Bivens, Allen v. State

• Court: Court of Appeals of Texas
• Decided: January 27, 2004
• Docket: 14-02-01171-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 27, 2004

Affirmed and Memorandum Opinion filed January 27, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01171-CR

ALLEN BIVINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 878,715

M E M O R A N D U M  O P I N I O N

Following the trial court=s denial of his motion to suppress, appellant pleaded guilty to possession of a controlled substance weighing at least 400 grams.  By this appeal, appellant challenges the trial court=s denial of his motion to suppress.  We affirm. 

Factual and Procedural Background

Deputies Palermo and Clegg initiated a traffic stop after witnessing appellant commit two traffic violationsCfailure to signal a lane change and speeding through a construction zone.  Both Palermo and Clegg were officers with the Harris County Narcotics Task Force, Organized Crime Division, and Palermo was also a K-9 officer.  At the time of the stop, Palermo=s K-9 partner, Drake, was traveling with them. 

Palermo, with appellant=s consent, conducted a pat down search to ensure appellant was unarmed.  Palermo then requested appellant=s consent to search the vehicle.  According to Palermo and Clegg, appellant consented to a search of the vehicle; thereafter, Palermo retrieved Drake and began an exterior search of the vehicle.  Drake Aalerted@ to the seams of the passenger and  driver doors by scratching at the door jams.  Palermo opened the door and allowed Drake to enter the vehicle.  Drake immediately began scratching the floor board directly in front of the passenger=s side of the front seat.

Appellant testified during the motion to suppress that he did not give either Palermo or Clegg consent to search his vehicle.  Appellant testified that while he was looking for his insurance information, one of the deputies was already looking through his vehicle.  He claims the deputies only asked for permission to search the trunk, which he freely gave.  Appellant also contends that when Drake was taken around the perimeter of the vehicle, Drake did not make any Amovements or unusual signals@ toward the vehicle.  

Once Drake alerted to the presence of narcotics, appellant was arrested and the vehicle was taken to a warehouse owned by the Narcotics Task Force for a continuation of the search.  At the warehouse, three and a half kilograms of cocaine were discovered under the front seat near the passenger side.  Appellant was indicted for possession with intent to deliver a controlled substance weighing at least 400 grams.  After the trial court denied appellant=s motion to suppress, appellant pleaded guilty to a reduced charge of possession of a controlled substance weighing at least 400 grams, and the court sentenced appellant to ten years= confinement and a $1,000 fine.  In seven issues, appellant challenges the trial court=s denial of his motion to suppress.        

Discussion

We review a trial court=s decision on a motion to suppress under a bifurcated standard of review.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We give almost total deference to the trial court=s determination of historical facts supported by the record, especially when those facts are based on credibility and demeanor.  Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).  However, we review the court=s application of law to those facts de novo.  Carmouche, 10 S.W.3d at 327.  When the trial court does not make any findings of fact, we review the evidence in the light most favorable to the trial court=s ruling, and we presume the trial court made findings necessary to support its ruling, as long as the implied findings are supported by the record.  Id. at 327B28; Josey v. State, 981 S.W.2d 831, 837 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).    

In his first point of error, appellant argues the trial court improperly denied his motion to suppress because the officer=s search exceeded the scope of consent.  It is well established that consensual searches are an exception to the constitutional requirements of both probable cause and a warrant.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc).  The State bears the burden of proving by clear and convincing evidence that consent was positive and unequivocal and not obtained through duress or coercion.  Stephenson v. State, 494 S.W.2d 900, 903 (Tex. Crim. App. 1973).  The validity of consent is a question of fact to be determined from the totality of the circumstances.  Id.; Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003). 

The extent of the search is limited by the scope of the consent given by the suspect.  Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The scope of consent is determined objectively; in other words, we determine what the typical, reasonable person would have understood by the exchange between the suspect and the officer.  Florida v. Jimeno, 500 U.S. 248, 252 (1991); Simpson, 29 S.W.3d at 330.  Unless an officer=s request, or a suspect=s consent, limits a search to a particular area of the vehicle, a request to search Athe car@ includes all areas of the vehicle and excludes none.  Jimeno, 500 U.S. at 252; Simpson, 29 S.W.3d at 330.  Additionally, a suspect is free to withdraw or limit his consent at any time.  Jimeno, 500 U.S. at 252; Simpson, 29 S.W.3d at 330. 

In this case, the trial court heard testimony from four witnesses at the hearing on the motion to suppress: three police officers and appellant.  Deputies Palermo and Clegg both testified appellant consented to a full search of his car and did not limit his consent in any way.  Appellant admits he voluntarily gave consent, but contends consent was limited to the trunk of the vehicle only.  According to appellant, the officer had already searched the interior of the car before ever asking for consent, so he Aunderstood [Deputy Palermo=s] request to search to encompass the area that Deputy Palermo had not already looked into.@  Palermo and Clegg denied searching the vehicle before obtaining consent, and the third officer, Detective Porter, who was located approximately 700 feet away from the stop, verified  the deputies= version with his visual account of the interactions between the deputies and appellant.

At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony.  Guevara, 97 S.W.3d at 582; Maxwell, 73 S.W.3d at 281.  A conflict in testimony is best left for the trial court to resolve as the trier of fact because it has the ability to observe the demeanor and determine the veracity of the witnesses.  Stephenson, 494 S.W.2d at 904.  Thus, in this case, the trial court must have resolved any factual disputes germane to consent in favor of the State.  Viewing the evidence in support of the trial court=s implicit finding of consent, and affording that finding the proper deference, we find appellant gave full consent to search the vehicle.  Appellant=s first issue is overruled. 

Since we find full consent was given to the officers, we find appellant=s consent also extended to the use of a canine to search his vehicle.  Appellant had the ability to withdraw or limit his consent once he saw Palermo retrieve the dog from the vehicle, however, appellant said nothing.  See Jimeno, 500 U.S. at 252; Simpson, 29 S.W.3d at 330.  Appellant=s silence upon seeing the canine affirmed the broad scope of his consent.  Once the dog alerted to the door seam, the officers had probable cause to arrest appellant.  See Tex. Code Crim. Proc. Ann. art. 14.01 (Vernon 1977).

The evidence presented at the motion to suppress hearing supports the trial court=s implied finding that appellant consented to an unrestricted search.  We afford total deference to that finding.  Because none of appellant=s other evidentiary challenges vitiate that finding, we do not address them.  We affirm the judgment of the trial court. 

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed January 27, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).