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                                             OPINION

                                        No. 04-08-00392-CR

                                      Flanzo Lafont TOWNES,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-6500
                              Honorable Sid L. Harle, Judge Presiding

Opinion by: Steven C. Hilbig, Justice
Concurring opinion by: Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: April 22, 2009

AFFIRMED

           Flanzo Lafont Townes was indicted for possession of a machine gun. After the trial court

denied Townes’s motion to suppress, Townes entered into a plea bargain agreement with the State.

Townes pled no contest and the trial court assessed punishment at five years’ confinement, probated

for five years. The trial court granted Townes permission to appeal the ruling on the motion to

suppress. We affirm the trial court’s judgment.
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                                         BACKGROUND

       Ronald M. Mora, a Bexar County Adult Probation officer, was the only witness to testify at

the suppression hearing. Mora testified that on May 1, 2007, he received a call from San Antonio

Police Department Detective Earwood. Detective Earwood told Mora he had received information

that Townes, a probationer, may have illegal drugs and weapons at his residence. Mora confirmed

Townes was on misdemeanor community supervision. One of the conditions of Townes’s

supervision prohibited him from possessing any contraband, including weapons and illegal drugs.

Another probation condition provided:

       You shall consent to search of your person, residence or any vehicle which you
       operate, occupy or possess at any time by any Bexar County Community Supervision
       and Corrections Department Supervision Officer, without prior notice or search
       warrant, to determine if you are in compliance with the conditions of community
       supervision. Any contraband found to be in your possession will be subject to
       confiscation.

Mora agreed to do a “probation check” at Townes’s residence.

       When Mora and Detective Earwood arrived at Townes’s residence, owner Wanda Bradley

answered the door. Mora testified he explained to Ms. Bradley that Townes was on community

supervision and that he and Detective Earwood were requesting permission to conduct a search of

the residence for illegal drugs, contraband, or weapons. Ms. Bradley consented to the search, but

the officers were unable to search one bedroom because it was locked. Ms. Bradley explained that

only Townes had a key to the room, and he was not home.

       After the officers completed searching the common areas of the residence, Detective

Earwood received information that other SAPD officers had located Townes. SAPD officers brought

Townes to Ms. Bradley’s house, where he waited with officers in the carport. Although Townes was

not handcuffed while he was in the carport, Mora testified Townes was not free to leave the


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residence until the officer had concluded his “probation check.” Mora testified the following then

occurred:

         A.        [Probation officer] Well, at that time I went outside, went to the carport and
                   went – – I asked Mr. Townes if he had a key. They brought the key to me
                   and – –

         Q.        [Prosecutor] Who is they?

         A.        One of the officers, one of the PD officers, had brought the key to me. And
                   I’d asked him about, you know, if there was anything in the room that I
                   needed to be concerned about. And he – – he had informed us that there was
                   a weapon inside a backpack inside the bedroom.

Townes also confirmed to Mora that the room was his bedroom. Mora used the key to unlock the

door to the room. During the search of Townes’s room, Mora found a disassembled machine gun

in a backpack and one of the SAPD officers found a revolver underneath a television stand. When

Mora questioned Townes, he took responsibility for the weapons.

         After hearing the testimony, the trial court took the matter under advisement, and two days

later signed an order denying Townes’s motion to suppress.1 No findings of fact and conclusions of

law were requested or made.

                                               STANDARD OF REVIEW

         We review a trial court’s ruling on a motion to suppress for abuse of discretion. Swain v.

State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We will uphold the ruling if it is supported by

the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853,

855-56 (Tex. Crim. App. 2000). We view the evidence in the light most favorable to the trial court’s


         1
           … The State contends we do not have jurisdiction over this appeal or, alternatively, Townes has waived the
issue he raises on appeal because the trial court did not rule on his motion to suppress the evidence seized in the search.
W e disagree. One of the motions filed by Townes’s attorney sought suppression of “all evidence seized as a result of the
illegal search and seizure of the Defendant.” That motion was denied by a written order after the hearing, but before
Townes entered his plea, and the trial court expressly granted Townes permission to appeal the ruling. W e therefore have
jurisdiction over the appeal and Townes preserved the issue he raises in the appeal. See T EX . R. A PP . P. 25.2(a)(2), 33.1.

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ruling, and when the trial court has not made any findings of fact and neither party timely requested

them, we imply the fact findings necessary to support the ruling if such findings are supported by the

record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We “then review[] the trial

court’s legal ruling de novo unless the supported-by-the-record implied fact findings are also

dispositive of the legal ruling.” Id. at 819.

                                                DISCUSSION

        On appeal, Townes contends the trial court erred in denying his motion to suppress because

“the evidence was seized without a warrant and the State of Texas failed to demonstrate that a valid

exception to the warrant requirement of the Fourth Amendment existed to justify the warrantless

search and subsequent seizure of the evidence which formed the sole basis for the appellant’s

conviction.” The State argues Townes consented to the search by accepting the conditions of his

probation or, alternatively, that the warrantless search was reasonable because it was supported by

reasonable suspicion. Townes contends any consent he gave by agreeing to the terms of probation

was effectively coerced and not voluntary, there was no reasonable suspicion justifying the search,

the probation condition cannot be relied upon to support the search because it is not reasonably

related to the underlying offense (driving with an invalid license), and the search was invalid because

it was not conducted for probationary purposes.

        Townes first argues the warrantless search of his room cannot be upheld on the ground that

he consented to the search by accepting the conditions of probation. Townes relies on Tamez v. State,

in which the Texas Court of Criminal Appeals held that any consent given by accepting a probation

condition that required the probationer to “[s]ubmit his person, place of residence and vehicle to

search” at any time by any law enforcement officer was not freely and voluntarily given. 534 S.W.2d



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690, 690-92 (Tex. Crim. App. 1976). The court went on to hold that a warrantless search pursuant

to the condition violated the probationer’s rights under the Fourth Amendment of the United States

Constitution and Article I, Section 9 of the Texas Constitution. Id. at 692. The State responds that

Townes’s reliance on Tamez is misplaced in light of the United States Supreme Court’s opinion in

U.S. v. Knights, 534 U.S. 112 (2001). Because on appeal Townes claims only a violation of the

Fourth Amendment, we do not consider whether the search of Townes’s room pursuant to the

probation condition comports with the Texas Constitution as interpreted in Tamez.2

         In Knights, police investigating an arson conducted a warrantless search of Knights’s

apartment. 534 U.S. at 115. In the subsequent prosecution for conspiracy to commit arson, Knights

sought to suppress the items seized. Id. at 116. The State argued the search was authorized by a

condition in Knights’s probation in an unrelated drug offense. That condition required Knight to

“[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime,

with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or

law enforcement officer.” Id. at 114.3 As in this case, the State argued that Knight’s acceptance of

the probation condition constituted consent to the search. Id. at 118. The Supreme Court concluded

it did not need to decide whether Knights waived his Fourth Amendment rights by accepting the

probation conditions. Id. Instead, the Court upheld the search without a finding of consent, holding

that under the totality of the circumstances, “the warrantless search . . ., supported by reasonable



         2
          … Townes challenged the search in the trial court based on the Texas Constitution as well as the United States
Constitution.

         3
          … At trial and on appeal, Townes, the State, and the trial court all treated Townes’s probation condition either
as waiving his Fourth Amendment rights or as constituting consent to the search. However, the requirement in Townes’s
probation that he “shall consent to a search” can be construed as requiring Townes to consent in the future to any request
to search by his probation officer. So construed, the State would be required to show Townes gave consent at the time
of the search. Because all the parties treat the condition as conferring consent ab initio, we will do likewise.

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suspicion and authorized by a condition of probation, was reasonable within the meaning of the

Fourth Amendment.” Id. at 118, 122. We next turn to the issue of whether reasonable suspicion

supported the search in this case.

       The State contends the information Detective Earwood received that Townes might have

drugs and weapons, together with Townes’s statement to Mora that he had a machine gun in his

backpack, amounted to at least reasonable suspicion. Townes argues the State may not rely on

Detective Earwood’s information because there is no evidence as to the source or reliability of the

information. See Florida v. J.L., 529 U.S. 266, 269 (2000) (holding reasonable suspicion cannot be

grounded upon unknown informants of unknown reliability); but see Griffin v. Wisconsin, 483 U.S.

868, 871, 889-80 (1987) (upholding warrantless search by probation officer as reasonable based on

unsourced information from police officer that probationer might have guns in his apartment). We

need not decide that question because Townes’s statement to Mora before the search that he had a

machine gun in his backpack was sufficient to provide reasonable suspicion that Townes possessed

an illegal weapon.4

       Townes next argues the search violated the Fourth Amendment because the condition of

probation that authorized the search was overbroad and did not bear a reasonable relationship to the

underlying offense. He contends the condition is invalid because it “would not help to reassure the

authorities that he was being rehabilitated and no longer driving with an invalid license.” Townes’s

argument incorrectly assumes that rehabilitation is the sole goal of probation. A second primary goal

of probation is protecting society. Knights, 534 U.S. at 119; see TEX . CODE CRIM . PROC. ANN . art.

42.12 sec. 11(a) (Vernon Supp. 2008) (stating judge may impose any reasonable condition of



       4
        … On appeal, Townes does not challenge the legality of his detention or the admissibility of this statement.

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probation designed to protect the community). Probationers are “more likely than the ordinary

citizen to violate the law.” Knights, 534 U.S. at 120; Griffin, 483 U.S. at 880. “And probationers

have even more of an incentive to conceal their criminal activities and quickly dispose of

incriminating evidence than the ordinary criminal because probationers are aware that they may be

subject to supervision and face revocation of probation, and possible incarceration, in proceedings

in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not

apply.” Knights, 534 U.S. at 120. Probationers therefore “do not enjoy ‘the absolute liberty to which

every citizen is entitled, but only . . . conditional liberty properly dependent on observation of special

[probation] restrictions.’” Griffin, 483 U.S. at 874 (quoting Morrisey v. Brewer, 408 U.S. 471, 480

(1972)). “These restrictions are meant to assure that the probation serves as a period of genuine

rehabilitation and that the community is not harmed by the probationer’s being at large.” Griffin

483 U.S. at 875. “These same goals require and justify the exercise of supervision to assure that the

restrictions are in fact observed.” Id. Townes’s probation condition required him to consent to

warrantless searches to determine whether he is compliance with the terms of his probation. The

condition is therefore reasonable and does not violate the Fourth Amendment. See Knights, 534 U.S.

at 119 (stating it was reasonable for trial judge who sentenced Knights to probation to conclude

search condition requiring submission to warrantless search by any law enforcement officer at any

time would further goals of probation); Griffin, 483 U.S. 868 (upholding warrantless search based

on state regulation authorizing any probation officer to conduct warrantless search of a probationer’s

home if there are reasonable grounds to believe there is contraband).

        Lastly, Townes argues “the probationary search condition was used improperly” and the fruits

of the search should be suppressed because the search had no probationary purpose and “was



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motivated solely by police objectives.” We disagree. The conditions of Townes’s probation expressly

prohibited him from possessing “any contraband . . ., including, . . . illegal weapons, controlled

substances or illegal drugs.” The search condition authorized a search by any probation officer to

determine whether Townes was complying with the conditions of his probation. The evidence at the

hearing established the search, conducted by a probation officer, was to determine whether Townes

had any illegal drugs or weapons. The State therefore met its burden to establish the search fell

within the terms of the probation condition. Whether the primary impetus for the search came from

a police officer, as opposed to a probation officer, is not relevant to the analysis. See Griffin,

483 U.S. at 871, 889-80 (upholding search by probation officer as reasonable based on unsourced

information from police officer that Griffin might have guns in his apartment); see also Knights,

534 U.S. at 122 (holding actual subjective motivation of individual officer was not relevant).

                                                   CONCLUSION

         Because the search of Townes’s room was supported by reasonable suspicion and authorized

by a condition of his probation, the search did not violate the Fourth Amendment to the United States

Constitution. Accordingly, we overrule Townes’s issue and affirm the trial court’s judgment.5



                                                                Steven C. Hilbig, Justice

Publish



         5
          … Based on our holding, we need not consider an alternate ground to uphold the search as does the
concurrence. Moreover, we do not agree that the evidence supports a finding that Townes consented to the search. A
reviewing court should not rely on defense counsel’s failure to present evidence or ask questions as proof of consent.
Rather, the burden was on the State of Texas to demonstrate, either by a preponderance of the evidence or by clear and
convincing evidence, that Townes voluntarily consented to the search of his room. See Carmouche v. State, 10 S.W .3d
323, 331 (Tex. Crim. App. 2000) (noting that “although the federal constitution only requires the State to prove the
voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear
and convincing evidence that the consent was freely given).

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