
 






In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-02-00660-CR
____________

JOEY KIRK WHISENHUNT, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 1st County Court
Brazos County, Texas
Trial Court Cause No. 3981-01



DISSENTING  OPINION
 There is no evidence in the record of this case that anyone positively and
unequivocally consented to a search of appellant's belongings in his bedroom.  The
Constitution of the United States, the Texas Constitution, and the well-established
precedent of the United States Supreme Court and of the Texas Court of Criminal
Appeals compel the suppression of the evidence seized in this case.  Accordingly, I
respectfully dissent.
Background

	The facts pertinent to appellant's motion to suppress evidence are summarized 
in Defendant's Exhibit 1, Officer Shawn Davis' sworn Probable Cause Statement:
	On 12-02-01 . . . I[,] Officer Shawn Davis . . . of the Bryan Police
Department, was dispatched to . . . a report of a burglary of [a]
residence.  Upon arrival at [the residence]  I contacted resident, Bradley
Joe Wunderlich . . . who advised me that he and his roommate's trailer
had been burglarized. . . . The trailer was entered by unknown subject(s)
and several electronic items were stolen.  Wunderlich advised that his
roommate, [appellant] . . ., was out of town on a hunting trip.

	Upon gathering some information from Wunderlich I began to process
the scene for fingerprints and any other evidence left behind by the
burglar(s).  I began processing in the living room [and] then proceeded
to Wunderlich's bedroom.  I then went to [appellant's] bedroom.  It was
very obvious that the burglar(s) had been in his room. . . . I began
processing [appellant's] room for any evidence.  I noticed that a small
wooden jewelry box had the lid left open as if someone had rummaged
through it.  I processed the box for any fingerprints.  I lifted the upper
tray of the box to see if the items in the box were still in place or had
been stollen [sic]. (1)  As I looked into the box I noticed a plastic baggie
with a green leafy substance inside. The substance was cosistant [sic]
with that of marijuana, so I removed the object from the box and
examined it further.  The substance had the unmistakable odor of
marijuana.  I then took custody of the suspected marijuana.  I looked
further into the box and found a [Texas A&M University] degree plan
with [appellant's] name and social security number directly under where
I found the suspected marijuana [sic].

	Under direct examination by appellant, Officer Davis testified that when he
arrived at the trailer, Wunderlich told him that "his roommate's trailer had been
burglarized" and that appellant was out of town on a hunting trip.  Davis also testified
that there were "no exigent circumstances" at the time of his investigation and that
the marihuana was "not in plain view."  In regard to the issue of consent to search,
Davis testified unequivocally:
	[Appellant's Counsel]:	Did you get Mr. Wunderlich's consent to go
into the bedroom of [appellant]?

	[Officer Davis]:		No.

There is no evidence in the record that Davis asked for and received permission from
anyone to go through appellant's personal belongings.
	Appellant testified that he owned the trailer and that Wunderlich paid him
monthly rent for the use of a bedroom and the common areas of the trailer.  Appellant
also testified that he never gave anyone consent to enter his bedroom and he objected
to Officer Davis's entry into his bedroom "at all because it's my private property." 
Only after Davis had seized the marihuana from appellant's jewelry box and left the
trailer did Wunderlich contact appellant on appellant's cell phone and inform him  of
the burglary and that Davis had seized the marihuana.
	In denying appellant's motion to suppress evidence, the trial court found that,
although Officer Davis conducted a warrantless search of appellant's bedroom, this
search was reasonable because (1) Wunderlich had "apparent authority" to authorize
a search of appellant's bedroom, (2) appellant "impliedly consented" to the search,
and (3) Davis reasonably conducted a criminal investigation at the scene of a crime.
	The majority opinion concludes that "the trial court did not abuse its discretion
by finding that the State met its burden of proof to establish that [Officer] Davis acted
reasonably under the circumstances by relying on Wunderlich's apparent authority
to consent to the search."
Standard of Review
	 A trial court's ruling on a motion to suppress evidence will not be set aside
unless there is an abuse of discretion.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.--Houston [1st
Dist.] 2002, no pet.).  We will afford almost total deference to a trial court's
determination of facts supported by the record, especially when the findings are based
on the evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997).  Because we do not determine credibility, our de novo
review of consent and mixed questions of law and facts becomes a de novo review
of legal questions.  Spight, 76 S.W.3d at 775 (citing Ornelas v. United States, 517
U.S. 690, 697-99, 116 S. Ct. 1657, 1661-62 (1996)).
Search and Seizure

	Appellant contends that the trial court erred in denying his motion to suppress
evidence because Officer Davis's search of appellant's personal belongings violated
the protections of the United States and Texas constitutions against unreasonable
searches and seizures.
	The Code of Criminal Procedure provides that "No evidence obtained by an
officer or other person in violation of any provisions on the Constitution or laws of
the State of Texas, or Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal case."  Tex.
Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2003).  Moreover, "all evidence
obtained by searches and seizures in violation of the [United States] Constitution is
. . . inadmissible in a state court" under the federal exclusionary rule, which is
applicable to the states through the Due Process Clause of the Fourteenth
Amendment. (2) Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). 
	The United States Constitution guarantees that, "The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . ."  U.S. Const. amend. IV.  The Texas Constitution
likewise provides that, "The people shall be secure in their persons, houses, papers
and possessions, from all unreasonable seizures or searches . . . ."  Tex. Const. art.
I, § 9.
	Under our law, all warrantless searches are presumed to be unreasonable.  As
noted by the Texas Court of Criminal Appeals:
	The basic purpose of the Fourth Amendment, United States
Constitution, is to safeguard the privacy and security of individuals
against arbitrary invasions by governmental officials.  See Berger v. New
York, 388 U.S. 41, 87 S. Ct. 1873 (1967); Haynes v. State, 475 S.W.2d
739 (Tex. Crim. App. 1971); Brown v. State, 481 S.W.2d 106 (Tex.
Crim. App. 1972).  The same is true of Article I, Sec. 9 of the Texas
Constitution, and it is well settled under the Fourth and Fourteenth
Amendments of the United States Constitution that a search conducted
without a warrant issued upon probable cause is "per se unreasonable 
. . . subject only to a few specifically established and well-delineated
exceptions."  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507,
514 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.
Ct. 2022, 2031-32 (1971); Chambers v. Maroney, 399 U.S. 42, 51, 90
S. Ct. 1975, 1981 (1970).  See also Schneckloth v. Bustamonte, 412 U.S.
218, 93 S. Ct. 2041 (1973); Stoddard v. State, 475 S.W.2d 744, 749
(Tex. Crim. App. 1972).

Kolb v. State, 532 S.W.2d 87, 89 (Tex. Crim. App.1976) (emphasis added).  One of
the specifically established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent.  Id. (citing
Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043-44).  The protections afforded by the
Fourth Amendment and Article I, section 9 of the Texas Constitution may be waived
by an individual consenting to a search.  Kolb, 532 S.W.2d at 89.
	When relying upon consent to justify the lawfulness of a search, the State has
the burden to prove free and voluntary consent "by clear and convincing evidence."
Id. (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792
(1968)). The burden "requires the State to show that the consent given was positive
and unequivocal."  Kolb, 532 S.W.2d at 89-90.  The burden cannot be discharged by
showing no more than acquiescence to a claim of lawful authority.  Id. at 90 (citing
Bumper, 391 U.S. at 548, 88 S. Ct. at 1792).  Moreover, "consent to search is not to
be lightly inferred."  Kolb, 532 S.W.2d at 90.
	Here, there is no "clear and convincing" evidence that Wunderlich, or anyone
else, "positively and unequivocally" consented to any kind of search.  As noted
above, Officer Davis testified that he did not obtain Wunderlich's consent to go into
the bedroom of appellant.  Moreover, although Davis testified that he believed he had
Wunderlich's consent to process the entire trailer for fingerprints, there is no evidence
in the record that Wunderlich consented to any search of the trailer, of appellant's
room, or of appellant's jewelry box.  In fact, Officer Davis testified "I didn't consider
it a search.  I was there processing."  These undisputed facts alone compel the
suppression of the evidence seized in this case.
	Disregarding Officer Davis's testimony, the State argues, and the majority
agrees, that it was reasonable for Davis to believe that "Wunderlich had authority to
consent to [Davis'] search" of appellant's jewelry box in appellant's bedroom because
appellant and Wunderlich were "victims of a burglary," Davis was "shown around"
the trailer by Wunderlich, and Wunderlich gave Davis consent to "process" the trailer
for fingerprints.  With all due respect, this does not constitute any evidence of a
consent to search.  The United States Constitution, the Texas Constitution, and the
applicable case law require much more.
Apparent Authority
	Assuming that Wunderlich "positively and unequivocally" consented to a
search, the trial court did not find, and the State does not contend, that Wunderlich
had "actual authority" to consent to the search of appellant's jewelry box in his
bedroom.  Rather, the trial court found, and the majority agrees, that Officer Davis
reasonably believed that Wunderlich had "apparent authority" to consent to the search
of appellant's jewelry box in appellant's bedroom.
	If the facts of a case do not support a finding of "actual authority," a search
may still be considered reasonable if the person giving consent to search 
"apparently" had actual authority to do so.  Corea v. State, 52 S.W.3d 311, 317 (Tex.
App.--Houston [1st Dist.] 2001, pet. ref'd) (citing Illinois v. Rodriguez, 497 U.S.
177, 188, 110 S. Ct. 2793, 2801 (1990)).  A warrantless search by law enforcement
officers of a person's premises does not violate the proscription of unreasonable
searches and seizures when such a search is based upon the consent of a third-party
whom the officers, at the time of the search, reasonably believe to possess common
authority over the premises, but who in fact does not possess such authority.  Corea,
52 S.W.3d at 317 (citing Rodriguez, 497 U.S. at 186-89, 110 S. Ct. at 2800-01). 
However, police officers may not rely upon "consent given in ambiguous
circumstances or that clearly appears unreasonable."  Corea, 52 S.W.3d at 317 (citing
Rodriguez, 497 U.S. at 186-89, 110 S. Ct. at 2800-01).  As we noted in Corea:
	The apparent authority doctrine for consenting to a search should not be
applied so strictly that it becomes unworkable and places too heavy a
burden on police. The rule, however, does not allow law enforcement
officers to proceed without inquiry into ambiguous circumstances or to
always accept at face value the consenting party's apparent assumption
or claim of authority to allow the contemplated search. 

Corea, 52 S.W.3d at 317 (citing Riordan v. State, 905 S.W.2d 765, 771 (Tex.
App.--Austin 1995, no pet.)).
	The State bears the burden of proving that the person who gave consent had the
actual or apparent authority to do so.  Corea, 52 S.W.3d at 317 (citing Rodriguez, 497
U.S. at 181, 110 S. Ct. at 2797).  This burden, as a matter of law, cannot be met if an
officer, faced with an ambiguous situation, nevertheless proceeds without making
further inquiry.  If an officer does not learn enough and if the circumstances make it
unclear whether the property is subject to "common authority" by the person giving
consent, "then warrantless entry is unlawful without further inquiry." Corea, 52
S.W.3d at 317 (quoting Rodriguez, 497 U.S. at 188-89, 110 S. Ct. at 2801).
 Here, appellant, relying on our rationale in Corea, argues that the State failed
to meet its burden to prove that Wunderlich had apparent authority to consent to the
search of appellant's jewelry box in his bedroom.  The majority concludes that Corea
is "factually distinguishable."  I agree that Corea is factually distinguishable,
although for an entirely different reason--here, there is no evidence in the record
before us that anyone "positively and unequivocally" consented to any kind of a
search at all.  Nevertheless, even if there was some evidence in the record of consent
to search (again, there is not), Corea would not be substantively distinguishable.
	The issue in Corea was whether the State met its burden of proving that the
defendant's brother-in-law had actual or apparent authority to consent to a search of 
the defendant's bedroom in the defendant's apartment.  In the course of a burglary
investigation, police officers received information that the defendant possessed stolen
property.  Corea, 52 S.W.3d at 314.  The officers went into the defendant's
apartment, and his brother-in-law gave the officers written consent to search the
apartment.   Id.  When the officer's searched the defendant's bedroom, they found a
bag containing cocaine in the defendant's closet.  Id.  The trial court held that the
brother-in-law had apparent authority to consent to the search and denied the
defendant's motion to suppress evidence.  Id. at 315.
	We reversed the trial court's judgment "because the State did not sustain its
burden to establish that [the brother-in-law] had actual or apparent authority to
consent to the search."  Id. at 317.  We noted that the brother-in-law's authority to
consent to the search of the defendant's bedroom "became ambiguous once he told
the officers no one other than [the defendant] lived in [the defendant's ] bedroom.  Id. 
At that point, the officers were "obligated to investigate further to determine if [the
brother-in-law] truly had the authority to consent to a search of the bedroom."  Id.
	In this case, as in Corea, the State presented no evidence that appellant had
ever explicitly or impliedly given Wunderlich consent to enter or use appellant's
bedroom.  Furthermore, as did the officers in Corea, Officer Davis received notice
that appellant owned the trailer home  and lived in the bedroom in question.  In light
of Davis's knowledge that appellant owned the trailer and lived in the bedroom, and
without any statement or action from Wunderlich to indicate that he exercised mutual
use or common authority over appellant's bedroom, Davis was obligated to
investigate further to determine if Wunderlich truly had the authority to consent to the
search of appellant's jewelry box in appellant's bedroom.  Corea, 52 S.W.3d at 317. 
Because Davis failed to do so, the warrantless search in appellant's bedroom cannot
be validated under the apparent-authority doctrine.  See id.
	The majority erroneously concludes that Corea is inapplicable because here,
appellant was "never suspected of a crime.  He was a victim."  The majority notes that
Wunderlich called for assistance and invited Officer Davis into appellant's trailer. 
This is simply a distinction without a difference.  Surely, the protections against
unwarranted government intrusions afforded by the United States and Texas
constitutions apply to crime victims as well as to suspects.  The right to be free from
unreasonable searches does not extend only to those who are suspected of criminal
behavior.  Camara v. Mun. Court of City and County of San Francisco, 387 U.S. 523,
530, 87 S. Ct. 1727, 1732 (1967); United States v. Erickson, 991 F.2d 529, 531-32
(9th Cir. 1993).  The State still had the burden of proof to justify the warrantless
search.  Rodriguez, 497 U.S. at 181, 110 S. Ct. at 2797.  Yet, as in Corea, the State
did not present Wunderlich's testimony, did not attempt to do so, and did not explain
his absence, even though the State was relying on Wunderlich's apparent authority
to justify the search.  See Corea, 52 S.W.3d at 318.  Again, as noted above, Officer
Davis testified that he did not receive Wunderlich's consent to enter appellant's
bedroom. (3)
	Writing for this Court, Justice Murry Cohen stated that, "No expectation of
privacy is more reasonable than that which is given to one's bedroom.  From there,
one may exclude the whole world, including one's children, and especially the
government."  Reynolds v. State, 781 S.W.2d 351, 355 (Tex. App.--Houston [1st
Dist.] 1989, pet. ref'd) (holding that child cannot consent to search of parent's
bedroom).  The same logic applies to roommates as well as to children.  Here, the
State simply did not meet its burden to prove that the apparent-authority doctrine is
applicable under the facts of this case.
Implied Consent
 Even without valid consent from a third-party, police officers may, in some
instances, search the immediate area of a crime under the doctrine of implied consent. 
In Brown v. State, the Court of Criminal Appeals adopted the implied-consent
doctrine, holding:
	[W]hen a crime is reported to the police by an individual who owns or
controls the premises to which the police are summoned, and that
individual either states or suggests that it was committed by a third
person, he or she implicitly consents to a search of the premises
reasonably related to the routine investigation of the offense and the
identification of the perpetrator.  As long as the individual is not a
suspect in the case or does nothing to revoke his consent, the police may
search the premises for these purposes, and evidence obtained thereby
is admissible.

Brown v. State, 856 S.W.2d 177, 182 (Tex. Crim. App. 1993).  Here, the trial court
relied on Brown in finding that appellant implicitly consented to the search of his
bedroom.
	The implied-consent doctrine does not apply in this case.  The critical
distinction between the instant case and Brown is that, in Brown, the defendant
himself summoned the police to investigate a crime that occurred on premises that the
defendant owned and controlled.  Id. at 179.  In this case, Wunderlich, a third-party,
summoned the police to appellant's trailer, and, in the course of a criminal
investigation, Officer Davis performed a search of appellant's jewelry box in
appellant's bedroom, which was neither owned nor controlled by Wunderlich.  This
is quite different from the context associated with implied consent, in which a
defendant initiates police contact with the mistaken belief that his cooperative posture
can divert or prevent police suspicion of him.  Id. at 181.
	A person impliedly consents to a search by engaging in certain activities that,
by their very nature, involve a diminished expectation of privacy.  See id.  The State
has not identified any conduct by appellant that would somehow imply that appellant
initiated police contact or consented to a search of his bedroom.  In addition, the State
has cited no authority holding that a third-party may impliedly consent to a search of
property over which the third-party exercises no control.  This Court cannot conclude,
as the State seemingly suggests, that Wunderlich, acting on behalf of appellant,
impliedly consented to the search.  Thus, the State has not met its burden to prove that
the implied-consent doctrine is applicable to the facts of this case.
"Crime-Scene" Exception
 As a third ground to justify the warrantless search, the trial court found that it
was reasonable for Officer Davis to search appellant's jewelry box while conducting
a criminal investigation of a crime committed against appellant.  However, as noted
above, warrantless searches are unreasonable per se unless the State proves that the
particular search falls within a recognized exception to the constitutional requirement
of a warrant.  Kolb, 532 S.W.2d at 89 (citing Katz, 389 U.S. at 357, 88 S. Ct. at 514). 
Because of society's interest in investigating burglaries, the State argues that we
should recognize a "crime-scene" exception to the warrant requirement, whereby law
enforcement officers may conduct warrantless searches on private premises where a
burglary has recently taken place.  This is not a proper function of an intermediate
appellate court, and we do not have the authority to judicially create such an
exception.
	Despite the State's request, the Supreme Court has rejected the contention that
a "crime-scene" exception exists under the warrant requirement.  See Mincey v.
Arizona, 437 U.S. 385, 395, 98 S. Ct. 2408, 2415 (1978); see also Brown, 856 S.W.2d
at 179-80.  Although society has an important interest in ensuring that serious crimes
are promptly investigated, the Supreme Court has stated:
	If the warrantless search of a homicide scene is reasonable, why not the
warrantless search of the scene of a rape, a robbery, or a burglary?  "No
consideration relevant to the Fourth Amendment suggests any point of
rational limitation" of such a doctrine.

Mincey, 437 U.S. at 392, 98 S. Ct. at 2413 (quoting Chimel v. California, 395 U.S.
752, 766, 89 S. Ct. 2034, 2041 (1969)).  The Court concluded that the amorphous and
unlimited nature of a crime scene exception simply makes it unworkable under the
Fourth Amendment.  See Mincey, 437 U.S. at 392, 98 S. Ct. at 2413.  We are
therefore compelled to reject the State's suggestion that we adopt a "crime-scene"
exception in this case. (4)
Conclusion

 Because the warrantless search of appellant's jewelry box in his bedroom was
not justified by any of the established exceptions to the warrant requirements of the
United States and Texas constitutions, such as third-party consent, implied consent,
or exigent circumstances, the search in this case, as a matter of law, was
unreasonable.  Kolb, 532 S.W.2d at 89 (citing Katz, 389 U.S. at 357, 88 S. Ct. at 514). 
The marihuana seized by Officer Davis in this case must be suppressed.  See Mapp,
367 U.S. at 655, 81 S. Ct. at 1691; see also Tex. Code Crim. Proc. Ann. art.
38.23(a).  As noted by the Supreme Court:
	Nothing can destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the character of its own
existence.

Mapp, 367 U.S. at 659, 81 S. Ct. at 1694. 

	Accordingly, I would hold that the trial court erred in denying appellant's
motion to suppress evidence.  I would sustain appellant's points of error,  reverse the
trial court's judgment, and remand the cause to the trial court.
 

 
 
 Terry Jennings

Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

Justice Jennings, dissenting.

Publish.  Tex. R. App. P. 47.2(b).
1. 	The record does not reveal how Officer Davis could have possibly made this
determination given appellant's absence from the scene.
2. 	U.S. Const. amend. XIV.
3. 	Accordingly, the majority's reliance on Rodriguez in affirming the trial court's
judgment is misplaced.
4. 			The case law relied upon by the State does not support the State's contention
that a "crime-scene" exception exists under the Fourth Amendment.  See, e.g., 
Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942 (1978); United States v.
Estese, 479 F.2d 1273 (6th Cir. 1973).  The warrantless searches that were
conducted in those cases were validated because law enforcement officers
encountered exigent or emergency circumstances at the scene of a crime.  See
Tyler, 436 U.S. at 509 (burning building presented "exigency of sufficient
proportions" to render warrantless entry reasonable).  In this case, Davis
testified that he encountered no exigent circumstances, faced no emergency
situation, and was not acting in a community care-taking function.  Thus,
exigent circumstances cannot validate the warrantless search conducted here. 
Mincey, 437 U.S. at 392, 98 S. Ct. at 2413; Brimage v. State, 918 S.W.2d 466,
500 (Tex. Crim. App. 1996).
