                             NUMBER 13-16-00658-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                           Appellant,

                                            v.

BRANDON TEDDER,                                                                Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION
           Before Justices Rodriguez, Contreras, and Hinojosa
               Memorandum Opinion by Justice Contreras

       Appellee Brandon Tedder was indicted for possession of methamphetamine with

intent to deliver, a first-degree felony.   See TEX. HEALTH & SAFETY CODE ANN. §§

418.106(6), 481.112(a), (d) (West, Westlaw through 2017 1st C.S.). Tedder moved to

suppress the evidence that was seized from the hotel room where he was arrested. The

trial court granted Tedder’s motion, and the State filed this interlocutory appeal. See TEX.
CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through 2017 1st C.S.). By one

issue, the State argues that the trial court erred when it granted Tedder’s motion to

suppress.1 We affirm.

                                            I.    BACKGROUND2

        Six witnesses testified at the suppression hearing: Mike Mendez, a security guard

at the Sun Suites hotel in Corpus Christi, who placed a call to 911 concerning suspicious

activity in hotel room 127; Patrick Knesek, a co-defendant who was with Tedder in room

127 and who was arrested on suspicion of possession of methamphetamine; and four

police officers who investigated the call and arrested Tedder: Robert Cabello, Allen Miller,

Matthew Razzo, and Krystal Rodriguez.

        Following the hearing, the trial court entered findings of fact and conclusions of

law. As we explain, the findings are thorough and supported by the record. From these

findings, we distill the following facts:

        At 3:18 a.m. on October 26, 2014, Mendez called 911 to report possible drug

activity in room 127. Mendez testified that for several days, he had been watching the

occupants of the room with suspicion as they came and went. The occupants were later

identified as Tedder and his friend Knesek. On the night in question, Mendez found the


        1   Tedder did not file a responsive brief.

        2 Tedder was arrested along with Patrick Knesek, a co-defendant who is not a party to this appeal,

and both men were indicted for possession of methamphetamine with intent to deliver. Both Tedder and
Knesek filed motions to suppress the evidence, and, at a joint hearing before the trial court, they both
argued that their search and arrest were illegal because they were done without probable cause and without
a warrant. The trial court granted both motions. The State appealed the trial court’s decision as to each,
and this Court previously disposed of the State’s interlocutory appeal concerning Knesek. See State v.
Knesek, No. 13-16-00657-CR, 2017 WL 5184838 (Tex. App.—Corpus Christi Nov. 9, 2017, pet. denied)
(mem. op., not designated for publication) (finding that the trial court did not abuse its discretion in granting
Knesek’s motion to suppress). The State makes the same arguments in this appeal as in Knesek’s appeal,
although the State does not dispute Tedder’s standing to challenge the search. Because Tedder’s situation
is substantially the same as Knesek’s, we adopt the relevant background and analysis from our
memorandum opinion in Knesek’s appeal, as set forth in this memorandum opinion. See id. at *1–3.

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door of room 127 open and the room vacant. He saw through the open door what

appeared to be a bong sitting on a table. The trial court found Mendez’s testimony

credible.

       Officers Razzo and Rodriguez arrived at the hotel at 3:26 a.m. The officers spoke

with Mendez and then proceeded to room 127. They found the door ajar, but not so far

open that they could observe anything within the room. Officer Razzo knocked on the

door hard enough that it swung open, revealing a bong on a table. The trial court found

that Officer Razzo did not simply intend to knock on the door to announce his presence;

instead, based on acknowledgements made by Officers Razzo and Rodriguez that were

captured on a body-microphone recording, the trial court found that Officer Razzo

intended to open the door through the pretense of knocking.

       The officers entered the room and found no one present. They inspected the bong,

and Officer Razzo testified that he did not think that the bong contained any drug residue.

Officer Razzo also inspected an auto insurance card he located among various papers

on the bed. He obtained Tedder’s name from the card and radioed his name in to dispatch

at 3:34 a.m., whereupon he learned that Tedder had an extensive criminal history. The

officers also saw several items on the floor, including luggage, duffel bags, power tools,

and equipment. The trial court found that the officers did not seize any contraband or

evidence, and they “made no attempt to secure the premises or obtain a search warrant

before they closed the door to the room.”

       The officers met with Mendez and instructed him to call them when the two

occupants returned so that the police could resume their investigation. Mendez had an




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ongoing working relationship with Officer Razzo, and he had Officer Razzo’s personal cell

phone number. The officers left at 3:46 a.m.

       Approximately thirty minutes later, Mendez contacted Officer Razzo on his cell

phone and also called 911 to report that the two individuals had returned to their room.

According to Mendez, the two individuals had double parked their car behind another

vehicle directly in front of room 127.

       The trial court found that room 127 was rented in Tedder’s name, although both

Tedder and Knesek “had been using the room for at least several days.” According to

the findings, both men “had numerous personal items in the room, both left the room

together at approximately noon on October 25, 2014” to drive to Houston, and “both had

returned to the room together shortly after 4:00 a.m. on October 26, 2014.”

       At 4:24 a.m., three officers responded to Mendez’s second call: Officers Cabello,

Miller, and Rodriguez. Each of the officers testified that they observed nothing unlawful

as they approached hotel room 127. The trial court found that the only knowledge that

the officers had concerning any drug activity related back to the earlier entry by Officers

Razzo and Rodriguez.

       When the officers knocked, Tedder answered by opening the door “6–10 inches,”

according to the findings. The officers inquired about the double parked vehicle and then

asked Tedder to step outside. Tedder squeezed out the hotel room door, “intentionally

not opening it more than necessary to exit.” As Tedder exited the room, officers asked if

there was anyone else present. Tedder responded that there was. Officers instructed

him to tell Knesek to come out as well, and Tedder did so.




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       Tedder attempted to close the door as he exited the room, but an officer stuck out

his foot to block the door from closing. Tedder was immediately patted down for weapons

and handcuffed. As Knesek neared the door, the door was pushed open, and Officer

Miller entered the room. No drug paraphernalia was visible to any of the officers until

Officer Miller entered the room.

       Officer Miller saw the bong over Knesek’s shoulder and moved to secure it. As

Officer Miller entered, Knesek was removed from the room, patted down, and handcuffed.

When Officer Miller approached the table where the bong lay, he also noticed baggies

containing what later was confirmed to be methamphetamine.

       Tedder and Knesek were placed in separate patrol units.            Officer Cabello’s

dashboard camera was then activated, and the microphone worn by Officer Cabello

began to record the officers’ conversation. Shortly afterward, Officer Razzo arrived at the

hotel. The officers discussed the previous entry into room 127 earlier that morning. They

also discussed their suspicion that Tedder and Knesek had committed burglaries and that

there was stolen property in the room—in particular, the bags of power tools. The officers

continued to discuss the incident and inspect the room for at least thirty minutes after

Tedder and Knesek were placed in the units.

       Though Officer Razzo was present during both the first and second calls out to

Sun Suites, he did not make a report of either incident. Similarly, Officer Rodriguez was

present at both entries into room 127. However, in her report concerning the second

entry into the room, Officer Rodriguez did not mention the first entry.

       Officer Cabello called Agent Robert Larock and dictated various facts to be

included in Larock’s affidavit in support of a search warrant, which was obtained some



                                             5
hours later. Agent Larock was not informed of the first entry into room 127, that suspected

contraband was left in place in the room, or that the security guard was instructed to, and

did, call the officers back to the room a second time. This information was omitted from

his affidavit.

       The trial court found that none of the officers’ testimony was credible. According

to the trial court's findings, the officers “contradicted one another, claimed to not

remember important details, and were impeached by glaring omissions in their

testimony . . . .”

       Based on these facts, the trial court concluded that multiple aspects of the officers’

investigation, arrest, and seizure were unlawful, and the trial court entered other

supporting conclusions.     The court granted Tedder’s motion to suppress, and this

interlocutory appeal followed.

                                 II.   STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion under a bifurcated standard. Lopez v. State, 512 S.W.3d 416, 419 (Tex. App.—

Corpus Christi 2016, no pet.). When the trial court makes express findings of fact in a

suppression hearing, we afford almost total deference to those findings as long as they

are supported by the record. State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App.

2014). We apply the same standard when reviewing the trial judge’s application of law to

questions of fact when resolution of those questions depends on an assessment of

credibility and demeanor. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).

We apply a de novo standard of review to pure questions of law and to mixed questions

of law and fact that do not depend on the evaluation of credibility and demeanor. Id.



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                                     III.   DISCUSSION

       The State argues that the officers’ search and seizure of contraband was lawful.

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 v. State, 340 S.W.3d 454, 458 (Tex.

Crim. App. 2011).

       We focus our attention on a critical sequence of events which occurred during the

officers’ second visit to the Sun Suites hotel: the trial court found that after Tedder

answered the door, he slid out from the narrow opening in the doorway and then tried to

close the door behind him; however, “an officer impeded the door from closing,” “the door

was pushed open,” and “Officer Miller entered the room”; Officer Miller then saw a bong

on a table. “No drug paraphernalia was visible to any of the officers until Officer Miller

entered the room.”

       The State first argues that these findings are ambiguous. According to the State,

the quoted findings do not specifically say who pushed the door open wide enough for

the police to see into the room: Officer Miller or Knesek. The State urges us to resolve

this ambiguity by remanding the matter to the trial court for further findings of fact to clarify

who pushed open the door.

       The finding in question is not ambiguous, and no remand is necessary. This finding

reads: “As Knesek neared the hotel door and/or began to exit, the door was pushed open

and Officer Miller entered the room.” (Emphasis added). If, as the State contends, the

trial court meant that Knesek opened the door, the operative verb would have been

“pulled,” given the layout of the room.



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       Moreover, the State neglects to mention two conclusions of law, which further

clarify the sequence of events:

       10. By pushing open the hotel room door, the officers are precluded from
       claiming they saw the bong pipe (or any contraband) in plain view.

       11. Officer Miller unlawfully entered the hotel room.

If the disputed finding is at all unclear about who pushed the door open, these conclusions

make the trial court’s view clear beyond doubt.

       The State further argues that there was conflicting testimony regarding who

opened the door. However, the trial court unambiguously found that none of the officers’

testimony was credible, including their testimony that Knesek voluntarily swung the door

open wide enough to give the officers a plain view of the contraband. Instead, it is evident

that the trial court believed Knesek’s testimony that officers prevented Tedder from

closing the door, forced their way into the room, and immediately seized Knesek and the

contraband. The record adequately supports this credibility determination, and we defer

to it on appeal. See Granville, 423 S.W.3d at 404.

       Based on these facts, we determine that for purposes of the Fourth Amendment,

a search was conducted when Officer Miller entered room 127. See Valtierra v. State,

310 S.W.3d 442, 448 (Tex. Crim. App. 2010); see also Buschardt v. State, No. 05-11-

00504-CR, 2012 WL 6035341, at *2 (Tex. App.—Dallas Dec. 5, 2012, pet. ref’d) (mem.

op., not designated for publication) (holding that “entry into a hotel room is a search for

purposes of the Fourth Amendment,” citing Valtierra). This warrantless search led to the

discovery and seizure of the methamphetamine.

       The State advances two theories in support of its argument that this search was

lawful. The State first asserts that the officers’ entry into the hotel room was justified as

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a protective sweep of the premises, citing United States v. Gould. 364 F.3d 578, 584 (5th

Cir. 2004), abrogated on other grounds, Kentucky v. King, 563 U.S. 452, 462 (2011). As

an incident to a lawful arrest, officers may, as a precautionary matter and without probable

cause or reasonable suspicion, look in closets and other spaces immediately adjoining

the place of arrest from which an attack could be immediately launched—known as a

protective sweep. Maryland v. Buie, 494 U.S. 325, 334 (1990). However, Gould makes

clear that for a protective sweep theory to apply, “the police must not have entered (or

remained in) the home illegally . . . .” 364 F.3d at 587. Here, the question is whether the

officers lawfully entered the hotel room in the first instance. A protective sweep theory

gets the State no closer to demonstrating lawful entry. See id.

       Next, the State contends that the officers’ actions were justified by the good faith

exception to the exclusionary rule under McClintock v. State. __ S.W.3d __ , __ , No.

PD-1641-15, 2017 WL 1076289, at *7 (Tex. Crim. App. Mar. 22, 2017). Under the Texas

exclusionary rule, no evidence illegally obtained by an officer shall be admitted in

evidence against a criminal accused. TEX. CRIM. PROC. CODE. ANN. art. 38.23(a) (West,

Westlaw through 2017 1st C.S.). It is an exception to the exclusionary rule “that the

evidence was obtained by a law enforcement officer acting in objective good faith reliance

upon a warrant issued by a neutral magistrate based on probable cause.”             Id. art.

38.23(b).

       In McClintock, the court of criminal appeals addressed the scope of the good-faith

exception to the Texas exclusionary rule. __ S.W.3d at __ , 2017 WL 1076289, at *7.

Officers obtained a search warrant based on a canine sniff of an apartment’s curtilage,

which they believed in good faith to be legal; but during the pendency of the appeal,



                                             9
similar sniffs were held illegal. Id. at __ , 2017 WL 1076289, at *1 (citing Florida v.

Jardines, 569 U.S. 1 (2013)). The McClintock court addressed a complex question: (1)

when police obtain information illegally but in good faith, and (2) that information serves

as the basis for a search warrant, and (3) the warrant leads to the discovery of evidence,

is that evidence subject to exclusion? See id. The court held that the evidence was not

subject to exclusion, provided that the police conduct that uncovered the information used

in the warrant affidavit was “close enough to the line of validity” that an objectively

reasonable officer would believe that the information supporting the warrant was not

tainted by unconstitutional conduct. Id. at __ , 2017 WL 1076289, at *7 (quoting United

States v. Massi, 761 F.3d 512, 528 (5th Cir. 2014)).

       We find the good faith exception to the exclusionary rule inapplicable here.

McClintock addresses “evidence obtained as the result of the execution of a search

warrant.” Id. at __ , 2017 WL 1076289, at *6. Here, the contraband was obtained as the

result of officers’ warrantless searches of Tedder’s hotel room, which occurred well before

the warrant was issued. Under the circumstances of this case, a reasonable search’s

true “line of validity” would have been the prior issuance of a warrant, and the

circumstances which are “close enough” to pass constitutional muster are the specifically

established and well-delineated exceptions to the warrant requirement. See Meekins,

340 S.W.3d at 458. None of those exceptions apply here.

       Without a warrant or any exception that would otherwise validate these steps, the

search and seizure was per se unlawful, and suppression of the contraband was required.

See id. Accordingly, the trial court did not abuse its discretion in granting suppression.

See Lopez, 512 S.W.3d at 419.



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       We overrule the State’s sole issue on appeal.

                                  IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                       DORI CONTRERAS
                                                       Justice

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

Delivered and filed the
15th day of March, 2018.




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