Opinion
No. 05-02-01872-CR
Opinion Filed July 1, 2003 Do Not Publish
On Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause No. 401-81073-02. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Trent Manion Meier entered a non-negotiated guilty plea to possession of less than one gram of 3, 4-methylenedioxy methamphetamine, known as "ecstasy." See Tex. Health Safety Code Ann. §§ 481.103(a), 481.116(b) (Vernon Supp. 2003). The trial judge deferred adjudicating Meier guilty and placed him on three years community supervision. Meier appeals. In his sole issue, he contends the trial court erred in denying his motion to suppress because, absent a suspicion particularized to him, the generalized odor of marijuana did not justify the police detaining him. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm. When reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of the facts, particularly when the finding involves an evaluation of a witness's credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Id. Because the instant case presents us with questions of law based on undisputed facts, we apply a de novo review. See id. We must uphold the trial court's ruling if it was correct under any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998). A third party may consent to a search when he has control over the premises and also has common authority to use the premises being searched. United States v. Matlock, 415 U.S. 164, 171 (1974); Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995). Common authority is defined as the mutual use of the property by persons generally having joint access or control of the property for most purposes. Patrick, 906 S.W.2d at 490. A warrantless search conducted pursuant to a third party's consent is valid if, at that time, the facts available to the officer would cause a person of reasonable caution to believe that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Brimage v. State, 918 S.W.2d 466, 481 (Tex.Crim.App. 1996). A police officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Information from an informant that exhibits sufficient indicia of reliability may provide the reasonable suspicion necessary to justify an investigatory detention. Roy v. State, 90 S.W.3d 720, 723 (Tex.Crim.App. 2002) (citing Alabama v. White, 496 U.S. 325, 326-27 (1990)). If the informant describes in detail the criminal activity, along with a statement that the event was observed firsthand, the information exhibits sufficient indicia of reliability. Brother v. State, 85 S.W.3d 377, 381 (Tex.App.-Fort Worth 2002, no pet.). Furthermore, a police officer is permitted to approach a citizen without probable cause or reasonable suspicion to ask questions, ask to examine identification, or even ask for consent to search. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). If during such an encounter the officer observes any offense being committed, he may arrest the offender without a warrant for that offense. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). Once the officer has lawfully arrested the offender, the officer then has the authority to search the individual. Stephens v. State, 677 S.W.2d 42, 44 (Tex.Crim.App. 1984). The record reflects that, prior to the night of Meier's arrest, the Board of the County Place Homeowners' Association authorized the Plano police to enter its recreational facility to investigate any suspicious activity. The office manager for the recreational facility had given the police a key to the recreational facility. The manager had also previously talked to the arresting officer, requesting increased surveillance of the recreational facility. On the night of Meier's arrest, the office manager called the police to report that she saw nine male teenagers smoking marijuana in the recreational facility. Responding to the call, two officers saw three male teenagers in the parking lot and four male teenagers (including Meier) and two female teenagers in the facility. The arresting officer entered the facility, smelled marijuana, approached Meier, and asked Meier if he could search Meier's pockets. Meier consented, and the officer found marijuana in his right watch pocket. The officer arrested Meier and took him to jail. During a search of Meier at the jail, the officer found an ecstasy pill in Meier's wallet. Meier cites State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App. 2002), for his basis on why his motion to suppress should be granted. Nevertheless, Steelman is not applicable. The court of criminal appeals held that the police did not have probable cause to enter Steelman's home and arrest him when the generalized odor of marijuana was not particularized to Steelman. Id. at 108. Because the board had control over and common authority to use the recreational facility, it could consent to the police entering the facility. See Patrick, 906 S.W.2d at 490. On the night of Meier's arrest the arresting officer had facts available to him, due to his prior conversation with the office manager, that would cause a person of reasonable caution to believe that the board had authority over the recreational facility. See Rodriguez, 497 U.S. at 188; Brimage, 918 S.W.2d at 481. Therefore, based on the board's consent, the officer had the right to enter the recreational facility. See Matlock, 415 U.S. at 171; Patrick, 906 S.W.2d at 490. Upon entering the recreational facility, the officer could have legally detained Meier for investigative purposes because the officer had reasonable suspicion that Meier had been engaged in a criminal activity, possession of marijuana, based on the information from the office manager combined with the officer personally smelling the odor of marijuana and seeing a total of nine teenagers either in the recreational facility or its parking lot. See Roy, 90 S.W.3d at 723; Wood, 956 S.W.2d at 35; see also Tex. Health Safety Code Ann. § 481.121(a). The information receivedfrom the office manager exhibited sufficient indicia of reliability because of the manager's detailed description of the criminal activity, along with her statement that she personally saw the teenagers smoking the marijuana. Brother, 85 S.W.3d at 381. Moreover, having the right to enter the recreational facility, the officer could lawfully approach Meier and ask Meier if he would consent to a search. See Bostick, 501 U.S. at 434 (1991); Hunter, 955 S.W.2d at 104. After finding the marijuana in Meier's pocket, the officer, without the need of a warrant, lawfully arrested Meier for possession of marijuana. See Tex. Code Crim. Proc. Ann. art. 14.01(b); see also Tex. Health Safety Code Ann. § 481.121(a). Following Meier's lawful arrest, the officer then legally searched and found the ecstasy in Meier's wallet. See Stephens, 677 S.W.2d at 44. Because the officer lawfully found the ecstasy, we conclude the trial court did not err in denying Meier's motion to suppress. Consequently, we resolve Meier's sole issue against him and affirm the trial court's judgment.