Marcus Franklin aka Marcus Emmanuel Black v. The State of Texas--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARCUS FRANKLIN, A/K/A MARCUS EMMANUEL BLACK,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00491-CR

Appeal from the

205th District Court

of El Paso County, Texas

(TC#20030D03387)

MEMORANDUM OPINION

Marcus Franklin pleaded guilty to possession of less than one gram of cocaine. In accordance with a plea agreement, the trial court deferred adjudicating his guilt and placed him on community supervision for two years. Franklin appeals the denial of his written pretrial motion to suppress evidence. We conclude that the trial court did not err in denying the motion to suppress. Therefore, we affirm the judgment.

Factual Background

On July 3, 2003, the El Paso Police Department had an active arrest warrant charging Franklin with assault. Officer Phillip Amato testified that at approximately 2 a.m. he called Officer Frank Rodriguez to assist him in executing the warrant. When they arrived at Franklin s house, Rodriguez went towards the back and Amato went to the front door. Using a cell phone, Amato called Franklin and asked him to come to the door. When Franklin opened the door, Amato smelled a very strong odor of marijuana coming from the residence and on Franklin s breath. He asked Franklin if he could step inside the house and Franklin said that he could. Once inside, Amato informed Franklin that he had a warrant for his arrest. Amato also radioed Rodriguez and asked him to come around to the front.

Rodriguez indicated that another person might be in the house, so Amato asked Franklin if they could look around. Franklin was hesitant at first, but after they talked to him a little longer, he acquiesced. Amato asked Franklin whether there was anyone in the back room. Franklin claimed that he was the only person in the house and that he did not have keys to get into any of the other rooms. With Franklin s consent, Amato tried to open the door using a credit card, but was unsuccessful. Franklin then knocked on the door and instructed his girlfriend, who was on the other side, to open the door. The girlfriend opened the door, the officers walked in, and Amato saw an open cigar box on a couch. He also saw miniature baggies containing a white, powdery substance in the box and on the floor near the couch. Amato testified that he recognized these bags as the type used to package drugs. According to Amato, the officers did not have to move anything to see the bags.

Amato testified that he wanted to search the back room because he suspected that someone might be destroying evidence there. But when asked whether he was searching for anything, he responded, Mostly people. Although Franklin had been patted down, Amato did not really feel safe, because he knew someone was in that room.

Amato admitted that the police department has written forms that can be signed to demonstrate consent to search, but stated that he may have ran out of them that morning. When talking to Franklin, Amato testified that he used a normal tone of voice and did not threaten him or promise him anything. But he was not sure whether he unholstered his weapon or whether he told Franklin that they would get a search warrant if he did not consent to a search. He did not tell Franklin that he could refuse consent.

Amato testified that Franklin was effectively under arrest as soon as Amato walked into the house, but he was not handcuffed until after they found the cocaine. Amato stated that he ordinarily reads a person his rights when he asks questions or when he handcuffs him. He admitted, however, that he did not read Franklin his rights when he questioned him about the marijuana and about who else was in the house.

Officer Rodriguez testified that while he was watching the back of the house he noticed some movement in a back bedroom. When Amato called him to the front, he found Amato and Franklin standing just outside the front door of the house. As he approached them, Rodriguez smelled marijuana. When the officers questioned Franklin about the marijuana, he initially denied any involvement with it. Eventually, however, he stated that he had smoked it all. Rodriguez testified, We let him know that we didn t believe him. That, you know, we thought maybe he had some on him or inside the residence. And at that point he goes, like, No, you can check. Franklin mumbled and his speech was a little slow. Rodriguez patted him down, but found no weapons or contraband.

After the officers entered the residence, Franklin claimed that there was no one in the back bedroom and that the door was locked. Although Rodriguez stated that Franklin did not seem threatening, he testified that they were interested in checking the back bedroom for people for protective reasons. He testified, [W]e let him know, you know, we pretty much think there is someone inside, or you had been in that bedroom. And he repeatedly told us, you know, I have no access to that bedroom. My parents lock it. Rodriguez then called Franklin s father to verify what Franklin was saying. At that point, Franklin stated that his girlfriend was in the room and that he did not want her to be involved. Nevertheless, Franklin knocked on the bedroom door and told his girlfriend to open it. The girlfriend opened the door, the officers walked in, and in plain view saw some small plastic baggies on the floor, on the couch, and inside an open cigar box that was on the couch. The bags contained a white, powdery substance. Rodriguez testified that these types of bags are often used to carry drugs.

Rodriguez stated that the officers spoke to Franklin in a professional, calm tone and that there was nothing aggressive about the encounter. They did not unholster their weapons. The officers did not threaten Franklin in any way, promise him anything, or tell him that they would get a search warrant if he did not consent to the search. Franklin was not handcuffed, but the officers did not intend to let him leave. Rodriguez did not ask Franklin to sign a consent-to-search form, nor did he recall informing Franklin that he could refuse consent. Rodriguez admitted that it could have been possible to get a search warrant.

Franklin testified that when Amato called, he was in the back bedroom, which he shared with his girlfriend. He opened the hard door and Amato asked him to step outside because he had a warrant for Franklin s arrest. Franklin opened the screen door, shut the hard door behind him, and stepped outside. When he turned around to get his shirt, Amato followed him inside the house without asking for Franklin s permission. Amato told him that he could smell marijuana and then began looking around the living room--lifting up the couches and moving papers. At first, Franklin told Amato that he had not been smoking marijuana, but eventually admitted that he had been smoking it outside because his father did not allow him to smoke it inside the house.

Rodriguez arrived and handcuffed Franklin. When the officers inquired about the back bedroom, Franklin told them that it was his father s room and that it was locked. He did not tell them that his girlfriend was in there. One of the officers tried to open the door with a credit card. When that was unsuccessful, he asked Franklin if he could get inside the room. Franklin told him, Yes, I could get inside of the room. I would just have to ask my girlfriend. Franklin initially testified that he let the officers inside the room because they were about to tear my door off. Later, he testified that one of the officers stated that, if you give me permission to search, I won t hit you with any charges. The prosecutor asked, Oh, okay. So he told you, [a]s long as you let us know there s drugs inside, we won t arrest you for those drugs? Franklin responded, Yes, sir.

Once his girlfriend opened the door to the back bedroom and turned on the light, the officers went inside and began searching. They did not request permission to search until after they had already searched for awhile. When they noticed the cigar box, one of the officers called a lieutenant and asked for a canine unit. The lieutenant refused. The officers then asked if they could look inside the cigar box, which was closed. Franklin testified that he agreed and said that it was okay to search. There were some baggies laying around, but they were empty.

Franklin testified that he was nineteen at the time of the hearing. The officers did not yell at him, rough him up, or unholster their weapons. He was not read his rights until he arrived at the police station and never signed any forms. The officers did not tell him that he could refuse consent to search and he did not know that he could.

Standard of Review

We apply a bifurcated standard of review to a trial court s ruling on a suppression motion. We give almost total deference to the trial court s determination of historical facts, but we evaluate de novo the court s application of search-and-seizure law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). If, as in this case, the trial court does not make explicit findings of historical fact, we view the evidence in the light most favorable to the court s ruling. Id. at 327-28. This means that we assume that the trial court made implicit findings, supported by the record, that buttress its ruling. Id. at 328. At a suppression hearing, the trial court is the sole fact finder and judge of the credibility and weight of the evidence; therefore, the court may choose to believe or disbelieve all or any part of a witness s testimony, even if that testimony is uncontroverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Discussion

Franklin argues that the search of his residence was unreasonable under both the United States and Texas Constitutions because it exceeded the scope of a search incident to arrest, was unrelated to exigent circumstances, and was unsupported by probable cause or voluntary consent. For the reasons explained below, we conclude that the trial court could have reasonably found that Franklin voluntarily consented to the search. Therefore, we need not consider whether there is any other justification for the search.

The Law Governing Consent to Search

Consent is a well-established exception to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854 (1973); Carmouche, 10 S.W.3d at 331. The Supreme Court has noted, In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048.

To be valid, consent must be voluntary, and voluntariness is a fact question to be determined from all the circumstances. Id. at 227, 93 S.Ct. at 2047-48; Carmouche, 10 S.W.3d at 331. Consent must be positive, unequivocal, and not coerced by explicit or implicit means. Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048; Carmouche, 10 S.W.3d at 331; Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Some factors that may be considered to determine the voluntariness of consent are the youth, education, and intelligence of the accused; the constitutional advice given to the accused; the length of the detention; the repetitiveness of the questioning; and the use of physical punishment. Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047; Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). // Although the United States Constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the more exacting standard of clear and convincing evidence. Carmouche, 10 S.W.3d at 331.

Consent is not established by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968). But consent is not rendered involuntary merely because it is given while the accused is under arrest. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002). Likewise, an officer is not required to inform the accused that he can refuse consent to search, and knowledge of the right to refuse is not a prerequisite of voluntary consent. Schneckloth, 412 U.S. at 232-33, 93 S. Ct. at 2050; Johnson, 68 S.W.3d at 653. An officer s failure to inform the accused that he can refuse consent is, however, a factor to consider in determining voluntariness. Johnson, 68 S.W.3d at 653.

Application of the Law to the Facts of this Case

Viewing the evidence in the light most favorable to the trial court s ruling and considering that the trial court could believe or disbelieve all or any part of a witness s testimony, the trial court could have made the following implicit findings. The officers arrived at Franklin s house to execute a valid arrest warrant. They smelled marijuana in the house and on Franklin. Franklin agreed to let them enter the house and to open the door to the back bedroom. The evidence was in plain view once the door to the bedroom was opened. // The officers wanted to obtain access to the bedroom to ensure their safety. They did not raise their voices, unholster their weapons, threaten Franklin, or make him any promises. They did not handcuff Franklin until after they found the evidence, but he was effectively under arrest and not free to leave. The officers did not read Franklin his rights, tell him that he could refuse consent, or obtain a signed consent form.

These implicit findings are similar to the facts in Johnson. In that case, at least four officers arrived at the appellant s apartment with a warrant for his arrest. When the appellant opened the door, an officer informed him that he was under arrest. Id. at 652. The testimony supported the trial court s implicit finding that the officers did not effectuate the arrest with their guns drawn. Id. at 653. The officers handcuffed the appellant and conducted a protective sweep of the apartment to ensure that no victims or other perpetrators were there. Nothing was found during the protective sweep. Id. at 652. A sergeant asked the appellant for permission to search the apartment and the appellant said, Sure, go ahead and Yeah, man, you can search. That s my room back there. Id. The sergeant testified that no threats were made, no Miranda warnings were given, and no consent-to-search form was signed. He claimed that he did not have a consent form with him and it would have been impractical to get one because the victim was still missing and might have been in the apartment. The appellant was not told that he had the right to refuse consent. Id. Under these facts, the Court of Criminal Appeals held that the trial court did not err in finding that the consent to search was voluntary. Id. at 654.

Similarly, in this case, Franklin was under arrest, but the officers did not unholster their weapons. He agreed to let the officers in the back bedroom in response to a request from the officers. No threats were made, no Miranda warnings were given, no consent-to-search form was signed, and no information regarding the right to refuse consent was provided to Franklin. In Johnson, unlike in this case, the appellant was handcuffed when he gave consent. Nevertheless, the Court of Criminal Appeals upheld the trial court s finding of voluntariness.

Franklin points out that he did not agree to let the officers in until after they had repeatedly asked for permission. He also asserts that the officers could not remember exactly how or when his consent was obtained. However, both of the officers clearly testified that Franklin consented to let them look around the house and to enter the back bedroom and that no threats or promises were used to procure the consent. Although the officers persistence in seeking consent is a factor to consider in determining voluntariness, it does not render Franklin s consent involuntary under the totality of the circumstances of this case. See Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000) (officer s testimony that no coercion was used is evidence of voluntariness). We also note that Franklin did not contend in his testimony that the officers persistence influenced him to consent. Instead, he claimed that he allowed them into the back bedroom because he thought they would break the door down or because they promised him that they would not arrest him for anything they found in there. This testimony was contradicted by the officers, and the trial court obviously resolved the resulting credibility dispute against Franklin.

Conclusion

For the reasons stated herein, Franklin s sole issue on appeal is overruled, and the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

December 16, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)