Jose Valentin (Jose Valentine) v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00507-CR
Jose VALENTIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6719
Honorable Sid L. Harle, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 2, 2003

AFFIRMED

Jose Valentin, a repeat offender, appeals his conviction for delivery of a controlled substance and sentence of fifteen years to the Texas Department of Criminal Justice - Institutional Division. Valentin filed a pre-trial motion to suppress all evidence obtained in his apartment where he sold narcotics to an undercover officer. He reurged that motion at trial before the bench. The trial court denied the motion. On appeal, Valentin contends the trial court erred in denying the motion. We disagree, and affirm the judgment of the trial court.

Background

Detective Thomas Brittain is an undercover narcotics officer with the San Antonio Police Department. On May 16, 2001, a police informant informed SAPD that they could purchase heroin from Valentin. Working undercover, Brittain and the informant met and traveled to an apartment at 130 Greenwood in San Antonio, Texas. Brittain did not have a search warrant or arrest warrant. Brittain testified that he knew Valentin resided in the apartment and had control over the premises. Valentin was leaving his apartment as the two men arrived and motioned for them to wait. Brittain and the informant waited for Valentin. Brittain noticed that there were two to three men in the apartment. He also saw several people approach the porch, talk to the men, and "eventually wander off." One of the men inside the apartment specifically invited Brittain inside the apartment. Of all the people the men spoke to, Brittain was the only person invited inside the apartment. Brittan stated that he did not know whether the person who had invited him lived in the apartment. Once in the apartment, Brittain joined the men in having a beer and watching television. Valentin returned about twenty minutes later and went to the bedroom. Brittain observed Valentin bagging some heroin. Valentin subsequently invited Brittain into the bedroom where Brittain purchased some heroin for $120.00. Brittain left with his purchase, and Valentin was subsequently arrested.

Analysis

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct. 603 (2002). In this case, the trial court did not make explicit findings of fact, therefore we review the evidence in a light most favorable to the trial court's ruling. Id.

Valentin contends that the State failed to establish consent because Brittain did not know who resided at the apartment, who had control over the apartment, or who had authority to grant permission for him to enter. Accordingly, Valentin asserts that Brittain's entry constituted a warrantless entry and search in violation of the Fourth Amendment of the U.S. Constitution and Article 1, section 9 of the Texas Constitution. Contrastingly, the State argues that this case is indistinguishable from Lewis v. State, 385 U.S. 206 (1966), and, therefore, argues that we should affirm the judgment of the trial court. We agree with the State that Lewis stands for the general proposition that consent to enter a residence is not invalidated by the fact that an officer gained access to the residence by working undercover. See id. at 211. However, in applying Lewis to the instant matter, the State assumes that Brittain was invited into the apartment. (1) It is this very issue that Valentin contests on appeal. Therefore, we must address whether Brittain had consent to enter Valentin's apartment. See State v. Lofgren, 47 S.W.3d 167, 169 (Tex. App.--Austin 2001, no pet.).

The basic purpose of the Fourth Amendment to the U.S. Constitution is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. See Berger v. New York, 388 U.S. 41, 53 (1967). For this reason, the home is accorded the full range of Fourth Amendment protections because it "is clearly a place . . . which there exists a justified expectation of privacy against unreasonable intrusion." 3 Wayne R. Lafave, Search and Seizure 8.2(m), at 680 (3d ed. 1996) (footnote omitted). Accordingly, searches made without warrant are generally per se unreasonable. See Katz v. United States, 389 U.S. 347, 357 (1967). When a search without a warrant is made, the State bears the burden to show that the search falls within one of the narrow exceptions to the warrant requirement in order for the search to be constitutionally permissible. See Moreno v. State, 821 S.W.2d 344, 349 (Tex. App.--Waco 1991, pet. ref'd).

An exception to the warrant requirement is a search conducted by consent. See Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985). To show that a search was made with the property owner's consent, the State must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily. See id. at 509-10; Mendoza v. State, 30 S.W.3d 528, 531 (Tex. App.--San Antonio 2000, no pet.). Because consent should not be lightly inferred, the State's burden requires that it show that the consent was positive and unequivocal, and there was no duress or coercion. Corea v. State, 52 S.W.3d 311, 316 (Tex. App.--Houston [1st Dist. 2001], pet. ref'd). The burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Id.

A warrantless entry and search by law enforcement officers does not violate the Fourth Amendment's proscription of unreasonable searches and seizures if the officers have obtained the consent of a third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority rests "on the mutual use of property by persons generally having joint access or control for most purposes." Id. A third party may properly consent to a search when the party had equal control over and equal use of the premises being searched. Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App. 1986).

Here, by motioning Brittain to wait, Valentin did not give Brittain permission to enter the apartment. For this reason, Brittain waited outside. Brittain was subsequently invited in by one of the men inside the apartment. However, there was no evidence presented whether the men in the apartment, as third parties, had common actual authority to give consent. Specifically, there was no evidence whether the man who invited Brittain inside owned the apartment or was, at the very least, an occupant. In fact, Brittain stated he did not know if the person who invited him in lived there or not. Brittain also stated he did not know the men's relationship to Valentin. Additionally, there was no evidence that Valentin gave any of the men permission to allow Brittain to come in. For these reasons, we cannot say the evidence establishes actual consent by a third party.

When the facts do not establish a finding of actual authority, a search is reasonable if the consent-giver apparently has actual authority. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Riordan v. State, 905 S.W.2d 765, 771 (Tex. App.--Austin 1995, no pet.). Consent in this situation is judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting person had authority over the premises? Rodriguez, 497 U.S. at 188. The apparent authority doctrine for consenting to a search should not be applied so strictly that it becomes unworkable and places too heavy a burden on police.Corea, 52 S.W.3d at 317. The rule, however, does not allow law enforcement officers to proceed without inquiry into ambiguous circumstances or to always accept at face value the consenting party's apparent assumption or claim of authority to allow the contemplated search. Id.

The evidence reflects that several individuals approached the men in the apartment and milled about the porch. These individuals were not invited in. Brittain, however, was specifically invited in. Under these circumstances, Brittain could have reasonably believed that the men had apparent common authority over the apartment. Additionally, the trial court could have inferred from the evidence that Valentin permitted the men to have some control over the premises. Upon his return, recognizing that Brittain was in the apartment, Valentin said nothing. There is no evidence to suggest that Valentin questioned the men as to why Brittain was invited into the apartment. Additionally, there is no evidence that Valentin ordered Brittain out once discovering him inside, informed him he could not be there, or even questioned him as to why he had come in. Rather, Valentin allowed Brittain to remain in the apartment while he went into the bedroom. He then subsequently invited Brittain into the bedroom where the heroin purchase was made. We conclude, given the totality of the circumstances, that the evidence establishes that Brittain had consent to enter the apartment.

Once in the apartment, Brittain did not search the premises or seize anything within the confines of the apartment. Rather, Brittain did nothing more than "keep [his] eyes open." See United States v. Enstam, 622 F.2d 857, 868 (5th Cir. 1980); see also United States v. Pozos, 697 F.2d 1238, 1244 (5th Cir. 1983). Brittain did not "see, hear, or take anything that was not contemplated, and in fact intended, by [Valentin] as a necessary part of his illegal business." Lewis, 385 U.S. at 210. Therefore, there was no Fourth Amendment violation. We hold that the trial court did not err in denying Valentin's motion to suppress.

Conclusion

We overrule Valentin's sole issue on appeal, and affirm the judgment of the trial court.

Catherine Stone, Justice

Do Not Publish

1. In its brief, the State merely states that "law enforcement was granted access to the premises in question for the purposes of purchasing narcotics."