No. 01-02-00395-CR.
Opinion Issued February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 895934.
Before Justices TAFT, KEYES, and HIGLEY.
TIM TAFT, Justice
Appellant, Nathan Martinez, pled guilty to the offense of possession of marihuana. Pursuant to a plea bargain, the trial court assessed five years' deferred adjudication and a $1,000 fine. We address (1) whether the arresting officers needed probable cause to approach appellant's apartment and (2) whether appellant's consent to the search of his apartment was voluntary. We affirm.
Facts
Deputy G. Worley received a phone call from an unknown person who stated that there was "suspicious and heavy pedestrian traffic" in and out of appellant's apartment. Based on this anonymous tip, Deputy Worley and Deputy D. Florus went to appellant's apartment "to investigate." The deputies had no warrant to arrest appellant or to search his apartment. When the deputies arrived at appellant's apartment, Deputy Worley knocked on the door, which was opened by appellant. Deputy Worley smelled the strong odor of burning marihuana coming from inside appellant's apartment and asked appellant if the deputies could enter the apartment. Deputy Worley claimed that appellant had invited him and Deputy Florus inside. Appellant denied inviting the deputies inside and claimed that the deputies shoved him aside and pushed their way into his apartment. Once inside the apartment, the deputies claimed that they were able to see in plain view two plastic bags of marihuana, one lying on the kitchen counter, and another lying on the kitchen floor. Appellant claimed that there was no marihuana in plain view inside the apartment. In addition to the two bags of marihuana located in plain view in appellant's kitchen, the deputies recovered three one-gallon bags of marihuana from the kitchen pantry, two bags of marihuana from under the kitchen sink, and a bag of compressed brick marihuana in the bedroom closet, totaling 16 pounds of marihuana. Motion to Suppress
In his sole point of error, appellant contends that the trial court erred by denying his motion to suppress, in violation of the Fourth Amendment to the U.S. Constitution and Article I, Sections 9 and 10 of the Texas Constitution. U.S. CONST. amend. IV; TEX. CONST. art. I, §§ 9, 10. Appellant claims that (1) the anonymous tip that led the arresting deputies to his house was insufficient to support probable cause and (2) his consent to the search of his house was not voluntary, but was given under duress. Generally, a trial court's ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). However, a reviewing court may review de novo mixed questions of law and fact. See Guzman v. State, 955 S.W.2d 85, 88 (Tex.Crim.App. 1997). In reviewing a trial court's ruling on a motion to suppress, appellate courts should afford almost total deference to a trial court's determination of the historical facts, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See id. Additionally, appellate courts should afford the same amount of deference to a trial court's rulings on application of law to fact, or mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id. We must view the evidence in the light most favorable to the trial court's ruling. See id. A. Anonymous Tip Appellant first complains that the anonymous tip that led the arresting officers to his house was insufficient to support probable cause for his arrest and the search of his apartment. However, in support, appellant recites the general rule that an anonymous tip, standing alone, seldom provides reasonable suspicion to authorize an investigative detention, citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412 (1990) and Garcia v. State, 3 S.W.2d 227 (Tex.App.-Houston [14th Dist.] 1999), aff'd, 43 S.W.3d 527 (Tex.Crim.App. 2001). We thus construe appellant's argument to be that, by approaching and knocking on his front door, the deputies were engaging in an investigatory detention, rather than an arrest. Police-civilian encounters are divided into three categories: (1) encounters, (2) detentions, and (3) seizures. Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.-Houston [1st Dist.] 2001, no pet.). An investigative detention is a confrontation of a citizen by law enforcement officers wherein a citizen yields to a display of authority and is temporarily detained for purposes of an investigation. Id. However, nothing in the United States or Texas Constitutions prevents police officers from approaching and knocking politely on any closed door to investigate the possible commission of an offense. See Cornealius v. State, 900 S.W.2d 731, 733 (Tex.Crim. App. 1995); Joseph v. State, 3 S.W.3d 627, 634 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Further, nothing in the statutes or governing constitutional provisions requires any citizen to respond to a knock on his door by opening it. Rodriguez v. State, 653 S.W.2d 305, 306 (Tex.Crim.App. 1983). The very act of opening the door exhibits an intentional relinquishment of any subjective expectation of privacy, particularly when illegal activity may be readily detected by smell and sight by anyone standing in the doorway. Id. In Citizen v. State, we held that approaching a criminal suspect on his front porch did not constitute an investigative detention, but was instead merely an encounter. See id., 39 S.W.3d at 371. Appellant thus mischaracterizes the deputies' initial approach as an investigative detention, rather than as a mere encounter. Therefore, it is irrelevant whether the deputies knocked on appellant's front door as a result of an anonymous tip or of their own initiative: the deputies were allowed to approach appellant's apartment and knock on his door even if they did so on their own initiative. See Cornealius, 900 S.W.2d at 733; Rodriguez, 653 S.W.2d at 306. B.Consent to Search Appellant next complains that his consent to the search of his house was not voluntary, but was given under duress. Voluntariness of consent is a question of fact determined from the totality of the circumstances. See Schneckloth, 412 U.S. 2118, 227; 93 S.Ct. 2041, 2047-48 (1973). To be valid, the consent must be shown to be positive, unequivocal, and without duress or coercion. See Allright v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991). The State must show by clear and convincing evidence that the consent was freely given. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). If the record supports a finding by clear and convincing evidence that the consent to enter or search was free and voluntary, a reviewing court should not disturb the finding. See Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). Appellant claimed that there were six or seven officers who approached his door the night that he was arrested. Appellant stated in his affidavit that he did not give the deputies consent to enter his apartment and that, when he asked the deputies whether they had a warrant, one of the deputies responded, "I don't need a warrant. I have probable cause. I can smell it." Appellant claimed that the deputies then pushed their way into his apartment. Appellant stated in his affidavit that none of the officers informed him that he could refuse entry. Both appellant and his girlfriend stated that the deputies requested appellant's written consent after searching his apartment and finding the marihuana. Appellant also claimed that he signed the consent-to-search form only because the deputies informed him that, by signing the form, his girlfriend, Corrine, would not be involved. Appellant claimed that, at some point, the deputies had handcuffed him because they had to remove the handcuffs so that he could sign the consent form. Appellant argues that his consent was involuntary because of the deputies' acts of duress. In contrast, Deputies Worley and Florus stated in their affidavits that only the two of them approached appellant's apartment the night that he was arrested. The deputies claimed that, when they asked if they could enter his apartment, appellant responded, "Sure, come in." The deputies claimed that neither of them pushed past or made any physical contact with appellant to gain entry into the apartment. Further, the deputies stated that, prior to signing the consent-to-search form, Deputy Worley had advised appellant that he did not have to sign the form. Deputy Worley claimed that he told appellant that, if appellant did not sign the consent form, he would seek a search warrant and that appellant's signature merely saved everyone's time. Both deputies claimed that appellant signed the consent form before they conducted the search of his apartment and that appellant appeared to sign the form freely and voluntarily. Neither deputy stated that he made any promises to or threats against appellant. The trial court, as sole trier of fact, was entitled to believe or to disbelieve any or all of the witnesses' testimony. See Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App. 1991). Further, although Deputy Worley told appellant that he would still seek a search warrant regardless of whether appellant signed the consent form, this statement did not render appellant's consent involuntary. See Grant v. State, 709 S.W.2d 355, 357-58 (Tex.App.-Houston [14th Dist.] 1986, no pet.) (holding that "[a]n otherwise voluntary consent is not vitiated by the fact that an officer asserts that he could or would obtain a search warrant if consent is refused."). Looking at the evidence in the light most favorable to the trial court's ruling, the record supports a finding by clear and convincing evidence that appellant voluntarily consented to the entry into and search of his apartment. Therefore, we hold that the trial court did not err by overruling appellant's motion to suppress. We overrule appellant's sole point of error. Conclusion
We affirm the trial court's judgment.