In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00001-CR
THE STATE OF TEXAS, APPELLANT
V.
STARLA CARROLL STONE, APPELLEE
On Appeal from the County Court at Law No. 1 Potter County, Texas Trial Court No. 133786-1, Honorable W. F. (Corky) Roberts, Presiding
May 21, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The State of Texas appeals the trial court’s order granting appellee’s, Starla
Carroll Stone, motion to suppress evidence. See TEX. CODE CRIM. PROC. ANN. art.
44.01(a)(5) (West Supp. 2012). We will affirm.
Background
On or about March 31, 2012, the Potter County Sheriff’s Office dispatch received
a call that there was an “underage party” being held on the 2300 block of Robinson in Bushland, Texas. Officer Kevin Coffman was dispatched to investigate the call. He
arrived at the location around midnight or 1:00 a.m. Observing an unusual amount of
parked cars in the area of 2305 Robinson, Coffman approached the residence and rang
the doorbell. Looking through a nearby window, Coffman said that he saw nine
juveniles in a bedroom and that they appeared to be hiding. Coffman also said that he
could see fifteen “Solo” brand plastic cups in the kitchen, which, based on his training
and experience, “usually” contain alcohol. Not receiving a response, Coffman rang the
doorbell a second time. After approximately four minutes passed, appellee answered
the door. Coffman informed appellee that he was investigating a possible crime, and
asked her to step outside of the residence. According to Coffman, appellee complied
with his request, and gave him nonverbal consent to enter the residence.
Coffman entered the residence and, in the attached garage, found a keg of beer,
two 30-packs of beer, and two bottles of liquor. Breathalyzer tests were performed on
the underage attendees resulting in the issuance of several consumption of alcohol by a
minor citations. See TEX. ALCO. BEV. CODE ANN. § 106.04(a) (West Supp. 2012).
During the investigation, appellee’s son took responsibility for providing the alcohol to
the underage attendees and he was arrested.
Appellee was charged by eight criminal informations with furnishing alcohol to a
minor. See TEX. ALCO. BEV. CODE ANN. § 106.06(a) (West Supp. 2012). The trial court
granted the State’s motion to consolidate each of the eight charges into one cause.
Appellee then filed a motion to suppress all evidence obtained from Coffman’s search of
the residence on the basis that the search was conducted without a warrant, consent, or
probable cause and exigent circumstances. The trial court held a hearing on the motion
2 on November 21, 2012. Only Coffman and appellee testified at this hearing. On
November 28, 2012, the trial court signed an order granting appellee’s motion to
suppress.
The State appealed the trial court’s order granting appellee’s motion to suppress.
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). By its sole issue, the State contends
that probable cause and exigent circumstances obviated the need for a search warrant
of appellee’s home.
Standard of Review
We review the trial court's ruling on a motion to suppress for abuse of discretion.
See State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006); Long v. State, 823
S.W.2d 259, 277 (Tex.Crim.App. 1991). At a suppression hearing, the trial court is the
sole trier of fact and judge of the credibility of witnesses and the weight to be given to
their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Wood v.
State, 18 S.W.3d 642, 646 (Tex.Crim.App. 2000). "Accordingly, the judge may believe
or disbelieve all or any part of a witness's testimony, even if that testimony is not
controverted." Ross, 32 S.W.3d at 855 (footnotes omitted). We afford almost total
deference to the trial court's determination of the historical facts that depend on an
evaluation of credibility and demeanor, but we review de novo the trial court's
application of the law to the facts if resolution of those ultimate questions do not turn on
evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997).
3 A search conducted without a warrant is per se unreasonable under the United
States and Texas Constitutions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967); Hulit v. State, 982 S.W.2d 431, 434 (Tex.Crim.App. 1998).
Once it is established that a search was conducted without a warrant, the burden is on
the State to prove the reasonableness of the search. Gonzalez v. State, 588 S.W.2d
355, 360 (Tex.Crim.App. 1979). One way to meet that burden is for the State to show
that probable cause and exigent circumstances justified the search. See Gutierrez v.
State, 221 S.W.3d 680, 685-86 (Tex.Crim.App. 2007).
“Probable cause to search exists when reasonably trustworthy facts and
circumstances within the knowledge of the officer on the scene would lead a man of
reasonable prudence to believe that the instrumentality of a crime or evidence of a
crime will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App. 2005)
(quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991)). When the
search is of a residence, probable cause must be such that it “points like a beacon
toward the location.” Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App. 2006). If
probable cause is present, the inquiry becomes whether exigent circumstances existed
to obviate the need for a search warrant and justify the initial warrantless entry.
McNairy, 835 S.W.2d at 107. Exigent circumstances include preventing the removal or
destruction of evidence or contraband. See id. If either probable cause or exigent
circumstances are not established, a warrantless entry will not withstand judicial
scrutiny. See Gutierrez, 221 S.W.3d at 685-86.
4 Analysis
In the present case, neither party disputes that Coffman entered appellee’s
house without a warrant. Therefore, the burden is upon the State to prove the legality of
the warrantless search. See id.; Gonzalez, 588 S.W.2d at 360. The State contends
that the search of appellee’s residence was justified by the existence of probable cause
and exigent circumstances.1
According to the State, the facts and circumstances known to Coffman indicating
that the instrumentality or evidence of a crime would be found in appellee’s home are
(1) the nature of the dispatch was specific to an underage party; 2 (2) there were more
vehicles in the area than would be usual for that time; (3) when Coffman arrived in a
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-13-00001-CR
THE STATE OF TEXAS, APPELLANT
V.
STARLA CARROLL STONE, APPELLEE
On Appeal from the County Court at Law No. 1 Potter County, Texas Trial Court No. 133786-1, Honorable W. F. (Corky) Roberts, Presiding
May 21, 2013
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The State of Texas appeals the trial court’s order granting appellee’s, Starla
Carroll Stone, motion to suppress evidence. See TEX. CODE CRIM. PROC. ANN. art.
44.01(a)(5) (West Supp. 2012). We will affirm.
Background
On or about March 31, 2012, the Potter County Sheriff’s Office dispatch received
a call that there was an “underage party” being held on the 2300 block of Robinson in Bushland, Texas. Officer Kevin Coffman was dispatched to investigate the call. He
arrived at the location around midnight or 1:00 a.m. Observing an unusual amount of
parked cars in the area of 2305 Robinson, Coffman approached the residence and rang
the doorbell. Looking through a nearby window, Coffman said that he saw nine
juveniles in a bedroom and that they appeared to be hiding. Coffman also said that he
could see fifteen “Solo” brand plastic cups in the kitchen, which, based on his training
and experience, “usually” contain alcohol. Not receiving a response, Coffman rang the
doorbell a second time. After approximately four minutes passed, appellee answered
the door. Coffman informed appellee that he was investigating a possible crime, and
asked her to step outside of the residence. According to Coffman, appellee complied
with his request, and gave him nonverbal consent to enter the residence.
Coffman entered the residence and, in the attached garage, found a keg of beer,
two 30-packs of beer, and two bottles of liquor. Breathalyzer tests were performed on
the underage attendees resulting in the issuance of several consumption of alcohol by a
minor citations. See TEX. ALCO. BEV. CODE ANN. § 106.04(a) (West Supp. 2012).
During the investigation, appellee’s son took responsibility for providing the alcohol to
the underage attendees and he was arrested.
Appellee was charged by eight criminal informations with furnishing alcohol to a
minor. See TEX. ALCO. BEV. CODE ANN. § 106.06(a) (West Supp. 2012). The trial court
granted the State’s motion to consolidate each of the eight charges into one cause.
Appellee then filed a motion to suppress all evidence obtained from Coffman’s search of
the residence on the basis that the search was conducted without a warrant, consent, or
probable cause and exigent circumstances. The trial court held a hearing on the motion
2 on November 21, 2012. Only Coffman and appellee testified at this hearing. On
November 28, 2012, the trial court signed an order granting appellee’s motion to
suppress.
The State appealed the trial court’s order granting appellee’s motion to suppress.
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). By its sole issue, the State contends
that probable cause and exigent circumstances obviated the need for a search warrant
of appellee’s home.
Standard of Review
We review the trial court's ruling on a motion to suppress for abuse of discretion.
See State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006); Long v. State, 823
S.W.2d 259, 277 (Tex.Crim.App. 1991). At a suppression hearing, the trial court is the
sole trier of fact and judge of the credibility of witnesses and the weight to be given to
their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Wood v.
State, 18 S.W.3d 642, 646 (Tex.Crim.App. 2000). "Accordingly, the judge may believe
or disbelieve all or any part of a witness's testimony, even if that testimony is not
controverted." Ross, 32 S.W.3d at 855 (footnotes omitted). We afford almost total
deference to the trial court's determination of the historical facts that depend on an
evaluation of credibility and demeanor, but we review de novo the trial court's
application of the law to the facts if resolution of those ultimate questions do not turn on
evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997).
3 A search conducted without a warrant is per se unreasonable under the United
States and Texas Constitutions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967); Hulit v. State, 982 S.W.2d 431, 434 (Tex.Crim.App. 1998).
Once it is established that a search was conducted without a warrant, the burden is on
the State to prove the reasonableness of the search. Gonzalez v. State, 588 S.W.2d
355, 360 (Tex.Crim.App. 1979). One way to meet that burden is for the State to show
that probable cause and exigent circumstances justified the search. See Gutierrez v.
State, 221 S.W.3d 680, 685-86 (Tex.Crim.App. 2007).
“Probable cause to search exists when reasonably trustworthy facts and
circumstances within the knowledge of the officer on the scene would lead a man of
reasonable prudence to believe that the instrumentality of a crime or evidence of a
crime will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App. 2005)
(quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991)). When the
search is of a residence, probable cause must be such that it “points like a beacon
toward the location.” Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App. 2006). If
probable cause is present, the inquiry becomes whether exigent circumstances existed
to obviate the need for a search warrant and justify the initial warrantless entry.
McNairy, 835 S.W.2d at 107. Exigent circumstances include preventing the removal or
destruction of evidence or contraband. See id. If either probable cause or exigent
circumstances are not established, a warrantless entry will not withstand judicial
scrutiny. See Gutierrez, 221 S.W.3d at 685-86.
4 Analysis
In the present case, neither party disputes that Coffman entered appellee’s
house without a warrant. Therefore, the burden is upon the State to prove the legality of
the warrantless search. See id.; Gonzalez, 588 S.W.2d at 360. The State contends
that the search of appellee’s residence was justified by the existence of probable cause
and exigent circumstances.1
According to the State, the facts and circumstances known to Coffman indicating
that the instrumentality or evidence of a crime would be found in appellee’s home are
(1) the nature of the dispatch was specific to an underage party; 2 (2) there were more
vehicles in the area than would be usual for that time; (3) when Coffman arrived in a
marked patrol car, three vehicles left the scene; (4) when Coffman arrived, several
young people went into the residence; (5) Coffman observed nine juveniles in the
residence that appeared to him to be hiding; (6) Coffman also observed fifteen “Solo”
brand plastic cups in the kitchen, which, based on his training and experience, “usually”
contain alcohol; (7) after ringing the doorbell, Coffman had to wait approximately four
minutes before the door was answered even though he had seen people in the
1 We note that, at the suppression hearing, the State argued that appellee gave Coffman nonverbal consent to enter the residence. See Meekins v. State, 340 S.W.3d 454, 458 ( 2011) (consent is an exception to the warrant requirement). However, on appeal, the State indicated that it “will not focus on the consent exception.” Consistent with that statement, the State presents no argument that appellee consented to a search of her residence. 2 In Coffman’s written report, he indicated that he was dispatched to investigate “an underage party.” However, at the hearing on appellee’s motion to suppress, he testified that dispatch advised him that there was alcohol involved. We must afford almost total deference to the trial court's determination of the historical facts that depend on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89.
5 residence before ringing the bell; and (8) when appellee answered the door, her lack of
focus and statement that she was about to go to bed seemed to Coffman to show a
reluctance to talk to law enforcement. The State contends that these facts are sufficient
to establish that Coffman had probable cause to enter the residence. We disagree.
The first four facts highlighted by the State do no more than establish that there
was a party being held at appellee’s residence and that minors were in attendance.
Coffman’s opinion that nine minors appeared to be attempting to hide could be
disbelieved by the trial court but, even if believed, it does not evidence the commission
of a crime. Certainly, the trial court could have discounted Coffman’s observation that
there were “Solo” brand cups in the kitchen and his opinion that these cups “usually”
contain alcohol. Common knowledge leads us to conclude that there is nothing inherent
about “Solo” brand cups that make them more likely to contain alcohol than other kinds
of beverages. However, even if we were to conclude that these cups do “usually”
contain alcohol, there was evidence presented at the hearing that Coffman would not
have been able to see into the kitchen from appellee’s front door. The delay in appellee
answering the door and appellee’s behavior upon answering the door are easily
explained by the distractions of hosting a party and the noise typically associated with
such parties. After viewing all of the reasonably trustworthy facts and circumstances
known to Coffman, we cannot conclude that a man of reasonable prudence would
believe that the instrumentality of a crime or evidence of a crime would be found in
appellee’s residence. See Estrada, 154 S.W.3d at 609.
6 Because the absence of probable cause makes the warrantless entry into a
residence unjustified, see Gutierrez, 221 S.W.3d at 685-86, we conclude that the trial
court did not abuse its discretion in granting appellee’s motion to suppress.
Conclusion
Having determined that Coffman’s entry into appellee’s residence was not
supported by probable cause, we affirm the trial court’s order granting appellee’s motion
to suppress.
Mackey K. Hancock Justice
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