The State of Texas v. Michael Harvey Sheppard--Appeal from 3rd District Court of Anderson County

NO. 12-06-00259-CR

NO. 12-06-00260-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

MICHAEL HARVEY SHEPPARD,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

The State of Texas appeals from the trial court s order granting Michael Wayne Sheppard s motion to suppress evidence. We affirm.

Background

On November 28, 2004, Anderson County Sheriff s Deputy John Smith was dispatched to a convenience store in Palestine, Texas to talk to Arthur Snyder. Snyder told the deputy that he and Appellee and another person had all been at Appellee s home using drugs earlier that day when Appellee threatened Snyder with a knife. Deputy Smith went to the residence to investigate and knocked on the door. Appellee answered the door, and Smith conducted a search of his person. The search revealed a knife in Appellee s pocket. Deputy Smith handcuffed Appellee and did a brief walk through of the trailer. He later testified that he walked through the trailer to see if he could locate the third person as well as for his safety and to secure any evidence that might be present. Deputy Smith did not find the third person, but he observed what appeared to be controlled substances in plain view throughout the home.

After exiting the trailer, Deputy Smith released Appellee from the handcuffs and asked if he would consent to a search of the home. Appellee agreed and signed a written consent to search. Thereafter, a team of investigators searched the home, finding and recovering illegal narcotics and other chemicals.

An Anderson County grand jury indicted Appellee for the felony offenses of possession of a controlled substance and possession of chemicals with the intent to manufacture methamphetamine, both second degree felonies. Appellee filed a motion to suppress the evidence in each case, and an evidentiary hearing was held. Following the hearing, the trial court ordered that all the evidence be suppressed and entered written findings of fact and conclusions of law. This appeal by the State followed.

Search and Seizure

In five issues, the State argues that the trial court erred in granting the motions to suppress. Specifically, the State argues that the initial searches of Appellee s person and home were supported by reasonable suspicion, that Appellee had not been arrested at the time he gave consent to search, and even if there had been an illegal arrest, the taint of that arrest had dissipated by the time consent was given.

Standard of Review

We review a trial court s ruling on a motion to suppress in the light most favorable to the ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). A trial court judge is uniquely situated to observe the demeanor and appearance of a witness and to make factual determinations. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Therefore, the trial court is the sole trier of fact, and when reviewing a ruling on a motion to suppress, we must afford almost total deference to the trial court s factual conclusions. See Wiede v. State, 214 S.W.3d 17, 24 25 (Tex. Crim. App. 2007). We afford the same amount of deference to the trial court s rulings on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). We review de novo wholly legal conclusions as well as mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. The trial court s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855 56.

Applicable Law

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The touchstone of Fourth Amendment analysis, therefore, is reasonableness. See Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996). A warrantless search of a home is presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980). It is reasonable, however, for a law enforcement officer to conduct a brief investigative detention of a person without a warrant when he has reasonable suspicion to believe that the person is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884 85, 20 L. Ed. 2d 889 (1968); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In such a scenario, the officer may frisk a person for weapons if he has a particularized suspicion that the person is presently armed and dangerous. Terry, 392 U.S. at 27, 30 31, 88 S. Ct at 1883 86.

Another exception to the general warrant requirement is consent. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). If a person voluntarily agrees to allow the police to conduct a search, the police may conduct that search without a warrant. Id. at 817 18.

Analysis

As the trial court recognized, there are at least four searches or seizures are presented. The first is the frisking of Appellee s person. The second is the detention or arrest of Appellee. The third is the walk through of the home. The fourth is the comprehensive search of the residence. The trial court found each of these actions by the police officer to be illegal.

The police recovered the evidence that formed the basis of the prosecution during the comprehensive search of the residence, which was conducted after the police obtained written consent from Appellee. The trial court found that the consent given for that search was invalid on two independent grounds. First, the trial court found that the consent was the product of a custodial interrogation conducted without the benefit of Miranda1 warnings. Second, the trial court found that Appellee had been illegally arrested or detained and that the taint of that illegal seizure had not attenuated at the time consent was sought and obtained.

The first conclusion is error. There is no requirement that Miranda warnings, or any other warnings, be given before consent is sought. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) ( Contrary to appellant s claims, we know of no authority that requires informing a suspect of his rights under Miranda before obtaining a consent to search, and Appellant points to none. ). Therefore, we cannot affirm the trial court s ruling on the basis that the consent occurred as a result of a custodial interrogation.

The second conclusion is based on two components. The first is that the arrest or detention of Appellee was illegal. The second is that the illegal detention tainted and invalidated the subsequently obtained consent. We will analyze these issues in turn.

I. Initial Detention

With respect to the initial detention of Appellee and the search of his person, the State s first issue, the trial court concluded as a matter of fact that Deputy Smith did not have specific articluable [sic] facts to support a reasonable suspicion to believe the defendant was engaged in criminal activity to justify the search of defendant or placing him in handcuffs, and that Deputy Smith . . . gave no valid reasons or basis for his concern about his safety. As a matter of law, the trial court concluded that the pat down or frisk of defendant was without justification and therefore illegal.

The deputy testified that he frisked Appellee for officer safety. When asked on cross examination if he was afraid of Appellee, the deputy testified that he had a general distrust of most people I don t know. This is insufficient to support the frisk. To support a protective frisk or detention, there must be facts that, when reviewed under an objective standard, would cause a reasonably cautious person to believe that the action taken was reasonable or that the person frisked was presently armed and dangerous. See O Hara v. State, 27 S.W.3d 548, 550 51 (Tex. Crim. App. 2000) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). A blanket statement of officer safety or a policy of routine frisking does not meet this standard. O Hara, 27 S.W.3d at 553 ( We reject the State s argument that routine alone is sufficient to justify a pat down. ).

But this test is an objective test, and the officer s failure to articulate a lawful basis for the frisk or detention does not mean that they were illegal. As the court observed in O Hara, a search can be reasonable if there are objective facts to support it, even if the officer s stated justification for the search is insufficient. Id. at 554-55. In O Hara the court upheld a search where the officer testified that he conducted it as a matter of routine. The court found that there were objective facts that supported the search, including the fact that the defendant had been armed. Id. at 555.

Here, there were objective facts that could have supported a frisk and detention. The officer had received a report that Appellee had committed a crime and was armed with a knife. If believed, these facts could support the conclusion that Appellee was armed and presented a danger as well as a reasonable suspicion that he was involved in criminal activity. The trial court specifically considered the report that Deputy Smith had taken from Arthur Snyder. Nevertheless, the court found that the frisk was without justification and that there were not articulable facts to support a reasonable suspicion that Appellee was engaged in criminal activity.

Because the facts, as enunciated, would have supported a frisk and detention, the question is whether the trial court did not believe the testimony at all, did not believe a report taken from Snyder could be afforded any weight, or did not properly apply the law to the facts. In light of the standard of review, we are obligated to defer to the trial court s factual finding that there were not believable, objective facts to support the initial detention and frisk of Appellee rather than conclude that the trial court misapplied the law. See Ross, 32 S.W.3d at 857 (When a trial court s ruling can be understood as resting on disbelief of a fact witness or an erroneous legal conclusion, the reviewing court will not presume legal error.).2

This case differs from State v. Gray, 157 S.W.3d 1 (Tex. App. Tyler 2004), aff d, 158 S.W.3d 465 (Tex. Crim. App. 2005), in which we reversed a trial court s order suppressing evidence. In that case, the trial court made a factual finding that the defendant had violated the law in the officer s presence. See Gray, 157 S.W.3d at 7. The trial court nevertheless concluded that the evidence should be suppressed because there was no reason to detain the defendant. Id. We reversed because the trial court made a legal conclusion that was erroneous in light of a factual finding it had made specifically, that there was no justification for the detention despite finding facts to be true that would support a brief detention.

This case is different because the trial court did not find facts to be true that would have supported an investigatory detention. The trial court did not find that an offense had been committed in the officer s presence, as in Gray, and did not state that it found the Snyder report to be worthy of belief. Viewing the evidence in a light most favorable to the trial court s ruling and deferring to the trial court s determination of the facts, we cannot conclude that the trial court erred when it found that the frisk and detention were without legal justification. We overrule the State s first issue.

II. Arrest

In its second issue, the State argues that the trial court erred when it found that Appellee had been arrested. Specifically, the trial court found as a matter of law that the handcuffing of defendant constituted an illegal warrantless arrest of defendant. As a matter of fact, the trial court found that there was not reasonable suspicion to justify placing Appellee in handcuffs.

The State does not argue that an arrest would have been legal. Rather, the State argues that Appellee was not arrested, but that he was simply detained. The State is correct that just because Appellee was handcuffed does not mean that he was arrested. See Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005) (citing Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002)). A person is under arrest if a reasonable person would have believed that he was not free to leave under the circumstances surrounding the incident. Swain, 181 S.W.3d at 366. By statute, an arrest is defined as having occurred when a person has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2006). The officer s belief or statement as to whether the person is under arrest is one factor in the analysis but is not determinative. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

The trial court found that the handcuffing was illegal either as a detention supported by reasonable suspicion or as an arrest. Therefore, the trial court s characterization of the detention is not the most important part of the inquiry. No drug evidence was gained from the initial detention. The import of the trial court s ruling is that the detention was illegal, not that the detention was an arrest.

That said, we cannot conclude that the trial court erred. Pursuant to Swain, a mechanistic conclusion that placing the handcuffs on Appellee was an arrest would be in error. But the trial court did not do that. Giving due deference to the factual determinations made by the trial court, we cannot conclude that the trial court erred when it determined that the deputy arrested Appellee. The deputy walked to Appellee s front door and placed the man in handcuffs. A reasonable person could conclude that he was not free to leave at that point. We overrule the State s second issue.

III. Initial Walk Through of Home

In its third issue, the State argues that the trial court erred when it concluded that the walk through of Appellee s home was illegal. The State advances two arguments to justify this warrantless search. The first argument is that it was a protective sweep permitted by Reasor, 12 S.W.3d at 816 17. In Reasor, the court of criminal appeals adopted a rule from Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990), that allowed a sweep of a residence pursuant to an in home arrest when the officer possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. Reasor, 12 S.W.3d at 817; see also Beaver v. State, 942 S.W.2d 626, 629 30 (Tex. App. Tyler 1996, pet. ref d).

This doctrine does not cover the walk through in this case. The trial court found that there was not reasonable suspicion for the officer to search Appellee s person or detain him. There are no facts to suggest that the home was more dangerous than Appellee himself. The trial court s conclusion that there were not grounds to support a frisk of Appellee s person or his detention logically carries over, in these circumstances, to mean that there was no suspicion to justify a frisk of the residence.

The second justification is an emergency entry to protect the life of another. Under the emergency doctrine exception, police officers are not barred from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413, 57 L. Ed. 2d 290 (1978); Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003) (exception applies if officer has immediate, reasonable belief of need to protect or preserve life or avoid serious injury). The trial court found that there was not probable cause for the original entry into the home. But that does not answer the question presented. Probable cause is necessary for certain things, obtaining a search warrant for example, but not for a sweep pursuant to the emergency doctrine.

The trial court s findings do not directly address whether the trial court found a reasonable basis for the walk through pursuant to the emergency doctrine. However, the trial court s finding that the frisk and initial detention were illegal is sufficient for us to infer a finding that the emergency sweep was unreasonable. The basis for the initial detention and the emergency sweep came from the same source, the deputy s conversation with Snyder. In the absence of specific findings to the contrary, we cannot conclude that the trial court did not credit that predicate for the initial detention and search of Appellee, but did credit it with respect to an emergency sweep. See Swain, 181 S.W.3d at 365 n.7 (Implicit facts that support the ruling may be inferred when the written findings of fact did not cover every contested matter.). Said another way, if the trial court did not credit Snyder s second hand report that he had been assaulted and did not believe that concern for the officer s safety allowed a frisk, it is unlikely that the court believed there was a basis to conclude that another person was in danger or that some other threat from the trailer presented a danger. Therefore, the trial court s conclusion that the walk through was unreasonable has a factual basis in the record and was not error. We overrule the State s third issue.

IV. Consent to Search

In its fourth and fifth issues, the State argues that the trial court erred when it concluded that the search was the product of an illegal custodial interrogation and that the consent was tainted by the illegal arrest of Appellee. We addressed the custodial interrogation issue above. The trial court erred when it concluded that the consent was invalid because it was the product of a custodial interrogation. We sustain the State s fourth issue.

The trial court also found, independently, that the illegal arrest or detention of Appellee tainted the consent, rendering it a nullity. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963) (When evidence results from illegal actions of police, issue is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. ). Generally, any consent obtained pursuant to an illegal detention is tainted by the illegality unless the passage of time or other factors had attenuated the taint. See State v. Bagby, 119 S.W.3d 446, 452 (Tex. App. Tyler 2003, no pet.) (citing Brick v. State, 738 S.W.2d 676, 677 (Tex. Crim. App. 1987)). In Brick, the court of criminal appeals listed several factors to be used to evaluate attenuation: (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 detention 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 detainee was made fully aware of the fact that he could decline to consent and, thus, prevent an immediate search, and (6) whether the police purpose underlying the illegality was to obtain the consent. See Brick, 738 S.W.2d at 680-81.

In this case, the trial court found that there was inadequate proof that the taint of the illegal arrest had attenuated before the consent to search was given. There are Brick factors that favor each side. The consent was obtained in close proximity to the illegal arrest. This factor weighs in favor of Appellee. See Bagby, 119 S.W.3d at 453. The arrest and the sweep of the residence allowed the officer to view the contraband in the area later searched. This second factor weighs in favor of Appellee. The illegal seizure was not flagrant police misconduct. It is true that the trial court found that the officer illegally arrested Appellee and illegally walked through his home, but the actions were undertaken on what the officer believed was a reasonable basis and were not particularly egregious. This factor weighs neutrally. The consent was not volunteered and, therefore, this factor weighs in favor of Appellee.

The written consent form stated that Appellee could refuse to consent to a search. This factor weighs in favor of the State. Finally, there is no evidence that the police conducted the arrest and sweep to coerce Appellee into consenting to a search. This factor weighs in favor of the State. In Reasor, the court of criminal appeals considered an analogous case where there had been an illegal protective sweep of a residence and the arrestee had been handcuffed. The court found that the taint of the illegal conduct did not invalidate the subsequently obtained consent to search because the police did not discover anything during the sweep, the suspect was advised of his Miranda rights prior to giving consent, and the suspect assisted the police in finding the contraband. Reasor, 12 S.W.3d at 818 19. Although it principally addressed arguments about the related question of voluntariness,3 the court of criminal appeals concluded that the taint from the illegal sweep had attenuated to the point that the defendant could give effective consent. Here the facts and the procedural history are almost directly the opposite of those presented in Reasor. The trial court decision in this matter is in favor of Appellee, the suspect, the sweep revealed illegal contraband, there were no Miranda warnings, and Appellee did not affirmatively assist the police.

After a showing of a causal connection between the illegality and the consent, the burden is on the State to show by clear and convincing evidence that the taint otherwise inherent in the illegality of the arrest has dissipated. See Brick, 738 S.W.2d at 681; see also Pham v. State, 175 S.W.3d 767, 774 (Tex. Crim. App. 2005). The related question of whether the state has proven that consent to search was voluntarily given is a question of fact. See Miller v. State, 736 S.W.2d 643, 649 (Tex. Crim. App. 1987). Likewise, we perceive the question as to whether the taint of an illegal arrest or detention has attenuated to be a question of fact or a mixed question of fact and law. See id. (quoting Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416 (1975) ( The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. )). As such, the trial court s factual determination that the taint had not attenuated is entitled to deference. See, e.g., Wiede v. State, 214 S.W.3d at 24 25.

As with the question of the legality of the initial search of the premises and seizure of Appellee, reasonable minds could come to different legal conclusions based on differing interpretations of the facts. Given the standard of proof and the deference we must show, we conclude that the trial court s finding that the State did not show attenuation is not reversible error. We overrule the State s fifth issue.

Disposition

We affirm the order of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).

2 During a discussion with counsel prior to issuing a ruling the trial court said, I m having a problem with your officer s safety issue.

3 See Brick, 738 S.W.2d at 680 ( While once it is found voluntary, consent to search will certainly dispel the illegality of a subsequent warrantless search, the voluntariness determination alone does not fully account for the misfeasance of the police in having conducted an illegal arrest and thereby obtaining that consent. ).