SCOTT CHRISTOPHER GRIEVE, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed May 22, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00156-CR
No. 05-07-00157-CR
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SCOTT CHRISTOPHER GRIEVE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 219th District Court and County Court at Law No. 5
Collin County, Texas
Trial Court Cause Nos. 219-81313-06, 005-88167-05
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Wright
        Scott Christopher Grieve appeals his convictions for possession of methamphetamine and marijuana. After the trial judge in the 219th District Court denied appellant's motion to suppress the methamphetamine, the trial judge in County Court at Law No. 5 denied the motion to suppress the marijuana on collateral estoppel grounds. Thereafter, appellant pleaded guilty in both cases. Pursuant to plea bargain agreements, the district court deferred finding appellant guilty, placed him on community supervision for four years, and assessed a $1500 fine in the methamphetamine case; and, in the marijuana case, the county court placed appellant on deferred adjudication community supervision for eighteen months. In four issues, appellant contends the trial courts erred by denying his motions to suppress.   See Footnote 1  We agree, reverse the trial courts' orders denying appellant's motions to suppress, and remand to the trial courts for further proceedings.
 
Background
        Appellant was charged with possession of less than one gram of methamphetamine and possession of two ounces or less of marijuana. Appellant filed motions to suppress, arguing the search of his apartment and car and his subsequent arrest were illegal, and the methamphetamine and marijuana should be suppressed. The district court ordered the motion to be submitted by affidavit. Appellant filed an affidavit in support of the motions, and the State submitted Officer Terry McCurry's affidavit in response.
        In his affidavit, McCurry testified he is a police officer for the University of Texas at Dallas. McCurry and Officer Dickson responded to a call about someone “displaying” a handgun on the balcony of an apartment.   See Footnote 2  McCurry and Dickson knocked on the door of appellant's apartment, and appellant answered. When asked about the handgun, appellant denied any knowledge of a gun and refused consent for the officers to enter the apartment. While appellant was speaking to the officers, appellant's roommate came into the living room. McCurry asked appellant's roommate about the gun, and he responded it was in his bedroom. According to McCurry, the roommate then “ran” toward his bedroom.
        At that point, McCurry and Dickson drew their weapons, entered the apartment, and followed appellant's roommate. McCurry testified that although he and Dickson ordered the roommate to stop, he continued into his bedroom, and “grabbed the handle of the handgun.” Dickson then “grabbed” the roommate's arm and told him to drop the weapon. When the officers examined the gun, they determined it was a plastic pellet gun. However, while they were in the apartment, McCurry smelled burnt marijuana. Additionally, when he looked through the open door of another bedroom, he saw a marijuana plant. McCurry and Dickson then “ordered” the occupants of the apartment into the living room and detained them while a search warrant was obtained.   See Footnote 3 
        Sometime later, the officers executed the search warrant and found marijuana, hydrocodone, and trazodone in appellant's bedroom. McCurry then obtained consent from appellant to search his car. After McCurry found a pipe with marijuana residue in the car, he arrested appellant, searched him, and found a “baggie” with methamphetamine residue.
        In his affidavit, appellant testified to a substantially different version of events. Appellant explained that he answered the door when McCurry and Dickson knocked. The officers asked appellant about a gun in the apartment, and appellant told them his roommate had a “toy gun.” He asked the officers to wait outside while he asked his roommate about the gun. Appellant's roommate came to the door and the officers asked him to go get the gun. As he did so, the officers came into the apartment with their weapons drawn and followed appellant's roommate to his bedroom. Appellant's roommate then showed the officers the “pistol was a clear, plastic toy and not a firearm.” According to appellant, as the officers followed his roommate to his bedroom, they opened a bedroom door and saw marijuana plants growing in the room. The officers then arrested appellant and later executed a search warrant, “the basis for which was information they obtained when they made the initial uninvited, warrantless entry” into appellant's apartment.
        After considering the affidavits, the district court denied appellant's motion to suppress the methamphetamine. The county court then denied appellant's motion to suppress the marijuana on the basis of collateral estoppel. These appeals followed.
 
Discussion
        When reviewing a trial court's decision to deny a motion to suppress, we “afford almost total deference to a trial court's determination of the historical facts that the record supports.” Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We “should afford the same amount of deference to trial court's rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact.'” Montanez, 195 S.W.3d at 106. We conduct a de novo review where the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. Id. This same standard applies to a trial court's determination of historical facts when that determination is based solely on affidavits. Id. (citing Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002)). Finally, when, as here, the trial court does not enter findings of fact when denying the motion to suppress, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Montanez, 195 S.W.3d at 106 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).
        There is a strong preference for searches to be administered pursuant to a warrant. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable. Id. However, this does not mean all searches must necessarily be conducted under the authority of a warrant. For example, if police have probable cause coupled with an exigent circumstance, have obtained voluntary consent, or conduct a search incident to a lawful arrest, the Fourth Amendment will tolerate a warrantless search. Id. Yet, the warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies. Id.
        In his first issue, appellant challenges the search of his apartment. The State maintains the initial entry was valid pursuant to the exigent circumstances doctrine, they obtained probable cause for a warrant, and appellant could have been arrested after the police found the marijuana leaves and plants and then searched incident to the arrest. To validate a warrantless search based on the exigent circumstances doctrine, the State must satisfy a two-step process. Gutierrez, 221 S.W.3d at 685. First, probable cause must exist to enter or search a specific location. Id. In the context of warrantless searches, probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality or evidence of a crime will be found. Id. Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. Id. Three categories of exigent circumstances justify a warrantless intrusion by police officers: (1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; (2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and (3) preventing the destruction of evidence or contraband. Id. If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. Id. at 685-86.
        After reviewing the affidavits in this case, we cannot conclude the State adequately established probable cause to enter appellant's apartment. The State argues the officers had probable cause to believe evidence of disorderly conduct would be found in appellant's apartment. A person commits the offense of disorderly conduct if he displays a firearm in a public place in a manner calculated to alarm. Tex. Penal Code Ann. § 42.01(a)(8) (Vernon Supp. 2007). A “public place” is any place to which the public or a substantial group of the public has access, including common areas of apartment houses. See Tex. Penal Code Ann. § 1.07(a)(40) (Vernon Supp. 2007).         The record shows the officers responded to a call about someone “displaying” a gun on a balcony in a different building than appellant's apartment. Based on “other descriptors and the conversation with the dispatcher,” the officers determined the gun was displayed on appellant's balcony. However, the record does not contain any facts regarding the “other descriptors”, the conversation with the dispatcher, who saw the gun displayed, the manner in which the gun was displayed, or whether the balcony was in fact open to public view. Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun “displayed” on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm. Under these circumstances, we cannot conclude the State met its burden to show the officers had probable cause to enter the apartment without a warrant. We sustain appellant's first issue.
        In his third issue, appellant challenges the search of his car. The State responds appellant verbally consented to the search of his car. When, as here, consent follows an illegal entry onto property, we analyze the consent using the factors set out in Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987), to determine whether it was tainted by the illegal police conduct. Leal v. State, 773 S.W.2d 296, 297 (Tex. Crim. App. 1989); Beaver v. State, 106 S.W.3d 243, 250 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). We consider (1) the proximity of the consent to the arrest; (2) whether the seizure brought about observation of the particular object for which they sought consent to search, or, in other words, whether the illegal arrest allowed officers to view the area or contraband that the officers later received consent to search; (3) whether the illegal seizure was flagrant police misconduct; (4) whether the consent was volunteered rather than requested by the detaining officers; (5) whether the arrestee was made fully aware of the fact that he could decline consent and, thus, prevent an immediate search; and (6) whether the police purpose underlying the illegality was to obtain the consent. Brick, 738 S.W.2d at 680-81. The State must show by clear and convincing evidence that the consent was valid. See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).
        In this case, the record shows that after the police entered appellant's apartment at gunpoint, without consent or a warrant, he was detained in the living room while the police obtained a warrant. The police then illegally searched the apartment, finding marijuana and other contraband in appellant's room. At that time, they obtained verbal consent to search appellant's car. The record does not show that appellant was given his Miranda rights at anytime, nor does it show appellant was ever informed that he had the right to refuse consent to the search. Further, the record does not show whether appellant's consent was volunteered or requested by the police. Under these circumstances, we cannot conclude the State met its burden to show by clear and convincing evidence that appellant's consent to search the car was voluntary. We sustain appellant's third issue.
        In his second and fourth issues, appellant generally contends the evidence obtained from his apartment, his car, and his person should be suppressed as “fruit of the poisonous tree.” Under the “fruit of the poisonous tree” doctrine, all evidence derived from the exploitation of an illegal detention, search, or seizure must be suppressed, unless the State shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation. See Wong Sun v. United States, 371 U.S. 471, 488 (1963); Welcome v. State, 865 S.W. 128, 133 (Tex. App.-Dallas 1993, pet. ref'd); Wolf v. State, 137 S.W.3d 797, 805 (Tex. App.-Waco 2004, no pet.).         Here, the record shows both the marijuana and the methamphetamine were discovered as a result of the police's warrantless entry into appellant's apartment. After the police illegally entered the apartment and followed appellant's roommate to his bedroom, they smelled the odor of burnt marijuana and saw a marijuana plant. The police then used this discovery as a basis for establishing probable cause for the warrant to search the apartment. The search of the apartment yielded the marijuana found in appellant's bedroom. Because the police used the information discovered in the warrantless entry to obtain the warrant, the search pursuant to the warrant was tainted and the evidence obtained pursuant to the warrant should be suppressed. See State v. Guo, 64 S.W.3d 662, 668 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (searches pursuant to warrants were tainted by two prior warrantless searches of briefcase); State v. Aguirre, 5 S.W.3d 911, 914 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (because evidence supporting search warrant was illegally obtained, evidence recovered by executing warrant was fruit of illegal search). And, as discussed above, the State failed to show that appellant's consent was not tainted by the illegal search of his apartment. Thus, the marijuana pipe found in appellant's car should be suppressed. See State v. Bagby, 119 S.W.3d 446, 452 (Tex. App.-Tyler 2003, no pet.) (evidence properly suppressed where consent following illegal search tainted by police illegality). Without a valid reason to arrest appellant, the search of appellant's person was likewise illegal, and the methamphetamine should be suppressed. See Sturchio v. State, 136 S.W.3d 21, 25 (Tex. App.-San Antonio 2002, no pet.) (because warrantless arrest and search incident to arrest were based on illegal seizure of crack pipe, evidence obtained as result of search incident to arrest should have been suppressed). We sustain appellant's second and fourth issues.
        We conclude the district court erred by denying appellant's motion to suppress the methamphetamine and the county court erred by denying appellant's motion to suppress the marijuana. We reverse the trial courts' orders denying appellant's motions to suppress and remand
to the trial courts for further proceedings consistent with this opinion.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The motions to suppress raise identical grounds for suppression of the evidence and the briefs raise identical challenges to the trial courts' determinations. For convenience, we will address the issues in both cases together.
Footnote 2 The reporting party described the location of the balcony as the second floor of an apartment at the southwest corner of Building 61, Phase 8A. However, based “on other descriptors and the conversation with the dispatcher,” McCurry and Dickson determined the apartment was at the southwest corner of building 66, Phase 9.
Footnote 3 The State did not submit either the warrant or the probable cause affidavit to the trial court.