Whisenhunt v. State

• Decision Date: 29 August 2003
• Docket Number: No. 01-02-00660-CR.,01-02-00660-CR.
• Citation: 122 S.W.3d 295
• Parties: Joey Kirk WHISENHUNT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

122 S.W.3d 295

Joey Kirk WHISENHUNT, Appellant, v. The STATE of Texas, Appellee.

No. 01-02-00660-CR.

Court of Appeals of Texas, Houston (1st Dist.).

August 29, 2003.

Rehearing Overruled October 17, 2003.

Travis B. Bryan, III, Bryan, Stacy & Dillard, L.L.P., Bryan, for Appellant.

Craig M. Greaves, Bryan, Stacy & Dillard, L.L.P., Bryan, for appellee.

Panel consists of Justices HEDGES, TERRY JENNINGS, and ELSA ALCALA.

OPINION

ELSA ALCALA, Justice.

Appellant, Joey Kirk Whisenhunt, was charged with the offense of possession of marihuana in an amount less than two ounces. After a hearing at which appellant's motion to suppress evidence was denied, appellant pleaded guilty to the offense, and, in accordance with a plea agreement, the trial court placed appellant on two years' probation and imposed a $1,500 fine.

In five points of error, appellant contends that the trial court erred in denying his motion to suppress evidence because the search of his private bedroom and the seizure of marihuana located therein violated his right to be free from unreasonable searches and seizures.¹ We affirm.

Background

While appellant was out of town, his trailer home was burglarized. His roommate, Bradley Wunderlich, reported the burglary of the trailer to the Bryan Police Department, and Officer Garland Davis was dispatched to the scene. Wunderlich invited Davis into the trailer, told him that the trailer had been burglarized, and consented to Wunderlich's processing of the trailer for evidence of the burglary, including the lifting of possible fingerprints.

Davis was "shown around" the trailer by Wunderlich and observed that the trailer home had been ransacked. Wunderlich gave Davis an inventory of what was missing from his bedroom and what he thought was missing from the living room. Wunderlich did not know what, if anything, was missing from appellant's bedroom. Wunderlich told Davis that appellant owned the trailer and was out of town on a hunting trip.

Davis dusted for fingerprints in the living room, in Wunderlich's bedroom, and in appellant's bedroom. According to Davis, appellant's bedroom door was not locked, but he could not recall if the door was opened or closed when he entered the room.

Davis observed that appellant's bedroom had also been burglarized and ransacked. Appellant's computer table had been pulled away from the wall, the computer terminal was turned around, drawers had been pulled open, and boxes were pulled from inside the closet. Davis noticed a jewelry box on appellant's nightstand with an open lid "as if someone had rummaged through the box" and dusted it for fingerprints. While lifting the upper tray of the jewelry box to determine whether the items in the box were still in place or had been stolen, Davis discovered marihuana in the bottom of the box. Beneath the marihuana was a document bearing appellant's name. Davis seized the marihuana and told Wunderlich that marihuana was found in appellant's bedroom.

At the motion to suppress hearing, Davis testified that he believed that Wunderlich's permission to process the trailer included permission to process appellant's bedroom. Davis stated that he did not know whether appellant used the bedroom exclusively or whether appellant had given Wunderlich prior consent to use appellant's bedroom or the personal belongings in the bedroom. Davis acknowledged that he did not have a warrant to search appellant's bedroom, but stated that he did not believe one was necessary because he was inside the trailer at Wunderlich's invitation and was processing the bedroom as part of the overall scene of a burglary in which appellant was a victim and not a suspect. Davis said that his sole purpose in entering appellant's bedroom was to process for fingerprints while conducting an investigation of the burglary.

Appellant testified that he rents a bedroom to Wunderlich pursuant to an oral lease agreement. Appellant admitted that the marihuana was his, but testified that he did not give his roommate or Officer Davis permission to enter his room to search for evidence of the burglary.

Discussion

In five points of error, appellant contends that the trial court erred in denying his motion to suppress the marihuana found in his bedroom. In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court may accept or reject all or any part of a witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980). In reviewing the trial court's ruling on a motion to suppress, an appellate court does not engage in its own factual review and determines only whether the record supports the trial court's fact findings. Romero, 800 S.W.2d at 543. If the trial court's fact findings are supported by the record, an appellate court may not disturb the findings unless the trial court abused its discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex.Crim.App.1991). On appellate review, we address only the question whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.

In denying appellant's motion to suppress, the trial court found that, although Davis conducted a warrantless search of appellant's bedroom, his search was reasonable because (1) Wunderlich had "apparent authority" to authorize a search of appellant's bedroom, (2) appellant "impliedly consented" to the search, and (3) Davis reasonably conducted a criminal investigation at the scene of a crime. Because we find that Davis conducted his search pursuant to Wunderlich's apparent authority to consent to the search, we will affirm the judgment of the trial court.

Apparent Authority

Under the Fourth Amendment, all warrantless searches inside a home are unreasonable per se unless the State proves that the particular search falls within a recognized exception to the constitutional requirement for a warrant. United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). A warrantless search by law enforcement officers does not violate the Fourth Amendment's guarantee against unreasonable searches and seizures if the officers have obtained the consent of a third party who possesses common authority over the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). "Common authority" rests on "mutual use of property by persons generally having joint access or control for most purposes." Id., 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7. A third party who has equal control over and equal use of the premises being searched may properly consent to a search of those premises. Becknell v. State, 720 S.W.2d 526, 528 (Tex.Crim.App.1986).

When the facts do not support a finding of actual authority, a search maybe reasonable if the consent-giver apparently has authority. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). In Rodriguez, the Supreme Court adopted the apparent-authority doctrine, holding that a warrantless search of a person's premises by law enforcement officers does not violate the Fourth Amendment when the search is based upon the consent of a third party whom the officers reasonably believe at the time of the search to possess common authority over the premises, but who in fact does not possess such authority. Id., 497 U.S. at 186-89, 110 S.Ct. at 2800-01. As the Supreme Court stated, a third party's consent is valid if "the facts available to the officer at the moment [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the premises." Id., 497 U.S. at 188, 110 S.Ct. at 2801. The State has the burden to prove apparent authority. Id., 497 U.S. at 181, 110 S.Ct. at 2797. The burden is not met if law enforcement officers faced with an ambiguous situation nevertheless proceed without making further inquiry. Id., 497 U.S. at 186-89, 110 S.Ct. at 2800-01. If the officers do not learn enough and if the circumstances fail to clarify whether the property is subject to common authority by the consent-giver, then the warrantless search is unlawful. Id.

In overruling appellant's motion to suppress, the trial court concluded that it was reasonable for Davis to believe that Wunderlich's authority to consent to the fingerprinting and processing of the common areas of the trailer extended beyond those areas and into appellant's bedroom. We conclude that the trial court did not abuse its discretion in determining that Davis reasonably believed that Wunderlich had apparent authority to give consent to enter appellant's bedroom.

The trial court focused on the reasonableness of Davis's and Wunderlich's actions. Wunderlich led Davis to appellant's bedroom. As Davis testified, "Mr. Wunderlich pointed me toward his roommate's bedroom, advised me that it appeared that things were askew, things were not left the way he normally leaves his room. That's what prompted me to go toward his bedroom and investigate." The record reflects that Wunderlich did not give Davis separate consent to enter appellant's bedroom apart from the consent for the remainder of the trailer. Wunderlich did, however, lead the officer to appellant's room. Given that conduct, it was reasonable for the officer to conclude that the consent for the trailer included appellant's room.

According to Davis, Wunderlich consented to his entering the trailer, consented to the processing of the trailer, and made no restrictions on either consent. As the trial court noted, "... it was clear and obvious to Officer Davis that the Defendant's bedroom had been ransacked and was, therefore, part of an overall crime scene." Not only did Wunderlich give consent to have Officer Davis enter and process the trailer, the record further reflects that...