Hutchins, Reginald

PD-1307-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/3/2015 2:40:32 PM Accepted 11/5/2015 1:40:06 PM ABEL ACOSTA NO. PD-1307-15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

REGINALD HUTCHINS Appellant

v.

THE STATE OF TEXAS Appellee

NO. 01-14-00333-CR COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

On Appeal from Cause Number 1388778 From the 230th District Court of Harris County, Texas

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TONYA ROLLAND MCLAUGHLIN TBN 24054176 4301 Yoakum Boulevard November 5, 2015 Houston, Texas 77006 Phone: (713) 529-8500 tonya@rollandlaw.com

Counsel for Appellant

ORAL ARGUMENT RESPECTFULLY REQUEST

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Reginald Hutchins TDC# 01921311 3295 FM 3514 Beaumont, Texas 77705

TRIAL PROSECUTORS: Kristina Daily Lisa Calligan Assistant District Attorneys Harris County, Texas 1201 Franklin Avenue Houston, Texas 77002

DEFENSE COUNSEL AT HEARING: Thomas Lewis 1602 Washington Avenue Houston, Texas 77007

COUNSEL ON APPEAL FOR APPELLANT: Tonya Rolland McLaughlin 4301 Yoakum Boulevard Houston, Texas 77006

PRESIDING JUDGE: Hon. Brad Hart 230th District Court Harris County, Texas 1201 Franklin Avenue, 16th floor Houston, Texas 77002

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................... 2 INDEX OF AUTHORITIES ................................................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 5

STATEMENT OF THE CASE ............................................................................................. 6 STATEMENT OF PROCEDURAL HISTORY................................................................ 6 GROUND FOR REVIEW ..................................................................................................... 7

THE FIRST COURT OF APPEALS, IN A 2-1 DECISION, ERRED IN AFFIRMING THE DENIAL OF APPELLANT’S MOTION TO SUPPRESS BECAUSE THE HOLDING WAS ONLY BASED ON OFFICER TESTIMONY THAT APPELLANT GAVE VERBAL CONSENT TO SEARCH AND DID NOT CONSIDER THE TOTALITY OF THE CIRCUMSTANCES.

ARGUMENT ............................................................................................................................ 7 BACKGROUND. ............................................................................................................ 7

ANALYSIS. ..................................................................................................................... 8 PRAYER...................................................................................................................................10 CERTIFICATE OF SERVICE ............................................................................................10 CERTIFICATE OF COMPLIANCE .................................................................................11 APPENDIX .............................................................................................................................12

INDEX OF AUTHORITIES

Cases Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792 (1968) ...................................8

Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered Sept. 3, 2015).. ................................................................................................................ 6, 7, 9

Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). ..................................................8 Constitutional Provisions, Statutes and Rules Tex. R. App. Proc. 9.4(e)(i)....................................................................................................... 11 Tex. R. App. Proc. 9.4(i)(3). ..................................................................................................... 11 Tex. R. App. Proc. 9.4(j). .......................................................................................................... 10 TEX. R. APP. PROC. 66 .................................................................................................................6

STATEMENT REGARDING ORAL ARGUMENT

Appellant request oral argument in this matter because he has raised important questions regarding verbal consent to search in this Court and believes that oral argument would help clarify the issue presented in his petition for discretionary review. Therefore he respectfully requests oral argument. *6 TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

Now comes, Reginald Hutchins Appellant in this cause, by and through his attorney of record, Tonya Rolland McLaughlin, and, pursuant to the provisions of Tex. R. App. Pro. 66, et seq., moves this Court to grand discretionary review, and in support will show as follows:

STATEMENT OF THE CASE

Appellant was charged with possession of a controlled substance with intent to deliver. (CR at 103). He filed a motion to suppress the evidence. (CR at 23). The trial court denied the motion to suppress. (CR at 116 and RR at 21). Appellant entered a plea of guilty in a plea bargain agreement for five (5) years in the Institutional Division of the Texas Department of Corrections. (CR at 126). He timely perfected his appeal (CR at 129).

STATEMENT OF PROCEDURAL HISTORY

Appellant’s brief was filed on November 7, 2014, and his reply to the state’s brief was filed on March 2, 2015. The First Court of Appeals affirmed the conviction in an opinion designated for publication. Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered Sept. 3, 2015). This petition is due to be filed November 4, 2015, and it is therefore timely filed.

GROUND FOR REVIEW

THE FIRST COURT OF APPEALS, IN A 2-1 DECISION, ERRED IN AFFIRMING THE DENIAL OF APPELLANT’S MOTION TO SUPPRESS BECAUSE THE HOLDING WAS ONLY BASED ON OFFICER TESTIMONY THAT APPELLANT GAVE VERBAL CONSENT TO SEARCH AND DID NOT CONSIDER THE TOTALITY OF THE CIRCUMSTANCES.

HUTCHINS V. STATE, _S.W.3D _, (TEX. APP. NO. 01-14-00-333-CR – HOUSTON [1ST DIST.], DELIVERED SEPT. 3, 2015).

ARGUMENT

BACKGROUND

Officer Smith testified at Appellant’s motion to suppress the evidence hearing that he saw Appellant’s vehicle exiting and he was not violating any laws at that time. (RR at 7). But he proceeded to follow Appellant for about half a mile before conducting a traffic stop for speeding 5 miles over the 35 mile per hour limit. (RR at 9). Officer Smith stated he approached the vehicle and observed pill bottles in plain view and Appellant said the unexpired prescriptions belonged to him. (RR at 6). According to the officer, Appellant then gave verbal consent to search the vehicle. (RR at 6). Appellant was not given verbal warnings that he had a right to decline the search or asked to sign a written consent form, although the officer routinely carries written consent to search forms in his patrol vehicle. (RR at 10). In contrast, Appellant testified he was not speeding when pulled over and Officer Smith handcuffed him and placed him in the backseat of the patrol car after telling *8 Appellant he was going to search the vehicle. (RR at 14-15). Officer Smith then proceeded to search the trunk of Appellant’s vehicle. (RR at 16).

ANALYSIS

The State carries the burden of proving consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792 (1968). In Texas, the State must prove voluntariness by clear and convincing evidence. Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). When reviewing voluntariness of consent, appellate courts must use a totality of the circumstances approach and consider numerous factors. (Id.). Relevant factors include whether Appellant was in custody, whether Appellant was warned that he had the option to refuse consent, the reaction of Appellant to pressure, and any other factor deemed relevant. Flores v. State 172 S.W.3d 742, 749 (Tex. App. – Houston [14th Dist.] 2005, no pet.).

In Appellant’s case, the record provides no support for the Court of Appeals to affirm the Trial Court’s finding that Appellant consented to search of his vehicle other than Officer Smith merely testifying, “I asked for consent to search his vehicle… he gave me verbal consent” and the findings of fact stating “any possible conflict in Officer Smith’s testimony was resolved in favor of seizure of the evidence based upon his credibility and demeanor.” (RR at 6; CR Supp. at 4–5). The Court of Appeals did not consider Appellant was not apprised of his right to refuse the search and that the officer made no attempt to obtain written consent in spite of the fact that he had *9 waiver forms in his patrol car. (RR at 10–11). They did not consider that Appellant testified he was handcuffed and in the back of the patrol car when Officer Smith decided to search without his consent. (RR at 14). Instead, the Court of Appeals held Appellant validly consented to the search because it was supported in the record by the officer’s unequivocal testimony that Appellant gave verbal consent to search. (op. pg. 10). Thus departing from the totality of the circumstances review and relying solely on the credibility of the officer’s testimony regarding the verbal consent.

Justice Keyes, in her dissent, points out that “affirming the trial court’s ruling presents an irresistible incentive for the police to conduct a full warrantless search of any vehicle they choose to pull over for a minor traffic infraction… upon the mere testimony of an officer that the defendant gave verbal consent to search.” Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered Sept. 3, 2015) (Keyes, E., dissenting). The Court of Appeals is setting a dangerous precedent in this case that could potentially affect all Texas drivers. It is important for this Court to clarify that the totality of the circumstances should be considered by reviewing courts in consent to search cases and that includes whether appellant signed an available waiver form or was admonished of the right to refuse consent.

PRAYER FOR RELIEF

Wherefore, Premises Considered, Appellant respectfully prays that this Court grant discretionary review and, after full briefing on the merits, issue an opinion reversing the Court of Appeals’ judgment and remanding the cause to the trial court.

Respectfully submitted,

_s/Tonya Rolland McLaughlin Tonya Rolland McLaughlin 4301 Yoakum Boulevard Houston Texas 77006 Phone: (713) 529-8500 Fax: (713) 453-2203 TBN 24054176

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Petition for Discretionary Review was e- served to Alan Curry (curry_alan@dao.hctx.net) and to the State Prosecuting Attorney (information@spa.tx.gov).

_s/Tonya Rolland McLaughlin Tonya Rolland McLaughlin

CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief complies with the type volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. This brief contains 1,557 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text.

3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court’s striking this brief and imposing sanctions against the person who signed it.

_s/Tonya Rolland McLaughlin Tonya Rolland McLaughlin

APPENDIX

Hutchins v. State, _ S.W.3d _, (Tex. App. No. 01-14-00333-CR -- Houston [1st Dist.], delivered Sept. 3, 2015).

No Shepard’s Signal™ As of: November 3, 2015 1:12 PM EST

Hutchins v. State Court of Appeals of Texas, First District, Houston September 3, 2015, Opinion Issued NO. 01-14-00333-CR

Reporter 2015 Tex. App. LEXIS 9430

REGINALD HUTCHINS, Appellant v. THE STATE OF HEALTH & SAFETY CODE §§ 481.104(a)(4), 481.117(a), (e). He TEXAS, Appellee filed a motion to suppress evidence found during a search of his car, which the trial court denied. Pursuant to a plea Prior History: [*1] On Appeal from the 230th District agreement, Hutchins pleaded guilty to the charged offense Court, Harris County, Texas. Trial Court Case No. 1388778. and was sentenced to five years in prison. The trial court found that the search in this case was Case Summary lawfully conducted on the basis of consent. In this appeal, Hutchins contends that the evidence of consent to the search Overview was conclusory and insufficient to support the court’s findings. The validity of a consent to search is a factual HOLDINGS: [1]-In contrast to the officer’s testimony, determination to be made by the trial court, not a legal defendant asserted on direct examination that he never gave determination that we review de novo. Because the record consent to search his car, and he denied that the officer supports the trial court’s finding, we affirm. showed him anything in writing indicating that he had the right to decline to give consent and denied being asked for Background verbal consent to search; [2]-The validity of defendant’s consent was a factual determination that turned on witness While driving his patrol car, Houston Police Officer Leonard credibility, not on an application of the law to the facts; Smith saw Reginald Hutchins’s car exiting the freeway. [3]-The officer gave unequivocal testimony that defendant Officer Smith followed Hutchins and subsequently stopped gave verbal consent to the search. him for driving [*2] 40 miles per hour in a 35 mile-per-hour zone. As he approached the car, the officer saw several pill Outcome bottles in plain view. Hutchins claimed that the pills were his and gave ″verbal consent″ to search the car. According Judgment affirmed. to the officer, Hutchins was not under arrest at this time. Hutchins was not given verbal warnings that he had the Counsel: FOR APPELLANT: Tonya Rolland McLaughlin, right to decline the search, nor was he asked to sign a Houston, TX. written consent form. Officer Smith testified to the foregoing version of events at FOR STATE: Devon Anderson, District Attorney; Joe a hearing on a motion to suppress evidence obtained as a Bramanti, Assistant District Attorney, Houston, TX. result of the search. Hutchins also testified at the suppression hearing, and he offered a different version of events. He Judges: Panel consists of Justices Keyes, Bland, and testified that he was not going over 35 miles per hour Massengale. Justice Keyes, dissenting. because he had just pulled away from a traffic light. Hutchins testified that the officer took his driver’s license Opinion by: Michael Massengale and went back to his patrol car. Then the officer returned, asked him to step out of the vehicle, handcuffed him, and Opinion placed him in the back seat of the patrol car. When asked whether the officer asked him for verbal consent to search, Appellant Reginald Hutchins was charged with possession and whether he in fact gave consent to search, Hutchins with intent to deliver a controlled substance. See TEX. responded ″No, sir.″

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The officer searched the trunk and wheel well of the car and 1985) (citing Bumper v. North Carolina, 391 U.S. 543, 548, found [*3] hydrocodone, which became the basis of 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968)). In Texas, the Hutchins’s conviction. The pills that the officer originally State carries the burden to establish a valid consent to search saw in plain view were later determined to be lawfully by ″clear and convincing″ evidence. Meekins, 340 S.W.3d at prescribed to Hutchins. 459. ″The burden requires the prosecution to show the consent given was positive and unequivocal and there must The motion to suppress was denied. At Hutchins’s request, not be duress or coercion, actual or implied.″ Meeks, 692 the trial court issued findings of fact and conclusions of law. S.W.2d at 509; see also Brown v. State, 212 S.W.3d 851, 869 The court found that ″Officer Smith asked [Hutchins] if he (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). could search his vehicle,″ and that he ″freely and voluntarily ″The validity of a consent to search is a question of fact to gave verbal consent to search his vehicle.″ As part of a plea be determined from all [*5] the circumstances.″ Meekins, bargain with the State, Hutchins pleaded guilty to the 340 S.W.3d at 458 (citing Schneckloth, 412 U.S. at 226-27, charged offense in exchange for a recommended punishment 93 S. Ct. at 2047). Resolving a question about the of five years in prison. The trial court entered a judgment voluntariness of a consent requires the trial court to ″conduct sentencing Hutchins to the recommended five years in a careful sifting and balancing of the unique facts and prison, and this appeal followed. circumstances of each case.″ Id. at 459. In doing so, courts consider various factors, including: whether the consenting Analysis person was in custody, whether the person was arrested at In his sole issue, Hutchins argues that the record does not gunpoint, the constitutional advice given to the person, the support the court’s findings that he consented to the search length of the detention, the repetitiveness of the questioning, of his car and that this consent was given freely and and the use of physical punishment. See Flores v. State, 172 voluntarily. Therefore, Hutchins contends, the trial court S.W.3d 742, 749-50 (Tex. App.—Houston [14th Dist.] 2005, erred by denying his motion to suppress evidence found in no pet.). Because voluntariness is a fact-intensive the trunk and wheel well of the car. determination, the trial court’s finding must be accepted on appeal unless it is clearly erroneous. Meekins, 340 S.W.3d at When reviewing a trial court’s ruling on a motion to 460. suppress, we review the evidence ″in the light most favorable The Court of Criminal Appeals has explained that the to the [*4] trial court’s ruling.″ State v. Kelly, 204 S.W.3d clear-and-convincing-evidence standard ″deals with the 808, 818 (Tex. Crim. App. 2006). When a trial court makes quantity and quality of evidence to establish that a person explicit findings of fact, we must determine whether the did, in fact, consent to a search.″ Id. at 459 n.24. It does not evidence supports these fact findings. Id. We afford ″almost concern the ″separate, but not legally determinative, issue of total deference″ to a trial judge’s determination of the ’how’ a person consented—clearly, convincingly, positively, historical facts that the record supports. State v. Garcia— unequivocally, and so forth.″ Id. Even ″[m]ere acquiescence″ Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). Next, may support a finding of consent. Id. at 463-64 (quoting we review the trial court’s legal ruling de novo unless the Kelly, 204 S.W.3d at 820-21). To ensure that the correct court’s explicit factual findings that are supported by the legal issue is addressed, the Court of Criminal Appeals has record are also dispositive of the legal ruling. Kelly, 204 [*6] instructed that we frame the issue as: ″Could a rational S.W.3d at 818. trier of fact conclude, by clear and convincing evidence (less than beyond a reasonable doubt), based upon all of the A search conducted without a warrant based on probable facts and logical inferences that can be drawn from those cause is per se unreasonable, ″subject to only a few facts, and in the light most favorable to the prosecution, that specifically established and well-delineated exceptions.″ [the appellant] voluntarily consented to the search?″ Id. at Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 459 n.24 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 2041, 2043, 36 L. Ed. 2d 854 (1973); Meekins v. State, 340 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). S.W.3d 454, 458 (Tex. Crim. App. 2011). One exception is a search conducted with a person’s voluntary consent. Meek- In this case, the evidence adduced regarding the validity of ins, 340 S.W.3d at 458. consent consists of the testimony of Officer Smith and Hutchins. On direct examination, the prosecutor asked the Before a consent to search is deemed effective, the State police officer about receiving consent to search the vehicle, must prove that the consent was freely and voluntarily as well as whether the officer provided Hutchins with a given. Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. written form or verbal warnings:

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Prosecutor: Officer Smith, you mentioned that you Officer: I had already asked him [*8] for consent and he approached the defendant and . . . saw the bottles in gave consent. plain view. What happened after that? In contrast to the officer’s testimony, Hutchins asserted on Officer: I asked him to step out of the vehicle and I also direct examination that he never gave consent to search his requested consent to search his vehicle. car. He denied that the officer showed him anything in Prosecutor: And at what point did you request his writing that indicated he had the right to decline to give consent to search? Was he still in the vehicle at that consent. He denied being asked for verbal consent to search. time? Emphasizing that the State had to show by Officer: Yes, ma’am, he was. clear-and-convincing evidence that his consent was Prosecutor: And what exactly, if you recall, did you unequivocal and voluntary, Hutchins argues that the officer’s say? testimony—that he ″gave . . . verbal consent″—is insufficient to satisfy the State’s burden. He asserts that the officer’s Officer: I asked him for consent. . . . Usually what I ask credibility is not at issue in this case; rather, he contends that is, is there anything [*7] illegal in the vehicle. And I the testimony, even if credited by the factfinder, cannot asked him about the pills, which he said were his. And support the trial court’s finding that consent was freely, I asked for consent to search the vehicle. voluntarily, and unequivocally given. Prosecutor: And what was the defendant’s reply? Hutchins relies upon Ford v. State, 158 S.W.3d 488 (Tex. Officer: He gave me verbal consent. Crim. App. 2005), and he reasons by analogy that the officer’s assertion that he gave ″verbal consent″ is a legal Defense counsel asked about written consent forms and conclusion that fails to provide underlying facts necessary verbal warnings on cross-examination, and the prosecutor to support the conclusion. In Ford, the Court of Criminal raised the issue again on redirect: Appeals held that an officer’s ″conclusory statement″ that a defendant was ″following too close″ behind another vehicle Defense Counsel: Do you . . . usually keep in your could not support [*9] a finding of reasonable suspicion to possession while you are on patrol written initiate a traffic stop. Ford, 158 S.W.3d at 493. Because consent-to-search forms? reasonable suspicion requires specific, articulable facts that Officer: Yes, sir. would lead an officer to conclude that a particular person is, has been, or will be engaged in criminal activity, the Court Defense Counsel: Did you use or offer to Mr. Hutchins held the officer’s testimony was insufficient due to its lack a written consent-to-search form on this occasion? of objective factual support. Id. at 493-94; see also State v. Officer: No, sir, I did not. Garcia, No. 03-14-00048-CR, 2014 Tex. App. LEXIS 9624, 2014 WL 4364623, at *4 (Tex. App.—Austin, Aug. 28, 2014, Defense Counsel: Does the written consent-to-search no pet.)(mem. op.)(conclusory allegation of ″possible form indicate that consent is voluntary and that the intoxication″ was insufficient to support reasonable suspicion request to search this—that the person has the right to to justify detention, even when combined with an allegation decline to give you consent? of swerving). Officer: Yes, sir. Hutchins’s analogy fails, however, because in the Defense Counsel: And you did not show that written circumstances of this case, the validity of his consent was a form to Mr. Hutchins on this occasion, did you? factual determination that turned on witness credibility, not Officer: No, sir. on an application of the law to the facts. Whether an officer had reasonable suspicion to detain a defendant, as was at Defense Counsel: Did you give him verbal warnings issue in Ford, subsumes a legal determination that we that he had the right to decline the search? review de novo after giving deference to the trial court’s Officer: No, sir. findings of fact underlying that conclusion. See State v. Sheppard, 271 S.W.3d 281, 291-92 (Tex. Crim. App. 2008) .... (stating that factual findings include ″who did what, when, Prosecutor: Officer Smith, why didn’t you ask the where, how, or why,″ as well as credibility determinations, defendant to fill out a written consent-to-search form? but ″do not include legal rulings on ’reasonable suspicion’

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or ’probable cause’; [*10] those are legal conclusions that appellant, Reginald Hutchins, ″verbally consented″ to subject to de novo review, not deference″). The validity of the warrantless search of his automobile that turned up the consent to search, by contrast, is ″a question of fact to be evidence upon which he was subsequently convicted of determined from all the circumstances.″ Meekins, 340 possession of a controlled substance with intent to deliver. S.W.3d at 458. See TEX. HEALTH & SAFETY CODE ANN. § 481.104(a)(4) (Vernon Supp. 2014); id. § 481.114(a) (Vernon 2010). The The trial court’s factual finding is not undermined by the majority affirms the trial court’s denial of Hutchins’ motion evidence that the officer did not offer verbal warnings or a to suppress based solely on the trial court’s finding that the written consent form to Hutchins. While ″the showing of a police officer’s testimony that Hutchins gave him verbal warning is of evidentiary value in determining whether a consent to conduct the search was ″credible.″ It does not valid consent was given,″ such a warning ″is not required consider the totality of the circumstances. I believe that nor essential.″ Meeks, 692 S.W.2d at 510. Furthermore, to affirming the trial court’s ruling presents an irresistible the extent that Hutchins argues that the trial court’s finding incentive for the police to conduct a full warrantless search was erroneous because the officer’s testimony did not of any vehicle they choose to pull over [*12] for a minor affirmatively demonstrate that his consent went beyond traffic infraction—here, going forty miles per hour in a mere acquiescence, Meekins instructs that even a finding of thirty-five-mile-per-hour zone—upon the mere testimony of ″’[m]ere acquiescence’ may constitute a finding of consent.″ an officer that the defendant gave verbal consent to the Meekins, 340 S.W.3d at 463-64. search. I therefore respectfully dissent. In accordance with the established standard of review on a Background motion to suppress, we afford ″almost total deference″ to the court’s factual determination that Hutchins validly At the suppression hearing, Houston Police Department consented to the search. State v. Garcia—Cantu, 253 S.W.3d Officer L. Smith testified that he pulled Hutchins over for 236, 241 (Tex. Crim. App. 2008). That determination was driving forty miles per hour in a thirty-five-mile-per-hour supported in the record by the officer’s unequivocal zone. As he approached the car, he saw two pill bottles in testimony that Hutchins gave verbal consent to the search. plain view. Hutchins confirmed the pills were his. Officer Because the court’s finding is not ″clearly [*11] erroneous″ Smith testified that he asked Hutchins for consent to search when viewed in the light most favorable to the prosecution, his vehicle and Hutchins gave him verbal consent. He did we accept it on appeal. Meekins, 340 S.W.3d at 459 n. 24, not give Hutchins verbal warnings that he had the right to 460. decline the search and did not ask him to sign a written consent form, even though he had the forms with him in his Conclusion patrol car. He did not give Hutchins a ticket for speeding. Officer Smith testified that Hutchins was detained but not We affirm the trial court’s judgment. under arrest at the time he allegedly consented to the search and that he asked Hutchins to get out of the car, which Michael Massengale Hutchins did. Officer Smith then placed him in the back seat of his patrol car and searched the vehicle. Justice

Panel consists of Justices Keyes, Bland, and Massengale. Hutchins testified that he was not going [*13] over thirty-five miles per hour because he had just pulled away from a Justice Keyes, dissenting. traffic light. He testified that Officer Smith stopped him, asked for his driver’s license, and took it back to his patrol Publish. TEX. R. APP. P. 47.4. car. Officer Smith then returned, asked Hutchins to step out of the vehicle, asked him what he was doing, told him he Dissent by: Evelyn V. Keyes need to search Hutchins’ vehicle, handcuffed him, and placed him in the back seat of his patrol car. When asked Dissent whether Officer Smith requested verbal consent to search, whether Smith showed him anything in writing, and whether he in fact gave consent to search, Hutchins responded, ″No, DISSENTING OPINION sir.″ He also testified that he did not feel free to leave. This case requires us to determine whether there was clear Hutchins testified that Officer Smith then searched the front and convincing evidence to support the trial court’s finding of his car and found two pill bottles, ″my two bottles in my

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name in the armrest.″ Officer Smith brought them back to Discussion the patrol car and asked Hutchins about them, saying they were expired. Hutchins told him that he was looking at the The test for voluntary consent to search is not merely based wrong date and that they were not expired. Officer Smith on the trial court’s estimation of the credibility of the officer then returned to the car, again without asking for consent to who conducted the search, but on the totality of the search, opened the trunk and appeared to go into the wheel circumstances of the search; and the officer’s testimony well of the trunk, but Hutchins could not be certain because does not outweigh all other evidence and make a full search he could [*14] not see all the way into the trunk from where of a person’s vehicle legal all by itself. Most importantly, he was sitting in the back seat of the patrol car. the State must prove by ″clear and convincing evidence″ that the consent was ″freely and voluntarily″ given. I do not After denying Hutchins’ motion to suppress, the trial court think the facts of this case support such a conclusion. entered findings with respect to certain historical facts. The pertinent historical findings were that: For search and seizure issues, the appellate courts ″engage in a mixed review,″ giving ″almost total deference to a trial • ″Officer Smith observed two pill bottles in the front court’s rulings on questions of historical fact and seat of Defendant’s vehicle in plain view″; application-of-law-to-fact questions that turn on an evaluation [*16] of credibility and demeanor while we • ″Defendant advised that the pill bottles were prescribed review de novo application-of-law-to-fact questions that do to him″; not turn upon credibility and demeanor.″ Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). When the • ″Officer Smith asked Defendant if he could search his trial court makes explicit findings of fact, the appellate court vehicle″; must give deference to those findings. State v. Sheppard, • ″Defendant freely and voluntarily gave verbal consent 271 S.W.3d 281, 286 (Tex. Crim. App. 2008). Likewise, to search his vehicle″; when the trial court makes an explicit credibility finding, the appellate court must give deference to that credibility • ″Officer Smith began searching the Defendant’s determination. Id. However, ″[a]ppellate courts review the vehicle and confirmed that the two pill bottles found in legal determination of detention, reasonable suspicion, and the front seat belonged to Defendant″; probable cause under the Fourth Amendment de novo . . . .″ • ″Officer Smith continued to search the Defendant’s Id. at 286-87. Because consent issues are necessarily fact vehicle and discovered in the trunk in plain view a tan intensive, a trial court’s finding of voluntariness must be fiesta bag″; accepted on appeal unless it is clearly erroneous. Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). • ″Officer Smith could see in plain view two additional white bags in the tan fiesta bag that are normally used 1. Voluntary Consent to Search to hold prescription bottles″; • ″Officer Smith observed 3 additional pill bottles As the majority states, a warrantless search, even if based on inside of the white bags″; probable cause, is per se unreasonable, subject to a few specifically established and well-delineated exceptions. • ″1 pill bottle was prescribed to Veronica Jacobs″; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973); Meekins, 340 S.W.3d • ″[T]he 2 other pill bottles had no prescription label″; at 458. One exception is a search conducted with a person’s and free and voluntary consent. Meekins, 340 S.W.3d at 458 • ″Officer Smith continued to search the [*15] trunk (citing Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043-44). area and found another pill bottle with no prescription label under a board that covers the spare tire area.″ Consent to search may be communicated to law enforcement in a variety of ways, ″[b]ut the Fourth and Fourteenth The trial court then found ″based upon Officer [Smith’s] Amendments require that a consent not be coerced, by testimony and demeanor during his testimony . . . that explicit or implicit means, by implied threat or covert Officer [Smith] conducted the search of the vehicle driven force.″ Id. at 458-59 [*17] (quoting Schneckloth, 412 U.S. at by Defendant in good faith″ and that ″Officer [Smith] did 228, 93 S. Ct. at 2048). ″The validity of a consent to search not exceed the scope of a permissible search under the is a question of fact to be determined from all the circumstances presented.″ circumstances.″ Id. at 458 (citing Schneckloth, 412 U.S. at

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226, 93 S. Ct. at 2047). Resolving a question about the were his. Officer Smith testified that he obtained verbal voluntariness of a consent requires the trial court to ″conduct consent from Hutchins to search his car. He did not advise a careful sifting and balancing of the unique facts and Hutchins that he had the right not to consent to the search, circumstances of each case.″ Id. at 459. The ultimate and he did not give Hutchins a consent form to sign question is whether the suspect’s ″will ha[s] been overborne although he had the forms in his patrol car. After Officer and his capacity for self-determination critically impaired,″ Smith obtained consent to the search, he handcuffed Hutchins so that his consent to the search ″must have been and placed him in the backseat of his patrol car before involuntary.″ Id. (quoting United States v. Watson, 423 U.S. beginning the search, admitting that at that point Hutchins 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976)). was detained and thus not free to leave. Officer Smith then ″[K]nowledge of a right to refuse is not a prerequisite of a searched the armrest, obtained the pill bottles, and verified voluntary consent.″ Schneckloth, 412 U.S. at 234, 93 S. Ct. they were unexpired prescriptions in Hutchins’ name. He at 2051. However, ″the showing of a warning is of then continued to search Hutchins’ vehicle while Hutchins evidentiary value in determining whether a valid consent remained under detention in the back seat of the patrol car was given.″ Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. and discovered contraband prescription pills in the trunk App. 1985). If, under all the circumstances, it appears that and wheel well. the consent was involuntary, ″that it was coerced by threats ″An officer may conduct a brief investigative detention, or or force, or granted only in submission to a claim of lawful ’Terry stop,’ when he has a reasonable suspicion to believe authority,″ then the consent is invalid and the search is that an individual is involved in criminal activity.″ Balentine unreasonable. Schneckloth, 412 U.S. at 233, 93 S. Ct. at v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing 2051. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. ″[T]he prosecution must prove by clear and convincing 2d 889 (1968)); Carmouche v. State, 10 S.W.3d 323, 328 evidence that the consent was freely and voluntarily given″ (Tex. 2000). The reasonableness of the temporary detention before the consent to search is deemed effective. Meeks, 692 ″must be examined in terms of the totality of [*19] the S.W.2d at 509 (citing Bumper v. North Carolina, 391 U.S. circumstances and will be justified when the detaining 543, 548, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968)). officer has specific articulable facts, which, taken together ″The [clear and convincing evidence] burden requires the with rational inferences from those facts, lead him to prosecution to show the consent given was positive and conclude that the person detained actually is, has been, or unequivocal and there must not be duress or coercion, soon will be engaged in criminal activity.″ Balentine, 71 actual or implied.″ Id. (emphasis added); see Brown v. State, S.W.3d at 768; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. 212 S.W.3d 851, 869 (Tex. App.—Houston [1st Dist.] 2006, App. 1997). ″The reasonableness of the detention . . . pet. ref’d). ″[T]he standard for measuring the scope of depends on whether the police diligently pursued a means of consent under the Fourth Amendment is that of ’objective’ investigation that was likely to dispel or confirm their reasonableness—what would the typical reasonable person suspicions quickly.″ Balentine, 71 S.W.3d at 770. ″An have understood by the exchange between the officer and investigative detention must be temporary and the the suspect?″ Meekins, 340 S.W.3d at 459 (emphasis added) questioning must last no longer than is necessary to effectuate (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. the purpose of the stop.″ Id. at 770. 1801, 1803-04, 114 L. Ed. 2d 297 (1991)). This inquiry is The ″plain view″ doctrine may confer on an officer the made ″from the point of view of the objectively reasonable authority to conduct an investigative detention. See Baldwin person, without regard for the subjective thoughts or intents v. State, 278 S.W.3d 367, 372 (Tex. Crim. App. 2009). The of either the officer or the citizen.″ Id. ″plain-view″ doctrine permits an officer with prior justification for an intrusion of privacy to seize evidence 2. Totality of the Circumstances incriminating the accused that the officer observes in plain view without having to obtain a warrant for that evidence. Here, the circumstances under which Hutchins’ consent to Horton v. California, 496 U.S. 128, 135-36, 110 S. Ct. 2301, search his automobile was obtained were as follows. Officer 2307, 110 L. Ed. 2d 112 (1990); Walter v. State, 28 S.W.3d Smith’s search of Hutchins’ automobile initially took place 538, 541 (Tex. Crim. App. 2000) (″While searches conducted within the context of a Terry stop based on Smith’s without a warrant are per se unreasonable, seizing contraband observation of two prescription pill bottles in plain view in in plain view does not run afoul of the Fourth Amendment.″). the armrest of Hutchins’ car when he stopped Hutchins for driving [*18] forty miles per hour in a The ″plain view″ doctrine requires only that the officer ″did thirty-five-mile-per-hour zone. Hutchins confirmed the pills not violate the Fourth Amendment in arriving at the place

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[*20] from which the evidence could be plainly viewed″ S.W.3d at 768 (stating that officer may conduct Terry stop and that it be ″immediately apparent that the item seized when he has reasonable suspicion that individual is involved constitutes evidence, that is, there is probable cause to in criminal activity). Indeed, it is hard to conceive of any associate the item with criminal activity.″ Walter, 28 S.W.3d reason for Officer Smith to have asked Hutchins for consent at 541. ″What the ’plain view’ cases have in common is that to search his car other than the officer’s having seen the the police officer in each of them had a prior justification for prescription pills in plain view in the armrest, and the an intrusion in the course of which he came inadvertently evidence supports no other reasonable inference. across a piece of evidence incriminating the accused.″ Horton, 496 U.S. at 135, 110 S. Ct. at 2307. But ″the The record shows that Officer Smith did initiate a Terry extension of the original justification is legitimate only stop, told Hutchins to step out of the vehicle, handcuffed where it is immediately apparent to the police that they have him, placed him in the back of his patrol car, and went back evidence before them; the ’plain view’ doctrine may not be to search Hutchins’ car and retrieve the pills. Officer Smith used to extend a general exploratory search from one object testified that at that time Hutchins was ″detained″ but not to another until something incriminating at last emerges.″ under arrest. This evidence undermines Officer Smith’s Id. at 136, 110 S. Ct. at 2307. testimony and the trial court’s finding that Hutchins’ consent was freely and voluntarily given as opposed to being 3. Analysis obtained pursuant to Smith’s assertion of lawful authority to search the vehicle. Thus, these facts weigh against a finding To prove by clear and convincing evidence that Hutchins’ that Hutchins freely and voluntarily consented to the search consent to search his entire car, including the trunk, was of his vehicle. See Schneckloth, 412 U.S. at 233, 93 S. Ct. at valid, the State was required to prove that an objectively 2051 (holding that if, under all circumstances, it appears reasonable person would have understood from the totality that consent was ″granted only in submission to a claim of of the circumstances that Hutchins’ consent was freely and lawful authority,″ [*23] consent is invalid). voluntarily given and was not the result of duress or coercion, actual or implied, or granted only in response to Officer Smith also testified that he had in his patrol car—but an assertion of lawful authority. [*21] See Schneckloth, 412 did not give to Hutchins—consent-to-search forms. And he U.S. at 233, 93 S. Ct. at 2051; Meekins, 340 S.W.3d at testified that he did not inform Hutchins of his right to 458-59; Meeks, 692 S.W.2d at 509. refuse to consent to a search of his vehicle. This is evidence that Officer Smith had the ability to verify the verbal In my view, the claim that an objectively reasonable person consent to search he testified Hutchins gave him and thus could have believed that Hutchins freely and voluntarily also argues against an objectively reasonable belief that gave Officer Smith valid verbal consent to make this search Hutchins freely and voluntarily gave consent to search the of the entire automobile is impossible to sustain under the vehicle. Likewise, Hutchins’ unrebutted testimony that totality of the circumstances of this case. See Meekins, 340 Officer Smith handcuffed him prior to the search is evidence S.W.3d at 459 (″[T]he standard for measuring the scope of that any consent given was coerced and given only in consent under the Fourth Amendment is that of ’objective’ submission to the lawful authority to search the car that reasonableness—what would the typical reasonable person Officer Smith projected. See id. have understood by the exchange between the officer and the suspect?″). Officer Smith then searched the front of the car, retrieved the two pill bottles, and immediately took them to Hutchins, The only justification for Officer Smith’s illegal search of who verified that they were unexpired prescriptions in his Hutchins’ vehicle was his stated subjective belief that name. At that point, any further search became objectively Hutchins had freely and voluntarily consented to the full unreasonable in the absence of clear and convincing evidence search of his car, including the car’s trunk and wheel well. that Hutchins had consented to a full search of his car. See Officer Smith testified that when he pulled Hutchins over Balentine, 71 S.W.3d at 768-70 (stating that ″[a]n for driving forty miles per hour in a thirty-five-mile-per-hour investigative detention must be temporary and the zone he observed two prescription bottles in Hutchins’ questioning must last [*24] no longer than is necessary to armrest. Although Hutchins told him the prescription drugs effectuate the purpose of the stop″). There was no evidence were his, Officer Smith could reasonably have believed that that Hutchins had been or was engaged in any illegal the pills were contraband and thus would have been justified activity. Thus, Officer Smith ″lacked probable cause to in initiating a Terry stop to determine whether the pills were, search for non-weapon contraband or other evidence.″ See in fact, evidence of illegal activity. [*22] See Balentine, 71 Baldwin, 278 S.W.3d at 371-72 (stating that when conditions

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justifying ″plain view″ search ″are not present, an officer right not to consent to the search and not having confirmed conducting a valid investigative detention must have Hutchins’ free and voluntary consent to the search [*26] by probable cause in order to conduct a search for non-weapon asking him to sign the consent form Officer Smith had with contraband or other evidence″). him. And the search itself was unconstitutional unless conducted with the free and voluntary consent Officer At the point at which Officer Smith conducted the full Smith testified that Hutchins gave him. search of Hutchins’ car that turned up the evidence of contraband, the only justification for the further detention of Conclusion Hutchins and the full search of his vehicle was an objectively reasonable belief that Hutchins had freely and voluntarily I find this case very troubling. It signals that a police given him consent to conduct a full search of his vehicle officer’s credible testimony that a defendant’s free and without doing so in submission to lawful authority or by voluntary consent to a warrantless and otherwise illegal coercion, actual or implied, even though Officer Smith search is sufficient by itself to establish by clear and testified that Hutchins was detained when handcuffed and convincing evidence the legality of the search and to justify placed in the back of the patrol car prior to any search. See seizure of contraband as constitutionally permissible when Meekins, 340 S.W.3d at 459 (scope of consent is objectively all other evidence necessary to establish that the consent unreasonable when typical reasonable person would not was voluntary from the totality of the circumstances have understood defendant to have consented [*25] to full undermines that conclusion. I would hold that the evidence search). in this case is insufficient to show clearly and convincingly that Hutchins freely and voluntarily consented to the search Given the totality of the circumstances, I can only conclude that turned up the evidence of the contraband upon which he that the State fell short of carrying its burden of showing by was convicted. Therefore, I would hold that Officer Smith’s clear and convincing evidence that Hutchins gave ″positive full search of Hutchins’ vehicle was an illegal search in and unequivocal″ consent to a full search of his automobile violation of the Fourth Amendment and that the evidence of without ″duress or coercion, actual or implied″—consent contraband seized was inadmissible as the fruit of an illegal that an objectively reasonable person observing the exchange search in contravention of the Fourth Amendment. would believe to have been freely and voluntarily given. See Meeks, 692 S.W.2d at 509; see also Schneckloth, 412 U.S. at I would reverse the trial [*27] court’s denial of Hutchins’ 233, 93 S. Ct. at 2051 (consent that was ″coerced by threats motion to suppress, and I would remand the case to the trial or force, or granted only in submission to a claim of lawful court for proceedings consistent with this opinion. authority″ is invalid and search is unreasonable); Meekins, 340 S.W.3d at 459 (scope of consent is objectively Evelyn V. Keyes unreasonable when typical reasonable person would not have understood defendant to have consented to full search). Justice

As evidence of consent, the State presented only Officer Panel consists of Justices Keyes, Bland, and Massengale. Smith’s testimony that Hutchins consented to the search. Hutchins, on the other hand, in addition to denying that he Justice Keyes, dissenting. consented to the search, presented evidence that while conducting the search, Officer Smith kept him handcuffed Publish. TEX. R. APP. P. 47.2(b). in the back of his patrol car, not having advised him of his