Opinion
No. 14-07-00825-CR
Opinion filed November 18, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause no. 1113774.
MEMORANDUM OPINION
Appellant, Trula Jemelka Salazar, was charged with possession of between one and four grams of cocaine, a controlled substance. See Tex. Health Safety Code Ann. §§ 481.115(c), 481.102(3) (Vernon 2003). Contending that evidence was obtained through unconstitutional searches of her person and her home, she filed a motion to suppress that was denied. Appellant then entered into a plea bargain, but was granted permission to appeal the trial court's ruling. In two points of error, she contends the trial court abused its discretion in denying her motion to suppress. We affirm.
BACKGROUND
On April 23, 2007, two Houston Police Department narcotics officers, who were conducting surveillance on appellant's house, saw appellant drive to a nearby apartment complex and engage in an apparent drug transaction. She returned to her house, then left again forty-five minutes later. Appellant was then seen making a left turn without signaling, prompting the officers — who were in an unmarked car — to request that a patrol car conduct a traffic stop. Appellant's car was stopped and, after she was unable to provide proof of financial responsibility, she was arrested for traffic violations. Appellant claims that she was frisked once by a male officer and twice by a female officer, who discovered an object that was concealed inside appellant's clothing. The female officer escorted appellant to the empty restroom of a nearby Subway restaurant where, appellant contends, she was strip-searched. During the search, cocaine was discovered under appellant's bra. Officer Hernandez, one of the narcotics officers, testified that appellant was advised of, but chose to waive, her Miranda rights. She then agreed, orally and in writing, to permit the search of her house. She secured her pit-bull dogs, advised the officers that the house contained guns, and suggested that cocaine could be found in her bedroom closet. Following the discovery of more cocaine, appellant was charged with the third-degree felony of possessing between one and four grams of cocaine. She moved to suppress the results of the two searches, however, contending that (1) the search of her person was constitutionally unreasonable, and (2) she did not voluntarily consent to the search of her home. After hearing testimony from Officer Hernandez and from appellant, the trial court denied the motion to suppress. Pursuant to a plea agreement, appellant pled "guilty" to the charged offense and was sentenced to three years of deferred adjudication and payment of a fine. She now appeals the trial court's denial of her motion to suppress.STANDARD OF REVIEW
We employ a bifurcated standard of review in considering a trial court's ruling on a motion to suppress evidence. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Turner v. State, 252 S.W.3d 571, 576 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). We defer almost entirely to the trial court's findings of historical fact that are supported by the record, especially when the findings relate to an evaluation of credibility and demeanor. Turner, 252 S.W.3d at 576 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). We afford the same level of deference to rulings on mixed questions of law and fact if the resolution of those issues turns upon an evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. However, we review de novo the trial court's application of the law of search and seizure. Carmouche, 10 S.W.3d at 327. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Mason v. State, 116 S.W.3d 248, 256 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Thus, the trial judge may freely believe or disbelieve all or part of a witness's testimony, even if the testimony is uncontroverted. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Marsh v. State, 140 S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006); Rothstein v. State, ___ S.W.3d ___, 2008 WL 2986396, at *3 (Tex.App.-Houston [14th Dist.] July 31, 2008, no pet.). We will imply omitted findings of fact in favor of the trial court's ruling if the evidence supports the implied findings. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007). We sustain the trial court's decision if it is reasonably supported by the record and is correct under any legal theory applicable to the case. Ross, 32 S.W.3d at 855-56.REASONABLENESS OF PERSONAL SEARCH
In her first point of error, appellant argues she was subjected to an unreasonable search following her traffic arrest, in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects individuals, "in their persons, houses, papers, and effects, against unreasonable searches and seizures" made without probable cause. U.S. Const. amend. IV. The Texas Constitution affords similar, albeit not identical, protection. See Tex. Const. art. I, § 9; Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991) ("[W]e now expressly conclude that this Court, when analyzing and interpreting Art. I, § 9, Tex. Const., will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue."). A traffic stop constitutes a Fourth Amendment seizure. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). To be constitutionally permissible, then, a traffic stop must be reasonable. See Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd), cert. denied, 529 U.S. 1116 (2000); U.S. Const. amend. IV. Generally, a warrantless search of a person, like appellant, is considered to be per se unreasonable and therefore disallowed by the Fourth Amendment. See McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). However, this presumption of unreasonableness may be overcome if the State can show that the search falls within a few specifically defined and well delineated exceptions. See id. (citing Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). For example, it is well settled that no warrant is required to conduct a search incident to a lawful arrest. See United States v. Robinson, 414 U.S. 218, 224 (1973). A lawful arrest permits officers to prevent the concealment or destruction of evidence by searching a defendant and the areas within the defendant's immediate control:A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment.Id. at 235; see McGee, 105 S.W.3d at 615 (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). Appellant concedes she properly could be arrested for her admitted traffic violations, and she acknowledges that the facts of this case therefore fall within the "incident to lawful arrest" exception. In fact, warrantless arrests are permissible for "any offense" committed in the peace officer's presence or within his view, including most traffic violations. See Tex. Code Crim. Proc. art. 14.01(b) (Vernon 2005); Tex. Transp. Code Ann. § 543.001 (Vernon 1999). Officer Hernandez offered unchallenged testimony that appellant violated traffic laws by failing to signal before turning left. See id. § 545.104(a); Villareal v. State, 116 S.W.3d 74, 81-82 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Dogay v. State, 101 S.W.3d 614, 618 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Having observed a violation, he called for a patrol officer to initiate the traffic stop. See Turner v. State, 261 S.W.3d 129, 133 (Tex.App.-San Antonio 2008, no pet.); Muggley v. State, 473 S.W.2d 470, 472 (Tex.Crim.App. 1971). According to appellant, the patrol officer told her she was under arrest for speeding, which she denies, and for failing to demonstrate proof of financial responsibility, which she admits. See Vela v. State, 871 S.W.2d 815, 818-19 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (approving of arrest for lack of liability insurance); Tex. Transp. Code Ann. §§ 601.051, 601.053 (Vernon 1999). Appellant concedes that her lawful arrest permitted the officers to fully search her person. See Robinson, 414 U.S. at 235. However, she notes that Robinson did not dispense with the requirement that all searches, including those which accompany a lawful arrest, be reasonable. McGee, 105 S.W.3d at 615. Thus, a search that was justified and reasonable at its inception nevertheless may violate the Fourth Amendment if it involves excessive intensity and scope. See Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App. 1997). Appellant insists that her case belongs in this category. She complains that, although her arrest involved only minor traffic violations, she was improperly subjected to an excessive and unreasonable search consisting of multiple pat-downs and an eventual "strip search." In deciding whether the search was reasonable, we must balance the need for the particular search against the invasion of appellant's personal rights that was occasioned thereby. See Bell v. Wolfish, 441 U.S. 520, 559 (1979). Our analysis focuses on the particular facts and circumstances of this case. See McGee, 105 S.W.3d at 616. We consider such factors as the scope of the particular intrusion, the justification for initiating it, and the manner and location in which it was conducted. See id. No one factor is necessarily outcome-determinative. See id. A. Scope of Intrusion Appellant testified that a female officer accompanied her to the restroom of a Subway restaurant, searched appellant's underwear, and instructed appellant to unfasten and remove her bra. The parties dispute whether this uncontroverted testimony amounts to a "strip search," which has been described as one of the "more intrusive searches" and which is trumped only by "visual body-cavity searches" and "manual body-cavity searches." See McGee, 105 S.W.3d at 615. The term "strip search" is commonly employed as an "umbrella term" to refer to all inspections of naked individuals. See N.G. v. Connecticut, 382 F.3d 225, 228 n. 4 (2d Cir. 2004); McGee, 105 S.W.3d at 615. The State argues that, because appellant was not completely naked, she was not strip-searched. We hold that the facts and circumstances justified the search that was performed on appellant; therefore, we need not decide whether a partial removal of clothing constitutes a "strip search." See Amaechi v. West, 237 F.3d 356, 363 (4th Cir. 2001) (surveying federal case law concerning examples of strip searches); see also United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000) (noting that the trial court construed a search similar to that involved in the case sub judice as "a search incident to an arrest, not a strip search"). Because no one factor is determinative, appellant's assertion that she was subjected to an intrusive search does not end our analysis. See McGee, 105 S.W.3d at 616. Rather, we must determine whether the legitimate interests of law enforcement outweigh the relative intrusiveness of the search. See id. B. Justification for Search Having conceded that she was lawfully arrested, appellant nonetheless contends that it was unreasonable for officers to strip-search her after a minor traffic violation. However, she acknowledges that a traffic arrest can be a permissible pretext for a narcotics search. See Whren v. United States, 517 U.S. 806, 812-13 (1996) ("[A] traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was `a mere pretext for a narcotics search[.]'"); Garcia v. State, 827 S.W.2d 937, 944-45 (Tex.Crim.App. 1992). In fact, appellant's house had been under surveillance for suspected narcotics activity. Appellant was then observed by Officer Hernandez — an experienced narcotics investigator — engaging in "some kind of transaction consistent with drug deals." After appellant was lawfully arrested, a female officer performed a pat-down and "felt an object around [appellant's] breast area." One of the purposes of the "search-incident-to-arrest" exception is to permit officers to prevent the concealment or destruction of evidence. See Robinson, 414 U.S. at 226 (citing Chimel, 395 U.S. at 763). In light of the facts surrounding appellant's arrest and the discovery of a concealed lump inside appellant's clothing, we hold that law-enforcement officers were justified in conducting a reasonable search to determine the nature of the concealed object. See United States v. Thomas, 512 F.3d 383, 387 (7th Cir. 2008); United States v. Davis, 457 F.3d 817, 823 (8th Cir. 2006); United States v. Williams, 209 F.3d 940, 944 (7th Cir. 2000). A person may not avoid a reasonable search simply because she chooses to hide contraband in a potentially embarrassing location. See, e.g., Williams, 209 F.3d at 943-44. C. Manner and Location in which Search was Conducted A strip search should be conducted in an area as removed from public view as can be provided without compromising legitimate security concerns. See Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1008 (8th Cir. 2007). In addition, it should be performed by an officer of the same gender as the person to be searched. See id. Finally, an intrusive search, like a strip search, should be conducted in a hygienic manner and not in a degrading, humiliating, or abusive fashion. See id.; Bell, 441 U.S. at 560. Appellant complains that her search occurred in a "public place," that is, the restroom of a Subway restaurant. That the location may be classified as public, however, does not mean that appellant was exposed to public view. See, e.g., United States v. Cofield, 391 F.3d 334, 336-37 (1st Cir. 2004) (approving strip search in hallway near police booking desk where defendant was not exposed "in an unnecessarily public place or to members of the opposite sex"); Roberts v. Rhode Island, 239 F.3d 107, 113 n. 7 (1st Cir. 2001) (approving strip search "conducted in a private area, away from public view"). The key consideration is "whether the officer sought to protect the privacy interests of the individual by conducting the search in a private area." See McGee, 105 S.W.3d at 617. Apart from appellant and the female officer who conducted the search, the Subway restroom was vacant. To the extent possible, then, the searching officer protected appellant's privacy interests by conducting the search privately, and away from public view. See id. In addition, although the restroom of a public restaurant may not enjoy hospital-like sterility, a less sterile environment may be acceptable where, as here, the search does not involve penetration of the body. See id. (holding that search which occurred in non-sterile fire station was reasonable). Appellant concedes that her search was non-violent, and she does not contend the search was conducted in a degrading, humiliating, or abusive manner. Rather, the search appears to have been performed in a professional manner with no more intrusion than was necessary to secure contraband discovered during the female officer's pat-down. See Cofield, 391 F.3d at 337. Appellant's search does not resemble those that have been found to involve abuse or humiliation, such as the following:
$ The use of "insultingly suggestive remarks and banal but terrifying expressions of aggression like those of guards threatening [naked defendants]." United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S.D.N.Y. 1977), rev'd on other grounds, Bell v. Wolfish, 441 U.S. 520 (1979).
$ The drawing of blood by non-medical personnel or in a non-medical environment, which would "invite an unjustified element of personal risk of infection and pain." Schmerber v. California, 384 U.S. 757, 771-72 (1966).
$ Strip searches accompanied by beatings or insulting and intimidating comments and jokes. See Arruda v. Berman, 522 F. Supp. 766, 768 (D. Mass. 1981).Therefore, we conclude appellant's search was conducted in a reasonable place and manner. After considering all of the Bell factors and the circumstances surrounding appellant's arrest, we hold that the law-enforcement officers conducted a reasonable search incident to arrest. Therefore, the trial court did not abuse its discretion in denying appellant's motion to suppress the cocaine that was found during the search of her person. We overrule appellant's first point of error.
CONSENT TO SEARCH HOUSE
In her second point of error, appellant challenges the trial court's implicit finding that she voluntarily consented to a search of her house. We begin our analysis by presuming that the warrantless police entry into appellant's home was unreasonable, unless the entry falls within a well-delineated exception to the warrant requirement. See Johnson v. State, 226 S.W.3d 439, 443 (Tex.Crim.App. 2007). Voluntary consent to search is an exception to the warrant requirement. Id. The State must present evidence establishing by clear and convincing evidence that consent was voluntarily and freely given, and not as a result of duress or coercion. See Carmouche, 10 S.W.3d at 331. Whether consent was voluntary involves a question of fact that is determined from the totality of the circumstances. See id.; Johnson, 226 S.W.3d at 443. If the trial court's finding that consent was free and voluntary is supported by clear and convincing evidence in the record, we will not disturb that finding. See Carmouche, 10 S.W.3d at 331. As before, we review the historical facts in the light most favorable to the trial court's implied ruling that consent was voluntary. See Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000). In making a determination of voluntariness, courts may consider various factors, including the defendant's age, education and intelligence; the length of detention; any constitutional advice given to the defendant; the repetitiveness of questioning; and the use of physical punishment. See Flores v. State, 172 S.W.3d 742, 749-50 (Tex.App.-Houston [14th Dist.] 2005, no pet.). We may also consider whether appellant was in custody; whether she was handcuffed; whether she had been arrested at gunpoint; whether law enforcement had already engaged in an illegal search; whether incriminating evidence had been uncovered at the time of consent; whether Miranda warnings were given; and whether the defendant had the option to refuse to consent. See Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). The record does not contain information as to several of these factors. Giving proper deference to the trial court's ruling, the facts surrounding appellant's consent to search are as follows:$ Appellant was twenty-seven years old at the time of the arrest.
$ Appellant was lawfully arrested for admitted traffic violations, and a search incidental to arrest revealed a bag of cocaine concealed within appellant's bra.
$ Appellant was advised of her Miranda rights before her consent to search was requested, including her rights to an attorney, to remain silent, and to stop the interview at any point. By volunteering to speak with the officers, she indicated that she understood, and was willing to waive, each of those rights.
$ Appellant signed a written consent to search her house. Officer Hernandez testified that she signed the consent voluntarily. He further testified that no promises or threats were made to her, that appellant was not coerced "in any way," and that appellant signed the consent "completely freely and voluntarily." Appellant's testimony also confirmed that she freely signed the consent form, and that she likewise granted oral permission for the search.
The written consent is not contained in the appellate record. See Amador v. State, 221 S.W.3d 666, 675 (Tex.Crim.App. 2007) ("It was . . . appellant's burden to bring forward a record on appeal sufficient to show that the trial court erred in his ruling on the motion to suppress.").
$ Appellant accompanied the officers to the house and unlocked the door. She secured her pit-bull dogs and, for the officers' safety, informed them that there were guns in the house. She also volunteered that powdered cocaine could be found in a shirt pocket in her bedroom closet. At no point did appellant ask that the officers stop searching, or request that counsel be present before the search could continue.At the suppression hearing, appellant testified that she was told that the officers had a warrant that was ready to be signed and that "they were getting in [her] house one way or another that night." She claims to have been told that, if she did not consent, they would kick her door down and shoot her pit-bull dogs if necessary to protect themselves. Although she admitted to signing the consent form, then, she felt pressured and coerced into doing so. She had been caught in possession of cocaine, and decided to cooperate simply because she "wanted this to be done with." However, Officer Hernandez specifically denied representing that a warrant was imminent, or threatening to enter the house forcibly or to shoot appellant's dogs. Because the trial judge's decision whether to believe the officer or appellant was based on credibility and demeanor, we give almost total deference to the implicit decision to disregard appellant's testimony. See Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). Under these facts, we cannot say that the trial court abused its discretion in deciding appellant voluntarily gave consent to search her house. Consent is not rendered involuntary merely because appellant was under arrest. See Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985). Appellant was advised of her constitutional rights, including her right not to even speak with the officers, and such advice can be "a very important factor indicating that a subsequent consent to search is voluntary." Lackey v. State, 638 S.W.2d 439, 451 (Tex.Crim.App. 1982). There is no indication that appellant was physically punished, or that the officer's guns were ever used or displayed. See id. To the contrary, Officer Hernandez's testimony that no coercion was involved is evidence of the voluntary nature of appellant's consent. See Martinez, 17 S.W.3d at 683. Further, in addition to giving oral consent to search, appellant — an adult woman — signed a written consent form. See Lackey, 638 S.W.2d at 452 ("Generally, a person will consider a decision with more care and deliberation if she signs something rather than making an off-hand verbal consent."). Finally, consent to search may be implied where a person, like appellant, volunteers unsolicited information that evidence can be found in a specific area. See, e.g., United States v. Rodriguez-Preciado, 399 F.3d 1118, 1131 (9th Cir. 2005), cert. denied, 127 S. Ct. 1260 (2007); United States v. Rosi, 27 F.3d 409, 413-14 (9th Cir. 1994). That appellant, an adult woman, was scared or upset at the time she gave consent does not necessarily render such consent involuntary. See Lackey, 638 S.W.2d at 450-51. After all, "while most confrontations with the police are uncomfortable . . . `the Constitution does not guarantee freedom from discomfort.'" Carmouche, 10 S.W.3d at 333 (quoting State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999)). We overrule appellant's second point of error.