Carter, Gina Revaughn v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2003
• Docket: 01-02-00049-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-02-00049-CR

GINA REVAUGHN CARTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 872342

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MEMORANDUM OPINION

          Appellant was charged with possession of at least 400 grams of cocaine with intent to deliver. After the trial court denied her motion to suppress evidence, she pleaded guilty without an agreed recommendation. The trial court sentenced her to 15 years’ confinement and a $1,000 fine. We affirm.

Background

          There was no live testimony presented in connection with the motion to suppress evidence. The State submitted an affidavit from Officer A. R. Heinle of the Houston Police Department Narcotics Division. The officer received a “computer clue” that an airplane ticket indicated a possible drug-courier profile. The ticket was for appellant to fly on March 19, 2001, from Birmingham, Alabama to Los Angeles, California, with a plane change at Bush Intercontinental Airport in Houston. The two-day-turnaround ticket was purchased in cash by an individual in Los Angeles for appellant in Birmingham. According to the officer, Los Angeles is known as a drug “supply” city and Birmingham is known as a “demand” city.

          During the stop-over in Houston, the officer observed appellant exit the plane carrying only a purse and a handbag. According to the officer, Continental flight records indicated that she did not check baggage. Two days later, on March 21, 2001, appellant flew on the return flight from Birmingham to Los Angeles, again with a plane change in Houston. During the stop-over in Houston, the officer observed appellant exit the plane carrying a small handbag and a pull-type suitcase.

          The officer was dressed in plain clothes and his weapon was not visible. Agent Birdwell accompanied the officer and stood behind him without blocking appellant’s path. The officer approached appellant, showed his identification, and asked permission to speak with her. Appellant obliged. The officer asked appellant where she was traveling. Appellant explained that she was traveling back to Birmingham and handed her boarding pass to the officer without a request to do so. When asked, appellant explained that she had packed her handbag and her uncle had packed her pull-type suitcase.

          The officer then advised appellant that he was a narcotics officer at the airport and asked for permission to search her luggage. Appellant consented to the search, but asked if they could go to a private room because she had some feminine articles in her suitcase. They walked to a nearby first-aid room. Appellant told the officer that her uncle had placed something in her luggage for her baby’s birthday. Agent Birdwell recovered a saran-wrapped package of white powder, which later tested positive for cocaine.

          Appellant submitted her own affidavit. She claims that the officers approached her, one showed her a badge, but he did not identify himself as a law enforcement officer. They told her that they needed to search her bag as part of a “random, routine, search for contraband.” She never gave them consent to search, nor did they inform her that she had the right to refuse consent. She did not feel free to leave.

          Appellant disagreed with the officer’s assertion that she did not check luggage. According to appellant, she checked a bag in Birmingham, the airline lost her bag, and she retrieved it a day later in Los Angeles. She noticed that someone had tampered with the bag because it had been cut on the side. For support, attached to her affidavit is a copy of a baggage claim ticket from her flight.

          In two points of error, appellant contends that the trial court erred in denying her motion to suppress evidence because (1) the State did not prove that her consent was voluntary and (2) her consent, if any, was tainted by an illegal detention.

Standard of Review

          The trial court considered the motion to suppress based solely on affidavits. Appellant contends that this Court should use a de novo, rather than a deferential, standard of review. She contends that, without live testimony, the trial court was not in a better position to resolve the credibility of the witnesses. We disagree. Trial courts are the traditional finders of fact, and their determinations of historical fact are entitled to deference. Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002). Accordingly, we employ a deferential standard of review of the trial court’s resolution of the historical facts from conflicting affidavits. Id.

Voluntariness of Consent

          In her first point of error, appellant contends that the trial court erred in denying her motion to suppress because the State did not prove that her consent was voluntary.

          Consent to search is a well-established exception to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2041; Carmouche, 10 S.W.3d at 331. In order to be valid, the consent must be shown to be positive and unequivocal and not coerced, by implicit or explicit means, by implied threat or covert force. Carmouche, 10 S.W.3d at 331. The State must show that the consent was freely given by clear and convincing evidence. Id.

          Appellant argues that she did not voluntarily consent. In contrast, the officer stated that he asked for appellant’s permission to search her bag, and she agreed. Although appellant’s affidavit differs from the officer’s, the trial court is the traditional finder of fact, and its determinations of historical fact are entitled to deference. See Manzi, 88 S.W.3d at 244.

          This case is similar to Jackson v. State, 77 S.W.3d 921 (Tex. App.—Houston [14th Dist.] 2002, no pet.), in which the court concluded that the defendant was not coerced by implied or explicit threats to comply with the request to search. The facts in Jackson leading to the court’s conclusion that consent was voluntary are identical to the facts in this case, including: (1) the officer was dressed in plain clothes; (2) his weapon remained concealed throughout the encounter; (3) only one officer actually engaged the defendant while the second stood several feet back; (4) the officer did not retain the defendant’s ticket, but gave it back to him; (5) the officer did not affirmatively state a belief that the defendant was carrying drugs; (6) the officer told the defendant that he did not have to allow the officer to look in his bag; (7) the officer did not suggest that he would get a search warrant if the defendant did not allow him to look in the bag; (8) the officer did not threaten the defendant either overtly or through his tone of voice; and (9) the officer did not touch the defendant. See id. at 927-28.

          Similarly, the evidence here shows that appellant was not coerced by implied or explicit threats to comply with the request to search. A reasonable person would still feel free to walk away at the point that the search occurred. See Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). The State presented evidence that the search was consensual; therefore, we hold that the trial court did not err in denying the motion to suppress evidence.

          We overrule the first point of error.

Illegal Detention

          In her second point of error, appellant contends that the trial court erred in denying her motion to suppress because her consent, if any, was tainted by an illegal detention. The State contends that the officer did not detain appellant, but even if he did, he had reasonable suspicion to do so.

          Not every encounter between police and citizens involves a seizure or otherwise implicates the Fourth Amendment. Id. A police officer is just as free as any other citizen to stop and ask questions of a fellow citizen. Id. Such encounters are consensual and do not trigger the Fourth Amendment “[s]o long as a reasonable person would feel free to disregard the police and go about his business.” Id. (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)). Even when officers have no basis to suspect an individual, they may generally ask questions of him, ask to examine his identification, and request to search his luggage, so long as the police do not convey a message that compliance with their requests is required. Id.

          In determining whether a seizure has occurred for Fourth Amendment purposes, a court must consider the totality of the circumstances surrounding the encounter. Id. The dispositive question is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter. Id.

          With these guidelines in mind, we determine whether a detention occurred. The same facts upon which we rely in holding that appellant voluntarily consented also show that the officer did not detain appellant. Again, the nine facts set forth above in Jackson leading to the court’s conclusion that there was no detention are identical to the facts in this case. See Jackson, 77 S.W.3d at 927-28. In Jackson, there was nothing to convey a message that the defendant was required to comply with the officer’s requests, and a reasonable person would have felt free to walk away from the encounter at any time prior to the search of the bag. Id. Similarly, we conclude the officer’s conduct toward appellant would communicate to a reasonable person that the person was free to decline the officer’s requests or otherwise terminate the encounter.

          We hold that appellant was not detained; therefore, she did not meet her burden of proving that a seizure occurred. Because no Fourth Amendment rights were implicated, we need not reach the issue of whether the officers had reasonable suspicion to detain appellant. Thus, we hold that appellant’s consent to search was not tainted.

          We overrule the second point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                                  Adele Hedges

                                                                                  Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).