State of Texas v. Mary Elaine Rex--Appeal from 216th Judicial District Court of Gillespie County

No. 04-01-00190-CR
The STATE of Texas,
Appellant
v.
Mary Elaine REX,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 3967
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: October 31, 2001

AFFIRMED

Mary Elaine Rex ("Mrs. Rex") was indicted for possessing more than four ounces but less than five pounds of marijuana. The trial court granted Mrs. Rex's motion to suppress. The State appeals alleging that: (1) there was no evidence that the marijuana was obtained in violation of the laws or Constitution of the State of Texas or the laws or Constitution of the United States; (2) Jan Bartlett Rex ("Mr. Rex") did not act as an agent of the State when he searched Mrs. Rex's residence; and (3) even if Mr. Rex is considered an agent of the State, a warrantless search of the residence was permissible under the circumstances. We disagree and affirm the trial court's order.

BACKGROUND

In October 1999, Mr. Rex approached Gillespie County Sheriff's Deputy Don Itry ("Deputy Itry") to obtain advice regarding Mrs. Rex's possession of marijuana. (1) Deputy Itry informed Mr. Rex that he would need additional information to obtain a search warrant for the residence in question. In particular, Deputy Itry "suggested" that the information he needed for a warrant could be obtained by "someone" going inside the residence. Following the guidance of Deputy Itry, Mr. Rex entered Mrs. Rex's residence with the consent of the Rexs's 15 year old son. Upon entering the residence, Mr. Rex smelled the odor of marijuana and proceeded to search for it. Mr. Rex discovered the marijuana where one of his sons had told him to look-- in his ex-wife's bedroom, under a coat, inside several bags.

After conducting his search, Mr. Rex gave a sworn statement to Deputy Itry and a search warrant was issued for the residence. Mrs. Rex was subsequently indicted for possessing more than four ounces but less than five pounds of marijuana. Mrs. Rex moved to suppress the evidence confiscated by the State. The trial court conducted an evidentiary hearing and ordered the evidence suppressed. The trial court determined, among other things, that Deputy Itry's "suggestions" reasonably led Mr. Rex to believe that he needed to enter his ex-wife's residence to obtain the information necessary for the issuance of a warrant. Furthermore, because Mr. Rex acted upon this advice, he became an agent of the State for Fourth Amendment purposes. It is from this ruling that the State now appeals.

DISCUSSION

Standard of Review

Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The court gives "almost total deference to a trial court's determination of historical facts supported by the record especially when the trial court's findings are based on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same amount of deference will be afforded to the trial court's rulings on "mixed questions of law and fact" if the resolution of those questions turns upon the credibility and demeanor of the witnesses. Id. The court, however, reviews any of the trial court's other applications of the law de novo. Id.; Carmouche, 10 S.W.3d at 327.

The Search

Article 38.23 of the Texas Code of Criminal Procedure provides that:

[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2001). Therefore, if we find that Mr. Rex's conduct violated any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States, we are to uphold the trial court's decision.

The Fourth Amendment to the United States Constitution guarantees individuals the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This Fourth Amendment protection, however, proscribes only governmental action. United States v. Jacobsen, 466 U.S. 109, 113-14 (1984). Its protections are "inapplicable to any search and seizure, even wrongful and unreasonable ones, effected by a private citizen or individual not acting as an agent or instrument of the government or with the participation or knowledge of any governmental official." Id. The two factors that determine whether a person is acting as an agent or instrument of the government are: "(1) whether the State or its officials knew of and acquiesced in the intrusive conduct and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Bazan, 807 F.2d 1200, 1202-03 (5th Cir. 1986). Both of these factors lead us to conclude that the trial court did not err when it determined that Mr. Rex acted as an agent or instrument of the State, in turn, violating the Fourth Amendment rights of Mrs. Rex.

Here, the trial court heard live testimony from both Mr. Rex and Deputy Itry regarding the content of their conversation during October 1999. As the sole trier of fact and judge of the credibility of the witnesses, the trial court could accept or reject any of the witnesses' testimony and was free to resolve all conflicts in the evidence presented. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); State v. Fecci, 9 S.W.3d 212, 221 (Tex. App.-- San Antonio 1999, no pet.). Based on this testimony the trial court determined that Deputy Itry made "suggestions" that reasonably led Mr. Rex to believe that he needed to go inside Mrs. Rex's residence to obtain the information necessary for a search warrant. Furthermore, because Mr. Rex was following Deputy Itry's "suggestions" when he searched the residence for evidence, Mr. Rex was acting in the capacity of an agent or instrument of the State, therefore creating a Fourth Amendment violation. We agree.

Both prongs of the analysis for determining whether a private citizen acted as an agent or instrument of the State for Fourth Amendment purposes are satisfied in this case. First, the State knew of, and acquiesced in, Mr. Rex's intrusive conduct. According to the trial court, Deputy Itry personally informed Mr. Rex that the information needed to issue a search warrant could be obtained by "someone" going inside Mrs. Rex's residence. Based on his conversation with Mr. Rex, Deputy Itry knew or should have known that Mr. Rex was going to follow this "suggestion," yet he did nothing to deter him from doing so. Second, the record indicates that Mr. Rex intended to assist law enforcement efforts when he conducted his search. It is apparent from the record that one of the primary reasons for Mr. Rex entering the residence was to assist Deputy Itry in establishing probable cause for the issuance of a search warrant.

It is the State's contention that even if we find that Mr. Rex acted as an agent or instrument of the State, a warrantless search of Mrs. Rex's residence was permissible under the circumstances. We disagree.

The State argues that had an officer entered the residence with consent and smelled the odor of marijuana, a warrantless search could have occurred. (2) Therefore, because Mr. Rex was acting as an agent or instrument of the State, he too could conduct a warrantless search of the residence if he smelled marijuana there. This may have been the proper analysis had Mr. Rex not been subject to both a probation order and divorce decree prohibiting him from having any contact with Mrs. Rex and her property. For this reason, we find that the State's argument is inapplicable to these facts. Section 30.05 of the Texas Penal Code states, in relevant part, that a person commits the offense of criminal trespass if he enters the property of another without effective consent and he had notice that entry was forbidden. Tex. Penal Code Ann. 30.05(a) (Vernon Supp. 2001). Mr. Rex was on felony probation for committing aggravated assault on his ex-wife at the time of his search. A term of Mr. Rex's probation instructed him not to have any contact with Mrs. Rex, either in person, by telephone, or other means of communication, directly or indirectly. In addition, Mr. Rex was subject to a divorce decree that prohibited him from coming within 300 feet of, entering, or remaining on the premises of the residence of his ex-wife. From the contents of his probation orders and divorce decree, Mr. Rex was on notice that any entry into her residence was strictly forbidden.

Moreover, because the relevant sections of the probation order and divorce decree were so explicit in their language, Mr. Rex should have known that his son's consent would not excuse a violation of these orders at any time. Only a court could set aside Mr. Rex's obligations under these orders. Because his son's permission to enter the residence does not constitute "effective consent" for purposes of the criminal trespass statute, any subsequent search of the residence would be considered unlawful. See id.; State v. Hobbs, 824 S.W.2d 317, 318 (Tex. App.-- San Antonio 1992, pet. ref'd) (evidence obtained by law enforcement officials by virtue of their criminal trespass was subject to suppression under Article 38.23 of the Texas Code of Criminal Procedure).

CONCLUSION

Finding that the trial court did not err in suppressing the evidence, we affirm the trial court's order.

Catherine Stone, Justice

DO NOT PUBLISH

1. Mr. Rex was on felony probation for committing aggravated assault on his ex-wife at the time of his search. A term of Mr. Rex's probation instructed him not to have any contact with Mrs. Rex, either in person, by telephone or other means of communication, directly or indirectly. In addition, Mr. Rex was subject to a divorce decree that prohibited him from coming within 300 feet of, entering, or remaining on the premises of the residence of his ex-wife.

2. The State cites the following cases in support of this proposition: Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. 1979); Joseph v. State, 3 S.W.3d 627, 635 (Tex. App.-- Houston[14th Dist.] 1999, no pet.); DeJesus v. State, 917 S.W.2d 458 (Tex. App.-- Houston[14th Dist.] 1996, pet. ref'd); Pope v. State, 635 S.W.2d 815 (Tex. App.-- Dallas 1982, no pet.); Saenz v. State, 632 S.W.2d 793, 795 (Tex. App.-- Houston[14th Dist.] 1982, pet. ref'd).