfully seize evidence without a warrant if: (1) the officer observes evidence in plain view from a location where he has a right to be; and (2) the incriminating nature of the evidence is "immediately apparent." See Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990) (citing Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971) (plurality op.)); Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000). The second element requires a showing that the officer had "probable cause to associate the item with criminal activity." Martinez, 17 S.W.3d at 685.
Though the "immediately apparent" element requires a showing of probable cause, it "does not require actual knowledge of incriminating evidence." Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991); Arrick v. State, 107 S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref'd). But "immediately apparent" does mean that an officer cannot manipulate, move, or inspect an object to determine whether it is associated with criminal activity. See Hicks, 480 U.S. at 324-28, 107 S. Ct. at 1152-54. Otherwise, the object's association with criminal activity could not be said to be immediately apparent. See id.
In the instant case, Detective Harrell observed the prescription-pill bottle after opening the passenger-side door with Bernard's consent. Furthermore, Bernard admitted that he did not have a prescription relating to the prescription-pill bottle. Based on Bernard's admission, the prescription-pill bottle's illegal nature became immediately apparent, because, under sections 483.001(2) and 483.041 of the Health and Safety Code, it is illegal to possess a prescription-only substance without a prescription. See TEX. HEALTH & SAFETY CODE ANN. §§ 483.001(2), 483.041 (West 2017). Given this and Bernard's consent to Detective Harrell's opening of the passenger door of the van, we cannot say that the trial court erred by implicitly concluding that the prescription-pill bottle was lawfully seized under the plain-view doctrine. See Horton, 496 U.S. at 136-37, 110 S. Ct. at 2308; see also Martinez, 17 S.W.3d at 685. Therefore, viewing the evidence in the light most favorable to the ruling, we cannot say that the trial court abused its discretion in denying Bernard's motion to suppress. See Crain, 315 S.W.3d at 48; Guzman, 955 S.W.2d at 88-89 (Tex. Crim. App. 1997); see also Wiede, 214 S.W.3d at 24-25. We overrule Bernard's sole issue in these appeals.
II. CONCLUSION
Having overruled Bernard's sole issue in appellate cause numbers 10-16-00215-CR and 10-16-00216-CR, but having found an inaccuracy in the judgment in appellate cause number 10-16-00216-CR, we affirm as modified the judgment of the trial court in appellate cause number 10-16-00216-CR. We also affirm the judgment in appellate cause number 10-16-00215-CR.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed and affirmed as modified
Opinion delivered and filed October 18, 2017
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