The opinion
Opinion issued July 12, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-11-00558-CR
01-11-00559-CR
———————————
JAMES DAVID OROSCO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case Nos. 1283643 & 1283645
OPINION
After the trial court denied his motion to suppress, appellant, James David
Orosco, pleaded guilty to possession of marihuana in an amount of more than four
ounces, but less than five pounds, 1 and possession of a firearm by a felon. 2 In
accordance with a plea agreement with the State, the trial court assessed
punishment at six months’ confinement on the marihuana charge and two years’
confinement on the possession-of-a-firearm-by-a-felon charge. In his sole issue on
appeal, appellant contends the trial court erred in denying his motion to suppress.
BACKGROUND
A narcotics officer with the Houston Police Department informed Officer R.
Watson that he suspected drug activity at 620 Reid Street in Houston, Texas.
Watson is a member of the Differential Response Team, whose “focus is enforcing
code violations, building inspections and other regulatory matters.” The narcotics
officer told Watson that he had seen several municipal code violations at the
property and asked Watson to check them out. Watson and his partner, C.
Schuster, drove by the property and observed three different municipal code
violations. Specifically, the grass was excessively tall, the roof was unsafe, and the
automated trash collection container was not stored out of public view. Based on
these observed violations, Watson obtained a search warrant for the property.
Watson testified that the warrant gave him the authority to enter the curtilage of the
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 2010) (trial court
case number 1283643 and appellate case number 01-11-00558-CR).
2
See TEX. PENAL CODE ANN. § 46.04 (Vernon 2011) (trial court case number
1283645 and appellate case number 01-11-00559-CR).
2
property to investigate further municipal violations, but did not give him the
authority to enter the home on the property. Watson further testified that he
decided to get the warrant because “even though we had access to the property, we
found that it’s better to have the warrant in case people tell you, you know, run
along.”
On October 30, 2010, Watson, Schuster, and at least five other officers
approached the residence at 620 Reid Street at 7 a.m. When they arrived, they
noticed that there was a light on inside and appellant’s car was in the driveway.
Watson and Schuster approached the front door to knock and announce their
presence, while the other officers formed a perimeter around the house to prevent
anyone inside from “jumping out the back window” and running off and to make
sure “that no one walks up on us while we’re conducting an investigation.”
Watson testified that he “knocked and knocked and knocked and knocked,”
but no one came to the door. The officers around the perimeter of the house
looked in the windows and saw a bong on a coffee table and also noted that there
were keys inside the front lock indicating that someone was home. While
surrounding the house, the police saw additional municipal violations including
stacked tires on the side of the house and exposed electrical wiring. The police also
noticed that the house had “the kind of low quality security cameras that [are
3
usually found] at drug dealers’ houses.” From one partially opened window, the
officers detected the odor of marihuana.
The officers continued knocking on the door and windows intermittently for
20 to 30 minutes with no response from anyone inside. Watson testified that
everyone within the house was being detained from the moment he and the other
officers approached the house, and that no one was free to leave the residence until
he had talked with them about the municipal code violations. After about 30
minutes of knocking, one of the officers discharged a shotgun at a threatening dog
in the area. Immediately thereafter, appellant came out of the front door. He told
one of the officers, “You know, y’all were laughing about [shooting at] the dog. I
was afraid of what you’d do to me if I didn’t come out.”
The officers heard the deadbolt lock on the door after appellant stepped
outside. Watson, while surrounded by three or four other officers, placed appellant
in handcuffs and then asked him whether anyone else was inside the house.
Appellant initially denied that there was anyone in the house, but when questioned
further by Watson, appellant replied, “Yeah, yeah, you’re right. My girlfriend’s in
the house.” Watson then told appellant, “Well, you need to have her come out
because I don’t know how many people are in there. You’ve already lied to me
once about there being someone else in the house. You need to have her come
outside right now.” Appellant talked to his girlfriend through the door and she
4
then came out on the porch. The officers had her sit in a chair on the porch
because she was several months pregnant.
When appellant’s girlfriend came out of the house, the officers noticed the
smell of fresh marihuana and that appellant had several gang tattoos. Appellant
told Watson that “he didn’t want people knowing his business and he didn’t want
to talk around his girlfriend . . . [s]o [they] went inside to his kitchen right
immediately inside the front door.”
Before going inside with appellant, several of the officers did a “protective
sweep” of the house. Watson did not ask permission to do the sweep, and he
testified that he felt it was necessary because the officers smelled marihuana,
“believed there’s a high probability that someone else could be in there,” saw
appellant’s gang tattoos, and appellant had lied once about there being no one in
the house. During the protective sweep, the officers found two loaded firearms,
smelled fresh marihuana, saw drug paraphernalia, and discovered a “hydroponic”
marihuana growth set-up in one of the rooms. Although no marihuana was seen,
there were some plant stems in pots and some other drug paraphernalia. After the
45-second sweep, the officers “pulled out waiting for either a search warrant . . . or
to see if we could just talk to the defendant and he would give his consent to
search.” Watson then read appellant his Miranda rights.
5
Watson told appellant, “Look, what we have here is we have probable cause
to get a search warrant to search this house. You can either hang out, let us go get
that search warrant, or you can give us written consent now.” Appellant responded
that “as long as [they] kept his girl out of it, he would give written consent.”
Appellant, Watson, and Schuster went inside to the kitchen, got appellant a
glass of water, and spent about 20 minutes discussing the consent. Watson told
appellant that if a person cooperates with a search request, it “usually works out
better in their favor at the end of the investigation.” Watson also told appellant,
“You want me to keep your girl out of this?” To which appellant responded,
“Yeah. It’s not hers. You know this is my thing. She’s pregnant, I want to keep her
out of it.” Officer Schuster testified that appellant was told that if he signed the
consent, his girlfriend would not be prosecuted or arrested. However, on cross-
examination Schuster clarified that appellant first brought up the issue of letting his
girlfriend go, and that there was no promise of anything in exchange for signing
the consent. Watson also testified that he told appellant that in return for signing
the consent, he would not charge appellant’s girlfriend. Watson then read appellant
the consent form, explained it to him, and informed appellant that he had the right
to refuse to consent. Appellant signed the form.
The police discovered a large quantity of marihuana during their subsequent
search of the house.
6
MOTION TO SUPPRESS
Appellant contends the trial court erred in denying his motion to suppress
based on his execution of the consent form. Specifically, appellant contends that
his consent was involuntary because (1) the warrant giving police the right to enter
the curtilage of his property was invalid; (2) he was constructively seized in his
home when police surrounded his home and knocked on the door and window for
30 minutes before discharging a weapon, which caused him to involuntarily leave
his home; (3) the police conducted an illegal “protective sweep” of his home; and
(4) the police illegally induced his consent by promising to “keep his girl” out of it
if he cooperated and signed the consent.
Standard of Review
In reviewing the trial court’s ruling on the motion to suppress evidence, we
apply a bifurcated standard of review, giving “almost total deference to [the] trial
court’s determination of historical facts” and reviewing de novo the court’s
application of the law of search and seizure to those facts. Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85,
88–89 (Tex. Crim. App. 1997)). If the issue involves the credibility of a witness,
such that the demeanor of the witness is important, then greater deference will be
given to the trial court’s ruling on that issue. Guzman, 955 S.W.2d at 87. In a
motion to suppress hearing, the trial court is the sole trier of fact and judge of the
7
credibility of the witnesses and the weight to be given to their testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, the trial court
may believe or disbelieve all or any part of a witness’s testimony, even if that
testimony is not controverted. Id. We will uphold the trial court’s ruling on a
motion to suppress if that ruling was supported by the record and was correct under
any theory of law applicable to the case. Id. at 856.
As here, when the trial court files findings of fact with its ruling on a motion
to suppress, an appellate court does not engage in its own factual review, but
determines only whether the record supports the trial court’s fact findings. Romero
v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless the trial court
abused its discretion by making a finding not supported by the record, we will
defer to the trial court’s fact findings and not disturb the findings on appeal. Cantu
v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). On appellate review, we
address only the question of whether the trial court properly applied the law to the
facts. Romero, 800 S.W.2d at 543.
Consent
Under the Fourth and Fourteenth Amendments to the United States
Constitution, a search conducted without a warrant is per se
unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043
(1973). Consent to search is one of the well-established exceptions to the
8
constitutional requirements of both a warrant and probable cause. Id. at 219;
Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). The validity of a
consensual search is a question of fact, and the State bears the burden to prove by
clear and convincing evidence that consent was obtained voluntarily. Gutierrez v.
State, 221 S.W.3d 680, 686—87 (Tex. Crim. App. 2007). This burden includes
proving that consent was not the result of duress or coercion. Id. Consent is not
established by showing no more than acquiescence to a lawful authority.
Carmouche, 10 S.W.3d at 331 (quoting Bumper v. North Carolina, 391 U.S. 543,
548, 88 S. Ct. 1788 (1968)). To determine whether the State met its burden, we
look at the totality of the circumstances. Gutierrez, 221 S.W.3d at 686—87. If
the record supports a finding by clear and convincing evidence that consent to
search was free and voluntary, we will not disturb that finding. Carmouche, 10
S.W.3d at 331. Whether it is reasonable under the Fourth Amendment for an
officer to rely on consent is a question which we determine by examining the
totality of the circumstances. Hubert, 312 S.W.3d at 560; Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002). If police obtain evidence as the result of
a consensual search during an illegal seizure, a defendant may have the evidence
suppressed unless the State proves that the causal relationship between the police
misconduct and the defendant’s consent is attenuated—that is, the illegal seizure
did not taint the otherwise voluntary consent. Brick v. State, 738 S.W.2d 676, 681
9
(Tex. Crim. App. 1987); Munera v. State, 965 S.W.2d 523, 532 (Tex. App.—
Houston [14th Dist.] 1997, pet. ref’d).
Thus, before we determine whether appellant’s consent was voluntary, we
must first address his allegations of police misconduct. The State argues that the
search warrant gave them authority to enter the curtilage of appellant’s property,
and that thereafter they had the authority to detain appellant to further investigate
the municipal violations the officers had observed. Appellant responds that (1) the
warrant was invalid, thus the officers had no right to encroach on his property any
further than the front door, and (2) even if the warrant was valid and the officers
had the right to detain him, they could not enter his home to do so without a
warrant, nor could they coercively induce him to exit the property so as to
effectuate a warrantless arrest outside the home.
No evidence was obtained as a result of the search warrant and the State did
not rely on the warrant to seize the evidence in appellant’s home, but instead relied
on appellant’s consent. Thus, we do not address the validity of the warrant.
Instead, we accept that the warrant gave police the right to enter the curtilage of
appellant’s property and consider what effect, if any, their entry and continued
presence on the property after concluding their search outside the residence had
upon appellant’s subsequent consent to search inside the residence.
10
Product of Illegal Detention
Appellant contends that he was illegally seized within his home when six to
seven armed police officers surrounded his house before daylight, knocked
repeatedly on doors and windows for 20 to 30 minutes, and then discharged a
shotgun nearby. Appellant argues that his decision to exit the house was not
voluntary, thus his seizure was a violation of Payton v. New York, 445 U.S. 573,
586—88, 100 S. Ct. 1371, 1380—81 (1980), which prohibits a warrantless arrest
inside a home absent exigent circumstances even if probable cause for such an
arrest exists. Appellant further contends that the “protective sweep” and his
consent to search were tainted by this initial illegal seizure.
The Fourth Amendment to the United States Constitution and article 1,
section 9 of the Texas Constitution protect individuals from unreasonable searches
and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Johnson v. State, 912
S.W.2d 227, 232 (Tex. Crim. App. 1995). A search or seizure conducted inside a
home without a warrant issued upon probable cause is presumptively unreasonable.
See Payton, 445 U.S. at 586, 100 S. Ct. 1371. The “right of a man to retreat into
his own home and to be free from unreasonable governmental intrusion stands at
the very core of the Fourth Amendment.” Green v. State, 78 S.W.3d 604, 608—09
(Tex. App.—Fort Worth 2002, no pet.) (citing Silverman v. United States, 365 U.S.
505, 511, 81 S. Ct. 679, 683 (1961)). However, a police officer, like any common
11
citizen, has the right to approach the front door of a residence and knock, as long
as there are no express orders forbidding trespass. See Cornealius v. State, 900
S.W.2d 731, 734 (Tex. Crim. App. 1995).
Here, the State argues that “[a]s the subject of a lawful detention, appellant
was not free to simply remain in his house and ignore or hide from police, whom
he knew were outside wanting to speak to him.” Essentially, the State argues that
because the officers had reasonable suspicion to detain appellant for the municipal
code violations, he was required to open the door to them. This is clearly not the
law. A defendant is entitled to remain in his home, and police officers cannot enter
to effectuate an arrest without exigent circumstances, even if they have probable
cause to do so. See Payton, 445 U.S. at 586. The more difficult question we
address for the first time today is whether police conduct can, in the face of a
defendant’s refusal to exit his home, be considered an illegal arrest in violation of
Payton if the officers create circumstances indicating to the defendant that he must
exit the home. In such a case, the police have not breached the threshold of the
home, but their conduct has nonetheless coerced the defendant to exit the home
where he is then subject to warrantless detention or arrest.
Appellant cites no Texas cases to support his position, but several federal
courts have found coercive conduct by police outside the home, which causes a
12
defendant to believe that he must exit the home, to be an “illegal seizure” in
violation of Payton.
In United States v. Reeves, 524 F.3d 1161, 1164 (10th Cir. 2008), police
officers went to a motel where the defendant, an assault suspect, had been living
for three months. At 2:43 a.m., the police asked the motel manager to call the
defendant’s room, which the manager did repeatedly. Id. Appellant did not
answer the phone. Id. The officers then went to the defendant’s room, where they
“knocked consistently for at least twenty minutes while yelling and identifying
themselves as police officers.” Id. After approximately twenty minutes of banging
and yelling, the defendant opened the motel room door, stepped outside, and was
then arrested. Id. On appeal, he argued that he was arrested inside his home in
violation of the Fourth Amendment and that the evidence subsequently obtained
was tainted and should be suppressed. Id. at 1165. The Seventh Circuit agreed,
holding that “[a] reasonable person faced with several police officers consistently
knocking and yelling at their door for twenty minutes in the early morning hours
would not feel free to ignore the officers’ implicit command to open the door.” Id.
at 1169. The court concluded that “when Reeves answered his door he did so in
response to a show of authority by the officers and he was seized inside his home.”
Id. In so holding, the court noted that “opening the door to one’s home is not
voluntary if ordered to do so under color of authority,” and that “if an individual’s
13
decision to open the door to his home to the police is not made voluntarily, the
individual is seized inside his home.” Id. at 1168.
In United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir. 1984), nine
armed police officers surrounded the defendant’s mother’s home, flooded it with
spotlights, and used a bullhorn to “summon” the defendant outside. Id. at 1161.
On appeal, the State argued that the officers had reasonable suspicion upon which
to detain the defendant, thus their actions were reasonable in effectuating that
detention. Id. at 1164. The court disagreed, stating that “the police conduct outside
of the Morgan home cannot be characterized as a brief investigatory stop,” and that
the defendant was under arrest “as soon as the police surrounded the Morgan
home, and therefore, the arrest violated Payton because no warrant had been
secured.” Id. “The police show of force and authority was such that a ‘reasonable
person would have believed he was not free to leave.’” Id. (citing United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Noting that (1)
nine officers and several patrol cars surrounded Morgan’s residence; (2) in the
dark; (3) blocked any movement of Morgan’s car; and (4) called for Morgan to
come out, the court concluded that “Morgan was placed under arrest, without the
issuance of a warrant, at the moment the police encircled the Morgan residence.”
Id.
14
In United States v. Gomez-Moreno, 479 F.3d 350, 352 (5th Cir. 2007), the
court considered a similar case involving a “knock-and-talk” investigation during
which the suspects inside the house initially refused to respond to the officers. In
Gomez-Moreno, the court stated that “the purpose of a ‘knock and talk’ is not to
create a show of force, nor to make demands on occupants, nor to raid a residence.
Instead, the purpose of a ‘knock and talk’ approach is to make investigatory
inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’
consent to search.” Id. at 355. The court then analyzed whether a proper “knock
and talk” had occurred.
Here, the officers did not engage in a proper “knock and talk” but
instead created a show of force when ten to twelve armed officers met
at the park, drove to the residence, and formed two groups—one for
each of the two houses—with a helicopter hovering overhead and
several officers remaining in the general area surrounding the two
houses. When no one responded to the officers’ knocking, the
officers impermissibly checked the knob on the door to the front
house to determine if it would open, and simultaneously, at the back
house, announced their presence while demanding that the occupants
open the door. When officers demand entry into a home without a
warrant, they have gone beyond the reasonable “knock and talk,”
strategy of investigation. To have conducted a valid, reasonable
“knock and talk,” the officers could have knocked on the front door to
the front house and awaited a response; they might have then knocked
on the back door or the door to the back house. When no one
answered, the officers should have ended the “knock and talk” and
changed their strategy by retreating cautiously, seeking a search
warrant, or conducting further surveillance. Here, however, the
officers made a show of force, demanded entrance, and raided the
residence, all in the name of a “knock and talk.”
15
Id. at 355–56. Having exceeded the scope of a valid “knock and talk,” the court
then considered whether there were exigent circumstances to justify the subsequent
search and concluded there were not. Id.
In another Fifth Circuit case, the court considered whether the officers’
conduct during a “knock and talk” was, in and of itself, a violation of the Fourth
Amendment. In United States v. Hernandez, 392 F. App’x 350, 351 (5th Cir.
2010), police initiated a knock and talk and announced their presence at the
defendant’s front door. When they received no response, police circled the
defendant’s trailer banging on doors and windows, shouting that police were
present and anyone inside should open the door. Id. When the police heard
movement inside, they tried to open the front door, with one of the police actually
breaking a glass pane with his baton. Id. The defendant then exited the home and
subsequently gave police permission to enter the home. Id. The officers entered
the trailer, found illegal aliens, and subsequently charged the defendant with
harboring an illegal alien for financial gain. Id. The court held as follows:
The officers’ conduct during their knock-and-talk—banging on doors
and windows while demanding entry, attempting a forced entry by
breaking the glass on Hernandez’s door, then relying on her admission
that an illegal alien was present as probable cause to enter—violated
the Fourth Amendment.
Id. at 353. The court then stated that the proper analysis was not whether the
defendant’s consent to search was voluntary, but whether there was a break in the
16
chain of causation between the constitutional violation and her consent. Id. The
court concluded that there was no attenuation of the taint from the initial
constitutional violation and that the defendant’s motion to suppress should have
been granted. Id.
Under the reasoning of Gomez-Moreno, Reeves, Morgan, and Hernandez,
we conclude that police cannot use an unreasonable show of force during a “knock
and talk” to compel a defendant to open his door to police. When a person in his
home declines to speak to police, the officers should retreat cautiously, seek a
search warrant, or conduct further surveillance. See Gomez-Moreno, 479 F.3d at
352.
Thus, we must decide whether in this case an unreasonable show of force
compelled appellant to exit his home. Here, seven police officers entered
appellant’s property before daylight on a Saturday morning to execute a search
warrant for municipal code violations.3 After noting several municipal violations,
the police did not leave, but maintained their perimeter around appellant’s home
while they attempted to make contact with appellant about the municipal code
violations. Two officers approached the front door, while the others remained in
their positions around the house. Officer Watson testified that the perimeter was
necessary because “we’ve had it happen before that you go to knock on
3
As stated earlier, for purposes of this opinion, we will assume without deciding
that the warrant was valid and gave the officers the right to enter the property.
17
somebody’s front door regarding high weeds and they’re jumping out the back
window running because of something else they’ve done.” Watson also testified
that, based on where the officers were positioned, no one was able to leave the
residence. Watson knocked on the front door intermittently for 20 to 30 minutes.
While he was at the front door knocking, some other officers were knocking on
windows. During this 20 to 30 minute period, no one came to the door, although
officers believed that appellant was inside. Officers Watson and Schuster also
testified that at no time was appellant free to leave.
Defense Counsel: Officer, at any point was Mr. Orosco free to leave?
Watson: No. He was being detained.
Defense Counsel: He was being detained. That includes even at the
moment you approached the residence, correct?
Watson: Yes. He was going to be detained till we got done talking
about the reason why we came.
****
Defense Counsel: Based on the officer’s positions and you and your
partner’s position, was anybody free to enter or leave that residence?
Schuster: Well, we hadn’t made contact with anybody. So, no. How
could they be free to leave if we hadn’t talked to anybody?
Defense Counsel: Well, my question specifically is, from that home,
was anybody free to come in or leave that home at that point. Would
they have been able to leave that residence without you intervening?
Schuster: No.
18
After 20 to 30 minutes of knocking on the door and windows with no response
from appellant, an officer who was positioned behind the house discharged a
shotgun at a neighbor’s dog. Appellant then came out of the house and was
immediately handcuffed. He told Officer Schuster, “You know, y’all were
laughing about [shooting] the dog. I was afraid of what you’d do to me if I didn’t
come out.”
“Opening the door to one’s home is not voluntary if ordered to do so under
color of authority.” Reeves, 524 F.3d at 1167. “If an individual’s decision to open
the door to his home to the police is not made voluntarily, the individual is seized
inside his home.” Id. “A reasonable person faced with several police officers
consistently knocking and yelling at their door for twenty minutes in the early
morning hours would not feel free to ignore the officers’ implicit command to open
the door.” Id.
Under these circumstances, it cannot be said that appellant voluntarily
exposed himself to a warrantless arrest by leaving the confines of his home. After
searching the property before daylight, seven officers surrounded the home,
knocked on doors and windows for 20 to 30 minutes, and discharged a weapon
before appellant exited the house. As the officers themselves testified, they were
not leaving the premises, nor allowing anyone else to enter or leave the premises,
until appellant answered the door and responded to their questioning. In effect,
19
appellant’s home was under siege when he finally consented to come outside.
Because he answered the door in response to an unreasonable show of authority by
the officers, he was unconstitutionally seized at that time. See Hernandez, 392 F.
App’x at 353; Reeves, 524 F. 3d at 1169. Thus, we turn to the issue of whether
appellant’s subsequent consent to search was sufficiently attenuated from his
unconstitutional seizure.
Attenuation of Taint
To establish the validity of consent after an illegal search or seizure, the
State must prove by clear and convincing evidence that the taint inherent in the
illegality had dissipated by the time consent was given. Brick v. State, 738 S.W.2d
676, 680–81 (Tex. Crim. App. 1987); accord Leal v. State, 773 S.W.2d 296, 297
(Tex. Crim. App. 1989). In that respect, we consider (1) the temporal proximity
between the unlawful seizure and the given consent; (2) whether the warrantless
seizure brought about police observation of the particular object for which consent
was sought; (3) whether the seizure resulted from flagrant police misconduct; (4)
whether the consent was volunteered or requested; (5) whether appellant was made
fully aware of the right to refuse consent; and (6) whether the police purpose
underlying the illegality was to obtain the consent. See Brick, 728 S.W.3d. at 680–
81.
20
The record shows that appellant gave his consent to search immediately after
he was illegally seized. “The close temporal and spatial proximity of the consent
to the illegal conduct makes the first factor favorable to appellant.” Beaver v.
State, 106 S.W.3d 243, 250 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
Immediately after appellant’s warrantless seizure, the police conducted a
protective sweep of the house. During this sweep, the police noticed two weapons
and a marihuana growth set-up. Once police saw this, they withdrew from the
premises to obtain either a warrant or consent for a more thorough search. But for
appellant’s warrantless seizure, police would not have conducted the protective
sweep, which led to the discovery of the items for which the police ultimately
sought consent to search. The second factor favors appellant.
The third factor is more problematic. Courts usually do not deem police
misconduct as “flagrant” unless the illegal conduct was engaged in for the purpose
of obtaining consent, or the police misconduct was calculated to cause surprise or
fear. Id., (citing Brown v. Illinois, 422 U.S. 590, 605, 95 S. Ct. 2254, 2262 (1975)
(holding that police misconduct had a “quality of purposefulness,” and was
“calculated to cause surprise, fright, and confusion.”); Garcia v. State, 3 S.W.3d
227, 243 (Tex. App.—Houston [14th Dist.] 1999, pet. granted) (stating that police
conduct is flagrant if it is for the purpose of obtaining the consent) aff’d, 43
S.W.3d 527 (Tex. Crim. App. 2001); Renfro v. State, 958 S.W.2d 880, 886 (Tex.
21
App.—Texarkana 1997, pet. ref’d) (no flagrant conduct where police did not
calculate to cause surprise or fear)). Here, police officers testified that their
purpose in circling the house and banging on doors and windows for 20 to 30
minutes was to investigate the municipal code violations that they had seen, as well
as the drug paraphernalia they had seen through the windows and the marihuana
they had smelled. Their purpose, though illegal, was to force appellant from his
house so that they could discuss these matters with him. According to their
testimony, their purpose did not change to seeking consent to search until after
they performed a protective sweep of the house. However, it is also probable that
their conduct was “calculated to cause surprise, fright, and confusion.” Multiple
officers approached appellant’s home before daylight and began knocking on doors
and windows before finally firing a shotgun. We conclude that factor three is
neutral.
The police requested consent to search. This fourth factor favors appellant.
Appellant was made fully aware, both orally and in writing, of his right to
decline consent. This fifth factor favors the State.
The sixth factor requires us to consider whether the police purpose
underlying the illegality was to obtain the consent to search. As stated in our
discussion of the third factor, the police testified that their purpose in forcing
appellant to leave his home was to discuss the municipal code violations they had
22
seen, as well as the drug paraphernalia and the odor of marihuana. The police
testified that they did not form an intent to seek consent to search the house until
the protective sweep of the house. The sixth factor favors the State.
Only two of the six factors favor the State, thus we conclude that the State
has not met its burden of showing that the taint of appellant’s illegal seizure was
sufficiently attenuated from his subsequent consent to search. Thus, the trial court
erred in denying appellant’s motion to suppress.
We sustain appellant’s sole issue on appeal.
CONCLUSION
We reverse the judgment of the trial court and remand for further
proceedings.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish. TEX. R. APP. P. 47.2(b).
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