Opinion
No. 05-10-01136-CR
03-29-2012
MICHAEL SCOTT PAGE, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND and Opinion Filed March 29, 2012
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-41406-U
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice Francis
Michael Scott Page appeals his conviction for possession of a prohibited weapon. After his motion to suppress was denied, appellant entered a plea of nolo contendere. The trial court assessed punishment at four years in prison and a $2000 fine. In a single issue, appellant claims the trial court erred by denying his motion to suppress because the affidavit in support of the search warrant used by the officers to search appellant's house was based, in part, on information illegally obtained from a prior warrantless search. We sustain appellant's issue and reverse.
Appellant was charged with aggravated assault in a separate case and was out on bond. On September 21, 2009, Patty Spencer, appellant's friend and acquaintance for over seventeen years, had a conversation with a Mesquite police officer. During the conversation, Spencer said appellant was depressed and upset because his trial had been postponed ten to twelve times. Appellant was “very, very aggravated[,] agitated and upset.” He had made threatening statements about “blowing things up,” including a courthouse. At the officer's request, Spencer reduced her comments to a written statement and sent it to the officer. According to Spencer, appellant made the statements “substantially more than two weeks” before her September 21st conversation with the officer. Although Spencer thought she made it clear to the officer that appellant was “just venting,” the statements were used in support of a motion to declare the bond insufficient. The trial court declared the bond insufficient, and an arrest warrant issued.
On September 25, 2009, officers of the Mesquite Police Department served the arrest warrant at appellant's house. When they rang the door bell, appellant walked outside into the front yard. He was placed on the ground, handcuffed, and taken into custody. Because he was barefoot at the time of his arrest, appellant asked Officer Jeff French to get appellant's shoes from inside his house. French walked into the house, down a hall, and into appellant's bedroom where he found the shoes. French took the shoes and went back outside. While in the house, he noticed a shotgun and a sword. When two other officers arrived at the scene, French said they stood outside while he told them what he had seen in the house, commenting that the weapons did not appear to be illegal. French then transported appellant to jail.
Upon receiving a call that appellant was in custody, Detective David Phillips and Investigator Meeks drove to appellant's house. Phillips testified appellant was already gone by the time they arrived. As they stood outside the house, Meeks called his sergeant and told him French saw a sword and a long gun when retrieving appellant's shoes. Phillips stated:
[B]ased off the statements of [Spencer] about his mental state, the sergeant said go in the house and get his guns for safe keeping. You know so, because we felt like he may hurt himself or someone else.Phillips and Meeks both entered appellant's house and went through every room looking for weapons. They found “four to five long guns and three or four or five handguns.” In the bedroom, there was a partially opened dresser drawer with a galvanized pipe with “screwed ends” and a cord. According to Phillips, it looked like a “bomb or things that are commonly used to make a pipe bomb.” They “stopped retrieving guns for safe keeping . . . and got a search warrant for the bomb making materials.” The affidavit attached to the search warrant states:
[Appellant] was located at his residence . . . and taken into custody.Appellant was subsequently charged with possession of an explosive device.
Investigators knew the suspect possessed numerous weapons and were in the process of securing the weapons for safekeeping. When in plain view investigators observed a 4 drawer wooden dresser in the back bedroom with the top and bottom drawers partially open. In the bottom drawer investigators observed a metal pipe that appeared to be threaded at both ends with metal caps and a clear plastic bag containing material that could be used as a fuse. Investigators secured the scene to obtain a warrant.
Appellant filed a motion to suppress the evidence discovered during the second search of the house. At the suppression hearing, appellant argued the search warrant was obtained as a result of the illegal first search. Appellant reasoned that all information and evidence obtained from the second search executed under a warrant should be suppressed. In response, the State argued the evidence should not be suppressed because the officers had “safety concerns” and, “in order to protect [appellant] and the rest of the community, they seized the weapons.” The trial court denied the motion to suppress.
When reviewing a trial court's ruling on a motion to suppress, we give great deference to the trial court's findings of historical facts. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.
The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV; Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011). The entry into a residence by police officers is a “search” for purposes of the Fourth Amendment. Limon, 340 S.W.3d at 756. A warrantless police entry into a residence is presumed unreasonable unless the entry falls within an exception. Id. at 756; Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996) (op. on reh'g). Two such exceptions are the emergency aid doctrine and the community caretaking or public servant doctrine. Laney, 117 S.W.3d at 860.
Under the emergency doctrine, the Fourth Amendment does not bar police officers from making warrantless entries and searches when an officer has an immediate, reasonable belief that a person within is in need of immediate aid and the officer must act to protect or preserve life or avoid serious injury. Laney, 117 S.W.3d at 861 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). This doctrine deals with, but is not limited to, private residences. Id.
The community caretaking function is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin v. State, 85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002). The officer must be primarily motivated by his community caretaking function and must have a reasonable belief that the defendant needs help. Id. at 277. In evaluating whether an officer reasonably believes a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. The Texas Court of Criminal Appeals has emphasized the narrow applicability of the community caretaking function:
Only in the most unusual circumstances will warrantless searches of private, fixed property, or stops of persons located thereon, be justified under the community caretaking function, given the greater expectation of privacy inherent with respect to residences and other private real property.Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App. 1999).
In his sole issue, appellant claims the trial court erred by denying his motion to suppress the evidence found during the search of his home. Appellant first claims the affidavit in support of the search warrant contains false and misleading material information. Second, he claims that although the second search was conducted after officers secured a warrant, the search warrant and affidavit relied on information obtained by the police during the warrantless first search of his home, made without probable cause. Under this portion of his argument, appellant claims that, because the first warrantless search was illegal, the evidence found during the second search made with a warrant was “fruit of the poisonous tree” and should have been suppressed.
In response, the State claims the affidavit did not contain false and misleading information. It briefly argues the warrantless first search was not illegal because it was a protective sweep to protect the safety of police officers and others. The State then contends the officers properly entered the house because (1) their actions were totally divorced from the detention, investigation, and acquisition of evidence, (2) there was an immediate, objectively reasonable belief the search was necessary to protect or preserve life or avoid serious injury, and (3) the scope of the search was strictly circumscribed by the facts of the emergency.
In support of its contention the search was a protective sweep, the State claims the officers were concerned appellant might “hurt himself or someone else.” 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.” Reasor v. State, 12 S.W.3d 813, 815 (Tex. Crim. App. 2000). The sweep must not be a “full search of the premises” and the searching officers must possess “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 816 (citing Maryland v. Buie, 494 U.S. 325, 335, 337 (1990)). The evidence presented in the hearing on appellant's motion to suppress established the officers did not enter appellant's house until after appellant had been arrested, handcuffed, and removed from the premises. French, who arrested appellant and took him to jail, said he was still outside appellant's house when he spoke to the second set of officers about seeing the shotgun and sword; in contrast, Phillips said French had already left the premises when he and Meeks arrived and that they spoke only by phone about what French had seen while inside the house. Neither version affects our analysis. The request and consent to go inside the house, retrieve the shoes and bring them out was completed before the time the warrantless first search took place. When Phillips and Meeks did enter, they performed a complete search of the interior. There is no evidence in the record that Phillips or any other officer believed they were performing a protective sweep. Specifically, no one testified or argued the officers had a reasonable belief, based on specific and articulable facts, that appellant's house harbored anyone posing a danger to the officers. In fact, the only person the officers believed to be dangerous had already been transported to jail. The facts of this case do not give rise to the warrantless first search being a protective sweep.
After reviewing the record, we likewise conclude these facts do not give rise to a legitimate community caretaking function exception to the requirement for a warrant. During the hearing, Phillips testified the sergeant told the officers to “go in the house and get [appellant's] guns for safekeeping.” Assuming this is sufficient to show the officers were primarily motivated by their community caretaking function, we then consider the second prong of the Corbin test: whether the officers' beliefs that appellant needed help were reasonable. Because appellant had been removed from the house and was en route to jail before the officers began searching his house, there is clearly no evidence to show appellant was in distress, needed assistance, or presented a danger to himself or others. Applying these factors, we conclude the officers' exercise of their community caretaking function was not reasonable. The trial court abused its discretion by denying the motion to suppress.
Because error in denying the motion to suppress evidence is a constitutional question, we must reverse unless we determine beyond a reasonable doubt the error did not contribute to the appellant's conviction or punishment. Tex. R. App. P. 44.2(a). Here, appellant was charged with possession of a prohibited weapon. The only evidence appellant possessed the prohibited weapon was gained by the illegal first search of appellant's house, which information was then included in the affidavit for the search warrant. Under these circumstances, we cannot conclude beyond a reasonable doubt the error did not contribute to appellant's conviction or punishment. In reaching this conclusion, we need not address appellant's alternative argument that the affidavit in support of the search warrant contains false and misleading material information. Tex. R. App. P. 47.1. We sustain appellant's sole issue.
We reverse the trial court's judgment and remand for further proceedings.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101136F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MICHAEL SCOTT PAGE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01136-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 41406-U).
Opinion delivered by Justice Francis, Justices FitzGerald and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered March 29, 2012.
MOLLY FRANCIS
JUSTICE