Grubbs v. State, No. 01-03-01322-CR.

• Court: Supreme Court of Texas
• Writing for the Court: Laura C. Higley
• Citation: 177 S.W.3d 313
• Parties: Justin GRUBBS, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 14 September 2005
• Docket Number: No. 01-03-01322-CR.

177 S.W.3d 313 Justin GRUBBS, Appellant,
v.
The STATE of Texas, Appellee. No. 01-03-01322-CR. Court of Appeals of Texas, Houston (1st Dist.). March 17, 2005. Discretionary Review Refused September 14, 2005.

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Josh Schaffer, The Schaffer Firm, Houston, for Appellant.

Lori Deangelo Fix, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.

Panel consists of Justices NUCHIA, HANKS, and HIGLEY.

OPINION

LAURA C. HIGLEY, Justice.

After his pretrial motion to suppress evidence was denied, appellant, Justin Grubbs, pleaded guilty to misdemeanor possession of marihuana. The trial court deferred its finding of guilt, placed appellant on community supervision for nine months, and assessed a fine of $150.00.

In his sole issue, appellant contends that the trial court erred in denying his motion to suppress marihuana seized as a result of

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an unlawful entry into his university dorm room.

We affirm.

BACKGROUND

Appellant and Benjamin Marsh were students residing in Room 101 of Law Hall, a University of Houston ("U of H") dormitory. At approximately 11:20 p.m., on September 15, 2003, Shaun Deskins, the resident assistant ("R.A.") on duty in Law Hall, received a complaint concerning the odor of marihuana coming from Room 101.

After confirming the odor, Deskins obtained the master key to Room 101 and instructed another person to contact campus police. Officers Tinney and Roney, of the U of H Police Department, met Deskins in the hallway outside of Room 101 and confirmed the odor of marihuana emanating from the room. One of the officers knocked on the door, but there was no response. Pursuant to U of H departmental procedure, Deskins announced through the door that he was "the R.A. on-call" and that he was "keying in."

Deskins unlocked the door, which opened inward, and stepped into the room enough to prop the door open. The design of the room was such that a person standing in the doorway could not see the whole room. Upon stepping or leaning into the room, Deskins could then see appellant and Marsh. The officers remained in the hallway outside of the room and could not see into the room. At some point, appellant and Marsh moved to the doorway. Once the officers could see them from the hallway, Roney asked if they "minded if [the officers] came in." One of the boys said, "No, go ahead and come on in."

Inside the room, the officers noted a very strong odor of burned marihuana and determined that Marsh showed signs of marihuana intoxication. The officers asked appellant and Marsh if they had been smoking marihuana. Appellant and Marsh did not respond. Tinney and Marsh then went into the hallway, while Roney spoke with appellant inside the room.

Roney again asked appellant if there was marihuana in the room. Appellant pulled a clear plastic bag from underneath a blanket on Marsh's bed. The bag contained a green, leafy substance, rolling papers, and a pipe. Appellant admitted that the contents of the bag were his. The officers then arrested appellant and Marsh.

Appellant and Marsh were charged with possession of less than two ounces of marihuana. After a hearing, the trial court denied appellant's motion to suppress the marihuana. No formal written findings of fact were entered.

Standard of Review

A trial court's ruling on a motion to suppress evidence will not be set aside unless an abuse of discretion is found. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); State v. Derrow, 981 S.W.2d 776, 778 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). We must afford almost total deference to the trial court's determination of facts supported by the record, especially when the findings are based on the evaluation of the witnesses' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

In reviewing the trial court's ruling, we apply 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 the historical facts and conduct a de novo review of the trial court's application of the law to those facts. Id. The trial court is the exclusive finder of

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fact in a motion to suppress hearing, and it may choose to believe or disbelieve any or all of any witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Where, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling. Carmouche, 10 S.W.3d at 327-28. We must assume the trial court made implied findings of fact that are supported by the record. Id. Because we do not determine credibility, our review of reasonable suspicion, probable cause, consent, and mixed questions of law and facts becomes a de novo review of legal questions. Derrow, 981 S.W.2d at 778 (citing Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996)).

ANALYSIS

Appellant brought a motion to suppress the marihuana seized from his room, all testimony concerning the events in question, and all oral or written statements made by appellant. Appellant based his motion on state and federal constitutional grounds, as well as on a state statutory ground. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp.2004-2005). On appeal, however, appellant solely raises a claim that the marihuana was seized unlawfully under the Fourth Amendment to the United States Constitution.

In this issue, appellant contends that the trial court erred in denying his motion to suppress marihuana that was seized as a result of an unlawful entry of his university dorm room. Appellant contends that Deskins was not authorized to unlock appellant's door for campus police, nor could Deskins consent to a search by campus police. Thus, asserts appellant, the subsequent warrantless entry by police and the seizure of the marihuana were unlawful.

A. Fourth Amendment Protections

The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. The Supreme Court has held that the Fourth Amendment generally imposes a warrant requirement for searches. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). "A `search' occurs when the government violates a subjective expectation of privacy that society considers objectively reasonable." Dawson v. State, 106 S.W.3d 388, 391 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 2042-43, 150 L.Ed.2d 94 (2001)). It has been established that warrantless searches are "per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz, 389 U.S. at 357, 88 S.Ct. at 514.

One of the established exceptions to both the requirements of a warrant and probable cause is a search conducted pursuant to consent. Corea v. State, 52 S.W.3d 311, 315-16 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)). The State can establish the lawfulness of an illegal search through bearing the burden of proving, by clear and convincing evidence, that consent was freely and voluntarily given. Id. at 316 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797

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(1968)). Hence, the State must show that the consent was positive and unequivocal and not merely an acquiescence to a claim of lawful authority. Id. There must be no evidence of coercion. Id.

Thus, an individual may waive his rights under the Fourth Amendment by consenting to a search. Id. Whether consent was voluntary is a question of fact and must be analyzed under the totality of the circumstances. Id. (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48 and Paulus v. State, 633 S.W.2d 827, 850 (Tex.Crim.App.1981)).

B. Authority to Enter

The Fourth Amendment protects people, not places. Katz, 389 U.S. at 351, 88 S.Ct. at 511. Indeed, courts have held that "a student who occupies a college dormitory room enjoys the protection of the Fourth Amendment." Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971); see Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H.1976) (considering dormitory room to be "a home away from home"); Devers v. S. Univ. and A & M Coll., 712 So.2d 199, 204-05 (La.App.1998) (finding that "[a] dormitory room is a student's house for all practical purposes, and a student has the same interest in the privacy of his room as any adult has in the privacy of his home, dwelling, or lodging"). In the instant matter, appellant had an expectation of privacy in his dorm room and is thus afforded Fourth Amendment protection. In addition, the Court of Criminal Appeals has held that "[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home." State v. Steelman, ...