Scott Donald Montagnino v. The State of Texas--Appeal from 216th Judicial District Court of Gillespie County

OPINION

No. 04-03-00090-CR

Scott Donald MONTAGNINO,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. 4073

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

Defendant was charged with possession of a controlled substance. After the trial court denied his motion to suppress, defendant pled guilty pursuant to a plea bargain. In six issues on appeal, defendant asserts the trial court erred in denying his motion to suppress. We conclude the trial court did not abuse its discretion in denying defendant's motion to suppress; therefore, we affirm the trial court's order.

Defendant was stopped for speeding. The police officers who stopped defendant decided to issue a warning citation after completing the driver's license check. Before issuing the citation and while the license check was on-going, one of the officers asked defendant if he could search defendant's van. A video tape of the incident revealed the following discussion between defendant and the police officers:

Officer: If you don't mind, take your hands out of your pockets for my safety and yours. You know, sir, one of our jobs out here is to recover stolen property, search for weapons, narcotics, anything. You don't have anything like that in your van do you? You don't mind if I search?

Defendant: Yeah . . . is it . . . what's the concern?

Officer: Just like I said, that's part of our job to search for narcotics, contraband, stolen property and things. You don't have a problem with that?

Defendant: [As he walks toward back of van, defendant says:] No, not at all.

Officer: Okay, just stand back here.

In the process of searching the van, the police discovered contraband in defendant's backpack.

STANDARD OF REVIEW

In reviewing a trial court's denial of a motion to suppress, we must be deferential to the trial court's determination of the historical facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review a trial court's ruling on a motion to suppress for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Under this standard, we view "the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact supported by the record. Guzman, 955 S.W.2d at 89. However, when the resolution of the factual issues does not turn upon an evaluation of credibility or demeanor, we review de novo the trial court's determination of the applicable law as well as its application of the law to the facts. Id.

CONSENT TO SEARCH

In his first, second, fourth, fifth, and sixth issues, defendant asserts he did not consent to the search of his van and any consent given was involuntary. Defendant contends his consent was coerced by the officers' retention of his driver's license during the search, he was not allowed to oversee the search, the officers told him it was their "job" to search the van, and the officers did not tell him he could refuse to give his consent. He argues these actions resulted in an unconstitutional seizure that prevented him from refusing his consent and limiting the scope of the search parameters.

To be valid, a consent to search must be positive and unequivocal, and must not be the product of duress or coercion, either express or implied. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Voluntary consent is not shown by a mere acquiescence to a claim of lawful authority. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Harris v. State, 994 S.W.2d 927, 930 (Tex. App.--Waco 1999, pet. ref'd). The trial court must look at the totality of the circumstances surrounding the statement of consent in order to determine whether consent was given voluntarily. Reasor, 12 S.W.3d. at 818; Cerda v. State, 10 S.W.3d 748, 751 (Tex. App.--Corpus Christi 2000, no pet.). Although an officer's failure to inform a suspect that he can refuse consent is a factor to consider, the absence of such information does not automatically render the suspect's consent involuntary. See Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002). Also, encounters are not transformed into detentions simply because an officer asks additional questions, including a request for consent to search. Vargas v. State, 18 S.W.3d 247, 252 (Tex. App.--Waco 2000, pet. ref'd). "[W]hen officers are running a computer check, they are entitled to question the offender about things unrelated to the initial stop because it does not extend the length of the stop." Green v. State, 93 S.W.3d 541, 547 (Tex. App.--Texarkana 2002, pet. ref'd).

The video tape supports the trial court's implied findings that defendant's consent was voluntarily and freely given and that he was not "seized." When asked the first time for permission to search the van, defendant questioned the need for the search ("what's the concern?"). After the officer explained the search for narcotics and again requested consent, the defendant said, as he walked toward the van, "No, not at all." During the search, defendant was not restrained and stood a short distance from the back of the van. The search of the van lasted less than ten minutes, during which time the police were running a routine check on defendant's out-of-state driver's license. The officer discovered the contraband approximately two minutes after the check of the license returned.

We hold that, based on the totality of circumstances in this case, the State established by clear and convincing evidence that defendant's consent was voluntary. Viewed in the light most favorable to the trial court's order, the evidence shows that defendant freely consented to the search. We overrule defendant's first, second, fourth, fifth, and sixth issues.

SCOPE OF CONSENT

In his third issue, defendant asserts that, if he consented to the search, the search exceeded the scope of his consent. Defendant contends any reasonable person would have believed that the officers intended only a brief, cursory scan of the inside of his van's interior. Defendant contends that because he was not allowed to observe the search of the van's interior he was "seized," which in turn deprived him of his right to limit the scope of the search. Defendant provides no authoritative support for the premise of his argument, which is that individuals who have consented to a search should always be allowed to closely observe an officer conducting the search.

Even when an individual voluntarily consents to a search, an officer's authority to perform the search is not without limit. DuBose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996), overruled on other grounds, Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). The extent of the search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804 (1991); DuBose, 915 S.W.2d at 496; Vargas, 18 S.W.3d at 253. The standard for measuring the scope of consent is that of "objective" reasonableness - what the typical reasonable person would have understood by the exchange between the officer and the individual. Jimeno, 500 U.S. at 251, 111 S. Ct. at 1803-04); DuBose, 915 S.W.2d at 496.

In Jimeno, the United States Supreme Court held the defendant's consent to a police officer's request to "search his car" for narcotics extended to a search of the paper bags in the car which, in fact, contained narcotics. 500 U.S. at 251-53, 111 S. Ct. at 1804. Explicit in the Court's reasoning was the fact that the defendant failed to limit the scope of the officer's search when it was objectively reasonable that a search of the car would include any closed containers within the car in which narcotics might be kept. Id. Here, as in Jimeno, defendant did not place any explicit limitation on the scope of the search, and the officers told defendant they would be looking for narcotics in the van. Thus, it was objectively reasonable that a search of the van's interior would have included any containers in which contraband might be found.

We overrule defendant's third issue.

CONCLUSION

The trial court did not abuse its discretion in denying defendant's motion to suppress; therefore, we affirm the trial court's order.

Sandee Bryan Marion, Justice

DO NOT PUBLISH