MARIA ALICIA WALKER v. THE STATE OF TEXAS--Appeal from 404th District Court of Cameron County

NUMBER 13-01-792-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

MARIA ALICIA WALKER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court

of Cameron County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

A jury found appellant, Maria Alicia Walker, guilty of possession of a controlled substance, and the trial court sentenced her to ten years in prison, probated for ten years. The issue is whether the trial court erred in denying the motion to suppress the cocaine, which was allegedly seized as the result of an illegal arrest, in violation of the Fourth Amendment to the United States Constitution. We affirm.

I. Evidence On Motion To Suppress

The Brownsville Police Department received a call from an anonymous tipster who said that she had seen a female barmaid named AAlicia@ selling narcotics at the Los Pescadores Bar. After the police received the tip Officer Ortiz, acting undercover, went into the bar in order to Aset surveillance.@ Approximately eight to ten minutes after Ortiz went in the bar Officers Huerta, Arnold, and Gutierrez entered the bar. Huerta and Arnold were wearing police uniforms. Huerta made contact with the barmaid, who identified herself as appellant and said that she was in charge of the bar. Huerta advised her that he and the other officers were there to do a narcotics investigation and that they had received information from an anonymous tipster that narcotics were being sold from the bar. He then asked her if they could use a dog to check the bar for narcotics. According to Huerta, appellant gave him verbal consent to search the bar. Huerta asked the patrons to move towards the back part of the bar area, and Officer Arnold used a dog to search the bar. During the search Officer Ortiz told Huerta that he saw appellant throw something into the trash can. Huerta retrieved a clear plastic baggy containing a white substance from the trash can. At that point Huerta arrested appellant for possession of cocaine. This baggy contained cocaine.

While appellant was at the jail a jailer performed an inventory search of appellant=s purse. The jailer found a dollar bill and two little baggies containing a residual white powdery substance. Jose Zuniga, a DPS criminalist, tested the dollar bill and found that it contained .01 grams of cocaine. One of the plastic baggies removed from appellant=s purse contained .02 grams of cocaine.

Appellant testified that she did not consent to the search of the bar.

II. Analysis

The sole issue is whether the seizure of the cocaine was the result of an illegal arrest, thus violating the Fourth Amendment=s prohibition against unreasonable searches and seizures. Appellant filed a motion to suppress the cocaine, and after hearing evidence, the trial court denied the motion. Appellant argues that the cocaine was the fruit of an illegal arrest, and, therefore, the trial court should have suppressed it. See Wong Sun v. United States, 371 U.S. 471 (1963). We disagree.

We generally review a trial court's ruling on a motion to suppress for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Strickland v. State, 923 S.W.2d 617, 620 (Tex. App.BHouston [1st Dist.] 1995, no pet.). We afford almost total deference to the trial court's fact findings, as we review the evidence in the light most favorable to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because we do not determine credibility, our de novo review of authority to consent, reasonable suspicion, and probable cause, mixed questions of law and facts, becomes a de novo review of legal questions. Ornelas v. United States, 517 U.S. 690, 697 99 (1996); Guzman, 955 S.W.2d at 87 89. On appeal we are limited to determining whether the trial court erred in applying the law to the facts. Id.

A. The Anonymous Tip

An anonymous telephone call, like the one in this case, will provide sufficient justification for police officers to initiate an investigation. Clemons v. State, 605 S.W.2d 567, 570 (Tex. Crim. App. 1980); Davis v. State, 989 S.W.2d 859, 863 (Tex. App.BAustin 1999, pet. ref=d). We conclude that because an anonymous telephone call will provide sufficient justification for police officers to initiate an investigation, the police in this case were justified in entering the Los Pescadores Bar during business hours to speak to the barmaid about conducting a search. See Florida v. Royer, 460 U.S. 491, 498 (1983) ("It is now well settled that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in public to ask questions.").

B. Consent For The Search

One of the established exceptions to the warrant and probable cause requirements of the Fourth Amendment is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Constitutional proscriptions against warrantless searches and seizures do not come into play when a person gives free and voluntary consent to a search. See Brimage v. State, 918 S.W.2d 466, 480 (Tex. Crim. App. 1994) (voluntary consent to warrantless searches violates neither the United States or Texas Constitution, nor Texas laws). The person whose property is searched or a third party who possesses common authority over the premises can give consent for a search. Illinois v. Rodriguez, 497 U.S. 177, 179 81 (1990). A third party properly consents to a search when he or she has control over and authority to use the premises being searched. United States v. Matlock, 415 U.S. 164, 171 (1974); Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994).

To show valid consent, the consent must "not be coerced, by explicit or implicit means, by implied threat or covert force." Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (quoting Schneckloth, 412 U.S. at 228). 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 State to show by clear and convincing evidence that the consent was freely given. Carmouche, 10 S.W.3d at 331. If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we may not disturb that finding. Id.

Here the evidence showed that appellant was in charge of the bar at the time the officers arrived. Her consent to search the bar was freely and voluntarily made. There was no evidence whatsoever that Officer Huerta, or any other police officer, threatened or coerced appellant in any manner. The encounter between Huerta and appellant was brief and cordial. Huerta did not say anything or do anything that conveyed a message that compliance with his request was required. Although appellant denied that she had consented to the search, Huerta stated that she did consent. The trial court was entitled to believe Huerta=s version of the events. We hold the record does support an implied finding of clear and convincing evidence that appellant's consent to search was free and voluntary.

C. Was Appellant Under Arrest?

In determining whether a person was in custody the court must examine all the circumstances, but Athe ultimate inquiry is simply whether there [was] a >formal arrest or restraint of movement= of the degree associated with formal arrest.@ See California v. Beheler, 463 U.S. 1121, 1125 (1983); see also Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990); La Point v. State, 650 S.W.2d 821, 824 (Tex. Crim. App. 1983). The court of criminal appeals has stated at least four situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law-enforcement officer tells the suspect that he cannot leave; (3) when law-enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest, and law-enforcement officers do not tell the suspect that he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985).

Concerning the first through third situations the court of criminal appeals has stated that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Dowthitt, 931 S.W.2d at 255. The Dowthitt court further stated:

Concerning the fourth situation Stansbury[[1]] dictates that the officers= knowledge of probable cause be manifested to the suspect. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Moreover, given our emphasis on probable cause as a Afactor@ in other cases, situation four does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest.

Dowthitt, 931 S.W.2d at 255.

Here the police placed no restriction upon appellant=s freedom of movement constituting that degree associated with an arrest as opposed to an investigative detention. Further the police made no manifestation of probable cause which would lead appellant to believe that she was under restraint to the degree associated with an arrest. Officer Huerta did not tell appellant that she was the subject of the tip.

D. Abandonment

An important fact in this case is that during the search of the bar appellant threw the cocaine into the trash can, thus abandoning the cocaine. This is significant because an accused who voluntarily abandons contraband is not entitled to constitutional and statutory search and seizure protection as the Fourth Amendment does not protect a person who voluntarily abandons his or her property. Abel v. United States, 362 U.S. 217, 241 (1960); Hester v. United States, 265 U.S. 57, 58 (1924); Citizen v. State, 39 S.W.3d 367, 372 (Tex. AppBHouston [1st Dist.] 2001, no pet.).

Abandonment consists of two components: (1) a defendant must intend to abandon property; and (2) a defendant must freely decide to abandon the property; the decision must not merely be the product of police misconduct. Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1996); Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986). In Comer the court of criminal appeals held that to resolve abandonment issues there must be a determination of whether the accused voluntarily abandoned the property independent of any police misconduct. Id.

Here the police were lawfully on the bar=s premises and had received appellant=s consent to perform a canine search of the bar. During the search appellant threw a package of cocaine into the bar=s trash can. Accordingly the evidence showed that appellant intended to abandon the cocaine and that her decision was not the product of police misconduct.

We hold that the trial court did not abuse its discretion by refusing to grant the motion to suppress the cocaine. We overrule the issue.

We AFFIRM the trial court=s judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 19th day of September, 2002.

[1]See Stansbury v. California, 511 U.S. 318 (1994).