Opinion
NO. 14-18-00886-CR
08-27-2020
Ramon RIOS, III, Appellant v. The STATE of Texas, Appellee
Mandy Miller, Katy, for Appellant. Dan McCrory, Heather Hudson, Houston, for Appellee.
Mandy Miller, Katy, for Appellant.
Dan McCrory, Heather Hudson, Houston, for Appellee.
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot
Justice Bourliot dissents without opinion.
Kem Thompson Frost, Chief Justice
Appellant Ramon Rios, III appeals his conviction for possession of a controlled substance with intent to deliver. In one issue he asserts the trial court abused its discretion in refusing to suppress evidence first discovered in a protective sweep officers made in the course of executing warrants for his arrest for murder. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Members of the Harris County Sheriff's Office SWAT team arrested appellant at a house in Houston. They sought appellant's arrest based on outstanding warrants issued in two counties for murder charges. In making the arrest, the SWAT team conducted a two-part sweep of the house. They found narcotics and got a warrant to search areas inside and outside the house. Law enforcement officers executed the search warrant the same day.
In executing the search warrant, officers seized fourteen guns (including assault rifles and uzi-style handguns) and 44 kilograms of cocaine, including over 400 grams of the substance in conspicuous packaging in an open suitcase on the back porch. Based on the discovery of narcotics, the Harris County District Attorney's office pursued charges for possession of a controlled substance with intent to deliver. The indictment also included a deadly-weapon enhancement paragraph. Before and at trial, appellant moved to suppress evidence obtained under the search warrant, alleging that law enforcement acquired the evidence from an unlawful protective sweep.
The trial court denied the motion to suppress, found appellant guilty as charged in the indictment, and found the deadly-weapon paragraph true. The trial court assessed punishment at 18 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely appealed.
II. SUPPRESSION OF THE EVIDENCE
We review the trial court's ruling on a motion to suppress for an abuse of discretion. State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). A trial court's ruling should be reversed only if it is arbitrary, unreasonable, or "outside the zone of reasonable disagreement." Id. In a motion-to-suppress hearing, the trial court stands as the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Lerma v. State , 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). Therefore, we afford almost complete deference to the trial court in determining historical facts. Id. The trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted, because the trial court has the opportunity to observe the witness's demeanor and appearance. Valtierra v. State , 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
Neither appellant nor the State of Texas asked the trial court to make findings of fact and conclusions of law on its motion-to-suppress ruling. When the trial court fails to issue findings of fact, we view the evidence in the light most favorable to the trial court's ruling and presume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Lerma , 543 S.W.3d at 190. We will uphold the trial court's ruling if it is correct under any theory of law applicable to the case. Id.
A protective sweep is a quick, limited search of the premises, generally incident to arrest and conducted to protect the safety of law enforcement officers or others. Reasor v. State , 12 S.W.3d 813, 815 (Tex. Crim. App. 2000). A police officer may sweep the house only if the officer holds an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. Id. at 817. In conducting a protective sweep law enforcement officers must stay within the appropriate scope. Id. Though limited in nature, the protective sweep "may last long enough to dispel the reasonable suspicion of danger." Id. (internal quotations omitted). The sweep is to be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie , 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
To support his assertion that the trial court erred in denying his motion to suppress evidence, appellant contends the two-part protective sweep was unlawful because (1) he was not arrested in his home, which he contends is an essential requirement of a protective sweep, (2) the record fails to show specific articulable facts that would warrant a reasonable belief that the area swept harbored an individual posing a danger to those on the arrest scene, and (3) the sweep took too long to be cursory. The State argues that even if the second part of the sweep was unlawful, the trial court's ruling can be upheld upon a finding that the first part of sweep was valid and thus the information acquired during that part of the sweep and put into the search-warrant affidavit was legal and clearly established probable cause. See United States v. Karo , 468 U.S. 705, 720–21, 104 S.Ct. 3296, 3306, 82 L.Ed.2d 530 (1984) ; Castillo v. State , 818 S.W.2d 803, 805 (Tex. Crim. App. 1991), overruled on other grounds by, Torres v. State , 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005) ; Romo v. State , 315 S.W.3d 565, 571 (Tex. App.—Fort Worth 2010, pet ref'd). In evaluating the legality of the sweep, we consider the particular facts and circumstances in our record to determine if the sweep could be justified.
Though, at times, the parties and witnesses referred to the protective sweep in the singular, at trial and on appeal the parties mostly refer to a bifurcated protective sweep with two distinct phases. The SWAT team leader, Corey Alexander testified that the total time to conduct both phases of the sweep, or "clear the residence," lasted "anywhere between 20 to 45 minutes, more than 5 minutes."
The parties also note other pre-search warrant entries into the house.
Alexander testified that officers devoted the first part of the sweep to determining if any individuals were in the open spaces, rooms, or "any livable spaces." During the second part of the sweep, he explained, law enforcement would clear any space a person could possibly fit — looking underneath beds, and in closets, crawl spaces, and the like.
Alexander testified that during the first phase of the sweep, while standing in the kitchen of the house, he saw through the open back door what appeared to be a brick of cocaine in a red, opened suitcase on the back porch ("Outside Narcotics"). Alexander originally testified that also during the first phase of the sweep, officers spotted narcotics in the kitchen, but he later explained that these narcotics were found on top of an ice chest in front of the laundry room, inside the house, during the second phase of the sweep ("Inside Narcotics"). But Officer Jonathan Persaud testified the ice chest where the Inside Narcotics were found was located in the kitchen.
A. Does the evidence support implied findings under which the first phase of the protective sweep (including entry) was lawful?
The answer to each search-and-seizure question must turn on the facts of the particular case. Gonzales v. State , 648 S.W.2d 684, 687 (Tex. Crim. App. 1983). Our analysis of the facts surrounding the first phase of protective sweep begins with the circumstances that led to the execution of the arrest warrants.
Officer Persaud with the High Intensity Drug Trafficking Areas unit testified that he began investigating appellant more than two months before the arrest after receiving information that someone was selling narcotics from the house. Persaud explained that his unit placed the house under surveillance and saw a man (later identified as appellant) conducting what appeared to be a narcotics transaction in front of the house. Persaud testified that the police had a difficult time identifying appellant at the location because there was no record that appellant lived there. But Persuad identified Sandra Martinez as a resident of the house and determined that three children also lived in the house. With assistance from the Federal Bureau of Investigation, law enforcement identified appellant through the children's birth certificates. After identifying appellant, officers conducted a criminal history check. The check revealed that appellant had warrants outstanding for his arrest in two Texas counties (Atascosa and Bexar).
Persaud testified about the surveillance of the property in the months leading to appellant's arrest, giving the following pertinent facts:
Officers conducted some physical surveillance of the property during the two-month period before the arrest, but that surveillance did not include 24-hour, seven days a week physical surveillance. According to Persaud, officers installed one "pole cam" that recorded constantly, but no records showed when or what surveillance footage was seen or reviewed. Persaud could not testify about — and denied the existence of any notes taken that would indicate — the amount of time that anyone spent reviewing the surveillance footage. He estimated that two to five cars left the residence, but he had only information about the date on which one of these cars was seen. Persaud testified that he provided his information to Alexander to assist Alexander and his SWAT team unit in executing the arrest warrants. Persuad told Alexander that he knew from the pole cam that children lived in the house. According to Persaud, he told Alexander that "there may be an infant" in addition to school-aged children. Persaud conveyed to the SWAT team that he learned from an informant that an "AK-47" was kept in the house. Persaud testified about appellant's coming and going from the house, but Persaud "didn't keep record of how many days he [appellant] left and came back from the house." According to Persuad, officers conducted physical surveillance on the property the night before the arrest "to confirm that Mr. Rios was indeed at the house before we had the high-risk operations unit execute the arrest warrant[s]."
Intelligence Gathering Before Execution of the Arrest Warrants
Alexander testified that his unit (SWAT team) handles high-risk operations, typically felony and other high-risk warrants involving dangerous people. Alexander explained that his team conducts its own intelligence. He described the layout of the property, which included "a wrought iron fence all around it," a deep ditch in the front yard, and "an outbuilding" in the back. He described his concerns with respect to these elements, and specifically, with respect to the back, stating:
It also had an outbuilding on the backside of it that was pretty large that we didn't know if it — it looked like it was kind of like a cabana-type area where they did barbecues. But there was also rooms on the backside of it. So, we didn't know if it was storage, if somebody else was living in that particular residence, or if there was restrooms, you know, whatever the case might be.
Alexander further noted that the team's intelligence gathering revealed the possibility of weapons and narcotics on the property.
Alexander explained the high level of risk associated with the operation, noting from his experience that at times intelligence gathering may not reveal high risks of danger. He cited examples in which intelligence gathering had suggested a single occupant when there were actually twenty. He also cited times when despite overnight surveillance, the police found individuals inside that they did not know were there. In sum, surveillance provides some information but can be inaccurate and incomplete, leaving law enforcement officers uncertain about the true state of the situation.
Execution of the Arrest Warrants
Alexander testified that on the morning of December 9, 2015, his team executed the murder arrest warrants. He explained that a SWAT vehicle crashed through the locked gate to the driveway and as they began making announcements on the loudspeaker, the SWAT team surrounded the entire property and then breached the front door as well as some windows. Law enforcement officers instructed appellant to crawl out onto the house's front porch. Appellant did. Law enforcement officers then handcuffed appellant on the front porch and escorted him to a patrol car across the street.
Suspected Presence of Other Individuals in the House
Alexander testified about the suspected presence of other individuals in the house, at times giving conflicting testimony. First, he stated that before executing the warrants he received information over the radio that "the wife and child are detained," and later testified about a concern that children were in the house. He explained that these facts dictated the methods they would use when breaching the house. Alexander also testified that he had not received information that appellant was the only one in the house, yet, during cross examination, Alexander also answered "yes" to the question "So, you think there's no children present, right?"
Alexander's testimony includes the following reference to children in the home: "Q. And, so, when you break the windows, are y'all doing the flash bang? A. Nope. That's what I'm saying, because of the children in the residence we decided not to do that."
Presence of Weapons in the House
Alexander noted that during the operation he could see through the doorway into the living room a closed rifle case with a rifle on top or near the rifle case. Alexander then explained his process of conducting the protective sweep to deem it safe before his SWAT team leaves the site. As appellant was secured away from the house, Officer Persuad asked appellant whether any people, animals, weapons, or anything that would harm them were in the residence. He was told that there were several dogs on the property. Officer Persuad testified that at this time he asked appellant to identify himself, and that appellant identified himself as "Elijah Villarreal," rather than giving his real name. The first protective sweep followed.
Citing a case from the United States District Court for the Northern District of Texas, appellant asserts that the law limits protective sweeps to arrests made inside the house. See United States v. Brodie , 975 F. Supp. 851, 855 (N.D. Tex. 1997). Although the Supreme Court of the United States has not spoken on this issue, many federal courts of appeals have concluded that the protective sweep doctrine applies to an arrest near a door of the home but outside the residence. See United States v. Lawlor , 406 F.3d 37, 41–42 (1st Cir. 2005) ; United States v. Oguns , 921 F.2d 442, 445–46 (2d Cir. 1990) ; United States v. Jackson , 700 F.2d 181, 189–90 (5th Cir. 1983) ; United States v. Colbert , 76 F.3d 773, 776–77 (6th Cir. 1996) ; United States v. Hoyos , 892 F.2d 1387, 1397 (9th Cir. 1989), overruled on other grounds by United States v. Ruiz , 257 F.3d 1030, 1032 (9th Cir. 2001) (en banc); United States v. Cavely , 318 F.3d 987, 995–96 (10th Cir. 2003) ; United States v. Henry , 48 F.3d 1282, 1284 (D.C. Cir. 1995). This court has no binding precedent addressing whether the protective sweep doctrine extends beyond the physical walls of the house. The First Court of Appeals recently approved protective sweeps in the absence of an in-house arrest. See Lipscomb v. State , 526 S.W.3d 646, 655 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd).
We think that an arrest that occurs just outside the home can pose an equally serious threat to arresting officers as one that occurs in the home. See Lawlor , 406 F.3d at 41. We accept the position that a protective sweep may be conducted following an arrest that takes place just outside the home, if sufficient facts exist that would warrant an officer to reasonably believe that an individual in the area in question posed a threat to those at the scene. See Lawlor , 406 F.3d at 41–42 ; Colbert , 76 F.3d at 776–77 ; Henry , 48 F.3d at 1284. Therefore, the arrest of appellant on the front porch of the house does not preclude application of the protective-sweep doctrine. See Lawlor , 406 F.3d at 41–42 ; Oguns , 921 F.2d at 445–46 ; Jackson , 700 F.2d at 189–90 ; Colbert , 76 F.3d at 776–77 ; Hoyos , 892 F.2d at 1397 ; Cavely , 318 F.3d at 995–96 ; Henry , 48 F.3d at 1284.
Other Specific Articulable Facts Warranting the Sweep
Appellant claims law enforcement officers did not have specific articulable facts that would warrant a reasonable belief that the area swept harbored an individual posing a danger to those on the arrest scene. Viewing the evidence in the light most favorable to the trial court's ruling, the record shows the following:
• Intelligence from law-enforcement entities showed narcotics traffic at the house.
• The arrest warrants executed related to charges for a violent crime — murder.
• Informants had reported guns were on the premises.
• Alexander testified that he saw a rifle in the residence upon the initial entry into the house.
• Witnesses gave conflicting accounts about how many children were in the car that left the home, which suggested that not all of the children left the home and at least one might still be inside the house
• When questioned by law enforcement officers immediately following his arrest, appellant lied about his identity, initially identifying himself as "Elijah Villarreal."
• Law enforcement officers saw suspected narcotics activity at the house. Alexander testified to the heightened level of risk associated with apprehending suspects in narcotics-trafficking scenarios.
• Appellant reported dogs on the premises and in the house.
• Alexander testified he was concerned about the safety of the law enforcement officers.
• Photographs in the record show that parts of the residence were highly cluttered, obscuring lines of sight into places individuals could be hiding or lying in wait.
• According to Alexander, the ongoing surveillance did not provide adequate information for the purposes of executing the warrants. The surveillance on the home was not continuous and, as a result, yielded inconsistent information. Nothing in the record shows the presence of physical surveillance or attention to the video surveillance in the days leading up to the arrest other than the night before the arrest.
• The surveillance confirmed that appellant was at the residence the night before the arrest. But, Alexander testified that law enforcement officers could not be certain that there were no other people in the residence and that the sweep was conducted to ensure the safety of others standing around the residence.
Viewing the evidence in the light most favorable to the trial court's ruling, the record evidence supports an implied finding by the trial court that Alexander held an objectively reasonable belief, based on specific and articulable facts, that guns remained in the house and that a person in that area posed a danger to Alexander and to other people in the area. See Jackson , 700 F.2d at 190 ("The agents at the motel had observed the suspects leaving the room in which the agents later discovered the evidence. They had no way of knowing that the two suspects were the only remaining people involved in the exchange. Although Hicks had said that the suspects were armed, a pat-down search following the arrest did not reveal a weapon. Thus, the agents had reason to believe that a gun was somewhere in the motel. It is clear to us that the cursory search of the motel rooms resulted from the agent's reasonable belief that an immediate security sweep of the premises was required for their own safety and the safety of others at the motel"); Lerma , 543 S.W.3d at 190 ; see also Lipscomb , 526 S.W.3d at 656 (concluding protective sweep was lawful where officers had received conflicting information from dispatch operator making them unsure about whether anyone was still inside the apartment). Thus, we presume that the trial court made this implied finding. See Lerma , 543 S.W.3d at 190.
Duration of the First Phase of the Protective Sweep
Appellant also contends the sweep took too long to be a "cursory sweep." Appellant asserts that a 30 to 45-minute search of a small home by trained professionals cannot be considered "cursory." In Buie , the Supreme Court stated that a lawful protective sweep "lasts no longer than is necessary to dispel the reasonable suspicion of danger," and that officers may "look in closets and other spaces immediately adjoining the place of arrest." Buie , 494 U.S. at 335–36, 110 S.Ct. 1093. When characterizing the overall sweep Alexander described it as slow and methodical at times, but responded to an inquiry about the quick processes of "recogniz[ing] whether a person is in there or not" as something that occurred "initially." Viewing the evidence in the light most favorable to the trial court's ruling, we presume that the trial court credited Alexander's testimony that "[i]t could have took me 20 minutes," and discredited his other longer estimates about the duration of the total sweep. Viewing the evidence in the light most favorable to the trial court's ruling, the record evidence supports implied findings by the trial court that the total sweep lasted 20 minutes and that the first phase of the sweep (that consisted merely of scanning the rooms or "livable spaces") lasted five to ten minutes, a quarter to roughly half of the time of the total sweep. See Lerma , 543 S.W.3d at 190.
Taking into account all of the facts, the discovery of the opened back door, and accounting for the additional time it might take to clear the smaller spaces that were big enough for a person to hide (and spring an attack on law enforcement occupants), and considering that the back door was discovered to be open during their entry, we could hardly find a 20-minute timeframe excessive. The SWAT team's discovery of the opened back door provided reasonable additional basis for heightened concern over the potential for people in the house. See Oguns , 921 F.2d at 446–47 (holding that security sweep of defendant's apartment was permissible because the agents conducting the sweep noticed that the door to the defendant's apartment was open).
Alexander's testimony initially was consistent with the statement in the search-warrant affidavit that officers discovered the cocaine found in the house on a cooler in the kitchen, as he affirmatively responded to questions about this discovery in the kitchen. Although Alexander himself later contradicted this version of the facts, Persaud, who memorialized Alexander's report on the day of the search, corroborated this account at trial. The trial court was free to credit Alexander's initial testimony that he first found narcotics in the kitchen before finding the narcotics outside, and reasonably infer that both discoveries occurred during the initial sweep. Viewing the evidence in the light most favorable to the trial court's ruling, the record evidence supports implied findings by the trial court that officers discovered the cocaine found in the house on a cooler in the kitchen, as described in the search-warrant affidavit, and that the law enforcement officers did not exceed the scope of a permissible protective sweep during the first phase of the sweep. See Buie , 494 U.S. at 335–36, 110 S.Ct. 1093 ; Lerma , 543 S.W.3d at 190. Under these implied findings, all of the information used to support the search-warrant affidavit was obtained during the first phase of the sweep, and therefore none of that information was obtained as a result of an unreasonable search that violated the Fourth Amendment of the United States Constitution. See Buie , 494 U.S. at 335–36, 110 S.Ct. 1093 ; Jackson , 700 F.2d at 190 ; Lerma , 543 S.W.3d at 190.
Alexander contradicted this testimony by stating: "You're saying that the first narcotics saw was inside the residence. I'm not saying that. I'm saying the first narcotics I saw were in the red bag right outside the back door."
B. If Alexander discovered the Inside Narcotics during the second phase of the sweep, did the trial court err in denying the motion to suppress?
Appellant asserts that Alexander discovered the Inside Narcotics during the second phase of the sweep, and some evidence in the record would support this proposition. In the alternative, we presume this point for the sake of argument and consider whether the trial court erred in denying the motion to suppress if Alexander discovered the Inside Narcotics during the second phase of the sweep.
Additional sweeps of the house were made before the execution of the search warrant. Alexander testified that during a third phase, members of his team went through the house collecting their tools, and during a fourth phase, which Alexander explained overlapped with the third phase, his crew would take photographs of the damage caused by the breach. Although neither search was aimed at protecting law enforcement officers and so would fall outside the scope of a permissible protective sweep, no information obtained during these phases formed the basis of the search warrant.
Propriety of the "Secondary Clear"
Alexander testified that during the "secondary clear" he and his team walked into every room to secure every possible place that a human body could possibly fit, "underneath beds, looking in closets, looking in crawl spaces, all that kind of stuff." He explained that, as with the original sweep, the purpose of this secondary search was to protect officer safety, and his testimony suggests that the secondary sweep was essential to protect his team's safety before retreating from the residence.
For the sake of argument, we presume that (1) the second phase of the sweep violated the Fourth Amendment; and (2) Alexander discovered the Inside Narcotics during the second phase of the sweep when not lawfully on the premises such that this information in the search-warrant affidavit was tainted and could not be considered as support for the search warrant of the house. See State v. Le , 463 S.W.3d 872, 877 (Tex. Crim. App. 2015) (stating that a search warrant based in part on tainted information is nonetheless valid if it clearly could have been issued on the basis of the untainted information in the affidavit). We consider whether the remaining untainted information, namely, the plain view sighting of the Outside Narcotics, could support the search warrant for items inside the residence.
The search warrant authorizing a search inside the home could have been issued on the basis of the first search, the sighting of cocaine directly outside the home along with other information about the residence. Excluding all information derived from the second part of the sweep, including the information regarding the Inside Narcotics, under the totality of the circumstances, the remaining information in the search-warrant affidavit, including the report of the finding of the narcotics sitting outside the back porch in plain view and tips that narcotics were being sold from the house, clearly establishes probable cause to search the entire residence for narcotics. See Flores v. State , 319 S.W.3d 697, 703 (Tex. Crim. App. 2010) (concluding that anonymous tip coupled with presence of marihuana in the residence's garbage can twice within a five-day period aided probable cause for search of residence); Wright v. State , 401 S.W.3d 813, 822–23 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) ; see also Le , 463 S.W.3d at 879 (odor of marijuana can provide probable cause to support a search warrant). So, even if Alexander discovered the Inside Narcotics during the second part of the sweep and even if this part of the sweep violated the Fourth Amendment, the search warrant still would be valid, and appellant would not have shown that the trial court erred in denying the motion to suppress. See Flores , 319 S.W.3d at 703 ; Wright v. State , 401 S.W.3d 813, 822–23.
III. CONCLUSION
The trial court did not err in denying the motion to suppress. We overrule appellant's sole issue and affirm the trial court's judgment.
( Bourliot, J. dissenting without opinion).