Omar Guerrero v. The State of Texas--Appeal from 63rd Judicial District Court of Val Verde County

MEMORANDUM OPINION
No. 04-03-00028-CR
Omar GUERRERO,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 9404
Honorable Thomas F. Lee, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 3, 2004

AFFIRMED

Omar Guerrero appeals the trial court's order denying his motion to suppress the bundles of marijuana seized at his home and his oral and written statements. We affirm the trial court's judgment.

1. Guerrero first argues the trial court erred in denying his motion to suppress the bundles of marijuana recovered by police from the doorway of Guerrero's home for three reasons: the warrantless search violated his rights under the Fourth Amendment to the United States Constitution and article 38.23(a) of the Texas Code of Criminal Procedure because, when the police officers observed the bundles of marijuana in the doorway of his duplex, they did not have a right to be there; the police officers' failure to obtain a warrant before opening the bundles of marijuana was not justified by exigent circumstances; and his consent to the search was invalid since it was a result of an illegal arrest. We disagree.

Guerrero argues that, because the border patrol agent who directed the police officers to Guerrero's house "did not have probable cause to believe that any crime was being committed at the time, . . . the police officers' dependence on his statement made their arrival at [his] doorstep illegal." We disagree. "[J]ust as private citizens may approach a home, absent contrary instructions from the owner, to knock on a door, so may the police approach without probable cause, a warrant, or exigency." Rogers v. Pendleton, 249 F.3d 279, 289 (4th Cir. 2001); see also Texas v. Brown, 460 U.S. 730, 739 (1983) (stating that a police officer is not precluded from observing as an officer what would be entirely visible to him as a private citizen). We therefore hold that the police officers' arrival at Guerrero's doorstep was not illegal.

Guerrero next argues that the police officers were required to obtain a warrant before opening the bundles of marijuana. We again disagree. Objects that are in "plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence." Stoker v. State, 788 S.W.2d 1, 9 n.3 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 (1990). The plain view doctrine "requires that: (1) law enforcement officials have a right to be where they are, and (2) it must be immediately apparent that the item seized constitutes evidence (that is, there is probable cause to associate the item with criminal activity)." Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App.), cert. denied, 520 U.S. 1198 (1996). As stated above, the police officers had a right to be at Guerrero's doorstep; and two border patrol agents and one police officer testified that, based on their training, they were able to recognize that the bundles contained marijuana. For instance, Agent Philip Calk testified that the bundles "look[ed] like four cellophane wrapped bundles of the substance that can be marijuana." We hold that, under the plain view doctrine, the police officers did not need a warrant before opening the bundles of marijuana. Accordingly, the trial court did not abuse its discretion in denying Guerrero's motion to suppress the bundles of marijuana. (1)

2. Guerrero next argues the trial court erred in denying his motion to suppress his oral statement because it was taken while he was in custody and before his Miranda (2)

rights were read to him in violation of his Fifth Amendment rights. We again disagree.

A person is "in custody" only if a reasonable person would believe that he was deprived of his freedom to a degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 321 (1994)). Four factors are relevant to determining custody: "(1) [p]robable cause to arrest, (2) [s]ubjective intent of the police, (3) [f]ocus of the investigation, and (4) [s]ubjective belief of the defendant." Dowthitt, 931 S.W.2d at 254. "Under Stansbury, factors two and four have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials; the custody determination is based entirely upon objective circumstances." Id.

Guerrero argues he was "in custody" when he gave his oral statement at his home because he was not allowed to use the telephone, was kept under constant watch, and was not allowed to leave his room. However, the record establishes that two Border Patrol agents saw two individuals dressed in dark clothes and wearing ski masks hiding in front of a car parked in Guerrero's driveway. Thinking that ski masks in Del Rio in April were unusual and out-of-place, the agents contacted the Del Rio Police Department. Thus, police officers went to Guerrero's home to investigate what appeared to be an attempted burglary. When they arrived, they found Guerrero's front door kicked in and the lock broken and a bundle of marijuana on the ground between the screen and interior doors; one officer also detected a very strong order of marijuana. The officer twice announced his presence and asked whoever was inside to come forward. A voice from the interior of the home said he could not come to the officer because he was tied up. Concerned, the officer entered the home and, while doing a protective sweep, found Guerrero hogtied on the floor in the back bedroom. Guerrero was thus first questioned as a victim at the crime scene. At this point, he denied any connection to the marijuana that was found at his residence. The police officers then proceeded to do a protective sweep of the residence and secure and photograph the crime scene. Officer Philip Calk testified that it is "standard operating procedure" when investigating a crime scene not to let people use the phone as "a matter of officer safety." Similarly, Officer Phil Tamasese testified that Guerrero was detained in his bedroom for ten to fifteen minutes to "protect the integrity of the crime scene."

While the crime scene was being investigated, one police officer remained with Guerrero. Without being questioned, Guerrero volunteered that he was involved in narcotics smuggling and had been holding the marijuana for the last couple of weeks. Given these circumstances, we hold that, at the time Guerrero made his oral statement, he was not in custody. This holding is consistent with Guerrero's testimony at the hearing on the motion to suppress that he was not led to believe that he was under investigation for any kind of criminal activity.

3. Finally, Guerrero argues he was in custody when he made his written statements at the police station. However, Guerrero testified at trial that he voluntarily accompanied the police to the police station. This circumstance alone establishes Guerrero was not in custody when he made his written statements. See Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1993) (holding that a person who voluntarily accompanies a police officer to the police station, even if a person considers himself to be a suspect, is not considered "in custody"), cert. denied, 511 U.S. 1100 (1994).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. Because we decide Guerrero's first issue under the plain view doctrine, we need not and do not reach his argument that his consent to search was invalid.

2. Miranda v. Arizona, 384 U.S. 436 (1966).