Juarez v. State

• Decision Date: 27 September 1988
• Docket Number: No. 723-85,723-85
• Citation: 758 S.W.2d 772
• Parties: Raul J. JUAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 772

758 S.W.2d 772

Raul J. JUAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 723-85.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 27, 1988.

Gary Hill, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Robert Dinsmoor, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal was taken from a conviction for possession of marihuana over four ounces. The jury assessed appellant's punishment at seven years' imprisonment and recommended probation. The imposition of the sentence was suspended and the appellant was placed on probation for seven years. Notice of appeal was given.

The El Paso Court of Appeals affirmed the conviction in an unpublished opinion, holding, inter alia, that appellant's voluntary consent to search his vehicle authorized the warrantless search regardless of any impropriety in the initial stop. Juarez v. State (Tex.App.--El Paso, No. 08-84-00277-CR). In his sole ground of review appellant in his petition for discretionary review contended the Court of Appeals "erred in holding that the consent was not tainted by the illegal arrest." We granted said petition to determine the correctness of the holding of the Court of Appeals.

The appellant and a male companion were stopped in El Paso on February 19, 1981, while traveling in an automobile which had been rented in appellant's name the preceding night, giving a Chicago address.

Captain Ramon Ramirez of the El Paso Police Department testified that at 5:30 or 6 a.m. on February 19, 1981, he had received information about two suspects, a marihuana transaction and the automobile in question from a confidential informer; that about 7:30 a.m. he assigned Officer Ted Whorton to the "case." About two hours later Whorton reported by telephone or radio that the surveillance "had produced exactly the information that the confidential informer had stated."

Detective Karl Beasley testified about 12:15 p.m. on February 19th he had been called by Detective Whorton to assist him with a surveillance, and that he had joined Whorton on the fifth floor parking area of the downtown Holiday Inn. They began a surveillance of a white Oldsmobile Texas license VLR 946, parked there. Beasley explained that Whorton, a veteran police officer, who to Beasley's knowledge had made many arrests for marihuana possession, walked over to check out the white Oldsmobile, that Whorton walked around the vehicle to see if he could detect any odor of marihuana. When, at the suppression hearing, Beasley was asked if Whorton had informed him whether or not he had smelled marihuana, Beasley answered in the affirmative. The record then reflects:

"MR. HILL (defense counsel): I object to anything Detective Whorton told this officer, Your Honor.

"THE COURT: Well, I'll sustain the objection.

"MR. DINSMOOR (prosecutor): Your Honor, we're not entering it for the truth of the matter, sir. All we're entering is for the probable cause in this police officer's mind; in other words, for a present sense impression, not as to whether it was true or not, but just as to whether this officer would then have probable cause to stop the Defendants.

"THE COURT: Well, I'm going to overrule the--I'll sustain the objection and I'll not allow the officer to tell what Detective Whorton told him. Now, he said what he saw the detective do, which I think is admissible, but I don't think it's admissible as to what the detective told him." ¹

Beasley related that neither he nor Whorton had an arrest or search warrant, but when they called for someone to maintain the surveillance while they secured one, Captain Ramirez had informed them no one was available at the time. Beasley and Whorton were afraid the Oldsmobile would be moved if they left the hotel to secure a warrant. Shortly thereafter two men got into the Oldsmobile and left the parking area, drove down Oregon Street to Paisano and east on Paisano to Montana and east on Montana. Beasley and Whorton radioed for assistance. Within about a mile from the city limits on Montana which leads to the highway to Carlsbad, New Mexico, the Oldsmobile was stopped. Captain Ramirez, Detective Navarez, Whorton, Beasley and a customs officer or officers were present at the time.

Ramirez testified that the appellant was driving the car, that he explained to the appellant and his passenger the reason for the stop, and that he read them their Miranda rights. ² Ramirez then asked appellant if he would consent to a search of the vehicle. Appellant asked to conver with his companion, and Ramirez permitted him to do so as he (Ramirez) "wanted to make absolutely sure he knew what he was doing." After the conference, appellant stated, "Okay. I'll sign it." A written form of consent was executed. A search of the trunk revealed substance which was identified by the chemist as being marihuana and weighing one hundred and fourteen and a half pounds.

There was no showing that guns were drawn or that threats or coercion were used by the officers in obtaining the consent to search. The issue of consent was uncontested. Appellant offered no evidence on this issue, maintaining simply that even if there was consent, evidence discovered in the subsequent search was tainted by the allegedly illegal stop, and therefore must be suppressed.

The State was hampered in its efforts in demonstrating probable cause due to the absence of Detective Whorton. Over three years and four months elapsed from the date of the offense until the trial. Whorton was shown to have retired from the police force, apparently "not on good terms," and all efforts to locate him and secure his presence as a witness were unsuccessful. Nevertheless, the State relies upon the voluntary consent to justify the search.

In Kolb v. State, 532 S.W.2d 87, 89, 90 (Tex.Cr.App.1976), it was written:

"The basic purpose of the Fourth Amendment, United States Constitution, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. See Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). The same is true of Article I, Sec. 9 of the Texas Constitution, and it is well settled under the Fourth and Fourteenth Amendments of the United States Constitution that a search conducted without a warrant issued upon probable cause is 'per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Stoddard v. State, 475 S.W.2d 744, 749 (Tex.Cr.App.1972).

"One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, supra; Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 1261-1262, 90 L.Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477 (1946). The protections afforded by the Fourth Amendment and the State Constitution (Article I, Sec. 9) may be waived by an individual consenting to a search. Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972); Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972); DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971).

"It is also settled that the burden of proof by clear and convincing evidence is upon the prosecution to show that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Frazier v. State, 119 Tex.Cr.R. 217, 43 S.W.2d 597 (1931); Scott v. State, 139 Tex.Cr.R. 210, 139 S.W.2d 787 (1940); Compton v. State, 148 Tex.Cr.R. 204, 186 S.W.2d 74 (1945); Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App.1972). The burden requires the prosecution to show consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied. Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, supra; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 267, 65 L.Ed. 654 (1921); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436 (1948); Paprskar v. State, supra.

"As stated in 51 Tex.Jur.2d, Rev., Part I, Searches and Seizures, Sec. 42, p. 722;

" 'Consent to a search is not to be lightly inferred. It should be shown by clear and convincing evidence, and any consent must be voluntary and neither physically nor psychologically coerced....'

"And it must be remembered that consent to search is invalid if granted only in submission to a claim of lawful authority. Amos v. United States, supra.

"The question of whether a consent to search was 'voluntary' is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, supra; Paprskar v. State, supra." (Footnotes omitted.)

See also Meeks v. State, 692 S.W.2d 504, 508-510 (Tex.Cr.App.1985).

The fact that a person is under arrest does not, in and of itself, prevent a free and voluntary consent from being given. Meeks v. State, supra, at p. 509, and authorities there cited. Paulus v. State, 633 S.W.2d 827, 851 (Tex.Cr.App.1982). Custody is merely one of the factors to be considered. Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979), cert. den. 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862.

Notwithstanding an illegal arrest, consent to search, freely and voluntarily given, is...