Fernando Davalos v. State

Opinion issued May 3, 2012.

In The

Court

of Appeals

For The

First

District of Texas

————————————

NOS. 01-11-00069-CR

01-11-00070-CR

———————————

FERNANDO DAVALOS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from

the 248th District Court

Harris County,

Texas

Trial

Court Case Nos. 1261747 &

1261748

MEMORANDUM

OPINION

After

the trial court denied his motion to suppress, appellant, Fernando Davalos,

pleaded guilty to the offenses of possession with intent to deliver more than

400 grams of cocaine [1]

and possession with intent to deliver more than 400 grams of ecstasy. [2] The

trial court then assessed punishment for each offense at 18 years’ confinement

to run concurrently. In his sole point of error, appellant complains that the

trial court erred in denying the motion to suppress because the evidence

against him was the product of an illegal search. We affirm.

BACKGROUND

On

May 4, 2010, at approximately 10:50 p.m., appellant was asleep in his living

room when six law enforcement officers in tactical uniforms arrived at his

home. Two or three of these officers approached the front door and knocked,

while the other officers remained in front of appellant’s house. When appellant’s

mother opened the door, the officers told her they wished to speak with

appellant and asked her to leave the front door open while she woke and

retrieved her son. [3]

Though appellant and his mother testified officers then entered the house without

consent while the mother was retrieving her son, the officers testified the son

came to the door and gave consent for the officers to enter. Once inside, the

officers performed a protective sweep of the home’s first story, and then two

or three officers sat with appellant at the kitchen table, while the others

remained eight to ten feet away in another room. The officers told appellant

they were conducting a narcotics investigation and asked for consent to search

his home. After appellant consented orally to a search of his home, an officer

asked appellant to read a consent form. The officer then read the consent form

to appellant, and appellant signed the form. The subsequent search of

appellant’s home revealed the drugs underlying the offenses for which appellant

was then arrested.

STANDARD

OF REVIEW

In

reviewing the trial court’s ruling on a motion to suppress, we apply a

bifurcated standard of review. McKissick

v. State , 209 S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d) (citing Carmouche v. State , 10

S.W.3d 323, 327 (Tex. Crim. App. 2000)). We give almost total deference to the

trial court’s determination of historical facts that depend on credibility,

while we review de novo the trial court’s application of the law to those

facts. Id. We review de novo the

trial court’s application of the law of search and seizure and probable cause. Id. (citing State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Wilson v. State , 98 S.W.3d 265, 271

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)).

Because

issues of consent are necessarily fact intensive, a trial court’s finding of

voluntariness must be accepted on appeal unless it is clearly erroneous. Meekins v. State , 340 S.W.3d 454, 460

(Tex. Crim. App. 2011). When, as here, a trial court makes explicit findings of

fact, we determine whether the evidence, viewed in the light most favorable to

the trial court’s ruling, supports the findings. See State v. Kelly , 204

S.W.3d 808, 818 (Tex. Crim. App. 2006). The reviewing court will sustain the trial

court’s ruling if it is reasonably supported by the record and is correct on

any theory of law applicable to the case. Valtierra

v. State , 310 S.W.3d 442 , 447–48 (Tex. Crim. App. 2010).

ANALYSIS

In

his sole point of error, appellant contents that the police exceeded the scope

of a valid “knock and talk” with an excessive show of force, which effectively

“seized” him thereby rending his consent invalid.

Scope of

“Knock-and-Talk”

As long as a person in possession of

property has not made express orders prohibiting trespass, a police officer may

enter upon residential property, follow the usual path to the home’s front

door, and knock on it for the purpose of asking the occupant questions. Cornealius

v. State, 900 S.W.2d 731 , 733–34 (Tex. Crim. App. 1995); Washington v.

State, 152 S.W.3d 209, 214 (Tex. App.—Amarillo Amarillo 2004, no pet.); Nored

v. State, 875 S.W.2d 392 , 396–97 (Tex. App.—Dallas 1994, pet. ref’d).

Federal and state laws provide that

a police officer may approach a citizen in a public place or knock on a door to

ask questions or seek consent to search. Florida v. Bostick, 501 U.S.

429, 434 , 111 S. Ct. 2382, 2386 (1991); State v. Perez, 85 S.W.3d 817,

819 (Tex. Crim. App. 2002); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim.

App. 1997). Courts have defined a knock-and-talk as a

noncustodial procedure in which the officer identifies himself and asks to talk

to the home occupant, and then eventually requests permission to search the

residence. Hardesty v. Hamburg Twp., 461 F.3d 646, 658 (6th Cir. 2006)

(quoting United States v. Chambers, 395 F.3d 563 , 568 n.2 (6th Cir. 2005)).

The knock-and-talk strategy is a

reasonable investigative tool. See United States v. Lewis, 476 F.3d 369,

381 (5th Cir. 2007); see also Hardesty, 461 F.3d at 658 (noting that

knock-and-talk can be legitimate effort to obtain suspect’s consent to search).

The purpose of a knock-and-talk is

not to create a show of force, make demands on occupants, or to raid a

residence. United States v. Gomez-Moreno, 479 F.3d 350, 355 (5th Cir. 2007).

Instead, the purpose of a knock-and- talk approach is to make investigatory inquiry or, if

officers reasonably suspect criminal activity, to gain the occupant’s consent

to search. Id .

A police officer need not have reasonable suspicion or a

basis for suspecting a particular person to simply ask questions of that

individual or request consent to search, so long as the officer does not

indicate compliance with his request is required. See Bostick, 501 U.S.

at 434–35, 111 S. Ct. at 2386 ; Perez, 85 S.W.3d 819 ; Hunter, 955

S.W.2d at 104 . Such an encounter is a consensual interaction, which the citizen

is free to terminate at any time. Hunter, 955 S.W.2d at 104 . The

encounter is not considered a seizure, triggering Fourth Amendment scrutiny or

constitutional analysis, unless it loses its consensual nature. See Bostick,

501 U.S. at 434 ; Hunter, 955 S.W.2d at 104 . Only when the officer, by

means of physical force or show of authority, has restrained the liberty of a

citizen may a court conclude that a seizure has occurred. Bostick, 501

U.S. at 434 . C ourts

will uphold knock-and-talk procedures as constitutionally permissible

consensual encounters, “[s]o long as a reasonable person would feel free to

disregard the police and go about his business.” Hunter , 955 S.W.2d at 104 (quoting Bostick , 501 U.S. at 434 , 111 S. Ct. at 2386 ). Whether a consensual

encounter loses its consensual nature and is thereby rendered a seizure is

evaluated under the totality of the circumstances and “the dispositive question

is whether the officers conveyed a message to appellant that compliance with

their requests was required.” Hunter ,

955 S.W.2d at 104 .

Appellant

argues that his consent is invalid because it resulted from an unlawful seizure

that occurred when officers entered his house without consent and detained him

inside his home. The first part of this contention—that officers entered

appellant’s home without consent—is supported by testimony of appellant and his

mother. However, three of the officers who participated in the search testified

at the suppression hearing that they entered appellant’s home only after

receiving consent from both appellant and his mother. The trial court could

therefore have reasonably resolved this conflicting testimony in favor of the

officers having entered upon consent. Daniels

v. State , 718 S.W.2d 702 , 704 n.1 (Tex. Crim. App. 1998), overruled on other grounds , Juarez v. State , 758 S.W.2d 772 , 780 n.3

(Tex. Crim. App. 1988) (“It was for the trial court, as the sole finder of fact

at the suppression hearing, to determine whose version of the facts was true[.]”).

Appellant

argues, however, that even if he consented to the officers entering his home,

the officers’ overall behavior constituted a seizure. Specifically, appellant

contends that six officers in tactical uniforms arriving at a late hour would

have given a reasonable person the impression an emergency was occurring and

that he or she was not at liberty to refuse to open the door. Although six

officers arrived at appellant’s house at approximately 11 p.m., the record is

uncontroverted that when appellant’s mother opened the door the officers

immediately explained to her they were at the home for the purpose of speaking

with appellant. If indeed appellant’s mother had only opened the door to

officers because she believed an emergency was occurring, at this point she could

have declined to speak further with the officers and closed the door.

There

is also conflicting testimony regarding the number of officers who knocked on

the door, whether officers yelled for appellant’s mother to open the door,

whether officers asked or ordered her to leave the door open, and whether

officers waited for consent before entering the home. However, the trial court

could have reasonably resolved these inconsistencies in favor of its ruling.

Indeed, the trial court’s findings of fact include a finding that the officers

who testified at the suppression hearing were credible.

In

the light most favorable to the trial court’s ruling, the record reflects that

officers lawfully entered appellant’s home with the occupants’ consent. Two or

three officers then sat with appellant at the kitchen table, without blocking

his path to the front door, and asked for and received appellant’s consent to

search, both orally and in writing. Nothing in the record shows that

appellant’s consent was required or that he was compelled to comply with the

officers’ request.

Appellant

cites several non-binding decisions from other jurisdictions finding that

factually similar, but not identical, knock-and-talk scenarios resulted in

seizures. These cases might suggest that the trial court in this case would

have been within its discretion to find the appellant had been seized, but the

cases do not demonstrate that the trial court’s decision to deny the motion to

suppress was clearly erroneous.

For

these reasons we find that the knock-and-talk procedure did not result in a

seizure. [4] Thus, we turn to the issue of whether

appellant voluntarily consented to the search of his home.

Consent

Under the Fourth and Fourteenth Amendments, a search conducted

without a warrant based on probable cause is “per se unreasonable . . . subject

only to a few specifically established and well-delineated exceptions.” Meekins , 340 S.W.3d at 458 (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 219 , 93 S. Ct. 2041 (1973)). One of those

exceptions is a search conducted with a person’s voluntary consent. Id. Valid consent must “not be coerced,

by explicit or implicit means, by implied threat or covert force.” Id. at 459 (quoting Schneckloth 412 U.S. at 228 ). The voluntariness of consent is a fact question determined by

analyzing all of the circumstances of a particular situation. Id. The trial judge must conduct a

careful sifting and balancing of the unique facts and circumstances of each

case in deciding whether a particular consent search was voluntary or coerced. Id.

Courts

review the totality of the circumstances of a particular police-citizen

interaction from the point of view of the objectively reasonable person, without

regard for the subjective thoughts or intents of either the officer or the

citizen. Id. (citing Maryland v. Macon , 472 U.S. 463 , 470–71,

105 S. Ct. 2778 (1985)). The ultimate question is whether the person’s “will

ha[s] been overborne and his capacity for self-determination critically

impaired,” such that his consent to search must have been involuntary. Id. (quoting United

States v. Watson , 423 U.S. 411, 424 , 96 S. Ct. 820

(1976)).

Under

Texas law, the State must “prove the voluntariness of a consent to search by

clear and convincing evidence.” Id. (quoting

State v. Ibarra , 953 S.W.2d 242, 245

(Tex. Crim. App. 1997)). In this analysis of voluntariness courts may consider

numerous factors, including “physical mistreatment, use of violence, threats,

threats of violence, promises or inducements, deception or trickery, and the

physical and mental condition and capacity of the defendant within the totality

of the circumstances.” Id. at 460

n.26 (quoting United States v. Pena ,

143 F.3d 1363, 1367 (10th Cir. 1998)). We may additionally consider appellant’s

age, education, and intelligence, the length of detention, any constitutional

advice given to the defendant, the repetitiveness of the questioning, and the

use of physical punishment. See Reasor v. State , 12 S.W.3d 813, 818

(Tex. Crim. App. 2000). We may also consider whether appellant was in custody, or

had been arrested at gunpoint; whether appellant was warned that he need not

consent, and whether appellant had the option to refuse to consent. See Flores v. State , 172 S.W.3d 742 ,

749–50 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In examining the

totality of the circumstances surrounding consent to search, the trial court

should consider the circumstances before the search, reaction of the accused to

pressure, and any other factor deemed relevant. Reasor , 12 S.W.3d at 818 .

In

this case, appellant argues his consent was coerced because six officers dressed

in tactical gear arrived at his home late at night, accused him of drug crimes

before requesting consent, failed to ascertain that he was able to speak

English, failed to read him his Miranda

rights, failed to inform him he could speak to a lawyer, and failed to inform

him he could refuse consent.

We

note initially that officers and appellant’s mother testified to appellant’s

ability to speak, understand, read, and write English, and appellant himself

testified at the suppression hearing without a translator. Further, neither Miranda warnings nor awareness of a

right to refuse are required for voluntary consent. See Rayford v. State , 125

S.W.3d 521, 528 (Tex. Crim. App. 2003). And, although six officers entered

appellant’s home, only two or three sat with him at his kitchen table when

consent was obtained, and officers did not block the path from the kitchen

table to the front door.

Regarding

appellant’s assertion that officers accused him of drug crimes before seeking

consent, the record does reflect that officers told appellant they were

conducting a narcotics investigation and wished to search his home for drugs. However,

appellant has not explained how this fact might contribute to coercion, nor

have we found any authority that consent is involuntary when officers inform a

suspect of the nature of an investigation or the object of an intended search.

While

the late-night arrival of six officers dressed in tactical uniforms might create an intimidating environment, we are unpersuaded

the circumstances were sufficient to overbear appellant’s will and critically

impair “his capacity for self-determination.” Meekins , 340 S.W.3d at 459 (quoting Watson , 423 U.S. at 424 ). Indeed, “the

Constitution does not guarantee freedom from discomfort,” Carmouche v. State , 10 S.W.3d 223, 333 (Tex. Crim. App. 2000) (quoting

State v. Velasquez , 994 S.W.2d 676,

679 (Tex. Crim. App. 1999)), and “the Constitution presumes that an actor is

invested with a vibrant sense of his own constitutional rights and will assert

those rights when they are implicated.” Carmouche ,

10 S.W.2d at 333.

Viewing

the totality of the circumstances in the light most favorable to the trial

judge’s ruling, we conclude the trial court’s determination that appellant

voluntarily consented was not clearly erroneous.

CONCLUSION

We

affirm the judgment of the trial court.

Sherry

Radack

Chief

Justice

Panel consists

of Chief Justice Radack and Justices Higley and Brown.

Do not

publish. Tex. R. App. P. 47.2(b).

[1] Trial court No. 1261747, appellate court

No. 01-11-00069-CR.

[2] Trial court No. 1261748, appellate court

No. 01-11-00070-CR.

3 Appellant’s

mother testified at the suppression hearing that four officers knocked

loudly on the door for approximately ten

minutes while yelling for the mother to open the door. Additionally, one of the

three officers who testified about the interaction at the front door with

appellant’s mother testified that officers instructed, rather than requested,

appellant’s mother to leave the front door open while she retrieved appellant.

4 Even if the

knock-and-talk procedure had resulted in a seizure, this would not have

necessarily invalidated appellant’s consent to search his home. Brick v. State , 738 S.W.2d 676, 681

(Tex. Crim. App. 1987) (discussing procedure analyzing admissibility of evidenced

derived from consensual search following unlawful arrest).