No. 14-06-00231-CR
Opinion filed August 9, 2007. Do Not Publish — Tex. R. App. P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 980689.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE Justice.
After the trial court denied her pretrial motion to suppress, appellant, Brandi Marquette Eldred, pleaded guilty to possession of a controlled substance with intent to deliver. The trial court sentenced appellant to fifteen years confinement and assessed a $1,000 fine. In five issues, appellant contends the trial court erred by denying her motion to suppress evidence seized because she was illegally detained in violation of the Fourth Amendment, and her consent to the search was involuntary. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. BACKGROUND
On March 12, 2004, after receiving a tip that someone named "Brandi" was engaged in methamphetamine distribution, special agents with the Drug Enforcement Administration (DEA) conducted surveillance on a house in Humble. Special Agents Mark Terry, Brad Sowell, Nathan Jones, and Jackie Gordon were involved in the surveillance operation. Mark Terry, the agent in charge, testified at the suppression hearing as follows. The operation began around 1:00 p.m. Within ten minutes, agents observed a white male exit through the front door of the house and place a dark backpack in a Sebring automobile. After talking on his cell phone, the man reentered the house. A few minutes later, he again exited through the front door of the house, placed something on the passenger-side floorboard of the Sebring, then re-entered the house. At approximately 2:00 p.m., he left the house again and drove away in the Sebring. Agent Terry alerted a Harris County deputy to follow and look for an opportunity to make a stop, based on a traffic law violation. A few minutes later, two people in a black Dodge Neon arrived at the surveillance location. They went into the house for about twenty minutes. When they drove away, Agent Terry notified a Harris County deputy to follow and look for an opportunity to make a traffic stop. Thereafter, he followed the Neon until a deputy made the stop. Agent Terry testified that he did not recognize the driver; however, he recognized passenger Robert Morgan because he was familiar with his reputation. The driver of the Neon was arrested for possession of Xanax without a prescription. The Sebring was stopped around the same time. Agent Terry was informed that the driver was arrested for possession of a gun. Based on the results of these traffic stops, Agent Terry asked Agents Jones and Gordon to return to the house and continue surveillance because he was concerned Morgan might call the occupants and inform them that he had been stopped. When Agent Terry returned to the house, Agents Jones and Gordon were speaking with appellant. Appellant was sitting in the driver's seat of her car which was parked in the driveway. Agent Jones, who had already asked appellant for identification, handed appellant's driver's license to Agent Terry. Agent Terry noticed that the name on the license was "Brandi." Early in the conversation, appellant informed the agents that she was the housekeeper. Agent Terry asked appellant if she had a key to the house, and she said, "no." She seemed very "flighty and nervous." Agent Terry asked appellant for her keys. After appellant produced her keys, Agent Terry went to the front door and determined that one of appellant's keys matched the front door lock. At this point, Agent Terry did not open the front door. Agent Terry returned to appellant's car and asked her to accompany him to the front door. He then showed her that one of her keys fit the front door lock. Apparently, a few people in the neighborhood were watching all of this activity. Agent Gordon asked appellant if she would like to go inside the house, and she said, "yes." Inside the house, Agent Gordon asked appellant if the agents could search the house. Appellant initially told them that she did not have the right to consent because someone else lived there, and she was not named on the lease. Heidi Baker was the owner of the house. When Baker arrived, Agent Jones met her outside the house. Agent Jones informed Agent Terry that Baker was outside. Agent Terry spoke with Baker outside the house. She informed Agent Terry that appellant lived in the house, but her name was not on the lease. Baker entered the house and spoke with appellant. Appellant then signed a consent-to-search form and orally consented to a search of her bedroom, her daughter's bedroom, and the common areas on the condition that Baker would be present when they searched her room. Methamphetamine was found in appellant's bedroom, and she was arrested. Appellant's pretrial motion to suppress the evidence seized was denied, and she pleaded "guilty" to possession of a controlled substance with intent to deliver. II. STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard, giving almost total deference to the trial court's determination of historical facts supported by the record and considering de novo the trial court's application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997); see Marsh v. State, 140 S.W.3d 901, 905 (Tex.App.CHouston [14th Dist.] 2004, pet. ref'd). In a motion-to-suppress hearing, the court is the trier of fact and sole judge of the credibility of witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Marsh, 140 S.W.3d at 905. The trial court is free to believe or disbelieve all or any part of a witness's testimony, even if the testimony is uncontroverted. Ross, 32 S.W.3d at 855; Marsh, 140 S.W.3d at 905. When, as in this case, the trial court does not make explicit findings of fact in ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court's ruling and assume that the court made implicit findings supported by the record. Carmouche, 10 S.W.3d at 327-28; Ross, 32 S.W.3d at 855. III. ANALYSIS
A. Consensual Encounter
In her first and second issues, appellant contends she was detained in violation of the Fourth Amendment. In response, the State contends the entire interaction was a consensual encounter. For all the reasons outlined below, we agree with the State. Not all encounters between the police and citizens invoke the protection of the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 13 (1968). Police are free as anyone else to ask questions of their fellow citizens. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). For purposes of the Fourth Amendment, interactions between police officers and civilians are divided into three categories: (1) consensual encounters, (2) investigative detentions, and (3) arrests. See Florida v. Royer, 460 U.S. 491, 497-99 (1983); Pennywell v. State, 127 S.W.3d 149, 152 (Tex.App.CHouston [1st Dist.] 2003, no pet.). An encounter occurs when a law enforcement officer approaches an individual in public to ask questions. Pennywell, 127 S.W.3d at 152. The officer is not required to justify initiating an encounter because no constitutional protections are implicated. Id. Therefore, the officer does not need reasonable suspicion or probable cause to initiate an encounter. See State v. Velesquez, 994 S.W.2d 676, 678 (Tex.Crim.App. 1999). Merely asking questions does not transform an encounter into a detention. Id. The test for whether the interaction progressed beyond an encounter and became a detention is whether the police conduct would have communicated to a reasonable person that she was not free to decline the officers requests or otherwise terminate the encounter. Velasquez, 994 S.W.2d at 679. Appellant contends that the agents engaged in an investigative detention because they (1) stopped her from leaving, (2) took her driver's license, (3) instructed her to remain in her car until Agent Terry arrived, (4) took her keys away from her, and (5) behaved in an authoritative manner. However, her descriptions of the officers activities do not accurately reflect the entire record. Agents Jones and Gordon first approached appellant in her driveway after she entered her car. They identified themselves to appellant as DEA agents. Agent Terry testified that no cars blocked appellant from exiting the driveway. Further, Agent Jones testified that he requested appellant to remain until Agent Terry arrived. He also testified that he asked appellant for her identification and inquired regarding her connection with the house. In response, she gave him her driver's license and said that she was a housekeeper. During this time, appellant never asked to leave. She only informed the agents that she was on her way to pick up her child from school. Agent Terry arrived shortly thereafter. He asked appellant if she had a key to the house. Because appellant's name matched information provided by the tipster and she appeared "flighty and nervous," Agent Terry asked her if he could see her keys. Appellant readily handed her keys to Agent Terry. After checking and confirming that one of the keys could actually unlock the front door, he asked appellant to accompany him to the front door. Appellant implicitly agreed to accompany Agent Terry to the front door. Once Agent Terry demonstrated to appellant that one of her keys matched the front door, appellant then told the agents that she stayed in the home occasionally and had paid the last month's rent. Agent Gordon asked appellant if she would like to go inside the house to avoid curious neighbors. Appellant agreed. After they entered, the agents asked appellant if she would consent to a search of the house. We further note that during the entire encounter all three agents wore plain clothes and had concealed their weapons. We acknowledge that the presence of three agents could be intimidating; however, Agent Jones testified that he remained outside while Agents Gordon and Terry spoke with appellant inside the house. Moreover, the Court of Criminal Appeals has recognized that even an innocent person's pulse might race when a police officer identifies himself and begins asking questions. Velasquez, 994 S.W.2d at 679. A person "might understandably be uncomfortable saying, `Officer, I don't want to talk to you. Please leave me alone.'" Id. However, the United States Constitution does not guarantee freedom from discomfort. Id. Furthermore, the request for appellant's consent to search did not strip the encounter of its consensual character. See Hunter, 955 S.W.2d at 106 (recognizing that a police officer's asking questions and requesting consent to search do not alone render an encounter a detention). In a footnote in her brief, appellant argues that "taking of the keys" was an illegal seizure because she "acquiesced to the show of authority." Appellant cites Hawkins v. State, in which an officer walked over to the defendant and held out his hand, and the defendant took cocaine out of his mouth and placed it in the officer's hand. 853 S.W.2d 598, 602 (Tex.App.CAmarillo 1993, no pet.). The court held that the evidence was insufficient to establish voluntary consent to search because it was an acquiescence to a claim of lawful authority based on an illegal detention. Id. Hawkins does not apply to this case because the "taking" of the cocaine was not used to establish detention. In another footnote, appellant also insinuates that the agents took her driver's license and retained it for the duration of the encounter, which she contends was an illegal seizure. The record is not clear exactly when the driver's license was returned to appellant. Agent Jones testified that he requested appellant's identification when they first approached her in the driveway. Agent Terry testified that he inspected her driver's license when he joined the other two agents in the driveway. Agent Gordon testified that appellant's driver's license was returned at some point, but she was not sure of the exact time. Because the record is not clear relative to the amount of time the agents retained appellant's driver's license, the evidence does not support appellant's contention that the driver's license was retained for the duration of the encounter. Under the described circumstances, the police conduct would have communicated to a reasonable person that she was free to decline the officer's requests or otherwise terminate the encounter. See Velasquez, 994 S.W.2d at 679 (finding consensual encounter where two police officers observed defendant at bus station with actions consistent with drug couriers and one officer questioned the defendant on a bus after identifying himself as a police officer); Hunter, 955 S.W.2d at 106 (finding consensual encounter where two undercover officers in plain clothes with their weapons concealed approached the defendant and one of the two officers engaged him in conversation). Accordingly, we overrule appellant's first and second issues. B. Consent to Search
In her third, fourth, and fifth issues, appellant contends her consent to the search was involuntary; therefore, agents violated the Fourth Amendment to the United States Constitution and Article 1, section 9 of the Texas Constitution. Specifically, appellant contends her signature on the consent-to-search form was involuntary for two reasons: (1) she refused consent before signing the form, and (2) the agents "used" Baker, the landlord, to assist them in obtaining her consent. A search pursuant to voluntary consent is an exception to the requirement of a warrant supported by probable cause. See Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). The validity of alleged consent to search is a question of fact to be determined from all the circumstances. Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App. 2003) (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)). The United States Constitution requires the State to prove validity of consent by a preponderance of the evidence, while the Texas Constitution requires the State to show by clear and convincing evidence that consent was valid. Id. (citing Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002)). The State must demonstrate that consent was in fact voluntarily given, and was not the result of duress or coercion, whether express or implied. Reasor, 12 S.W.3d at 817 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). By reviewing the circumstances prior to the search, the reaction of the accused to pressure, and any other factor deemed relevant, a trial court can determine whether consent was given voluntarily. Id. at 818. First, appellant contends her signature on the consent-to-search form was involuntary because she previously refused consent. However, the record reflects there was a discussion between appellant and Agent Gordon regarding whether she had the authority to consent to a search of the house. At the suppression hearing, Agent Gordon testified that after entering the house she said, "let's sit down." Agent Gordon and appellant sat on the same sofa. Five to ten minutes after the conversation began, appellant asked if she could call a lawyer. Appellant attempted to call a lawyer, but she was not able to contact him. Agent Gordon asked appellant to consent to search of the house before and after the call. Appellant never told Agent Gordon that she did not want to talk unless her lawyer was present. When consent to search was initially requested, appellant told Agent Gordon that she did not own the house, and her name was not on the lease. Thereafter, when Agent Gordon presented the consent form to appellant, she explained its provisions and told her that she could consent for the officers to search certain areas of the home. Appellant signed the form and orally consented to a search of two bedrooms and the common areas. In her brief, appellant contends Agent Terry "acknowledged that for a period of at least fifteen minutes after he arrived, appellant was refusing to give consent to search." However, the record reflects that during cross-examination Agent Terry acknowledged only that one could speculate appellant was "making up . . . excuses" because she did not want the house to be searched. Furthermore, Agent Terry testified that approximately fifteen minutes elapsed from the time of his initial contact with appellant in the driveway to the time she signed the consent form. Agent Terry did not testify that appellant refused consent for fifteen minutes. Second, appellant contends her consent was involuntary because the agents "used" Baker to "persuade" her to consent to the search. Again Agent Terry testified that his conversation with Baker occurred outside the house, where Baker informed him that the appellant was a resident but her name was not on the lease. At the suppression hearing, Agent Gordon testified that she did not recall Baker having a conversation with appellant prior to the moment appellant signed the consent form. Agent Gordon also testified that neither Baker nor the other agents tried to intimidate appellant. Agent Terry also testified that Baker approached appellant in the house and said, "Brandi, you know what is going on here. Just letCif you let these people search and there's nothing here then . . . theyll be out of here." Agent Terry also testified that appellant signed the consent form with the stipulation that Baker would observe the agents as they searched her room. Further, during direct examination, Baker testified that, after talking with Agent Terry, she entered the house and "encouraged" and "pushed" appellant to sign the consent form. However, during cross-examination, Baker testified that she was asked "[t] o go in there and talk to [appellant] and see if [she] could get her to sign it." As the sole trier of fact and judge of the credibility of the witnesses and their testimony, the trial court was free to believe Agents Gordon and Terry. See Maxwell, 73 S.W.3d at 281. Appellant also refers to a list of relevant factors that the Supreme Court has considered in determining voluntariness. See Reasor, 12 S.W.3d at 818 (listing the following factors: youth of the accused, education of the accused, intelligence of the accused, constitutional advice given to the accused, length of detention, repetitiveness of questioning, and use of physical punishment). Based on this list, appellant argues that the State produced no evidence regarding appellant's education or intellect. However, this is merely a list of factors which might be considered. The presence or absence of one or more factors is not dispositive. The record reflects the Agent Gordon offered appellant a consent form, explained provisions, and told her that she could limit her consent to certain areas of the house. Appellant agreed to sign the consent form and requested that the search be limited to common areas and her and her daughter's bedrooms and that Baker observe the search of her bedroom. At the time she consented, she was sitting on the sofa in her home, with plain clothed agents present, all of whom had their weapons concealed. To the extent that two agents are less threatening than three, Agent Jones testified that he primarily remained outside the house while Agents Gordon and Terry were talking with appellant inside the house. Considering all the circumstances and giving proper deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that the appellant voluntarily consented to the search. See Guevara, 97 S.W.3d at 583. We overrule appellant's third, fourth, and fifth issues. Accordingly, the judgment of the trial court is affirmed.