


 
 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-02-00306-CR
 
Marvin Gay Levi,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 54th District Court
McLennan County, Texas
Trial Court # 2002-606-C
 

Opinion

 




            After a legal traffic stop, Marvin Gay Levi
consented to a search of his vehicle and his crotch for contraband.  After cocaine was found in his crotch, Levi
was arrested.  Levi's motion to suppress
the cocaine was overruled, and he appealed. 
We affirm.
BACKGROUND
          Officer
Allovio stopped Levi's vehicle because of a faulty license-plate light.  After a records check revealed that Levi was
on parole, Allovio inquired why.  Levi
responded that he was on parole for a cocaine charge.  After issuing a warning, Allovio told Levi that
he was free to leave.  As Levi turned to
his vehicle, Allovio asked if there were any guns, drugs, or weapons in the
vehicle.  Levi responded that there were
none.  Allovio asked Levi if he could
search his vehicle, and Levi consented. 
Before Allovio searched the vehicle, he asked if he could perform a
protective body search, and Levi agreed. 
After the body search revealed nothing, Allovio directed Levi to sit on
the curb while he searched the vehicle.
          At
this time, Officers Lundquist and Rivas arrived on the scene.  The officers stood next to Levi as he sat on
the curb while Allovio searched the vehicle. 
After nothing was found, Allovio approached Levi and asked him if he had
anything hidden in his crotch.  Levi
stated that he did not, but gave his consent for Allovio to search his
crotch.  During the search, Allovio felt
a bulge that felt like a pill bottle.  Thereupon,
the officers handcuffed Levi and removed the object that was subsequently
determined to be a pill bottle containing cocaine.  The officers placed Levi under arrest.
          Levi
filed a motion to suppress the cocaine claiming that the cocaine was illegally
obtained.  The trial court denied the
motion, and Levi was sentenced in accord with a plea agreement to thirty years
in prison.
          In
his appeal, Levi argues that the trial court abused its discretion in
overruling his motion to suppress because (1) the cocaine was discovered as a
result of multiple illegal detentions; (2) his consent was involuntary; and (3)
the search was constitutionally unreasonable.
Standard of Review
          A
trial court's denial of a motion to suppress is reviewed for abuse of
discretion.  Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002); Joubert v. State, 129 S.W.3d 686, 687 (Tex. App.—Waco 2004, no pet.).  "A voluntary consensual search is an
exception to the probable cause and
warrant requirements of the Fourth Amendment to the United States Constitution
and Article I, Section 9 of the Texas Constitution."  Conde
v. State, 135 S.W.3d 252, 255 (Tex. App.—Waco 2004, no pet.); see also Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003).  The validity of a consent to search is a
question of fact to be determined from all the circumstances.  Rayford,
125 S.W.3d at 528.  The State has the
burden to prove by clear-and-convincing evidence that consent was freely and
voluntarily given.  Id.; Conde,
135 S.W.3d at 255.  While we give almost
total deference to the trial court's determination of facts, we review de novo
the trial court's application of the law. 
Id.; Conde,
135 S.W.3d at 255.
Illegal
Detention
          In
Levi's first issue, he argues that the trial court should have granted his
motion to suppress the cocaine because it was discovered as a result of
multiple illegal detentions.  Levi claims
that Allovio's request for consent to search the vehicle after telling Levi he
was free to go constitutes a second detention because the purpose of the traffic
stop was over.  Levi points to his
testimony that Rivas and Lundquist were standing next to him on the curb as
further evidence that this was a second detention because the officers by their
presence did not leave him with the impression that he was free to leave.  Furthermore, he argues that this second
detention was illegal because Allovio did not have a reasonable suspicion that
Levi was involved in any illegal activity; and therefore, the evidence should
be suppressed as fruit of the illegal detention.
          However,
asking additional questions, including asking for consent to search a vehicle,
during a legal traffic stop is not a separate detention.  Vargas
v. State, 18 S.W.3d 247, 252 (Tex. App.—Waco 2000, pet. ref'd).  It is not unreasonable per se to request
consent to search a vehicle after the completion of a traffic stop.  James
v. State, 102 S.W.3d 162, 173 (Tex. App.—Fort Worth 2003, pet. ref'd); Leach v. State, 35 S.W.3d
232, 235 (Tex. App.—Austin 2000, no pet.).  On the contrary, a police
officer may request consent to search a vehicle after the purpose of the
traffic stop has been accomplished as long as it is reasonable under the
circumstances and the officer has not conveyed a message that compliance with
the officer's request is required.  Leach, 35 S.W.3d at 235; see Simpson v. State, 29 S.W.3d 324, 328
(Tex. App.—Houston [14th Dist.] 2000, pet. ref'd)(citing Ohio v. Robinette, 519 U.S. 33, 37-39, 117 S.Ct. 417, 420-21, 136
L. Ed. 2d 347, 353-55 (1996)). 
Therefore, the relevant question is whether the officer in asking for
Levi's consent gave the impression that an affirmative answer was required.
          Levi
was told he was free to leave before Allovio requested his consent to
search.  The officers testified that Levi
did not appear nervous or intimidated by them. 
The officers did not brandish their weapons, nor did they handcuff Levi
until after the contraband was discovered. 
Levi was not placed in a patrol car, but asked to sit on the curb for
his safety.  The evidence shows that
Allovio and the other officers did not convey a message that compliance with
Allovio's request for consent to search the vehicle was required.  James,
102 S.W.3d at 173.  Therefore, we
overrule Levi's first issue.


Involuntary
Consent
          In
his second issue, Levi argues that the trial court should have granted his
motion to suppress because his consent was involuntary.  For consent to be voluntary, it cannot be the
product of duress or coercion, express or implied.  Conde,
135 S.W.3d at 255 (citing Reasor v. State,
12 S.W.3d 813, 817 (Tex. Crim. App. 2000)). 
Voluntary consent must be positive and unequivocal, and it is not shown
by an acquiescence to a claim of lawful authority.  Conde,
135 S.W.3d at 255 (citing Carmouche v.
State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)).
          In
determining whether consent was voluntary, we look to certain relevant factors,
such as: the youth of the accused; the education of the accused; the
intelligence of the accused; the constitutional advice given to the accused;
the length of the detention; the repetitiveness of the questioning; and the use
of physical punishment.  Hunter v. State, 102 S.W.3d 306, 311 (Tex. App.—Fort Worth 2003, no pet.); Reasor, 12 S.W.3d at 818.  Additionally, testimony by law enforcement
officers that no coercion was involved in obtaining the consent is evidence of
the consent's voluntary nature.  Martinez v.
State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Hunter, 102 S.W.3d at 311.  A
police officer's failure to inform the accused that he can refuse consent is a
factor to consider in determining the voluntariness of consent; however, the
absence of such information does not automatically render the accused's consent
involuntary.  Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002); Hunter, 102 S.W.3d at 311. 
          There
is no evidence of the level of Levi's intellect, but the evidence shows that
Levi is an adult who has experienced previous encounters with law enforcement
officials.  The officers did not inform
Levi that he could refuse to give his consent. 
However, Levi was told he was free to go before Allovio asked for his
consent.  Levi was not arrested or
handcuffed before being asked to give his consent; therefore, there is no evidence
of physical punishment.  Evidence as to
the length of the detainment is conflicting, but at its longest it was twenty
minutes.  The evidence shows that on each
of the three occasions that Allovio asked for consent to search different areas,
Allovio asked only once.
          Levi
repeatedly points to the officers standing over him while he sat on the curb as
evidence that he was coerced into giving his consent.  However, there is no evidence that the
officers acted in any manner to coerce Levi. 
Testimony that the officers stood over Levi is no evidence that they
exhibited any behavior calculated to coerce him into giving his consent.  There is no evidence that the officers'
actions intimidated Levi.  On the
contrary, the evidence shows that Levi was calm and did not seem nervous.  
          Because
we must give appropriate deference to the trial court's determination of
historical facts and the credibility of the witnesses, we hold that the trial
court did not abuse its discretion in finding that Levi's consent was
voluntary.  Conde, 135 S.W.3d at 254; Joubert,
129 S.W.3d at 687; Hunter, 102 S.W.3d
at 312.  We overrule Levi's second issue.
Constitutionally
Unreasonable Search
          In
Levi's third issue, he argues that the search which revealed the cocaine hidden
in his crotch area was an unreasonable search under the Fourth Amendment
because the search exceeded the scope of Levi's consent.  U.S. Const. amend. IV; Harris v. State, 994 S.W.2d 927, 931 (Tex. App.—Waco 1999, pet.
ref'd).  Levi testified that after he
consented to the crotch search, Allovio unbuckled Levi's pants and placed a
flashlight down his crotch.  On the other
hand, Allovio testified that the crotch search was performed by only feeling of
Levi's crotch through his pants.  Allovio
could not remember using a flashlight, but stated that a flashlight is commonly
used in a search incident to an arrest after illegal drugs have been found.
          Because
there is conflicting evidence as to the manner of the search, we must defer to
the trial court's determination of the credibility of the witnesses.  Conde,
135 S.W.3d at 254.  Therefore, we hold
that the trial court did not abuse its discretion in its determination that the
search was reasonable.  We overrule
Levi's third issue.
CONCLUSION
          Having
overruled all of Levi's issues, we affirm the judgment.
 
 
                                                                             FELIPE
REYNA
                                                                              Justice
 
Before Chief Justice Gray,
          Justice Vance, and 
          Justice Reyna
Affirmed
Opinion delivered and filed August
 25, 2004
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[CR25]          

