Marcus Williams v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00041-CR

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MARCUS EUGENE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31005-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Saying he had nothing to hide, Marcus Eugene Williams cooperated fully with Longview police sergeant Roy Buckner and his fellow officer, when they called at his Longview motel room in mid-2002 and sought permission to enter and search the room for drugs in response to an anonymous tip of possible narcotics trafficking there. Unfortunately for Williams, he did have something to hide.

After Williams consented to the officers' search of the room, a brief search // turned up no drugs. Then Williams consented to a search of his person, which turned up a small packet containing a rock of crack cocaine. Williams was arrested and placed in the officers' car, and the officers then searched the room more thoroughly, finding a package containing 2.7 grams of cocaine in the pocket of a shirt hanging in the room.

Williams was indicted for possession of a controlled substance, more than one gram but less than four grams, with intent to deliver. He filed a motion to suppress, but the trial court overruled it. About three months later, Williams pled guilty without a plea agreement and was sentenced to ten years' imprisonment. In a single point of error, Williams asserts the trial court erred in overruling his motion to suppress and argues, in support of his point of error, that (1) he did not voluntarily consent to the searches and (2) the post-arrest search of the motel room was unreasonable. We disagree and affirm the conviction.

Williams' Consent to Search Was Voluntarily Given

Williams claims there is insufficient evidence in the record to establish he voluntarily consented to the officers' search of his room. Rather, he argues, the record shows his consent was mere "acquiescence to a claim of lawful authority." Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000), citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Whether consent was voluntarily given is reviewed under the totality of the circumstances. Reyes v. State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987); Jackson v. Texas, 968 S.W.2d 495, 498 (Tex. App. Texarkana 1998, pet. ref'd). Courts have identified a number of nonexclusive factors to be considered in determining whether a person voluntarily consented to a search: (1) whether the police displayed weapons or used physical force or other intimidating tactics; (2) whether the police engaged in misconduct; (3) whether the police asserted a right to search; (4) the degree to which the detainee cooperated with the search; (5) the detainee's age, intelligence, education, and physical condition; (6) the detainee's attitude about the likelihood of discovering contraband; (7) the length of detention and the nature of the questioning; (8) whether the police administered Miranda // warnings; and (9) whether the detainee was aware of the right to refuse consent. State v. $217,590.00 in United States Currency, 18 S.W.3d 631, 634 35 (Tex. 2000). No single factor of these is dispositive; rather, the reviewing court must look to the totality of the circumstances. Id.

In the instant case, Buckner testified on cross-examination to a brief initial conversation with Williams during which Williams consented to the search:

[Defense counsel]: When [Williams] comes to the door, what do you say, exactly?

[Buckner]: "We're here in response to a call for narcotics trafficking. Are you selling any drugs?"

[Defense counsel]: What was his response?

[Buckner]: "No, sir, no."

[Defense counsel]: What did you say?

[Buckner]: I asked him, "Do you mind if I come in your room and search?"

[Defense counsel]: What was his response?

[Buckner]: He says, "No, come on in." I informed he did not - - he was not required to allow me to consent - - he was not required to consent to my search of his room and he said, "I don't have anything to hide."

When, later, Williams consented to Buckner's search of Williams' person, Buckner asked, "Are you sure?" Williams said, "I don't have anything to hide." Williams was thirty years of age at the time of his guilty plea. He had two prior felony convictions, for possession and delivery of controlled substances in penalty group one, both of which led to prison sentences. Buckner acknowledged he did not have probable cause to search the room when he arrived, and there is no assertion he administered Miranda warnings to Williams before searching the room initially or searching Williams' person. Based on the totality of the circumstances, we hold the trial court was well within its discretion in finding Williams voluntarily consented to both the search of the room and his person.

Post-Arrest Search Was Reasonable

Williams next contends that, after his arrest for possession of cocaine, it was unreasonable for the officers to go back to the motel room and continue searching. // A consensual search is an exception to the warrant requirement, but a consensual search is limited by the terms of its authorization. The actual consent given is determined by an objective standard. The standard is objective reasonableness, i.e., what would the typical reasonable person have understood by the exchange between the officer and the suspect? Cardenas v. State, 857 S.W.2d 707 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). The scope of a general consent to search is not limitless; rather, such a search is constrained by the bounds of reasonableness. Id. Whether a search or seizure is reasonable under the Fourth Amendment is an issue of law that we review de novo. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Therefore, while we apply the "clearly erroneous" standard to the trial court's factual findings, we apply the "objective reasonableness" standard to the trial court's ruling on the suppression issue. See Cardenas, 857 S.W.2d at 710; see also United States v. Ibarra, 965 F.2d 1354, 1356 (5th Cir. 1992).

Once law enforcement has begun a consensual search, it may continue that search until consent is withdrawn. See Florida v. Jimeno, 500 U.S. 248, 251 (1991). Further, "[t]he scope of a search is generally defined by its expressed object." Id. Here, the officer told Williams on initial contact that he was investigating a report of narcotics activity and that he was looking for narcotics. He even asked Williams, when Williams answered the door, if he was selling drugs.

For the purpose of our discussion, we will assume that, after Williams' arrest, the officers conducted a second search of the motel room. The Texas Court of Criminal Appeals addressed a similar situation where police officers entered the apartment of the defendant with the consent of a third party. That third party had been given temporary permission, by the defendant, to use the apartment. Morrison v. State, 508 S.W.2d 827, 829 (Tex. Crim. App. 1974). The court held that, when officers re-entered the apartment four hours later, the initial consent carried over to the second entrance and search. In that case, however, the third party attended officers on both entries. See id. In another case, a third party's consent to search a house on one day carried with it the implicit consent to search again nine days later. Smith v. State, 530 S.W.2d 827, 833 (Tex. Crim. App. 1975), overruled in part on other grounds, Comer v. State, 754 S.W.2d 656 (Tex. Crim. App. 1988).

The Austin Court of Appeals found that a second search was not authorized by a defendant's initial consent where the defendant allowed the police to search his residence, he accompanied deputies to the station for questioning, he was arrested for burglary, and law enforcement then returned to the residence and resumed their search. Sanchez v. State, 982 S.W.2d 929, 931 33 (Tex. App. Austin 1998, no pet.). The Sanchez court noted that Sanchez, in jail at the time of the second search, did not have the opportunity to consent to or refuse the second search and, when he granted consent for the first search, did not know a second would occur. Id.

In Hawkins, the appellant had threatened his live-in girlfriend and her child with a sawed-off shotgun. When officers arrived, Hawkins had possession of the child in the apartment; the officers met with the girlfriend, entered the couple's apartment with her, and negotiated the release of both the girlfriend and child. Officers took the girlfriend and child to the station, then returned about two hours later. They subsequently negotiated Hawkins' surrender and retrieved the shotgun from the apartment. Based on the facts of the case, the appellate court held that the girlfriend's consent to enter the apartment the first time, to secure the release of the child, carried over to the second entrance and search to retrieve the shotgun. Hawkins v. State, 968 S.W.2d 382, 385 (Tex. App. Tyler 1997, pet. ref'd).

Another case addressed a situation where the husband of a murder victim executed a written consent to a search of the couple's home, which was also the murder scene. Officers returned to the home to search on each of the two days following the murder, and seized evidence. Approximately a week later, the husband was arrested for his wife's murder. Holding that the appellant-husband had the opportunity to, but did not, withdraw his initial consent, the court found the subsequent searches were authorized by the written consent. Scaggs v. State, 18 S.W.3d 277, 287 89 (Tex. App. Austin 2000, pet. ref'd).

Each of the foregoing cases takes into consideration the circumstances under which consent was given. Noted, but not necessarily controlling, is the amount of time between the initial consent and the subsequent follow-up or second (and third, in Scaggs) search. In this case, there was a continuous encounter between law enforcement officers and Williams. Williams had already granted the officers consent to search the room and his person before he was arrested. Williams' theory at the suppression hearing was essentially the same as that urged on appeal that the search of the room following his arrest was unreasonable in that, when officers resumed their search after arresting him, they thereby exceeded the scope of the consent Williams had given. But there is no evidence that suggests Williams withdrew his consent following the drugs being found in his pocket or that contradicts Buckner's testimony that Williams had been very cooperative and cordial during their encounter. Williams made no effort to limit the scope of the officers' search or to withdraw his consent, once given. On review of the testimony adduced at the suppression hearing, we do not think it was unreasonable for police to resume their search of the room after finding Williams in possession of cocaine and arresting him. In the totality of the circumstances, we find the consent given by Williams was broad enough to have encompassed the officers' resumed, and more thorough, search of the motel room. The trial court was also within its discretion in finding the post-arrest search reasonable and with authority.

We overrule Williams' point of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 6, 2004

Date Decided: March 29, 2005

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