Opinion
No. 05-06-00310-CR
Opinion Filed March 6, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 001-84434-05.
Before Justices FITZGERALD, RICHTER, and FRANCIS. Opinion By Justice FRANCIS.
OPINION
A jury convicted John Paul Heimsath of possession of marijuana under two ounces, and the trial court assessed punishment at thirty days in jail, probated for one year, and a $ 500 fine. In three issues, appellant contends the trial court erred in denying his motion to suppress and in refusing to instruct the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure. We affirm. Plano police detectives Brian Quinn and David Waddell went to appellant's residence to investigate a tip about "possible narcotics activity." Lorie Sundell, appellant's roommate, answered the door and stepped outside onto the porch. Quinn said Sundell left the front wooden door open and closed the glass storm door, which allowed him to see inside. On a coffee table about fifteen feet away, Quinn saw in plain view a silver grinder and a plastic baggie. Both Quinn and Waddell testified that they believed the grinder was used to grind marijuana. The officers asked Sundell if anyone else was home, and she said she was by herself. A short time later, the officers saw appellant walking through the house and had him come outside. Appellant told the officers the grinder was his. Given the circumstances (that Sundell told them she was at home alone when she was not and that Quinn had seen the grinder on the coffee table), Quinn said Detective Waddell entered the residence to make a protective sweep "to make sure nobody else was hiding inside or was trying to destroy any evidence." After making the sweep, Waddell returned outside and asked appellant for consent to search. While standing outside on the porch or just inside the doorway, appellant agreed to allow the officers to search his bedroom. The officers reentered the house, opened the grinder, and found marijuana residue. As they passed by the coffee table, they also noticed a blue plate containing marijuana residue. Appellant withdrew his consent to search, and officers obtained a search warrant. The probable cause affidavit included, among other things, that the officers saw marijuana residue in the grinder and on a blue plate. After executing the warrant, the police found five grams of marijuana in appellant's bedroom closet and arrested him. At trial, Sundell testified that appellant said "no" when the police asked if they could search. Additionally, she said that she closed the wooden and glass doors when she stepped out to talk to the police. Although the front wooden door had a beveled glass window, she testified she did not believe the police could see the grinder on the coffee table through that window. She denied that there was a baggie on the table. Scott Heimsath, Sundell's boyfriend and appellant's brother, also lived at the house. He received a telephone call from Sundell on the day of this incident telling him the police wanted to search the house. Scott told Detective Waddell that he was about to get off work and he would let them in the house as soon he could get home. According to Scott, Waddell said he could not wait that long and that he was "going to go in the house anyway." When asked if he was aware that appellant gave consent to search, Scott initially testified that he was aware that appellant had given consent, but then he testified that he had the impression that appellant "denied access." Prior to trial, appellant filed a boilerplate motion to suppress all tangible evidence seized at his home and any statements. At the hearing on the motion during trial, appellant challenged the legality of the protective sweep. The trial court ultimately ruled that the protective sweep was too broad and suppressed appellant's statements regarding ownership of the grinder. Additionally, the trial court redacted the portion of the affidavit that referenced the protective sweep and the marijuana residue found inside the grinder. The trial court found the search warrant was valid. In his first and second issues, appellant argues the trial court erred in denying his motion to suppress because the police illegally obtained information that was the basis for the search warrant. In particular, he argues the police obtained evidence from an illegal protective sweep (marijuana residue). In addition, he argues his later consent to search was not voluntary, and even if it was, it was tainted by the illegal protective sweep. We begin with the protective sweep. A "protective sweep" is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 328 (1990); Reasor v. State, 12 S.W.3d 813, 815 (Tex.Crim.App. 2000). The sweep must not be a "full search of the premises." Buie, 494 U.S. at 335; Reasor, 12 S.W.3d at 816. Rather, it may only extend "to a cursory inspection of those spaces where a person may be found" and may only last long enough to "dispel the reasonable suspicion of danger." Buie, 494 U.S. at 335; Reasor, 12 S.W.3d at 816. Furthermore, the protective sweep is not an automatic right police possess when making an in-home arrest; it is permitted only when "justified by a reasonable articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Buie, 494 U.S. at 336; Reasor, 12 S.W.3d at 816. Appellant argues the protective sweep was illegal because no one was under arrest and because there there was no evidence that another person in the area might pose a danger. Assuming the protective sweep was illegal, we agree with the State that that the sweep did not yield any incriminating evidence. Rather, both officers testified that they saw the blue plate containing marijuana residue in plain view while in the house after appellant gave his consent to search. As for the residue in the grinder, the trial court suppressed that evidence and excised it from the affidavit. Even without the information on the grinder, the affidavit contained facts sufficient to justify a conclusion that the object of the search was probably on the premises at the time the warrant issued. See Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App. 1996). Given these circumstances, the trial court did not err in denying the suppression motion on the basis of the protective sweep. Appellant next argues that his consent to search was involuntary and, even if voluntary, was tainted by the illegal protective search. At trial, appellant did not argue that his consent was involuntary nor did he argue that his consent was tainted. Rather, he argued no consent was given. Because appellant's complaint on appeal differs from that made at trial, we conclude he has not preserved error. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). We reject the first and second issues. In his third issue, appellant argues the trial court erred in denying his request for an instruction pursuant to article 38.23 of the code of criminal procedure. In certain instances, the jury may be instructed that it is not to consider illegally obtained evidence. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Such an instruction is only necessary when there is a dispute regarding the factual basis for the ruling to admit evidence. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004). However, article 38.23 excepts from operation of the exclusionary rule evidence "obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." Tex. Code Crim. Proc. Ann. art. 38.23(b) (Vernon 2005). At trial and on appeal, appellant argues the following two factual disputes entitled him to a 38.23 instruction: whether he gave the officers consent to search and whether the officers were in a position to see the grinder and plastic baggie in plain view. Both of these disputes, however, go to the allegations in the probable cause affidavit used to obtain the search warrant. Whether the affidavit contained sufficient facts for a neutral and detached magistrate to conclude there was probable cause is a legal question; any dispute regarding the facts contained in the affidavit was for the trial court to make under the appropriate standard of review. See Lane v. State, 971 S.W.2d 748, 751 (Tex.App.-Dallas 1998, pet. ref'd) (trial court's duty "is simply to ensure that the magistrate had a `substantial basis for . . . conclud[ing]' that probable cause existed"). We agree with the State: if appellant wanted to challenge the truthfulness of the information in the search warrant affidavit, he should have pursued a motion and hearing under Franks v. Delaware, 438 U.S. 154, 171 (1978). Here, there is no factual dispute that the five grams of marijuana found in appellant's bedroom closet were obtained after police secured the warrant. As previously stated, the affidavit contained sufficient probable cause to support the warrant. We therefore conclude the trial court did not err in denying appellant's request for an instruction under article 38.23. We reject the third issue. We affirm the trial court's judgment.