Reasor v. State

Citation12 S.W.3d 813
Parties(Tex.Crim.App. 2000) MARK EDWARD REASOR, v. THE STATE OF TEXAS NO. 681-99
Decision Date01 March 2000
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

O P I N I O N

HOLLAND, J., delivered the unanimous opinion of the Court.

Appellant was arrested for possession of a controlled substance on January 26, 1996. After the trial court denied appellant's motion to suppress evidence, he pleaded guilty to the charge against him. Appellant was sentenced to ten years confinement and a $10,000 fine. This Court granted the State's petition for discretionary review to determine: 1) whether the court of appeals erred in holding that the officer's protective sweep of appellant's residence was illegal; and 2) whether the court of appeals erred by holding that appellant's consent to search his residence was fatally tainted. We will reverse the judgment of the court of appeals.

Facts

Officer Bellino received information from an informant that appellant would be in possession of cocaine and would be distributing the cocaine on January 26, 1996. Bellino, joined by three other deputies, began surveillance at appellant's house at 8:30 PM that evening. Around 9:40 PM, appellant and a companion left appellant's house, and the officers followed them. Appellant made three brief stops at three different apartment complexes and returned to his house. Bellino testified in the motion to suppress evidence that this behavior was "common for individuals who are delivering narcotics."

When appellant got back to his house, the police officers blocked his car in the driveway and identified themselves as police officers with their weapons drawn.1 The officers checked appellant and his companion for weapons. When Bellino approached appellant's car, he noticed a brown pouch containing a white, powdered substance laying open on the dash. The officers secured this evidence and advised appellant of his Miranda warnings.2 Appellant indicated that he understood his rights and was willing to talk to the officers. Appellant's companion was permitted to leave after the police officers were assured that the companion was not involved in any illegal activity.

At this point, three officers entered appellant's house to conduct a "protective sweep" of the residence. When the officers finished, they brought appellant back into the house to interrogate him. There, while handcuffed, appellant signed the Miranda warning form and the consent to search form. Appellant identified the substance found in his car as cocaine, and he pointed out other controlled substances in his bedroom and living room. The police also found additional drug paraphernalia, including a triple-beam scale and a ledger containing customer's names.

The trial court denied the motion to suppress, and appellant subsequently pleaded guilty to the possession of a controlled substance. On appeal, appellant claimed that the trial court violated his federal and Texas constitutional rights because the consent to search his house was not freely and voluntarily given. Appellant also asserted that the "protective sweep" was illegal, and thus, it tainted his consent.

The court of appeals agreed with appellant. It concluded that prosecutors "made no showing that the officers had 'articulable facts' which led them to believe that there might be someone else in the residence." Reasor v. State, 988 S.W.2d 877, 882 (Tex. App.--San Antonio, 1998). Additionally, the court of appeals concluded that the consent to search appellant's house was not voluntary under the totality of the circumstances. See id. at 881. As support for that conclusion, the court cited the facts that appellant was arrested at gunpoint, that he was handcuffed at the time he gave consent, and that police had already searched his vehicle and "swept" his house. The State filed a petition for discretionary review alleging that the court of appeals erred by holding the protective sweep was illegal and by holding the appellant's consent was fatally tainted. We granted review of the State's petition.

Analysis

In its first ground for review, the State asserts that the court of appeals erred in holding the "protective sweep" engaged in by the officers was illegal. Specifically, the State contends that the court of appeals failed to give proper deference to the trial court's findings and conclusions. As support for its argument, the State cites Maryland v. Buie, 494 U.S. 325 (1990), and United States v. Oguns, 921 F.2d 442 (2d Cir. 1990).

A "protective sweep" is a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Buie, 494 U.S. at 328. In Maryland v. Buie, the United States Supreme Court considered whether the Fourth Amendment would permit officers to conduct a protective sweep incident to an arrest. Id. at 329, 110 S.Ct. 1093. The defendant in Buie committed an armed robbery with an accomplice, and the police placed the defendant's house under surveillance. When the officers entered defendant's house with a warrant to arrest him, they located the defendant in the basement. The officers continued to search the basement "'in case there was someone else' down there." While in the basement, an officer found evidence linking defendant to the offense. See id. at 329. The trial court denied the defendant's motion to suppress because the officers did not know if anyone was in the basement, and the defendant was charged with a serious offense. The officers had no other way to know if the defendant had accomplices hiding in the basement.

The United States Supreme Court began its analysis with the basic premise that "the Fourth Amendment bars only unreasonable searches and seizures." Id. at 331. To determine whether a search is reasonable, the individual's Fourth Amendment privacy interest is balanced with the promotion of legitimate governmental interests. Under this balancing test, a search of a house is "generally not reasonable without a warrant issued on probable cause," but may nevertheless be permitted when a strong public interest exists for the search. Id.

The Buie Court concluded that the defendant had a legitimate privacy interest in the areas of his house searched after he was located. It also found, however, that the police officers had a strong interest in "taking steps to assure themselves that the house in which a suspect is being, or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id. at 333.3 The Supreme Court determined that a warrant was not required when officers were, as a precautionary matter, looking in areas from which an attack could be immediately launched. See id. at 334 (emphasis added).

Concluding that a protective sweep was reasonable under the Fourth Amendment, the Supreme Court set out the parameters under which a particular sweep was legal.

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 337. The sweep must not be a "full search of the premises." Id. at 335. Rather, it may only extend "to a cursory inspection of those spaces where a person may be found" and may only last long enough to "dispel the reasonable suspicion of danger." Id. Furthermore, the protective sweep is not an automatic right police possess when making an in-home arrest. It is permitted only when "justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336.

This Court has never addressed the legal parameters of a protective sweep.4 Therefore, we utilize the test articulated in Buie. When conducting an in-home arrest, a police officer may sweep the house only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. As the Supreme Court also concluded, this sweep must stay within the appropriate scope and may last long enough to "dispel the reasonable suspicion of danger."

Applying this standard to the instant case, this Court concludes that the protective sweep in appellant's home was illegal. In the hearing on the motion to suppress, Officer Bellino did not express his belief that any third persons were inside the appellant's home. Nor did Bellino once articulate his belief that a third person inside the home was attempting to jeopardize either his or the public's safety. In fact, Bellino specifically stated that he considered the appellant's driveway a safe place for both him, his fellow officers and the appellant. Since Bellino failed to express a single articulable fact necessitating a protective sweep, we conclude this sweep was illegal.5 The State's first ground for review is overruled.

In its second ground for review, the State contends that the court of appeals erred by holding that appellant's consent to search his apartment was fatally tainted. In the State's opinion, the evidence presented showed by clear and convincing evidence that appellant voluntarily consented to the search of his home. The State also asserts that the court of appeals failed to defer to the trial court's findings of fact and conclusion that the consent was voluntary.

Under the Fourth and Fourteenth Amendments, 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." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such established exception is a search conducted with the consent of...

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