Anna Pearce Cisneros v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00057-CR ______________________________ ANNA P. CISNEROS, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2003-1367                                                  Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss O P I N I O N             After Trooper Lloyd McKinney stopped Anna P. Cisneros for speeding along Interstate Highway 20 in Harrison County, he asked Cisneros for consent to search her vehicle, and she refused. After McKinney misrepresented to Cisneros that he did not need a warrant to search a car, she first told him there was nothing in the car and then told him to "go ahead." McKinney's warrantless search uncovered less than two ounces of marihuana, and Cisneros was charged with its possession. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003). The trial court overruled her motion to suppress the evidence.             On appeal, in response to Cisneros' contention that the trial court erred by overruling her motion to suppress, the State expressly limits its argument to the sole assertion that McKinney's search was lawful because Cisneros gave valid consent to the search. We review the trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court's determination of historical facts that depend on credibility, but reviewing de novo the trial court's application of the law. Burke v. State, 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref'd). We review de novo those questions not turning on credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Our review of probable cause concerning a warrantless search is reviewed de novo. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). We will affirm the trial court's ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990); Shaw v. State, 122 S.W.3d 358, 363 (Tex. App.—Texarkana 2003, no pet.).             The federal and state Constitutions both guarantee the right to be secure from unreasonable searches  and  seizures  made  without  probable  cause.  U.S.  Const.  amend.  IV;  Tex.  Const. art. I, § 9. Article 38.23(a) of the Texas Code of Criminal Procedure forbids any evidence obtained by an unreasonable search to be admitted against an accused. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). When a state official acts without a valid warrant and searches a citizen's private property, that search is per se unreasonable unless an exception to the Fourth Amendment's warrant requirement otherwise permits the search. Katz v. United States, 389 U.S. 347, 357 (1967); Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003).             We reverse because we find the evidence shows (1) Cisneros did not voluntarily consent to the search, and (2) McKinney lacked probable cause to search Cisneros' vehicle. 1. Cisneros Did Not Voluntarily Consent To Have Her Vehicle Searched             Consent to search is "one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause." Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)). But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion were applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.  Schneckloth, 412 U.S. at 228. The test for valid consent is whether it is voluntarily given. Id.; Carmouche, 10 S.W.3d at 331. [W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that [the State] demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.  Schneckloth, 412 U.S. at 248–49. To determine whether a defendant's will was overborne in a particular case, the reviewing court should assess "the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." Id. "The federal constitution requires the State to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the State to show by clear and convincing evidence that the consent was valid." Rayford, 125 S.W.3d at 528. We hold the State failed to show consent, judged by either standard.             In Bumper v. North Carolina, 391 U.S. 543, 546 (1968), four law enforcement officers appeared at an elderly widow's home and informed her that they had a warrant to search the home. After the widow allowed them to enter her home, the officers found a rifle, which was introduced into evidence at Bumper's rape trial. Id. The Court held the search violated the Constitution because the widow's consent had been given only after the official conducting the search asserted he had a warrant, which he, in fact, did not have. Id. The Court reasoned that once the officers had announced they had a search warrant, they were, in effect, telling the homeowner she could not lawfully resist the search. Id. Describing the impact of the officer's claim of a warrant on the widow's decision to grant consent, Justice Potter Stewart wrote, "This situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id. The Court then reversed Bumper's conviction.             In the case now on appeal, the following exchange between McKinney and Cisneros occurred during the traffic stop: McKinney:  Will you give me consent to search your vehicle?  Cisneros:      No, sir. I can't do that.  McKinney:  Why not?  Cisneros:      Cause my attorney told me don't ever let nobody [sic] search it without a warrant.  McKinney:  You don't need a search warrant for a vehicle, a car.  Cisneros:      No?  McKinney:  No.  Cisneros:      Oh. I didn't know that. Well, there's nothing there.  McKinney:  So will you give me consent to search?  Cisneros:      Yeah. Go ahead.              McKinney's statement to Cisneros—that he did not need a search warrant to be able to search a vehicle—would have been true only under limited conditions that are not present here. An officer may search a vehicle without a warrant (1) if there is probable cause to believe that a crime has been committed, (2) if there is probable cause to believe that contraband is located in the vehicle, and (3) "where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Blaylock v. State, 125 S.W.3d 702, 705 (Tex. App.—Texarkana 2003, pet. ref'd) (quoting Chambers v. Maroney, 399 U.S. 42, 48–49 (1970); and citing Amos v. State, 819 S.W.2d 156, 160–61 (Tex. Crim. App. 1991)). Nor does an officer need a warrant to search a vehicle if the operator voluntarily consents and that consent has not been coerced. State v. Hunter, 102 S.W.3d 306, 310 (Tex. App.—Fort Worth 2003, no pet.) (citing Florida v. Royer, 460 U.S. 491, 497–98 (1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995)). Yet McKinney's statement regarding his ability to search a vehicle without a warrant clearly suggested to Cisneros that he could search her vehicle regardless of any other considerations, in spite of Cisneros' previously expressed refusal to consent. And it is clear from the record before us that Cisneros would not have given consent absent McKinney's mischaracterization of the law.             In essence, McKinney's statement (if sanctioned by this Court), would, without more, allow the automobile exception to swallow the rule against unreasonable searches and seizures by allowing officers to suggest—falsely—that people lack the right to resist an automobile search. McKinney's statement is coercive, in much the same way as the assertion in Bumper was held by the United States Supreme Court to violate the defendant's constitutional rights. See Bumper, 391 U.S. at 546; see also Erdman v. State, 861 S.W.2d 890, 894 (Tex. Crim. App. 1993) (officer's misinformation asserted "considerable psychological pressure" on accused; refusal to suppress evidence was abuse of discretion). Accordingly, Cisneros' consent was coerced, and McKinney's search could not be justified on that basis.   2. There Was No Probable Cause To Search             Because we must affirm the trial court's ruling if it is correct on any ground applicable to the case, we next address whether probable cause existed to justify the search. We conclude it did not.             The "automobile exception" authorizes an officer to conduct a warrantless search of an automobile as long as the officer reasonably believes (1) there is probable cause to believe that a crime has been committed, (2) there is contraband located in the vehicle, and (3) "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Chambers, 399 U.S. at 48–49; Amos, 819 S.W.2d at 160–61. If the automobile exception authorizes an officer's search, the officer is permitted to search every part of the vehicle, as well as any contents therein, that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982); Blaylock, 125 S.W.3d at 705. In determining probable cause, courts must consider the totality of the circumstances. Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Although probable cause requires more than mere suspicion, it requires far less evidence than is needed to support a conviction or even a finding by a preponderance of the evidence. Middleton v. State, 125 S.W.3d 450, 457 (Tex. Crim. App. 2003). Instead, probable cause exists where officers have reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed. McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003).  Blaylock, 125 S.W.3d at 705; see also Devenpeck, 125 S.Ct. at 593. "The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime." Autry v. State, 21 S.W.3d 590, 592 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)).             Under the Texas Court of Criminal Appeals' interpretation of Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, the police must be able to articulate facts that support a reasonable suspicion that the suspect is engaging in, or is about to engage in, criminal activity. See Davis v. State, 947 S.W.2d 240, 242–44 (Tex. Crim. App. 1997). Such stops are generally referred to as "investigative detentions." "Additionally, Texas Courts recognize that investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances which justified the interference in the first place." Id. Moreover, the detention "must be temporary and last no longer than necessary to effectuate the purpose of the stop. The police may not carry out a full search of the person or his effects. Nor may they verify their suspicions by means that approach an arrest." Id. (quoting Collier v. State, 843 S.W.2d 176, 177 (Tex. App.—Houston [14th Dist] 1992, no pet.)); see also Florida v. Royer, 460 U.S. 491, 500 (1983). "[O]nce the reason for the stop has been satisfied, the stop may not be used as a 'fishing expedition for unrelated activity.'" Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41 (1996)).             "The propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly." Davis, 947 S.W.2d at 245 (quoting Perez v. State, 818 S.W.2d 512, 517 (Tex. App.—Houston [1st Dist.] 1991, no pet.)). In a traffic stop situation, the police may ask for identification, a valid driver's license, and proof of liability insurance. Davis, 947 S.W.2d at 245 n.6. Police may also check for outstanding warrants. Id. During the stop, however, an officer must use "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id.             In this case, the parties do not contest the reasonableness of the initial traffic stop, in that Cisneros was driving at seventy-nine miles per hour in a seventy-mile-per-hour zone. We therefore begin with the assumption that Cisneros' initial detention for speeding was reasonable. Under the authorities previously discussed, McKinney's detention of Cisneros "was required to be temporary and could last no longer than was necessary" to satisfy or dispel the officer's original suspicion of speeding and to conclude the stop. Id.             Therefore, we are to examine the totality of the circumstances known by McKinney during the legitimate traffic stop and determine whether these circumstances provided McKinney with probable cause to search the vehicle. While the evidence provides some suspicious circumstances, it  falls  short  of  the  probable  cause  necessary  to  justify  McKinney's  search,  regardless  of whether (1) McKinney's detention of Cisneros was justified only until he determined to issue Cisneros a warning ticket for excessive speed, or (2) detention was justified until the warning was actually issued some minutes later.             a. Passenger's "Sleep" and Avoidance             When McKinney initially approached the vehicle, he did so from the passenger's side. He noticed that the passenger had his seat in a reclining position and appeared to be asleep. This, however, made McKinney uneasy, because it has been his experience that people usually awaken or sit up when a vehicle stops. Moreover, McKinney later determined that the passenger was not asleep, yet the passenger had pretended to be asleep and still refused to make eye contact with McKinney once the passenger had "awakened." That certainly may trigger some suspicion, but it does not necessarily indicate the passenger's consciousness of some criminal guilt.             b. Cisneros' Nervousness             McKinney testified that, while awaiting completion of a check on Cisneros' and the passenger's driver's licenses and criminal histories, he observed Cisneros behaving nervously and fidgeting. According to McKinney, "She was moving back and forth, scratching, running her hand through her hair, looking at the vehicle, rubbing on the trunk of the vehicle. Things I had never experienced other drivers doing on a traffic stop." McKinney testified these behaviors were consistent with a state of heightened nervousness and suggested Cisneros was either planning to fight with, or flee from, the trooper. The videotape of the traffic stop—introduced into evidence by the State—shows Cisneros variously smoking a cigarette, leaning against a vehicle, standing, and sometimes pacing between her car and McKinney's. Her nervousness on the videotape—shown by running her fingers through her hair, some pacing around the rear of her vehicle, and smoking a cigarette during the six minutes she waited alone at the rear of her car while McKinney ran a check of her license—does not appear to be aberrational behavior for a woman who had been pulled over along the interstate and made to stand alone at the rear of her vehicle for a period of time, during which time she was stung by ants. Nervousness, alone—sometimes even combined with other factors—does not supply probable cause. See Hamel v. State, 582 S.W.2d 424, 426 (Tex. Crim. App. 1979).             c. Cisneros' Trip to Her Car             McKinney also testified he saw Cisneros later walk to the passenger-side window of her vehicle, say something to her passenger, and point toward the back seat before returning to stand at the rear of the vehicle. The suggestion is that such activity was a suspicious circumstance. While McKinney's account is true as far as it goes, the videotape reveals that Cisneros' trip to the side of her car and her pointing to the back seat was associated with her successful effort to get her shoes and put them on, after being stung by ants while on the side of the road.             d. "Conflicting" Stories             McKinney testified Cisneros and her passenger gave conflicting stories about the purpose of their travel and their intended destination. We have reviewed the record of these stories and do not detect any necessary conflict in them. Cisneros told McKinney she and her passenger were going to gamble at a Shreveport casino. Her passenger initially said they were going to Shreveport but he did not know where, then that he was just riding with her, but finally that they were going to gamble in Shreveport. While the passenger's answers could have evidenced evasiveness, they could also have come from normal, and innocent, imprecision in communication.             e. Passenger's Lack of Identification             McKinney also cited as suspicious his observation that, although the passenger claimed to be headed to Shreveport to gamble, he did not have any form of identification. McKinney stated it was his experience that the Shreveport casinos require gamblers to present identification before they were allowed access to the casino floor. We note the passenger's comment that he had never been to Shreveport to gamble. His lack of identification could have been because of his lack of experience with Shreveport casinos. And given that he appeared to be well into, if not above, his thirties, it is quite possible that he did not anticipate needing identification to gain acceptance into a casino.              f. Cisneros' and Passenger's Arrest Records             McKinney's suspicions were heightened after both Cisneros' and the passenger's criminal histories returned with recent drug and weapons arrests. Certainly, that provides proper fuel for suspicion.             Based on the facts, McKinney concluded he had probable cause to search the vehicle for drugs. He admitted on cross-examination, however, that he did not have probable cause to search the vehicle, but needed to rely on Cisneros' consent to justify the search.             From the totality of the circumstances, we hold McKinney's search was not based on probable cause, that is, he did not have articulable facts that, when taken together with rational inferences from such facts, "would warrant a person of prudence and caution in believing that an offense had been or is being committed." See McCallum v. State, 608 S.W.2d 222, 223 (Tex. Crim. App. 1980). McKinney had no articulable facts available to him—before concluding the traffic stop for speeding and issuing a warning ticket, nor even after his subsequent, prolonged questioning of Cisneros—that indicated Cisneros or her passenger was engaged in criminal conduct. See Davis, 947 S.W.2d at 245–46; McQuarters v. State, 58 S.W.3d 250, 256–58 (Tex. App.—Fort Worth 2001, pet. ref'd). Consequently, the trial court erred by admitting the fruit of that search.             To prevail, Cisneros must also show harm. See Tex. R. App. P. 44.2; Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981); Jeffley v. State, 38 S.W.3d 847, 858 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). The harm is obvious, in that the marihuana which Cisneros is charged with possessing, and which should have been suppressed, is key evidence in the State's case against her. Conclusion             Viewing the evidence in the light most favorable to the trial court's ruling, the record shows Cisneros' consent was effectively coerced by McKinney's misinformation, and there was no probable cause to search. Because the contraband discovered by the resulting search should have been suppressed, and failure to do so was harmful, we reverse the judgment and remand this case to the trial court for further proceedings in accordance with this opinion. See Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005).                                                                                     Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          December 7, 2004 Date Decided:             May 25, 2005 Publish 03, 404(b); see also Montgomery, 810 S.W.2d at 389–90 (describing factors to consider when balancing under Rule 403).            The exceptions listed in Rule 404(b) are an “illustrative, not exhaustive, list of exceptions.” Daggett v. State, 187 S.W.3d 444, 451 n.13 (Tex. Crim. App. 2005). Whether Barton’s testimony was relevant and admissible under the Rule 403 balancing test is within the zone of reasonable disagreement. Therefore, the trial court did not abuse its discretion in admitting Barton’s testimony.            Even if the trial court erred in admitting the challenged testimony, the error would be harmless. Error in admitting evidence concerning extraneous offenses is reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure.  Casey, 215 S.W.3d at 885; see Tex. R. App. P. 44.2(b) (an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s “substantial rights”).  A criminal conviction will not be reversed for nonconstitutional error if the appellate court, after examining the record as a whole, “has fair assurance that the error did not influence the jury, or had but a slight effect.”  Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The State placed extremely little emphasis on Barton’s testimony that he had previously seen Snyder intoxicated. During its closing argument, the State emphasized Barton’s observations that Snyder smelled of alcohol.[4] In addition, Trooper Bryant’s testimony provided ample evidence that Snyder was intoxicated on the occasion in question. Because Barton’s testimony, consisting of approximately one page of the reporter’s record, was not emphasized by the State, we have a fair assurance that the challenged testimony did not influence the jury or had but a slight effect. We overrule Snyder’s sole issue.                         For the reasons stated, we affirm.                                                                                      Josh R. Morriss, III                                                                                    Chief Justice  Date Submitted:         December 27, 2010 Date Decided:            December 29, 2010  Do Not Publish [1]A jury found Snyder guilty, Snyder pled true to two previous felonies as sentence enhancements, and the jury assessed punishment at life imprisonment. The trial court sentenced Snyder consistent with the jury’s assessment. [2]Snyder complains about the trial court not holding a formal hearing. But a trial court “does not have to conduct a formal hearing or even announce on the record that it has mentally conducted this balancing test.” Crivello v. State, 4 S.W.3d 792, 797 (Tex. App.—Texarkana 1999, no pet.). [3]Unfair prejudice does not arise from the mere fact that evidence injures a party’s case.  Unfair prejudice may result from the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). [4]Barton testified he and his girlfriend arrived at Snyder’s house while the state trooper was still present. Barton admitted he smelled alcohol on Snyder.Â