Opinion
No. 05-16-00556-CR
03-09-2017
DREW EMERSON STENGEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas
Trial Court Cause No. 065934
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Francis
After the trial court denied his motion to suppress, Drew Emerson Stengel pleaded guilty to possession with intent to deliver four grams or more but less than 200 grams of cocaine, and the trial court placed him on deferred adjudication community supervision for eight years. In his sole issue, appellant contends the trial court erred by denying his motion to suppress. We affirm.
Evidence at the suppression hearing showed the following. Detective Brian McClaran of the Sherman Police Department was assigned to the narcotics section. In April 2015, he had been investigating appellant for months after receiving information appellant was a large-scale drug dealer in the Grayson County area. On April 8, McClaran was looking for appellant after receiving a tip from a confidential informant, who reported appellant had a large quantity of drugs, would be driving a green pickup, and frequently went to his father's house. The informant had proved to be credible in the past.
McClaran and another detective set up surveillance outside the home of appellant's father. Appellant arrived at the address in a green pickup and left ten minutes later. The detectives followed him and noticed the truck's license plate was obstructed and also observed appellant fail to stop at a stop sign. McClaran requested a marked patrol unit stop appellant on the two traffic violations.
Corporal Sam Boyle stopped appellant on the service road of U.S. 75 and was assisted by Officer Caleb Edwards. A recording of the stop was admitted into evidence. When Boyle approached the truck, he recognized appellant from previous dealings. He remarked that appellant had an open beer can. He asked appellant for his driver's license and insurance, and appellant gave him an Oklahoma driver's license but mistakenly handed him a birthday card as his insurance. Boyle testified appellant was "very nervous" and "shaking uncontrollably."
The officers were able to confirm appellant had insurance and no outstanding warrants. They communicated with McClaran, who told them he believed there were drugs in the truck. Boyle explained to appellant that he knew he had been in trouble for drugs before and asked if he could "look around" in his vehicle. Appellant said marijuana stems might be found in the truck because he had recently smoked marijuana inside, but he agreed to the search. Boyle searched the truck, inside and out, for about seven minutes. During the search, appellant stood on the side of the road with Edwards, who noticed appellant became "very nervous" when Boyle approached the driver's side door. Edwards said appellant licked his lips and his Adam's apple "jumped noticeably." When Boyle moved to other areas of the truck, Edwards said appellant was "more relaxed" and would focus on their conversation.
Boyle found nothing during his search, and walked over to Edwards, who told him about appellant's behavior during the search. Boyle asked if Edwards wanted to "take a look." Although Boyle said appellant was standing "right there," appellant did not object or otherwise withdraw his consent to search. Edwards then searched the truck and, seven minutes later, located marijuana and multiple bags of cocaine behind the driver's side door panel.
Appellant testified at the hearing and said he was nervous at the scene because Boyle had offered to call his probation officer. On cross-examination, he denied he was nervous because he had cocaine in the vehicle. He said he did not withdraw his consent to search but said he was not aware that he could. Appellant said he asked Boyle why they were continuing to search, and Boyle told him because he "had marijuana before." Appellant suggested if that comment was not on the recording of the stop, it was because Boyle had turned off his body microphone.
After hearing the evidence, the trial court denied appellant's motion to suppress. The trial court made findings of fact and conclusions of law. In particular, the trial court found the following with respect to the search:
6. The initial search conducted by Officer Boyle was done after voluntary consent was given by [appellant]. The search of the vehicle by Officer Edwards was a continuation of the search conducted by Officer Boyle and therefore did not require the officers to ask for consent a second time. Further, even if Edwards's portion of the search is considered a separate search it would still be lawful under Morrison [v. State, 508 S.W.2d 827 (Tex. Crim. App. 1974)].
In his sole issue on appeal, appellant challenges the trial court's denial of his motion to suppress on the ground that while Boyle had his consent to search, Edwards did not. Thus, he argues Edwards's search, which uncovered the cocaine, was illegal. We disagree.
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review. Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011). We afford almost total deference to a trial judge's determination of historical facts and mixed questions of law and fact that rely upon the credibility of the witness. Id. We review de novo pure questions of law and mixed questions of law and fact that do not depend on credibility determinations. Id. When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the trial court's ruling, supports these findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the trial court's legal ruling de novo unless the explicit fact findings supported by the record are also dispositive of the legal ruling. Id.
The Fourth Amendment to the United States Constitution secures "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. CONST. amend. IV. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment unless they are subject to an exception. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). Voluntary consent to search is an exception to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
A person is free to limit the scope of the consent he gives. State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011). If police rely on consent as the basis for a warrantless search, "they have no more authority than they have apparently been given by the consent." Id. Therefore, it is "important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity." Id. On the other hand, a person's silence in the face of an officer's further actions may imply consent to that further action. Id. The actual consent given is determined by an objective standard. Id. In other words, the question is what would the typical reasonable person have understood by the exchange between the officer and the citizen. Id.
Boyle stopped appellant at the request of Detective McClaran, who was investigating appellant as a large-scale drug dealer and had observed him commit two traffic violations. During the stop, Boyle and appellant acknowledged appellant had been in trouble for drugs before, and Boyle asked if he could "look around." Appellant consented to the search and said there might be marijuana stems or seeds because he had recently smoked in the truck. From this, it was clear the object of the search was drugs.
Boyle searched the truck for about seven minutes while appellant stood on the side of the roadway with Edwards. Boyle found nothing as a result of his search, but Edwards noticed appellant was nervous and distracted when Boyle searched certain areas of the truck. Edwards explained this to Boyle, who then asked if Edwards "wanted to take a look." Less than a minute after Boyle searched the vehicle, Edwards began his search. Although appellant was standing right there, he did not object or otherwise withdraw his consent. Having reviewed the evidence, which includes the recording of the stop, we conclude Edwards's search was merely a continuation of the search by Boyle, and appellant's failure to object would confirm to a reasonable person that the scope of appellant's consent was not being exceeded. Even if Edwards's search could be considered a "separate" search, the original consent carried over to this search, which occurred less than a minute later in appellant's presence and without any objection. See Morrison, 508 S.W.2d at 829 (concluding that when third party who gave consent for initial search accompanied officer back to apartment, original consent carried over during intervening time span of four hours). We overrule appellant's sole issue.
We affirm the trial court's deferred adjudication order.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160556F.U05
JUDGMENT
On Appeal from the 397th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 065934.
Opinion delivered by Justice Francis; Justices Lang-Miers and Whitehill participating.
Based on the Court's opinion of this date, the trial court's order of deferred adjudication is AFFIRMED. Judgment entered March 9, 2017.