Johnson v. State

• Decision Date: 13 June 2007
• Docket Number: No. PD-0534-05.,PD-0534-05.
• Citation: 226 S.W.3d 439
• Parties: Barbara Bell JOHNSON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

226 S.W.3d 439

Barbara Bell JOHNSON, Appellant v. The STATE of Texas.

No. PD-0534-05.

Court of Criminal Appeals of Texas.

June 13, 2007.

L. Charles Van Cleef, Longview, for Appellant.

Randal Lee, Crim. D.A., Linden, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., WOMACK, KEASLER, HERVEY and HOLCOMB, JJ., joined.

Appellant called 911 and asked the police to come to her home because she had just shot her husband in self-defense. The police came and found her husband dead on the living room floor. While appellant sat in a patrol car, officers conducted a preliminary investigation, took photographs, made notes, and gathered up the appellant's gun. At trial appellant argued that the evidence obtained during this initial investigation should be suppressed because the officers did not have a warrant. The court of appeals held that the officers were entitled to enter appellant's home twice under the emergency aid and protective sweep doctrines, and that the officers could testify to the evidence they had seen in plain view at that time.¹ The court also held that the officers' third warrantless entry into the home was illegal, and that the spent shell casing they seized during that entry was improperly admitted, but that its admission was harmless.² In this Court, appellant argues that "the court of appeals erred in failing to overrule the district court's denial of petitioner's motion to suppress evidence obtained as a result of an illegal general search of her home." We conclude that the trial court's original rationale for overruling appellant's motion to suppress was correct: By calling 911 and asking the police to come to her home, appellant consented to the police entry and to their initial investigation of the death of her husband. Therefore, we affirm the judgment of the court of appeals, but on a different rationale.

I.

Appellant called 911 shortly before midnight. She was hysterical. She kept saying, "Come, come. I killed him." She told the dispatch operator, "Sweetheart, come on." The dispatch operator said, "I can't come if you don't tell me where you are." Appellant gave directions on how to find her house, ending with "I'm the third house on the right." Then she said, "I need to get my clothes on. I need to get dressed." She kept repeating, "I just shot my husband." She said she shot him "through the heart." She cried that he had beaten her, and now "he cannot do this to me anymore. . . . I just killed that son of a bitch." When asked what kind of a gun she used, she told the dispatcher that it was a "380." When the dispatch operator asked her if her husband was still alive and to check his pulse, she said, "I'm afraid to touch him. If he's alive, he'll kill me." Later she exclaimed, "He twitched," and "he's like a bull of a man." She cried impatiently, "Come on, baby, bring someone out here to me." When the dispatch operator told her that "They're on the way," she said "I called people before and I never pressed any charges. . . . Somebody come here." The dispatcher told her, "Present yourself in the doorway with your hands up, okay, because [the officers] won't know if you don't have that gun or not." The dispatch officer then asked, "Do you live by the radio station?" "No, no. It's farther down. . . . Let me tell you how to get to my house. . . . I have my lights on. . . . I'm at the door." The dispatcher said, "Do not go to that door with that gun." When the dispatcher finally told her, "There is an officer on your street right now. I need you to stand on your front porch," appellant responded, "I don't have a porch. I'll stand in my garage. . . . He's coming, he's coming." And Officer Jones then arrived.

Officer Jones handcuffed appellant for safety's sake, placed her in his patrol car, and went inside to find appellant's dead husband. He made a brief protective sweep of the house and saw the .380 pistol that appellant had used to shoot her husband on the kitchen counter. He came back outside and called the paramedics. They arrived shortly thereafter, and they all went back inside the home. About fifteen minutes later, investigators from the sheriff's office arrived and moved appellant to another patrol car because Officer Jones had to leave. The sheriff's deputies went inside appellant's home to begin an initial investigation into the shooting. While the patrol video and audio camera recorded her,³ appellant continued to explain why she shot her husband and asked one of the officers, "Is there anything you want me to show you or tell you or anything in that house? I'll do it. I mean I know the house." At no time did she suggest that she wanted the officers to get out of her house or to end their crime scene investigation.

During the midtrial suppression hearing outside the presence of the jury, appellant argued that the "emergency aid doctrine"⁴ would not permit the officers to make their third warrantless entry into appellant's home. It was during this entry that they collected her gun and a spent shell casing, took photographs of the living room and bedroom, and made measurements of the rooms.⁵ Although he also addressed the emergency aid doctrine, the trial judge focused primarily on the issue of consent. He asked, "Well, what do you make of the defendant's statement on the tape where she volunteers to the officer, `Do you want me to go back in and show you where we were standing and that sort of thing?'" He later said,

And I do think that the defendant's statement, though it was made in custody, I think it's clear from the tape that it was a voluntary statement. In fact, after she had invoked her right to counsel and the lieutenant left her alone in the car, she called him back to the car to specifically ask him if he wanted her to go into the house and help him, to show him where some things were and where they'd been standing and that sort of thing. So I think it was clear and unequivocal that she was voluntarily consenting to help him perform a search of the house.

The trial judge denied the motion to suppress evidence, ruling that (1) appellant had consented to the search, and (2) in any event, the majority of the evidence obtained was admissible because it was in plain view when Officer Jones first entered appellant's home and conducted a lawful protective sweep of the area.

After hearing all of the evidence, the jury rejected appellant's claim of self-defense⁶ and found her guilty of murder. It sentenced her to fifteen years' imprisonment.

The court of appeals affirmed the conviction and sentence. Appellant once again argued the "emergency aid doctrine," so the court of appeals focused upon that issue. It held that Officer Jones was justified in his first two entries into appellant's home "under the emergency aid and protective sweep doctrines, to determine whether anyone inside the house needed assistance or endangered anyone else" and to confirm the death of appellant's husband.⁷ "What was seen in plain view during those two legitimate entries was properly the subject of testimony by the individuals who participated in those entries."⁸ The court of appeals then stated that the third entry was not authorized by the emergency aid doctrine, and thus the evidence collected during that entry was inadmissible to the extent that it had not been in plain view during the first two entries.⁹ However, the court of appeals concluded that the admission of this evidence was harmless beyond a reasonable doubt because "[t]he only ultimate issue before the jury was whether the shooting was in self-defense," and the "improper evidence was simply where the spent shell casing came to rest behind a chair."¹⁰

The court of appeals did not address the trial judge's first ruling: Appellant consented to the limited investigatory search of her home. We address that issue and determine that the trial judge did not err in denying appellant's motion to suppress.

II.

The Fourth Amendment protects individuals "against unreasonable searches and seizures."¹¹ A warrantless police entry into a person's home is presumptively unreasonable unless it falls within the scope of one of a few well-delineated exceptions. One such exception is a consensual entry.¹² Typically, whether consent is voluntary turns on questions of fact and is determined from the totality of the circumstances.¹³ For that reason, a finding of voluntary consent is reviewed only for an abuse of discretion.¹⁴ The operative inquiry is whether the evidence presented at the suppression hearing fairly supports the trial court's finding of voluntary consent by clear and convincing evidence. The standard for measuring the scope of consent "is that of `objective' reasonableness" or what the ordinary reasonable person would have understood under the same circumstances.¹⁵

Numerous courts across the nation have addressed the scenario in which someone calls 911 and requests police to come to his home (or apartment, hotel room, or other location) because of an emergency or to investigate a crime.¹⁶ In Brown v. State,¹⁷ this Court discussed extensively the issue of "implied" consent to search in this situation. The evidence in Brown showed that the defendant called the police (and others) to say that he had just found his wife dead in their detached garage.¹⁸ He asked the police dispatcher to send a squad car and ambulance to his home, and he said that someone must have "robbed his wife because her purse was missing."¹⁹ When the police arrived, they escorted him to a patrol car "to calm down and stay warm until the investigators could speak with him."²⁰ The defendant talked with the investigators and discussed his activities earlier that day while other officers searched the house, photographed the inside, and examined the contents of a purse in the bedroom.²¹ In Brown, we cited and summarized numerous decisions from other states and concluded that, by calling 911 to report his wife's murder in their garage...