                            NUMBER 13-18-00670-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                           Appellant,

                                            v.

RICHARD RAMOS-DAVILA,                                                          Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.



                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      The State brings this interlocutory appeal of the trial court’s order granting appellee

Richard Ramos-Davila’s motion to suppress drugs found in his motel room. See TEX.

CODE CRIM. PROC. ANN. art. 44.01(a)(5) (permitting the State to appeal a pretrial order
granting a motion to suppress). By a single issue, the State contends that the trial court

erred in granting the motion to suppress. We reverse and remand.

                                     I. BACKGROUND

       On June 23, 2018, Officer John Ghezzi of the Corpus Christi Police Department

received information that Ramos-Davila was staying at the Padre Motel in Corpus Christi.

Ghezzi testified that Ramos-Davila was under surveillance for possible possession and

distribution of narcotics. According to Ghezzi, Davila was a known gang member and

had been sending out Facebook messages looking for a gun. Ghezzi confirmed that

Davila’s actions were “consistent with dealing drugs out of that room” in the motel.

Although Ghezzi did not have a search warrant, Ghezzi was aware of an open arrest

warrant for an unrelated offense of public intoxication for Ramos-Davila at the time of the

surveillance.

       During the investigation, Ghezzi observed Ramos-Davila coming in and out of his

motel room frequently during a two-hour span. When a vehicle containing another known

gang member parked outside his motel room, officers arrested based on his outstanding

warrant Ramos-Davila as he was walking towards the vehicle. After detaining Ramos-

Davila, officers conducted a protective sweep of the motel room; no weapons or narcotics

were found in plain view.

       According to Ghezzi, Ramos-Davila was Mirandized before being questioned

about the motel room. Ramos-Davila asserted he could not give consent to search the

room because the room was his sister’s and everything in the room belonged to her.

       Ghezzi then spoke with Ramos-Davila’s sister, Erikah Salazar, who was in the

motel room. She informed Ghezzi, “Yeah, there’s drugs in here. It’s all his.” Salazar also

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told Ghezzi that she had been staying in the room for several days. She then gave

consent to search the room, both verbally and in writing.

       Officers found packages of methamphetamine inside an unlocked black box on top

of a bed and synthetic marihuana inside the drawer of a nightstand along with an

identification card belonging to Ramos-Davila.

       According to Ghezzi, Salazar never objected that the officers were going beyond

the scope of her consent; rather, she helped the officers search and offered assistance,

such as, “That’s where the dope is” and “That’s how it opens, there’s no key to it.”

       On September 20, 2018, Ramos-Davila was indicted for possession, with intent to

deliver, four grams or more but less than 200 grams of methamphetamine, a first-degree

felony (count one); possession of four grams or more but less than 200 grams of

methamphetamine, a second-degree felony (count two); and possession, with intent to

deliver, less than twenty-eight grams of alprazolam, a state jail felony (count three). See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(d), 481.114(b), 481.115(d). Ramos-Davila

then filed a motion to have the narcotics suppressed, alleging his sister lacked the

authority to give consent to search the room and that the scope of consent did not extend

to the closed black box. The trial court granted the motion and submitted the following

findings of facts and conclusions of law:

       1. [Ramos-Davila’s] statement that the items were not his was made while
          he was under custodial arrest and without the Miranda warnings given
          to him. Based on the State’s authorities in its Reply, the Court finds that
          consent to search is not an incriminating statement and that the Miranda
          warnings were not required.

       2. [Ramos-Davila] did not attempt to flee or abandon the premises when
          he was taken into custody. His statement amounts to a decision not to
          incriminate himself.

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       3. Salazar was in the room for a sufficient period of time to gain authority
          to consent to the search of the room.

       4. The officers had authority to seize the containers in question.

       5. The consent to search did not extend to opening the drawer or the box
          on the bed.

       6. There were no exigent circumstances that justified not obtaining a
          search warrant.

       The Court concludes that a search warrant should have been obtained to
       search the drawer and the box on the bed, and, because the officers did not
       obtain a search warrant, [Ramos-Davila’s] rights were violated.

The trial court granted Ramos-Davila’s motion to suppress the narcotics recovered during

the search of the room. This appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost

complete deference to a trial court’s findings of facts but we review de novo mixed

questions of law and fact that do not depend on credibility or demeanor. Id. We generally

uphold the trial court’s findings if they are “supported by the record.” Miller v. State, 393

S.W.3d 255, 262 (Tex. Crim. App. 2012).

       Consent to search may be validly obtained from an individual with apparent

authority over the premises. Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011).

Apparent authority is judged under an objective standard: “would the facts available to

the officer at the moment warrant a man of reasonable caution in the belief that the

consenting party had authority over the premises?” Id. The State must prove actual or

apparent authority by a preponderance of the evidence. See id.                  On appeal,



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determinations of actual and apparent authority are reviewed de novo as mixed questions

of law and fact. See id.

      Generally speaking, a search is defined by “the object of the search.” United

States v. Ross, 456 U.S. 798, 824 (1982). However, “[t]he standard for measuring the

scope of a search pursuant to consent is that of ‘objective’ reasonableness—what would

the typical reasonable person have understood by the exchange between the officer and

the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). Objective reasonableness is

a question of law reviewed de novo. See Valtierra v. State, 310 S.W.3d 442, 449 (Tex.

Crim. App. 2010). This is a straightforward test that ignores the subjective intent of both

the officer and citizen and solely analyzes what a reasonable person would believe the

consent to include. Id.

                                       III. ANALYSIS

      By one issue, the State contends that the trial court erred in granting Ramos-

Davila’s motion to suppress because the search was valid based on either abandonment

or consent. We first address the consent sub-issue.

      The State asserts that it obtained consent to search the property from Salazar.

Ramos-Davila argues that Salazar was not a joint occupant of the motel room because

she did not have equal control over the room and was only visiting Ramos-Davila for

several days in the room. However, at the time of the search, Ramos-Davila told Ghezzi

that he could not give consent to search the room because it belonged to Salazar. Also,

Salazar consented to having the room searched and told the officers that she had been

staying with Ramos-Davila for several days. The officers had also seen Salazar entering

and exiting the room.

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       Additionally, in finding of facts and conclusions of law number three, the trial court

found that “Salazar was in the room for a sufficient period of time to gain authority to

consent to the search of the room.” As previously stated, we review the trial court’s

determinations of actual and apparent authority de novo as mixed questions of law and

fact. See Limon, 340 S.W.3d at 756. Reviewing courts view the evidence in the light

most favorable to the trial court's rulings and assume that the trial court resolved any

issues of historical fact or credibility consistently with its ultimate ruling. Id. Therefore,

we conclude that a person of reasonable caution would believe, under these

circumstances, that Salazar had authority over the premises. See id. Thus, the State

validly received consent to search from someone with apparent authority over the

premises. See Bartie v. State, No. 14-16-00674-CR, No. 14-16-00675-CR, 2017 WL

3272286, *4 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding that officers

received consent from “common-law” wife even though there was conflicting testimony

as to whether she lived at the home); Valdez v State, 336 S.W.3d 330, 335 (Tex. App.—

San Antonio 2010, no pet.) (holding that a third party may consent to a search if they

possess “equal control over and authority to use the premises being search.”); see also

State v. Rodriguez, 521 S.W.3d 1, 19 (Tex. Crim. App. 2017) (holding that a dorm room

is analogous to a hotel room and a “third party can consent to a search to the detriment

of another’s privacy interest” if the third party has apparent authority over the place to be

searched).

       Ramos-Davila further asserts that even if the State had proper consent to search

the room, the “consent would certainly not extend to closed containers.” The trial court

found in its findings of facts and conclusions of law that the consent did not extend to the

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closed box and drawers in the nightstand. The State received consent from Salazar. As

we discussed above, she had apparent authority over the room, and Ramos-Davila

declared that everything in the room was hers. The State found drugs in a black box and

in a drawer of a nightstand. When a person gives general consent to search without any

specific limitations, they are giving officers consent to search any unlocked container that

might contain what they are looking for. See Jimeno, 500 U.S. at 251–52; Valtierra, 310

S.W.3d at 450 (extending the rationale of Jimeno to a house search).

       This Court recently addressed scope of consent in Villarreal v State, and even

though the case involved a vehicle search, the parameters are the same. 565 S.W.3d

919, 929 (Tex. App.—Corpus Christi–Edinburg 2018, pet. ref’d.). To determine whether

the search exceeded the scope of consent, several factors shape the analysis: (1) the

scope of the consent given, as defined by the object of the search; (2) whether the search

inflicts physical damage on the vehicle or its contents; (3) whether the suspect places any

limitation on his consent; (4) whether the suspect objects to the search; and (5) the

legitimate utility of the compartment or container invaded. Id; United States v. Gonzalez-

Badillo, 693 Fed. Appx. 312, 314–15 (5th Cir. 2017), cert. denied, 138 S.Ct. 1282 (2018);

United States v. Saucedo, 688 F.3d 863, 867 (7th Cir. 2012) (utility). This Court further

stated that

       if there is evidence that a defendant is in a position to object to the search,
       a failure to object to the breadth of the search is properly considered [as] an
       indication that the search was within the scope of the initial consent. A
       person’s silence in the face of an officer’s further actions may imply consent
       to that further action.




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Villarreal, 565 S.W.3d at 930 (citations omitted). Applying the same parameter, the scope

of consent can easily be inclusive of the unlocked box on the bed and the drawer in the

nightstand.

       Neither Ramos-Davila nor Salazar objected to the officers’ search of the box or the

nightstand drawer; in fact, Salazar volunteered assistance, informing the officers where

to find the drugs and how to open the box. Under these circumstances, a reasonable

person would believe that the black box and the drawer were within the scope of the

consent given. See Valtierra, 310 S.W.3d at 449. Accordingly, the trial court erred in

granting the motion to suppress. See Amador, 221 S.W.3d at 673.

       Because we have concluded that the search was valid due to consent, we need

not address the State’s other sub-issue concerning abandonment. See TEX. R. APP. P.

47.1. We sustain the State’s sole issue.

                                         IV. CONCLUSION

       We reverse the trial court’s order granting the motion to suppress and remand to

the trial court for further proceedings in accordance with this opinion.



                                                         NORA L. LONGORIA
                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of October, 2019.




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