Morrison v. State

Full title: FLETCHER CLAYTON MORRISON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 25, 2005

Nos. 05-04-01457-CR, 05-04-01458-CR (Tex. App. Apr. 25, 2005)

Opinion

Nos. 05-04-01457-CR, 05-04-01458-CR

Opinion Issued April 25, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the Criminal District Court, No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-57461-Nl F03-57462-PL. Affirmed.

Before Justices MORRIS, FRANCIS, and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

After appellant Fletcher Clayton Morrison's pretrial motion to suppress was denied, appellant entered a negotiated guilty plea to two reduced misdemeanor offenses: theft and unlawfully carrying a weapon.² Following the plea bargain, the trial court assessed appellant's punishment in each case at 180 days' confinement in the Dallas County Jail and ordered the sentences to run concurrently. On appeal, appellant raises the sole issue that the trial court reversibly erred by denying his pretrial motion to suppress because the entry and search of appellant's house and his subsequent arrest violated both the federal and state constitutions. See U.S. Const. Amends. IV, V, VI, XIV; Tex. Const., art. I, § 9. Concluding no reversible error has been shown, we affirm.

2 Appellant was charged by indictment with the felony offenses of theft of property valued at $1500 or more but less than $20,000 and unlawful possession of a firearm by a felon. The punishment range for the theft offense, enhanced by two non-state jail felony offenses, would have been two to twenty years' imprisonment and up to a $10,000 fine. The punishment range for the felon in possession of a firearm offense, enhanced by two prior felony convictions, would have been twenty-five to ninety-nine years or life in prison.

Appellant's Motion to Suppress

Appellant's motion to suppress alleged he was arrested at a residence at 9513 Leon Street in Dallas, Texas³ and that his constitutional and statutory rights were violated when Dallas police officers entered that residence looking for Shawn Michael Simon because they had no reason to believe Simon was on the premises at the time they entered the residence. Simon was the subject of an unauthorized use of a motor vehicle (UUMV) arrest warrant issued to the Balch Springs Police Department. The warrant was executed by Dallas officers at 9315 Leon Street, the address shown on the warrant to be Simon's residence.

Facts Developed at the Suppression Hearing

Two witnesses testified at the suppression hearing: Danny Haulbrook for the State and appellant's wife, Darlene Renee' Morrison,⁴ for the defense. The following facts were developed through Haulbrook's testimony: Haulbrook, a sergeant with twenty years' experience with the Dallas Police Department, was assigned to southeast Dallas, where the Leon Street residence is located. On November 12, 2003, at about 6:30 p.m., Haulbrook was attempting to execute a Balch Springs arrest warrant for Shawn Michael Simon. The warrant listed Simon's address as 9315 Leon Street. The validity of the warrant was not challenged and the warrant was admitted at the suppression hearing without objection. Earlier, in September 2003, Haulbrook had pursued Simon driving a stolen car. The pursuit had begun about half a mile from 9315 Leon Street. Based on the warrant, Haulbrook believed Simon resided at 9315 Leon Street. Because the residence was on approximately an acre of land containing several "outbuildings," Haulbrook took ten officers with him when he went to execute the arrest warrant. He assigned officers to each of the "outbuildings" as well as to the residence. When Haulbrook arrived at the residence he was met at the front door by Renee. Renee asked why the police were there and for whom they were looking. When Haulbrook told her he was looking for Shawn Simon, Renee responded, "He's not here." Haulbrook replied he had a felony UUMV arrest warrant for Simon bearing the address of 9315 Leon Street and the police were going to search the premises to make sure Simon was not there. Based on previous dealings with Renee, Haulbrook did not consider her to be credible, so he did not believe her when she said Simon was not there. Haulbrook and other officers went into the house to "see for himself" because he "had reason to believe he [Simon] was there." Simon was not found in the residence. However, in the bedroom Renee shared with appellant, the police found a gun. At the time the gun was found, Haulbrook did not know where Simon was. Haulbrook later learned from Renee that Simon was at Baylor Hospital because he had fallen earlier that day and broken his jaw. Haulbrook confirmed this information. According to Haulbrook, Renee "came clean" and told the police where Simon was only after she learned she was going to jail on some outstanding warrants. On cross-examination, Haulbrook repeated that he did not know Simon was there at the time he entered the premises; however, Haulbrook believed Simon was there. Haulbrook based his belief on the fact Simon had been seen at that residence by officers in the past week and the warrant listed 9315 Leon as Simon's residence. No independent surveillance had been done that day nor did Haulbrook know whether 9315 Leon was Simon's home. However, Haulbrook had a reasonable belief Simon resided at the address because the address was on the warrant and "that's the place I knew that he stayed." Haulbrook had last seen Simon there about two weeks previously. Haulbrook had no search warrant for either the premises or appellant. On redirect examination, Haulbrook testified that "police officers in the Southeast Division are well aware of that house [9315 Leon]. Known felons frequent that house. Stolen property is frequently found at that house." And, in response to questions from the trial judge, Haulbrook testified he was acting on a warrant he believed had been procured by an officer upon a reasonable belief that probable cause existed for the warrant's issuance. The warrant was signed by the affiant (not Haulbrook) and by a judge. And, at the time Haulbrook had the warrant in hand, based on the warrant, he had reason to believe the person he was looking for was in fact in that house; and he had reason to disbelieve Renee when she said Simon was not there. Darlene Renee' Morrison testified she is appellant's wife and Simon's sister. Renee testified that Simon did not currently, or ever, reside at 9315 Leon. On November 12, 2003, Simon resided with another brother at 1615 Millers Ferry in Hutchins. Renee testified that when she opened the door in response to the officer's knock, she was told the officers had an arrest warrant for Simon. Renee testified that she told the officers Simon did not live there, and that he was in the hospital. Renee stated the officer said he needed to look in her house, and, when she asked if he had a warrant, he said he did not need one and came in. Simon was not there at the time. Simon's medical records were admitted into evidence without objection. The records showed Simon was at Baylor Hospital on the date in question. Renee had taken Simon to the hospital about 3:00 p.m. The officers arrived at 6:30 p.m. In response to questioning by the trial judge, Renee said Simon had been at the residence the day before, that he is her brother, and he occasionally visits her. Renee denied that Simon ever stayed overnight, stating, "[h]e just got out of prison." Renee later said Simon had been out of prison for about eight months. After hearing the evidence and arguments of counsel, the trial court denied the motion to suppress.

Standard of Appellate Review

The standard of appellate review of a trial court's ruling on a motion to suppress is a mixed one: both deferential and de novo. We give almost total deference to the trial court's determination of historical facts, especially when the findings are based on an evaluation of credibility and demeanor. See Manzi v. State, 88 S.W.3d 240, 243 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim. App 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). The application of search and seizure law, however, to those historical facts is reviewed de novo. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. On appeal, as at the suppression hearing, appellant relies primarily on Payton v. New York, 445 U.S. 573 (1980), in arguing that the trial court reversibly erred in denying his motion to suppress. At the outset, we note that Payton did not involve a warrant; there, entry was made without a warrant in reliance on a New York statute that permitted police officers to enter private residences without either a search or arrest warrant in order to make arrests. Id. at 577. In holding the statute unconstitutional, the United States Supreme Court clarified that entry into a suspect's private residence is not unconstitutional if the police lack a search warrant but nevertheless possess a valid arrest warrant for the suspect. See id. at 602-03. The Supreme Court acknowledged that, although an arrest warrant provides less protection than a search warrant, it suffices to interpose the magistrate's determination of probable cause between a zealous officer and a citizen. See id. at 602. The Court went on to say where there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. See id. at 602-03. A police officer may enter a suspect's private residence to execute a felony arrest warrant provided he reasonably believes the suspect is home. See id. at 603. Appellant contends that Haulbrook had no "reason to believe" Simon was within the residence at 9315 Leon. While acknowledging that the Supreme Court has not defined a "reason to believe" standard, appellant looks to federal circuit court decisions and Green v. State, 78 S.W.3d 604 (Tex.App.-Fort Worth 2002, no pet.), to support his position. Payton requires a two-part inquiry before police may enter a private residence to execute an arrest warrant. First, the police must possess a reasonable belief that the residence is the suspect's dwelling. Second, the police must have "reason to believe" the suspect is within the dwelling. See Payton, 445 U.S. at 603. An officer's assessment of a suspect's whereabouts does not need to be correct. See Green, 78 S.W.3d at 612 (citing United States v. Terry, 702 F.2d 299, 319 (2d Cir.), cert. denied sub nom. Williams v. United States, 461 U.S. 931 (1983)). Direct surveillance or actually seeing the suspect on the premises is not required. See Valdez v. McPheters, 172 F. 3d 1220, 1226 n. 2 (10^th Cir. 1999); United States v. Magluta, 44 F.3d 1530, 1538 (11^th Cir. 1995). Officers may take into account the fact that a person involved in criminal activity may be attempting to conceal his whereabouts. See Magluta, 44 F.3d at 1538. Furthermore, police are not required to rely on statements that a suspect is not at home. See Green, 78 S.W.3d at 613 (citing People v. Sprovieri, 238 N.E.2d 115, 118 (Ill.App.Ct. 1968), aff'd, 252 N.E.2d 531 (1969); State v. Pontier, 518 P.2d 969, 976 (Idaho 1974)). In Magluta the court stated:

Due to the lack of authority on point, it is difficult to define the Payton "reason to believe" standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires. We think it sufficient to hold that in order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry. . . . In evaluating this on the spot determination, as to the second Payton prong, courts must be sensitive to common sense factors indicating a resident's presence.

Magluta, 44 F. 3d at 1535.

Prong One — Suspect's Residence

Here, as in Green, the validity of the arrest warrant was not challenged. A copy of the warrant, admitted without objection at the suppression hearing, shows it was issued to the Balch Springs Police Department by a Dallas County Justice of the Peace and signed by a magistrate in and for Dallas County, Texas. The unchallenged warrant shows Shawn Michael Simon's residence address as 9315 Leon St., Dallas, Texas. Thus, the presumptively valid warrant gave the officers a reasonable belief that 9315 Leon was Simon's residence.

Prong Two — Reason to Believe Suspect Present

Payton's second prong requires that the officer have "reason to believe" the suspect is within the dwelling at the time of entry. The evidence shows Haulbrook believed Simon was present at the time in question for the following reasons: Haulbrook had no reason to question the accuracy of the warrant showing Simon's residence to be 9315 Leon; Haulbrook had seen Simon at that address within the preceding two weeks and other officers had seen Simon there within the past week; Haulbrook's prior dealings with Renee led him to believe she was lying when she said Simon was not there; and Haulbrook had information from other Southeast Dallas officers that known felons frequented the house and stolen property was frequently found at that house. Applying de novo the above law to the facts, deferring to the trial court's finding of historical facts, and viewing in their totality the facts and circumstances known to Haulbrook and other officers at 6:30 p.m. on November 12, 2003, we conclude the evidence was sufficient to show Haulbrook had an objective and reasonable belief Simon was on the premises when he entered the residence at 9315 Leon. The arrest warrant listing Simon's address as 9315 Leon was unchallenged, thus presumptively valid. Haulbrook had personal knowledge that within the previous two weeks, Simon had engaged in criminal activity and sought to evade the police. It was reasonable to believe he would do so again. Haulbrook's prior dealings with Renee justified his belief she was lying when she said Simon was not present. And, finally, Green is factually distinguishable. In Green, the police had no indication Green was present when they entered his house shortly after 10:00 a.m. on a Wednesday morning. In this case, the police believed Simon was present when they entered appellant's house at 6:30 p.m. For the reasons set out above, we hold the trial court did not abuse its discretion when it denied appellant's motion to suppress. We resolve appellant's sole issue against him. We affirm the trial court's judgments.