Opinion
No. 04–09–00046–CR.
2013-05-29
Thomas Paul TUCKER, Appellant v. The STATE of Texas, Appellee.
Nancy B. Barohn, Attorney at Law, San Antonio, TX, for Appellant. Robert Henneke, County Attorney, Kerr County, Christopher M. Eaton, Assistant County Attorney, Kerrville, TX, for Appellee.
Nancy B. Barohn, Attorney at Law, San Antonio, TX, for Appellant. Robert Henneke, County Attorney, Kerr County, Christopher M. Eaton, Assistant County Attorney, Kerrville, TX, for Appellee.
Sitting en banc: CATHERINE STONE, Chief Justice, KAREN A. ANGELINI, Justice, SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice, REBECA C. MARTINEZ, Justice, PATRICIA O. ALVAREZ, Justice, LUZ ELENA D. CHAPA, Justice.
Justice Chapa would have requested a response to the motion for en banc reconsideration.
Opinion on Appellant's Motion for Rehearing and Motion for En Banc Reconsideration
Opinion by: PATRICIA O. ALVAREZ, Justice.
On the court's own motion, we withdraw the panel opinion and judgment of December 12, 2012, and substitute this en banc opinion and judgment. Appellant's motion for leave to file an oversized motion for rehearing and en banc reconsideration is granted. Appellant's motions for rehearing and en banc reconsideration are denied. SeeTex.R.App. P. 49.3, 49.7.
Appellant Thomas Paul Tucker was found guilty of the offense of possession of marihuana in an amount of less than two ounces within a drug free zone. Tucker was assessed punishment at ninety-days confinement in the Kerr County Jail, a fine of $1,000.00, and court costs of $353.00. Tucker asserts the trial court erred in denying his motion to suppress the search of his residence because the totality of the circumstances shows Tucker's consent to search his residence was coerced, given under duress, and involuntary.
On July 28, 2010, the panel issued an opinion that affirmed the trial court's judgment. The panel noted that it did not review a video recording that the trial court did not review. However, in its June 20, 2012 opinion, the Court of Criminal Appeals reversed this court's judgment. Tucker v. State, 369 S.W.3d 179 (Tex.Crim.App.2012). It remanded the appeal to this court with instructions to, inter alia, review the video recording and determine whether the evidence supports the trial court's implicit finding that Appellant's consent to search his residence was voluntary. On December 12, 2012, the panel issued its opinion after remand, and Tucker filed a motion for rehearing and a motion for en banc reconsideration.
Having reviewed the video recording as directed, and having considered the totality of the circumstances, we conclude that the record shows the trial court did not abuse its discretion by its implicit finding that the State proved by clear and convincing evidence that Tucker's consent was voluntary. We further conclude that the trial court acted within its discretion by denying Tucker's motion to suppress the search of his residence. Therefore, we affirm the trial court's judgment.
Background
On July 31, 2008, James Hicks, an investigator for the Kerr County Sheriffs Department's Narcotics Division, received information that an anonymous source had reported that Tucker was dealing marihuana from his house. The following day, Hicks saw Tucker leave his home in a white van. Hicks observed Tucker failing to use his turn signal when making a right-hand turn onto a street. Hicks immediately contacted Byron Griffin, also an investigator with the Kerr County Sheriff's Department's Narcotics Division, and directed Officer Griffin to stop Tucker for his traffic violation. Griffin did so.
As Tucker stopped his vehicle in a convenience store parking lot, Officer Johnson arrived at the scene to assist Griffin. The traffic stop and subsequent vehicle search was recorded by a video camera in Griffin's car. At Griffin's instruction, Tucker exited his van; he left the driver's door fully open. After Tucker gave his driver's license to Griffin, Griffin patted Tucker down and found nothing. Tucker then asked the officers if he could remove his young son from the van because it was hot and the van had no air conditioning. The officers responded that the stop would not take long and his son could remain in the van for the time being. Griffin issued Tucker a warning citation for the turn signal violation and returned Tucker's driver's license to him. The citation was given approximately seven minutes after the initial stop. For approximately one minute, Griffin and Tucker engaged in a short conversation about the warning citation. Griffin then asked Tucker if he had contraband in his vehicle. Tucker responded that he did not. Griffin asked Tucker if he could search the vehicle, and Tucker promptly gave his consent—less than nine minutes after the initial stop.
At that point, the officers began to search the vehicle. Griffin opened both rear cargo doors and then walked around to the driver's door. Johnson looked under the hood, then walked to the passenger's side and looked inside. Johnson immediately noticed small pieces of marihuana on the passenger's side floorboard. Griffin handcuffed Tucker and informed him that he was being detained for possession of marihuana. Griffin performed a second pat-down of Tucker and found nothing. Griffin informed Tucker that if he was taken to jail with “anything on him,” he could be charged with a felony. Griffin asked Tucker if he had marihuana in his shoes; Tucker responded that he did. Griffin directed Tucker to remove his shoes. Griffin found a small plastic bag which contained 10.21 grams of marihuana. The officers found no other contraband on Tucker's person or in his vehicle. Tucker testified that he asked several times that his son be removed from the van, but the officers left Tucker's son inside the vehicle (during the first thirty-two minutes of the thirty-six minute traffic stop).
After locating the marihuana in Tucker's shoe, Officer Griffin informed Tucker that they had information that he was selling marihuana from his residence, and Griffin repeatedly asked permission to search Tucker's residence. Tucker responded that his two-year-old child was in the van and told Griffin that he would give his consent to search his residence if Griffin would take his son back to Tucker's residence.
At the motion to suppress hearing, during cross-examination, Tucker testified that he voluntarily consented to the search. On redirect, Tucker testified that he felt coerced into giving consent to search his home. Tucker's counsel asked Griffin: “[I]sn't it true that you denied Mr. Tucker's right to take the child out of the vehicle until ultimately you got consent to search the house?” Griffin responded: “That's incorrect.”
Tucker was charged with possession of less than two ounces of marihuana in a drug-free zone. Tucker filed two motions to suppress. One sought to suppress the evidence collected from the van; the other sought to suppress the evidence collected from his residence. Both motions were denied. Tucker pleaded nolo contendere to a single charge
The Information charged Tucker with possessing two ounces or less of marihuana “within 1000 feet, on or near real property a school, namely, 204 Childs Street, Ingram, Texas, to-wit: Ingram High School.” It is undisputed that 204 Childs Street, Ingram, Texas is the address for Tucker's residence. The State acknowledges that it “mistakenly inserted [Tucker's] residential address as the address for Ingram High School.” The State also asserts that “the record is clear that the marihuana at issue was found in [Tucker's] vehicle when stopped at the establishment called the Dam Store, which is within 1,000 feet of Ingram High School.” At the motion to suppress hearing, neither party established the Dam Store's address, the store's distance from Ingram High School, or the distance from Tucker's residence to Ingram High School. Tucker asserts that the marihuana in question is that from his residence. Neither Tucker nor the State raised the matter of the incorrect Information address at the hearing.
Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex.Crim.App.2006); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). When a question turns on credibility and demeanor, we view the evidence in the light most favorable to the trial court's ruling and give “ ‘almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.’ ” Montanez v. State, 195 S.W.3d 101, 106 (Tex.Crim.App.2006) (quoting Guzman, 955 S.W.2d at 89). We give the same deference to the trial court's rulings on mixed questions of law and fact “ ‘if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.’ ” Montanez, 195 S.W.3d at 106 (quoting Guzman, 955 S.W.2d at 89). We review other mixed questions of law and fact and questions of law de novo. Montanez, 195 S.W.3d at 106;Guzman, 955 S.W.2d at 89. If no findings of fact were requested or filed, we “impl[y] the necessary fact findings that would support the trial court's ruling if the evidence (viewed in the light most favorable to the trial court's ruling) supports these implied fact findings.” Kelly, 204 S.W.3d at 818–19;accord State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). In effect, our responsibility is to determine “whether, after affording almost total deference to the trial court's determination of historical facts that are supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing evidence that [the appellant] voluntarily consented to the [challenged] search.” See Montanez, 195 S.W.3d at 108;see also Guzman, 955 S.W.2d at 89.
Motion to Suppress
On remand, Tucker does not challenge the validity of the initial traffic stop and detention, nor does he challenge the validity of the search of his vehicle. However, he asserts his consent to search his residence was involuntarily given, leading to an illegal seizure of evidence from his residence. We disagree.
A. Coercion and Involuntariness of Consent
For consent to be valid, it 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 v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent must be given freely, unequivocally, and without duress or coercion. Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991). “The ultimate question is whether the suspect's will was overborne” by the officer's actions. Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App.1997). The trial court must examine the voluntariness of a consent based on the “totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence.” Tucker v. State, 369 S.W.3d 179, 185 (Tex.Crim.App.2012); see Creager, 952 S.W.2d at 856. If the voluntariness of the consent is challenged at trial, the State must prove the voluntariness of a consent to search by clear and convincing evidence. Montanez, 195 S.W.3d at 105;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 will not disturb that finding.” Carmouche, 10 S.W.3d at 331;see Guzman, 955 S.W.2d at 89.
B. Consent to Search the Residence
Tucker contends that the marihuana recovered from his house was the result of his coerced consent to search his residence. On appeal, Tucker points to the evidence that (1) the officers treated him “aggressively from the inception of the stop,” (2) held him at the scene and questioned him for about seventeen minutes without giving him his Miranda warnings, and (3) delayed removing his son from the hot van. He asserts the totality of the circumstances shows that his consent to search his residence was coerced.
1. Delay In Removing Child From Van
In his briefs, Tucker emphasizes the coercive force exerted on him by the officers' refusing to remove his two-year-old son from his van on a hot summer day, especially because the van was not air conditioned. Tucker testified that the outside temperature was about 100 degrees (Fahrenheit). The recording reveals that about ninety seconds after Tucker stepped out of the van, Officer Johnson, standing at the van's open driver's door, leaned his head and shoulders into the van. Walking back towards Tucker, Johnson asked Tucker if he could check for weapons around the child. About three minutes after the stop, Officer Griffin asked Tucker if the air conditioning was on in his van. Tucker responded that his van did not have air conditioning. From off camera Johnson twice stated that it was cooler in the van than it was outside.
From the time Tucker consented to the search of his van (approximately nine minutes after the initial stop) until his son was removed from the van (approximately thirty-two minutes after the initial stop), the recording shows Tucker twice asked the officers to remove his son from the hot van. Tucker made both requests within a thirty-second period approximately sixteen minutes after the initial stop. The recording also provides information that weakens Tucker's assertions that he consented to the search of his residence because of the coercive force of his son being held in a hot van. It shows Tucker left the driver's door fully open when he exited the van; Griffin fully opened both rear cargo doors at nine minutes after the initial stop; the passenger side doors were opened at least intermittently during the search of the van; at least one officer was within arm's reach of the child for more than half of the period of the search; the left rear cargo door was not closed until twenty-four minutes after the stop; the right rear cargo door was not closed until Tucker's son was removed from the van—at about thirty-two minutes after the initial stop; and there are no visual or aural indications that the child was in any distress. In fact, the recording reflects environmental sounds and the officers' conversations with Tucker, each other, and passers-by, but does not reflect any sounds made by the child.
2. Constitutional Warnings
On appeal, Tucker complains that the officers' failure to give him his Miranda warnings had a coercive effect that made his consent to search his residence involuntary. At the hearing, Tucker did not argue that he was not warned, and Griffin did not testify that he warned Tucker. The recording does not show whether Tucker was warned.
Tucker and the State agree that the poor audio quality for a period of about four minutes—during which one or both officers are talking to Tucker—makes some portions of those conversations unintelligible. Nevertheless, it was the State's burden to prove by clear and convincing evidence that Tucker's consent was voluntary. See Montanez, 195 S.W.3d at 108;Carmouche, 10 S.W.3d at 331.
3. Length of Detention, Nature of Questioning
At the hearing, Tucker argued that he was detained for almost forty minutes from the time he was stopped until he was driven from the scene to his home. The recording shows that Tucker consented to a search of his van about nine minutes after he was stopped, he was handcuffed about twelve minutes after he was stopped, and he gave consent to search his residence about twenty-nine minutes after he was stopped. Thus, the record shows he was detained and questioned for approximately seventeen minutes. Tucker was not questioned in view of the camera, but the audio portion of the recording captures much of the officers' questions to Tucker and some of Tucker's responses.
After the officers searched the van, Officer Griffin told Tucker “[w]e know you are selling pot out of your house. So either you can take us to it, and nobody will go to jail, and we won't call CPS, or we'll get a search warrant.” Griffin's testimony and the recording show that the nature of the questioning was direct, including the officers criticizing Tucker for lying to them. Tucker testified he agreed to the residential search because he was told he would not go to jail that day if he cooperated. Griffin testified that he did not withhold permission to take the child out of the van until Tucker consented to a search of his residence.
C. Analysis
To determine whether Tucker's consent to search his residence was voluntary, the trial court had to “assess the totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence.” Tucker, 369 S.W.3d at 185.
1. No Findings of Fact
The trial court did not make findings of fact, so we view the evidence in the light most favorable to the trial court's denial of Tucker's motion to suppress the search of his residence and imply those findings necessary to support the ruling. See Kelly, 204 S.W.3d at 819;Montanez, 195 S.W.3d at 106. Because the trial court could not have properly denied Tucker's motion to suppress if it found his consent was coerced, we assume the trial court implicitly found the State proved by clear and convincing evidence that Tucker's consent was voluntary. See Kelly, 204 S.W.3d at 819;Montanez, 195 S.W.3d at 108.
2. Voluntariness of Consent Factors
The trial court was obligated to consider the totality of the circumstances surrounding Tucker's consent including the delay in removing Tucker's son from the van, the length of Tucker's detention, the nature of his questioning, and whether Tucker was properly warned. See Tucker, 369 S.W.3d at 185. It was faced with the conflicting testimony of Tucker's assertion that the officers used his son as a pawn to obtain Tucker's consent to search his residence and Griffin's explicit denial of such allegations. The trial court heard Tucker admit on cross-examination that he voluntarily consented to the search, but then on redirect testify that he felt coerced to consent. The trial court was free to believe Tucker's admission that he voluntarily consented to the search and disbelieve his later statement that he felt coerced. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); McFadden v. State, 283 S.W.3d 14, 17 (Tex.App.-San Antonio 2009, no pet.). Further, the trial court was not presented with any testimony from Tucker on whether he was warned or knew he could refuse consent to search his residence, nor from Griffin on whether Tucker was given his Miranda warnings. The trial court heard Tucker testify that the entire stop was no more than forty minutes from the time he was pulled over until he was driven to his home.
Given the evidence in the record and the trial court's discretion as fact-finder, the trial court was free to give great weight to Tucker's testimony that he voluntarily consented to the search of his residence, to Griffin's testimony that the child was not used to coerce Tucker's consent, and Griffin's testimony that Tucker was very cooperative in the search of his residence to find that Tucker's consent to search his residence was voluntary and not coerced. See Ross, 32 S.W.3d at 855 (fact-finder's discretion).
3. Review of Circumstances
We have reviewed the totality of the circumstances surrounding whether Tucker's will was overborne when he gave consent to search his residence. See Tucker, 369 S.W.3d at 185. We have considered, inter alia, the question of Miranda warnings, the length of the detention, the nature of the questioning, and the contents of the video recording. We have viewed the evidence in the light most favorable to the trial court's ruling, and have afforded almost complete deference to the trial court's determination of historical facts that are based on its assessment of credibility and demeanor that are supported by the record. See Montanez, 195 S.W.3d at 106. Having done so, we cannot conclude that the trial court abused its discretion in its implicit finding that the State proved by clear and convincing evidence that Tucker knowingly, intelligently, and voluntarily consented to the search of his residence. See id. at 108;Carmouche, 10 S.W.3d at 331;Cadoree v. State, 331 S.W.3d 514, 520 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd).
Conclusion
We conclude that the record, including the video recording, does not show that the trial court abused its discretion in its implicit finding that the State proved by clear and convincing evidence that Tucker's consent to search his residence was voluntary. Thus, the trial court did not err in denying Tucker's motion to suppress the evidence seized from the search of his residence. Therefore, we affirm the trial court's judgment.
Dissenting Opinion by: REBECA C. MARTINEZ, Justice.
I dissent to the denial of en banc reconsideration without requesting a response.
Initially, I express disapproval of the officer's admitted use of a minor traffic infraction to circumvent the lack of probable cause requirement for a warrant to search Tucker's home. Once the citation was given pursuant to a valid traffic stop, it was illegal for the officers to further detain Tucker and to ask whether he had drugs in his vehicle. Although, as the majority notes, Tucker waived his challenge to the search of his vehicle, the majority fails to consider the “totality of the circumstances” on the issue of voluntariness of the consent to search Tucker's home by disregarding the illegality of the subsequent detention and arrest, as well as the conduct of the officers who, by their own admission, were motivated to gain access to Tucker's home. While deferring to an implicit finding that the trial court chose to believe Tucker's statement that his consent was “voluntary,” along with Officer Griffin's denial that he used Tucker's son to coerce consent, the opinion's analysis fails to consider “the totality of the circumstances.” After remand, the opinion offers an additional summary of events reflected in the video, viewed in the light most favorable to the trial court's implied findings based on the credibility of the witnesses; however, the record does not support, nor must we accept, an implicit finding that Tucker's consent followed a valid detention and arrest. Notwithstanding, I disagree that the totality of the circumstances shows that Tucker's consent was made voluntarily. Lastly, I agree with Judge Alcala that “these are determinations properly left to the trial court as the fact finder” and that further remand to the trial court might be required. Tucker v. State, 369 S.W.3d 179, 187 (Tex.Crim.App.2012) (Alcala, J., concurring) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574–75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)); see also U.S. v. Guzman, 864 F.2d 1512, 1520 (10th Cir.1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (district court made no findings of fact on the issue of consent, which is a question of fact requiring remand to the trial court)).
In determining whether the officer's conduct was “coercive” under the “totality of the circumstances,” we should consider the following facts: (1) the ultimately uncorroborated “tip” from an “anonymous source;” (2) the admittedly pre-textual traffic stop; (3) the illegal post-citation detention; (4) the continued absence of probable cause to search the home; and (5) the nature and conduct of the officers' “investigation” and interrogation which they pursued to obtain the consent to search Tucker's home. Absent from the record is even a scintilla of evidence derived from the initial traffic stop and subsequent search to indicate the officers had developed a reasonable suspicion that another violation was ongoing, particularly at Tucker's home, to warrant further detention and repeated questioning of Tucker for consent to search his home.
The record shows that, on the day before the stop and search, Officer Hicks received an anonymous tip that Tucker was selling marijuana from his home. The next day, Hicks conducted surveillance on the residence in an effort to corroborate the anonymous report for approximately one and one-half hour before he saw Tucker drive away in a white van and fail to use a turn signal. Instead of continuing the surveillance and developing sufficient information to establish probable cause to obtain a warrant to search Tucker's house, Hicks instructed Officer Griffin to stop Tucker for the minor traffic violation, as previously planned. Both Hicks and Griffin were members of the Kerr County Sheriff's Narcotics Division. It is undisputed that the officers stopped Tucker hoping to gain probable cause to search the home.
When Tucker first exited the van, he left the driver's side door open and informed Griffin that his young son was inside the van. Griffin indicated the stop would be brief and told Tucker to leave his child in the van. As soon as Tucker provided his driver's license to Griffin, he was patted down and then asked for consent to search for weapons around the child. After Griffin patted down Tucker and found nothing, Tucker asked if he could remove his son from the van because it had no air conditioning and it was a hot day. Griffin again told Tucker to leave his son inside the van because the stop would not take long, even though his usual practice is to get everyone out of a vehicle during a traffic stop. The State did not articulate any facts to support a Terry pat-down search or safety-based request to search for weapons. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Glazner v. State, 175 S.W.3d 262, 265 (Tex.Crim.App.2005) (pat-down permissible if officer believed suspect was armed).
Officer Griffin admitted at the suppression hearing that the officers' ultimate goal in making the traffic stop was to gain access to search Tucker's residence. Griffin testified that the officers “hoped they would ‘gain some kind of probable cause’ from the traffic stop that would allow them to search Appellant's residence.” Tucker, 369 S.W.3d at 181.
Indeed, it is more likely that the officers hoped to find evidence of drugs to give them probable cause to continue the search, as hoped, or to otherwise achieve a “plain-view” exception to the exclusionary rule.
Immediately after handing Tucker his traffic citation seven minutes into the initial stop, Griffin asked Tucker if he had any drugs in the vehicle; Tucker responded “no,” but was asked nonetheless for consent to search the vehicle. Again, absent from the record are articulated facts or circumstances derived from those seven minutes suggesting to the officers that Tucker committed any crime more serious than failing to use a turn signal or, more particularly, was trafficking drugs from his home. Once an officer has resolved the initial basis for the traffic stop and given the driver a warning or citation, any continued detention is presumptively unreasonable without different information to justify the ongoing detention (e.g., facts supporting suspicion of drug trafficking). See U.S. v. Jenson, 462 F.3d 399, 407–08 (5th Cir.2006) (officers must ask for a driver's consent to search before concluding other reasons for the stop); U.S. v. Brigham, 382 F.3d 500, 508–09 (5th Cir.2004) (en banc) (consent to search obtained while waiting for computer background check, therefore not “involuntary”); U.S. v. Valadez, 267 F.3d 395, 398 (5th Cir.2001) (detention beyond time needed to write the citation unreasonable); U.S. v. Shabazz, 993 F.2d 431, 442 (5th Cir.1993) (conflicting answers to police questioning and nervousness led officers to seek consent to search car); Guzman, 864 F.2d at 1519 (officer may not question driver about drugs after investigation for failure to wear seat belt is complete). Hence, the record fails to support the trial court's implied finding that the officers had a reasonable suspicion derived from the initial traffic stop to detain Tucker after issuing the traffic citation or to question Tucker about drugs. Cf. Goudeau v. State, 209 S.W.3d 713, 719–20 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (after stop for suspicion of license-plate violation, suspect's bloodshot eyes, slurred speech, fumbling for insurance papers and an open container of alcohol on seat beside suspect gave rise to reasonable suspicion that suspect had been driving while intoxicated).
The State neither urged nor proved an exception to the exclusionary rule.
Further, after the officers claimed to find a “shake” of marijuana on the floorboard of the passenger side of the vehicle, Tucker was thereafter handcuffed and asked to disclose any more drugs before being taken to jail; he disclosed a small amount of marijuana in his shoe. He was thereafter questioned at the scene for approximately seventeen minutes, during which time officers negotiated and threatened Tucker for consent to search his home. The record reflects that Tucker remained in handcuffs for the remaining time, but does not reflect that Tucker was advised of his constitutional rights or could reasonably believe he could decline further questioning. Any argument that the officers suspected Tucker was transporting drugs was quickly dispelled after a search of the vehicle and his person revealed only a small misdemeanor amount of marijuana. The officers' detention continued until finally obtaining Tucker's consent to search his home, where they found a small misdemeanor amount of marijuana.
We must consider from the totality of the surrounding circumstances the characteristics of the accused, along with the details of the interrogation. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. The record, including the videotape, reflects that Tucker exhibited characteristics that an objectively reasonable person would view as one under duress—he was detained and repeatedly expressed concern for his young son, from his exit from the van after the initial stop to even after the marijuana was found in his shoe. Tucker's repeated requests regarding his son during his detention, sincere or not, clearly fueled the officers' mode of interrogation to include threats to call Child Protective Services (“CPS”) and refusing to allow the mother to retrieve the child from the scene. Contrary to the majority opinion, the fact that the entire stop lasted for only thirty-six minutes and that the child was removed from the van at thirty-two minutes, does not mean an objectively reasonable person, with no foreshadowing to know when the stop would end or if the child would be released from the van, would not feel mental and emotional duress under these circumstances. As the Supreme Court made clear in U.S. v. Sharpe, 470 U.S. 675, 685–87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the basis for and the circumstances surrounding the stop, rather than an arbitrary time limit, govern the stop's permissible length. Here, the detention, however brief, unreasonably extended beyond the length necessary for its only legitimate purpose—the issuance of a citation or warning for a turn signal violation.
In addition, the fact that the officers explicitly tied one action—Tucker giving consent to a search of his home—to another action—whether they would call CPS if forced to get a search warrant, tends to suggest the officers were well aware of the coercive effect of the presence of Tucker's child, whether inside the van or not. Griffin admitted at the suppression hearing that Tucker attempted to negotiate his consent on the condition that his son be taken to his home. Ultimately, Tucker's refusing consent until given conditionally cannot reasonably be deemed as voluntary in the legal sense. Furthermore, significant intervening circumstances occurred during those “seventeen minutes”—(1) the officer refused to allow Tucker to call his wife to pick up their son, claiming an “officer safety issue”
if more people came to the scene; (2) Tucker repeatedly expressed concern for his son and asked officers to remove his son from the hot van; (3) the officers stated that they “would not call CPS” if Tucker allowed a search of his home without the requirement of a warrant; and (4) after thirty-two minutes following the initial stop, the officers removed the child from the van only after consent was obtained from Tucker. I believe these undisputed facts, taken as a whole, can only be characterized as coercive words and actions by the officers employed to circumvent the Fourth Amendment.
The evidence, particularly the videotape, reflects no particular actions taken by the officers tending to corroborate a “safety concern,” especially after Tucker was handcuffed and immediately placed in the patrol car.
Lastly, by giving total deference to the testimony of a witness, who either denies coercion or states his consent was voluntary, the majority suggests that testimonial evidence alone can be determinative in our review and implies each witness used “coercion” and “voluntary” in the legal sense to which deference should be given. I believe a reasonably objective person could only conclude that, once Tucker was handcuffed without warnings or any indication he could decline further questioning, together with the officers' prolonged detention and repetitive questioning following a valid yet pre-textual traffic stop and arrest for a misdemeanor offense, the totality of the circumstances do not indicate an absence of coercion. In this case, the officers' actions yielded “consent” before reasonable suspicion, much less probable cause, existed to justify the officers' actions. Most importantly, contrary to the majority opinion, it is the burden of the State to prove a lack of coercion from an objective point of view; the burden is not on Tucker to prove he was in fact coerced from a subjective one. See Tucker, 369 S.W.3d at 185;see also Meekins v. State, 340 S.W.3d 454, 458–59 (Tex.Crim.App.2011) (trial court must assess the totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence). “Consent coerced by any explicit or implicit means is ‘no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.’ ” Tucker, 369 S.W.3d at 185 (quoting Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041). Guided by the highest court, the Court of Criminal Appeals reiterated that, “two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent-the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” Tucker, 369 S.W.3d at 185 (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041). The opinion gives no weight to the evidence of why the officer initiated the traffic stop, nor expresses concern with what the officers did—conduct and unreasonably prolong a routine traffic stop to detain, question and search for evidence at a person's home when the officer lacked any legal basis to do so, or to assess appropriate weight against the State for the lack of warnings given.
In conclusion, I dissent to the majority opinion because I believe it provides an insufficient analysis of the “totality of the circumstances” standard on the issue of voluntariness. I believe the record, including the videotape, reflects evidence of police conduct which a reasonably objective person could only view as coercive. Even if the officers had requested Tucker's consent to search his van before giving him his citation, my view of the totality of the circumstances in determining the issue of the voluntariness of consent remains the same.