Opinion
NO. 09-11-00378-CR
04-04-2012
ANTHONY LEE BURNETT Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 21667
MEMORANDUM OPINION
Appellant Anthony Lee Burnett pleaded guilty to two counts of sexual assault of a child. The trial court found that the evidence was sufficient to find Burnett guilty, but deferred further proceedings, placed Burnett on community supervision for ten years, and assessed a fine of $2,000. In two appellate issues, Burnett challenges the trial court's denial of his motion to suppress. We affirm the trial court's judgment.
At the hearing on Burnett's motion to suppress, Deputy Michael Nettles of the Polk County Sheriff's Department testified that he made contact with Burnett as part of a narcotics sting. According to Nettles, another officer had asked him to contact Burnett to attempt to obtain the telephone number of a suspected drug dealer. Nettles explained that he made contact with Burnett at the Polk County Jail, where Burnett was confined on an unrelated matter. Nettles told Burnett the reason for his visit, and he requested that Burnett consent to a search of his cell phone. Nettles read the consent form to Burnett, and he then permitted Burnett to read the form and sign it. Nettles testified that the consent form signed by Burnett does not place any limits on what the authorities would be searching for on the phone or state that the authorities would only search for certain items. The form identified Burnett's phone by telephone number. Nettles also explained that he did not make any promises to Burnett that the authorities would only search for certain items or would only examine particular items on the phone.
After obtaining Burnett's written consent, Nettles and another officer went to Burnett's address, which was listed on the consent form, because Burnett had told Nettles that he thought the phone would be in his vehicle at the residence. The officers did not find the phone in the vehicle, but they eventually found the phone in the possession of Burnett's grandfather. The officers retrieved the phone from Burnett's grandfather at a church, where he was doing some work, and they turned the phone over to Detective Craig Finegan of the Polk County Sheriff's Office. Upon searching the phone, Finegan found nude photographs of a young girl, and the sheriff's office launched an investigation concerning the photographs. Nettles interviewed Burnett concerning the photographs and ascertained the identity of the girl in the photographs and confirmed that she was a minor.
Finegan testified that he is trained to use a universal forensic extraction device system (UFED) called Cell Bright UFED System. Finegan explained that upon hooking Burnett's phone up to Cell Bright, he was able to download certain items, transfer them to a CD, and turn the CD over to the investigating officer. According to Finegan, the Cell Bright program enables investigators to select which items they want to search, or to download the entire contents of a phone. Finegan testified that when he connected Burnett's phone to Cell Bright, he attempted to obtain all of the available information from the phone. Finegan explained that he typically downloads everything from a phone and does not review the resulting report, but in this case, the phone was returned to him because of questions regarding the pictures that were found in the report. Finegan denied knowledge about any limitations on Burnett's consent to search.
Burnett testified that he consented to a search of his cell phone because the authorities told him they were looking for a number, and he knew that his phone did not contain the number. According to Burnett, the officers did not tell him that they intended to search for anything other than the telephone number of the suspected drug dealer. Burnett testified that he only gave the officers permission to search for the phone at his residence. On cross-examination, Burnett explained that he did not put any limitation on the written consent form about only searching the phone's contacts or only searching for a particular number. Burnett testified that he knew he had pictures on his phone. Burnett testified, "I had asked Mike Nettles if it would be just the phone numbers and he told me yes."
In issue one, Burnett contends the trial court erred in denying his motion to suppress the seizure of his cell phone because the seizure of the cell phone exceeded the scope of his consent. In issue two, Burnett argues that the trial court erred by failing to suppress the photographs obtained during the search of his cell phone. We address Burnett's issues together.
We review the trial court's ruling on a motion to suppress for abuse of discretion. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). If the trial court's ruling is supported by the record, we will not overturn it on appeal. Brooks, 76 S.W.3d at 430. The trial court is the sole judge of the weight and credibility of the evidence at a suppression hearing. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000). We afford almost total deference to the trial court's determination of the historical facts that depend on credibility and demeanor, but we review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Lemons v. State, 298 S.W.3d 658, 660 (Tex. App.—Tyler 2009, pet. ref'd).
Consent to search is an exception to the constitutional requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). "To be valid, a consent to search must be positive and unequivocal and must not be the product of duress or coercion, either express or implied." Lemons, 298 S.W.3d at 661 (citing Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991)). In determining whether consent was given voluntarily, the trial court must look at the totality of the circumstances surrounding the statement of consent. Id. (citing Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000)). The extent of a search conducted pursuant to consent is limited to the scope of the consent given. Id. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, i.e., what the typical reasonable person would have understood from the exchange between the officer and the suspect." Id. "The question is not to be determined on the basis of the subjective intentions of the consenting party or the subjective interpretation of the searching officer." Id. A reasonable person would have no cause to believe that a search will be limited if the consent to search is entirely open ended. Id. The State bears the burden of showing that the search was conducted within the scope of the consent received. Id.
In this case, Burnett signed a consent form that identified his cellular telephone by its number, waived his constitutional rights to refuse consent, and authorized the authorities "to conduct a complete search of the following premises, building[,] and vehicles located in [Burnett's address], Texas, at and namely: cell phone [phone number] at [Burnett's address], and to seize and take therefrom any item of personal property they may believe to constitute evidence in a criminal proceeding." As Burnett conceded at the hearing, the written consent form placed no limitations upon what items contained in the telephone could be searched. Burnett testified that Nettles told him the authorities would search "just the phone numbers[,]" while Nettles testified that he did not tell Burnett that the search would only include certain items.
Although Burnett complains on appeal that the authorities exceeded the scope of his consent by obtaining the phone from his grandfather at a location other than the address identified on the consent form, he cites no authorities that so hold. See Tex. R. App. P. 38.1(i). As the sole judge of the weight and credibility of the witnesses at the suppression hearing, the trial court could reasonably have believed Nettles and disbelieved Burnett concerning the issue of whether Nettles told Burnett that the search of the phone would be limited to telephone numbers. See Wiede, 214 S.W.3d at 24-25; Wood, 18 S.W.3d at 646. Applying the appropriate deferential standard of review to the trial court's determination of historical facts, we conclude that a reasonable person could have interpreted Burnett's signed consent form and surrender of his cell phone to the authorities as unlimited consent to examine the information contained therein. See Guzman, 955 S.W.2d at 89; Lemons, 298 S.W.3d at 661-62. Therefore, the trial court did not abuse its discretion by finding that the State proved that the search of Burnett's cell phone and the photographs therein was within the scope of his consent. Accordingly, we overrule issues one and two and affirm the trial court's judgment.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.