Miller v. State

• Decision Date: 20 March 2013
• Docket Number: No. PD–0705–11.,PD–0705–11.
• Citation: 393 S.W.3d 255
• Parties: Christina Jean MILLER, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

393 S.W.3d 255

Christina Jean MILLER, Appellant

v.The STATE of Texas.

No. PD–0705–11.

Court of Criminal Appeals of Texas.

Nov. 21, 2012.

Rehearing Denied March 20, 2013.

M. Patrick Maguire, Kerrville, for Christina Jean Miller.

Steven A. Wadsworth, Asst. District Atty., Kerrville, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, COCHRAN, and ALCALÁ, JJ., joined.

Sheriff's deputies arrested appellant for possession of a controlled substance. She filed a motion to suppress, alleging that the controlled substance was illegally obtained as the result of a warrantless search of her apartment. The trial judge held a hearing and denied relief, and appellant then plead guilty pursuant to a plea bargain. On appeal, appellant challenged the trial judge's denial of her motion to suppress. The court of appeals affirmed the ruling of the trial court. Miller v. State, 345 S.W.3d 616 (Tex.App.-San Antonio 2011). We reverse the court of appeals's judgment.

Appellant raises three issues in her Petition for Discretionary Review.

1. The Fourth Court of Appeals erred in holding that a warrantless search was justified under the emergency doctrine when the emergency doctrine was not a theory urged by the State at the suppression hearing and when there was no evidence presented at the suppression hearing that officers remained in Appellant's home pursuant to the emergency doctrine.

2. Are law enforcement officers justified in remaining in a person's residence without a warrant under the guise of conducting a “warrant check” after the homeowner unequivocally tells officers to leave the residence?

3. When law enforcement officers remain in a person's residence without a warrant under the guise of conducting a warrant check after the homeowner unequivocally tells officers to leave the residence, are they committing the offense of Criminal Trespass which would render any evidence seized after the intrusion inadmissible?

Facts

Just after 12:30 a.m. on May 8, 2008, two sheriff's deputies responded to a disturbance call from a third party, who reported yelling, screaming, and the sounds of objects being thrown in appellant's apartment. The deputies heard similar sounds when they arrived at the scene. The events that occurred after the officers arrived were recorded on the camera in Deputy Jamie Yarborough's parked police car (state's exhibit 3), with audio input from his body microphone, and a second recording in Deputy Michael Mitchell's parked police car, with audio input from his body microphone (state's exhibit 2). DVDs of both recordings were admitted into evidence at the hearing on appellant's motion to suppress.

The Chronology of Events

(00:38:01) ¹ The deputies and DPS Trooper Allen Meyer, who was riding with Yarborough, knocked on appellant's door. Appellant did not immediately answer the door.

(00:38:05) (Crashing noises, loud music, and yelling by a single female voice are audible.)

(00:38:10) Officers announced that they were sheriff's deputies.

(00:38:17) Yarborough asked Meyer if “[you] think she thinks it's him.” ²

(00:38:22) Appellant opened the door, appearing to the officers to be “extremely distraught and highly intoxicated,” stumbling as she walked and slurring her speech. R.R. 9–10. Both Yarborough and Mitchell testified at the hearing that they did not see any injuries on appellant. R.R. 12, 26.³

(00:38:26) She asked what they wanted, they mentioned the third-party report, and she then said, “Y'all can come in if you want.” (00:38:41)

(00:38:45) Deputy Yarborough asked if her boyfriend was at home. She said that he was not.

(00:39:15) Appellant denied that there had been any domestic violence. She explained that she was upset and was throwing things because she had discovered that her boyfriend was seeing other women, but that he was not there and she did not know where he was.

(00:39:44) When queried about who was in the apartment, she told the officers that the only other people in her home were “her babies,” who were asleep and asked that the officers “please don't mess with them.”

(00:39:44) Deputy Yarborough responded that they were probably already awake.

(00:40:25) Appellant again told Deputy Yarborough that there had been no physical violence.

(00:40:54) She refused to identify her boyfriend.

(00:41:04) She identified herself as Christie Miller.

(00:41:11) Deputy Yarborough asks for appellant's driver's license as identification and her birth date.

(00:41:25) Appellant gave her date of birth.

(00:41:38) Appellant told the officers that she's upset, she's in her own home minding her own business, and she wants them to go saying, “I just want you all to go.” They did not leave.

(00:41:42) Deputy Yarborough asserted that they had a report of people throwing things at each other and hitting on each other.⁴

(00:41:46) Appellant again denied it: “None of that happened.”

(00:41:50) Deputy Yarborough again pressed for the boyfriend's name because “I need to confirm that with him. That's why I need to talk to him.”

(00:42:18) About four minutes after the officers first entered, she told them to leave for the second time: “I would like it if y'all please would leave.”

(00:42:22) Either Deputy Mitchell or Trooper Meyer said, “Christie, we'll leave in just a minute, but we have some obligations we have to go through.” They did not leave.

(00:42:40) Deputy Yarborough called for a warrant check.

(00:43:02) Appellant said, “I didn't authorize you to come in my house.”

(00:43:05) Yarborough responded that she had asked them to “come in and check.” Miller, 345 S.W.3d at 620.⁵

(00:43:16) Appellant tells the officers to leave for a third time: “Well then, please leave. Please leave.”

(00:43:25) An officer other than Deputy Yarborough said, “We have certain things we need to go through before we can leave.” Id. The officers did not leave and continued to question her.

(00:43:30) Appellant's fourth request that the officers leave, about 15 seconds after her third request, was considerably less polite than her first three: “Get out of my f * * * ing house!” Both deputies testified that, at the time of the fourth request that they leave, they had no probable cause to arrest appellant. R.R. 16, 25.

(00:43:34) An officer other than Deputy Yarborough again pressed for the boyfriend's name.

(00:43:41) After appellant's fourth instruction for the officers to leave, the sounds of a struggle are heard on the audio recording. This corresponds to testimony at trial that, while waiting inside appellant's apartment for the results of the warrant check, Trooper Meyer saw a small, burned marijuana cigarette and a piece of aluminum foil with burned residue in the center,⁶ appellant snatched the marijuana cigarette away from Meyer, and Yarborough and Meyer forcibly retrieved it from her hand. R.R. 12–13, 33–34.

(00:44:14) The officers arrested appellant. (Sound of handcuffs closing)

(00:44:24) She admitted to them that she had smoked marijuana earlier in the week.

(00:44:30) (Sounds of drawers opening and closing)

According to testimony at trial, after arresting appellant, the officers searched further and found, near the folded foil and in plain sight, two baggies, each containing traces of a white powdery substance. R.R. 14, 31.

As appellant had told the officers, her boyfriend was not there, and the only other occupants of the apartment were appellant's children, ages eleven and two, who were asleep in another room until the struggle over the foil awakened the older child. Between appellant's first request that the officers leave her home and her arrest, she told them to leave three additional times within five minutes. They left only after searching her apartment and arresting her. Appellant was initially charged with possession of drug paraphernalia (the foil). A charge of possession of a controlled substance in an amount of less than one gram was added later.⁷

The Testimony at the Hearing on the Motion to Suppress

The record of the suppression hearing reflects that the officers did not have a search warrant (R.R. 4 (noted by the trial court), R.R. 15–16 (Yarborough), R.R. 32 (Trooper Meyer)) and no consent to search, only consent to enter (R.R. 10 Yarborough). Deputy Yarborough testified, “We were awaiting the return for warrant checks and such. She had asked us to leave and pending the return from the warrant checks, we were planning on going ahead and leaving the residence.” R.R. 12. He also testified that he did not see any visible injuries on appellant. Id. On cross-examination, he conceded that, before any probable cause to arrest existed, appellant had asked the officers to leave four times.⁸ He also testified that the foil was burnt in the center and that: he did not see any drugs on it, R.R. 17; the warrant check could have been conducted outside of appellant's apartment after she asked them to leave; and he did not think that she was going to leave her apartment at that time.

The state asked Deputy Mitchell why they did not leave when asked. He responded,

“[W]e had evidence that “a disturbance when we came in, although she was not injured.... There was obviously some sort of physical disturbance there. We needed to finish investigating that. We needed to wait for the warrant check to come back. It is pretty standard for us to, when we're in contact with someone, await until we get the warrant check before we break contact with them.”

R.R. 22–23.

Defense counsel questioned Deputy Mitchell about staying in the apartment while waiting for a return on the warrant check.

Q Okay. Why didn't y'all leave? She asked y'all four times to leave. Why couldn't y'all walk outside and do the warrant check outside?

A Because if she would have come back with a warrant, that would have necessitated getting back into the house to arrest her with a warrant. It's normal procedure for us to wait until the warrant runs come back before we leave.

Q...