Opinion
No. 05-06-00858-CR
Opinion Filed July 31, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the County Court at Law No. 2 Collin County, Texas, Trial Court Cause No. 002-83300-04.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
OPINION
At trial, Lajuahn Odaree Gillespie pleaded guilty to and was convicted of possessing less than two ounces of marijuana. He now contends in a single issue that the trial court erred in denying his motion to suppress in the case. We affirm the trial court's judgment.
Factual Background
The trial court addressed the issue of appellant's motion to suppress by reviewing affidavits of the police officers who conducted the search. According to the affidavits, police responded to a disturbance call at an apartment complex. A young woman there stopped the officers and told them that she and appellant had been staying at one of the nearby apartments for three days. She claimed appellant had gotten upset with her and pushed her down the stairs, breaking her toenail. She also told the officers there were guns and drugs throughout the apartment where they were staying. Because the officers felt they were dealing with a volatile family violence situation, and because they were concerned appellant could destroy the drugs, they chose not to get a search warrant for the apartment. Instead, they decided to have the young woman knock on the door, then enter the apartment by force when the door was opened. One of the officers explained, "Once the door was opened we would enter and secure the subjects and scene for our safety and then investigate the assault." When they entered the apartment, the officers immediately handcuffed appellant and Alan Terry, the other man inside. Terry stated that the apartment was his. In a brief protective sweep of the apartment, an officer saw a clear plastic baggie on the kitchen counter that appeared to contain marijuana. There was an odor of burnt marijuana in the apartment. Appellant told the police he had just met the young woman and they had spent only one night at the apartment. He claimed they had not argued at all. An officer then asked Terry if he could search his bedroom, and Terry said the officer could. "At this point, both were still in handcuffs because [the officers] had not searched any of the surrounding area to determine if a gun was present." In Terry's room, the officer found a glass pipe for smoking marijuana and a blue baggie of marijuana. The officer then asked Terry if there was any other dope in the apartment, and he responded that he did not think so. The officer asked for permission to search the kitchen, and Terry allowed it. In a kitchen cabinet, another officer found a white plate and several plastic baggies containing a white powdery substance, plus a baggie with marijuana. After the officers read Terry his Miranda warnings, appellant said that the drugs were his. He stated that he had heard and understood the Miranda warnings just given to Terry and that the contraband found in the kitchen cabinet was his. Terry admitted that the marijuana on the kitchen counter belonged to him.Discussion
In his sole issue on appeal, appellant complains the trial court erred in failing to suppress the marijuana evidence found during the search of the kitchen because the police entered and searched the apartment without a warrant. Ultimately, however, Terry consented to the police searching his bedroom and kitchen. Regardless of whether the police entry into the apartment was illegal, if the State showed by clear and convincing evidence that Terry's consent to search the apartment was sufficiently attenuated from the illegal entry, the marijuana found in the search was admissible at appellant's trial. See Reasor v. State, 12 S.W.3d 813, 819 (Tex.Crim.App. 2000); see also Garcia v. State, 887 S.W.2d 846, 851 (Tex.Crim.App. 1994) (holding consent to search may be given by any person with "control over and authority to use the premises being searched"). Where a consent to search follows an illegal entry onto property, the consent must be analyzed, 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. See Beaver v. State, 106 S.W.3d 243, 250 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The Brick factors consist of the following:(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 to consent and, thus, prevent an immediate search; and (6) whether the police purpose underlying the illegality was to obtain the consent.Id. (citing Brick, 738 S.W.2d at 680-81). In making this assessment, we defer to the trial court's determinations of historical facts from the affidavits and review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. See Montanez v. State, 195 S.W.3d 101, 106-08 (Tex.Crim.App. 2006). Because the trial court did not enter any findings of fact in denying the motion to suppress, we must 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. See id. at 106. Here, Terry consented to the search not long after the officers swept the apartment for additional people and found marijuana on the kitchen counter. Finding the marijuana in the kitchen likely encouraged the officers to request to search that room, but they did not request permission to search the room until after they had received permission to search Terry's bedroom and found marijuana there. The police conduct in the case was not flagrant. The officers established that they had gone into the apartment to investigate the assault and thought the situation would involve danger or destruction of evidence if they took the time to get a warrant. They handcuffed appellant and Terry because they had been told there were guns in the apartment. Terry, however, did not volunteer consent to search the rooms of his house. He agreed to the searches when he was asked, and nothing in the record shows he was made aware he could decline consent to search. Nevertheless, it does not appear the officers forced their way into the apartment to investigate the drugs in the apartment and obtain consent for a search. We are bound to defer to the trial court's implied determinations of the officers' credibility. We conclude that even if the police officers entered Terry's apartment illegally, his consent to search the apartment was sufficiently attenuated from the illegality. See Reasor, 12 S.W.3d at 819. The trial court did not err in denying the motion to suppress. We resolve appellant's sole issue against him. We affirm the trial court's judgment.