State v. Weaver

• Decision Date: 28 September 2011
• Docket Number: No. PD–1635–10.,PD–1635–10.
• Parties: The STATE of Texasv.Roy Andrew WEAVER, Appellee.
• Court: Texas Court of Criminal Appeals

349 S.W.3d 521

The STATE of Texas

v.Roy Andrew WEAVER, Appellee.

No. PD–1635–10.

Court of Criminal Appeals of Texas.

Sept. 28, 2011.

James Stafford, Houston, for Appellant.Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

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

Four police officers came to Mr. Weaver's welding shop looking for a person wanted in another county. Mr. Weaver gave the officers consent to search for that person. The officers, over Mr. Weaver's objection, ended up searching a van on his property and finding drugs in it. The trial judge granted Mr. Weaver's motion to suppress because he found that the search of the van exceeded the scope of Mr. Weaver's consent. The court of appeals, over a dissent, affirmed. We granted review in light of the justices' disagreement. Because we agree that the resolution of this case turns on the scope of Mr. Weaver's consent, we affirm the judgment of the trial court and that of the court of appeals.

I.

Roy Andrew Weaver owned a welding shop in Polk County.¹ There was a front office and a workshop in the rear. At the back on one side of the workshop was an open bay door with a van backed into it. Also parked in the back yard were several “broken down” vehicles, a boat, and “some other items.” One day, while the shop was open, four Polk County narcotics officers came looking for Jerry Barksdale (“Bear”), who worked or “hung out” at the shop. Bear was wanted in another county for organized crime. When the officers arrived, they saw Bear's car parked out in front of the shop. The officers asked Mr. Weaver if they “could look around for the guy,” and he gave them “consent to look for him.”

The officers looked around for about ten minutes, but Bear was not at the shop nor inside the van that was backed up in the workshop bay door. Nonetheless, because the narcotics officers had received information “that there was also methamphetamine being used and distributed from the business,” they lingered in the shop.

Sergeant Smith “just began talking to Mr. Weaver. We were standing just inside the shop. I asked him if he had any illegal guns, knives, narcotics, anything like that. He advised no. He—well, he did tell me he had some guns inside the office.” Mr. Weaver showed Sgt. Smith the licensed guns in his office. After they came out of the office, Sgt. Smith then asked “who the van belonged to.” Mr. Weaver said that it was his dad's van but that he drove it. When Sgt. Smith asked if he could search the van, Mr. Weaver refused consent.

As soon as Mr. Weaver refused consent, Sgt. Smith told Lieutenant Lowrie to retrieve his drug-dog from the patrol car and run the dog around the van parked in the bay door of the workshop. The dog showed “odor response” to the passenger door. The van was searched, and a tin box that contained glass pipes and some methamphetamine was found on the floorboard between the door and the passenger's seat. Mr. Weaver was arrested and charged with possession of methamphetamine. He filed a motion to suppress which the trial judge, after hearing testimony from Sgt. Smith and Lt. Lowrie, granted. The judge entered findings of fact, including the following:

3. The defendant gave the officers permission to search his shop for Barksdale....

4. A van was located beside the defendant's shop on property owned by the defendant. Officers looked through the van windows and did not see Barksdale or any contraband.

...

6. The officers asked the defendant for permission to search the van. The defendant refused permission and the officers used a drug canine to walk outside of the van.

Based upon his factual findings, the trial judge concluded,

The officers exceeded the scope of their search after they did not find Barksdale and they did not have enough cause to conduct the canine search on the van which they did not see being operated.

The State appealed, arguing that the officers and Mr. Weaver had a consensual interaction that never became a detention until the canine alert provided probable cause to arrest Mr. Weaver. Mr. Weaver responded that the consensual encounter became an unlawful detention before the dog sniff. The court of appeals affirmed the trial court's ruling and held,

In this case, the evidence shows that when the officers' search for “Bear” ended, they had not observed anything suspicious. Because the trial judge could have determined that Weaver's consent to search for “Bear” had ended, the trial court could reasonably find that the officers, without establishing probable cause, were not entitled to search for other purposes unrelated to that of their initial search. Under the facts of this case, we conclude the trial court did not abuse its discretion in granting Weaver's motion to suppress. The trial court's ruling is affirmed.²

Justice Gaultney dissented. He framed the issue as “whether the canine sniff of the exterior of the van while the officers were talking with Weaver was an impermissible ‘search’ for Fourth Amendment purposes.” ³ He concluded, “In this case the officers were on the business premises legally with the consent of the owner. They had not been asked to leave. Although the owner refused consent to a search of the van, the canine sniff of the exterior of the van, made while officers were questioning Weaver, was not a ‘search’ for Fourth Amendment purposes.” ⁴

The State Prosecuting Attorney (SPA) filed a petition for discretionary review, asking: “May police conduct a dog sniff of the exterior of an unoccupied vehicle in the parking lot of a business without the permission of the owner of the business?” We granted review in light of the justices' disagreement on a material question of law.⁵

II.

A. Standard of Review.

When reviewing the ruling on a suppression motion, the trial judge's determination of facts—if supported by the record—is afforded almost total deference.⁶ Regardless of whether the judge granted or denied the motion, appellate courts view the evidence in the light most favorable to the trial judge's ruling.⁷ The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.⁸ We review a trial court's application of the law of search and seizure to the facts de novo. ⁹ “We will sustain the trial judge's ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’ ” ¹⁰

B. The Scope of Consent Under the Fourth Amendment.

The Fourth Amendment protects individuals against unreasonable searches and seizures.¹¹ Reasonableness is the touchstone of the Fourth Amendment.¹² And, “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” ¹³ The Supreme Court has “long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” ¹⁴ Although consent must be positive, it may be given orally or by action, or it may be shown by circumstantial evidence.¹⁵ The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances.¹⁶ Under Texas law, the State must prove voluntary consent by clear and convincing evidence.¹⁷

The scope of a search is usually defined by its expressed object.¹⁸ A person is free to limit the scope of the consent that he gives.¹⁹ If police rely on consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” ²⁰ It is therefore “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” ²¹ On the other hand, a person's silence in the face of an officer's further actions may imply consent to that further action.²² The “standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” ²³ Therefore, a court reviewing the totality of the circumstances of a particular police-citizen interaction does so without regard for the subjective thoughts or intents of either the officer or the citizen.²⁴ Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.” ²⁵

C. Business and Commercial Premises are Protected Areas.

The occupant of a business establishment enjoys the same constitutional right to be free from unreasonable searches as does the occupant of a private residence.²⁶ But “business and commercial premises are not as private as residential premises,” and “consequently there are various police investigative procedures which may be directed at such premises without the police conduct constituting a Fourth Amendment search.” ²⁷ Police, although motivated by an investigative purpose, are as free as the general public to enter premises “open to the public,” when they are open to the public.²⁸ Officers are then entitled to note objects in plain view,²⁹ or examine merchandise as a customer would.³⁰ For “actions not to constitute a Fourth Amendment search, the officer must remain in that portion of the premises which is open to the public.” ³¹

III.

The SPA asserts that the motion to suppress was granted based on incorrect conclusions of law rather than any fact-findings that were unfavorable to the State. These conclusions were incorrect, argues the SPA, because 1) the officers did not need permission to be in “the parking lot” when they initiated the dog sniff; 2) neither Mr. Weaver nor the van were seized in order...