Opinion issued September 3, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00333-CR
                           ———————————
                      REGINALD HUTCHINS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1388778


                            DISSENTING OPINION

      This case requires us to determine whether there was clear and convincing

evidence to support the trial court’s finding that appellant, Reginald Hutchins,

“verbally consented” to the warrantless search of his automobile that turned up the
evidence upon which he was subsequently convicted of possession of a controlled

substance with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.104(a)(4) (Vernon Supp. 2014); id. § 481.114(a) (Vernon 2010). The

majority affirms the trial court’s denial of Hutchins’ motion to suppress based

solely on the trial court’s finding that the police officer’s testimony that Hutchins

gave him verbal consent to conduct the search was “credible.” It does not consider

the totality of the circumstances. I believe that affirming the trial court’s ruling

presents an irresistible incentive for the police to conduct a full warrantless search

of any vehicle they choose to pull over for a minor traffic infraction—here, going

forty miles per hour in a thirty-five-mile-per-hour zone—upon the mere testimony

of an officer that the defendant gave verbal consent to the search. I therefore

respectfully dissent.

                                       Background

      At the suppression hearing, Houston Police Department Officer L. Smith

testified that he pulled Hutchins over for driving forty miles per hour in a thirty-

five-mile-per-hour zone. As he approached the car, he saw two pill bottles in plain

view. Hutchins confirmed the pills were his. Officer Smith testified that he asked

Hutchins for consent to search his vehicle and Hutchins gave him verbal consent.

He did not give Hutchins verbal warnings that he had the right to decline the search

and did not ask him to sign a written consent form, even though he had the forms



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with him in his patrol car. He did not give Hutchins a ticket for speeding. Officer

Smith testified that Hutchins was detained but not under arrest at the time he

allegedly consented to the search and that he asked Hutchins to get out of the car,

which Hutchins did. Officer Smith then placed him in the back seat of his patrol

car and searched the vehicle.

      Hutchins testified that he was not going over thirty-five miles per hour

because he had just pulled away from a traffic light. He testified that Officer Smith

stopped him, asked for his driver’s license, and took it back to his patrol car.

Officer Smith then returned, asked Hutchins to step out of the vehicle, asked him

what he was doing, told him he need to search Hutchins’ vehicle, handcuffed him,

and placed him in the back seat of his patrol car. When asked whether Officer

Smith requested verbal consent to search, whether Smith showed him anything in

writing, and whether he in fact gave consent to search, Hutchins responded, “No,

sir.” He also testified that he did not feel free to leave.

      Hutchins testified that Officer Smith then searched the front of his car and

found two pill bottles, “my two bottles in my name in the armrest.” Officer Smith

brought them back to the patrol car and asked Hutchins about them, saying they

were expired. Hutchins told him that he was looking at the wrong date and that

they were not expired. Officer Smith then returned to the car, again without asking

for consent to search, opened the trunk and appeared to go into the wheel well of



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the trunk, but Hutchins could not be certain because he could not see all the way

into the trunk from where he was sitting in the back seat of the patrol car.

      After denying Hutchins’ motion to suppress, the trial court entered findings

with respect to certain historical facts. The pertinent historical findings were that:

          • “Officer Smith observed two pill bottles in the front seat of
            Defendant’s vehicle in plain view”;
          • “Defendant advised that the pill bottles were prescribed to
            him”;
          • “Officer Smith asked Defendant if he could search his vehicle”;
          • “Defendant freely and voluntarily gave verbal consent to search
            his vehicle”;
          • “Officer Smith began searching the Defendant’s vehicle and
            confirmed that the two pill bottles found in the front seat
            belonged to Defendant”;
          • “Officer Smith continued to search the Defendant’s vehicle and
            discovered in the trunk in plain view a tan fiesta bag”;
          • “Officer Smith could see in plain view two additional white
            bags in the tan fiesta bag that are normally used to hold
            prescription bottles”;
          • “Officer Smith observed 3 additional pill bottles inside of the
            white bags”;
          • “1 pill bottle was prescribed to Veronica Jacobs”;
          • “[T]he 2 other pill bottles had no prescription label”; and
          • “Officer Smith continued to search the trunk area and found
            another pill bottle with no prescription label under a board that
            covers the spare tire area.”




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      The trial court then found “based upon Officer [Smith’s] testimony and

demeanor during his testimony . . . that Officer [Smith] conducted the search of the

vehicle driven by Defendant in good faith” and that “Officer [Smith] did not

exceed the scope of a permissible search under the circumstances presented.”

                                        Discussion

      The test for voluntary consent to search is not merely based on the trial

court’s estimation of the credibility of the officer who conducted the search, but on

the totality of the circumstances of the search; and the officer’s testimony does not

outweigh all other evidence and make a full search of a person’s vehicle legal all

by itself.   Most importantly, the State must prove by “clear and convincing

evidence” that the consent was “freely and voluntarily” given. I do not think the

facts of this case support such a conclusion.

      For search and seizure issues, the appellate courts “engage in a mixed

review,” giving “almost total deference to a trial court’s rulings on questions of

historical fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor while we review de novo application-of-law-to-fact

questions that do not turn upon credibility and demeanor.” Johnson v. State, 68

S.W.3d 644, 652–53 (Tex. Crim. App. 2002). When the trial court makes explicit

findings of fact, the appellate court must give deference to those findings. State v.

Sheppard, 271 S.W.3d 281, 286 (Tex. Crim. App. 2008). Likewise, when the trial



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court makes an explicit credibility finding, the appellate court must give deference

to that credibility determination. Id. However, “[a]ppellate courts review the legal

determination of detention, reasonable suspicion, and probable cause under the

Fourth Amendment de novo . . . .” Id. at 286–87. Because consent issues are

necessarily fact intensive, a trial court’s finding of voluntariness must be accepted

on appeal unless it is clearly erroneous. Meekins v. State, 340 S.W.3d 454, 460

(Tex. Crim. App. 2011).

      1. Voluntary Consent to Search

      As the majority states, a warrantless search, even if based on probable cause,

is per se unreasonable, subject to a few specifically established and well-delineated

exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043

(1973); Meekins, 340 S.W.3d at 458. One exception is a search conducted with a

person’s free and voluntary consent.         Meekins, 340 S.W.3d at 458 (citing

Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44).

      Consent to search may be communicated to law enforcement in a variety of

ways, “[b]ut the Fourth and Fourteenth Amendments require that a consent not be

coerced, by explicit or implicit means, by implied threat or covert force.” Id. at

458–59 (quoting Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2048). “The validity of

a consent to search is a question of fact to be determined from all the

circumstances.” Id. at 458 (citing Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047).



                                         6
Resolving a question about the voluntariness of a consent requires the trial court to

“conduct a careful sifting and balancing of the unique facts and circumstances of

each case.” Id. at 459. The ultimate question is whether the suspect’s “will ha[s]

been overborne and his capacity for self-determination critically impaired,” so that

his consent to the search “must have been involuntary.” Id. (quoting United States

v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828 (1976)). “[K]nowledge of a right

to refuse is not a prerequisite of a voluntary consent.” Schneckloth, 412 U.S. at

234, 93 S. Ct. at 2051. However, “the showing of a warning is of evidentiary value

in determining whether a valid consent was given.” Meeks v. State, 692 S.W.2d

504, 510 (Tex. Crim. App. 1985). If, under all the circumstances, it appears that

the consent was involuntary, “that it was coerced by threats or force, or granted

only in submission to a claim of lawful authority,” then the consent is invalid and

the search is unreasonable. Schneckloth, 412 U.S. at 233, 93 S. Ct. at 2051.

      “[T]he prosecution must prove by clear and convincing evidence that the

consent was freely and voluntarily given” before the consent to search is deemed

effective. Meeks, 692 S.W.2d at 509 (citing Bumper v. North Carolina, 391 U.S.

543, 548, 88 S. Ct. 1788, 1792 (1968)). “The [clear and convincing evidence]

burden requires the prosecution to show the consent given was positive and

unequivocal and there must not be duress or coercion, actual or implied.” Id.

(emphasis added); see Brown v. State, 212 S.W.3d 851, 869 (Tex. App.—Houston



                                         7
[1st Dist.] 2006, pet. ref’d). “[T]he standard for measuring the scope of consent

under the Fourth Amendment is that of ‘objective’ reasonableness—what would

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

and the suspect?” Meekins, 340 S.W.3d at 459 (emphasis added) (quoting Florida

v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803–04 (1991)). This inquiry is

made “from the point of view of the objectively reasonable person, without regard

for the subjective thoughts or intents of either the officer or the citizen.” Id.

      2. Totality of the Circumstances

      Here, the circumstances under which Hutchins’ consent to search his

automobile was obtained were as follows. Officer Smith’s search of Hutchins’

automobile initially took place within the context of a Terry stop based on Smith’s

observation of two prescription pill bottles in plain view in the armrest of

Hutchins’ car when he stopped Hutchins for driving forty miles per hour in a

thirty-five-mile-per-hour zone. Hutchins confirmed the pills were his. Officer

Smith testified that he obtained verbal consent from Hutchins to search his car. He

did not advise Hutchins that he had the right not to consent to the search, and he

did not give Hutchins a consent form to sign although he had the forms in his

patrol car. After Officer Smith obtained consent to the search, he handcuffed

Hutchins and placed him in the backseat of his patrol car before beginning the

search, admitting that at that point Hutchins was detained and thus not free to



                                            8
leave. Officer Smith then searched the armrest, obtained the pill bottles, and

verified they were unexpired prescriptions in Hutchins’ name. He then continued

to search Hutchins’ vehicle while Hutchins remained under detention in the back

seat of the patrol car and discovered contraband prescription pills in the trunk and

wheel well.

      “An officer may conduct a brief investigative detention, or ‘Terry stop,’

when he has a reasonable suspicion to believe that an individual is involved in

criminal activity.” Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)

(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)); Carmouche v.

State, 10 S.W.3d 323, 328 (Tex. 2000). The reasonableness of the temporary

detention “must be examined in terms of the totality of the circumstances and will

be justified when the detaining officer has specific articulable facts, which, taken

together with rational inferences from those facts, lead him to conclude that the

person detained actually is, has been, or soon will be engaged in criminal activity.”

Balentine, 71 S.W.3d at 768; Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.

1997). “The reasonableness of the detention . . . depends on whether the police

diligently pursued a means of investigation that was likely to dispel or confirm

their suspicions quickly.”    Balentine, 71 S.W.3d at 770.        “An investigative

detention must be temporary and the questioning must last no longer than is

necessary to effectuate the purpose of the stop.” Id. at 770.



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      The “plain view” doctrine may confer on an officer the authority to conduct

an investigative detention. See Baldwin v. State, 278 S.W.3d 367, 372 (Tex. Crim.

App. 2009). The “plain-view” doctrine permits an officer with prior justification

for an intrusion of privacy to seize evidence incriminating the accused that the

officer observes in plain view without having to obtain a warrant for that evidence.

Horton v. California, 496 U.S. 128, 135–36, 110 S. Ct. 2301, 2307 (1990); Walter

v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (“While searches conducted

without a warrant are per se unreasonable, seizing contraband in plain view does

not run afoul of the Fourth Amendment.”).

      The “plain view” doctrine requires only that the officer “did not violate the

Fourth Amendment in arriving at the place from which the evidence could be

plainly viewed” and that it be “immediately apparent that the item seized

constitutes evidence, that is, there is probable cause to associate the item with

criminal activity.” Walter, 28 S.W.3d at 541. “What the ‘plain view’ cases have

in common is that the police officer in each of them had a prior justification for an

intrusion in the course of which he came inadvertently across a piece of evidence

incriminating the accused.” Horton, 496 U.S. at 135, 110 S. Ct. at 2307. But “the

extension of the original justification is legitimate only where it is immediately

apparent to the police that they have evidence before them; the ‘plain view’

doctrine may not be used to extend a general exploratory search from one object to



                                         10
another until something incriminating at last emerges.” Id. at 136, 110 S. Ct. at

2307.

        3. Analysis

        To prove by clear and convincing evidence that Hutchins’ consent to search

his entire car, including the trunk, was valid, the State was required to prove that

an objectively reasonable person would have understood from the totality of the

circumstances that Hutchins’ consent was freely and voluntarily given and was not

the result of duress or coercion, actual or implied, or granted only in response to an

assertion of lawful authority. See Schneckloth, 412 U.S. at 233, 93 S. Ct. at 2051;

Meekins, 340 S.W.3d at 458–59; Meeks, 692 S.W.2d at 509.

        In my view, the claim that an objectively reasonable person could have

believed that Hutchins freely and voluntarily gave Officer Smith valid verbal

consent to make this search of the entire automobile is impossible to sustain under

the totality of the circumstances of this case. See Meekins, 340 S.W.3d at 459

(“[T]he standard for measuring the scope of consent under the Fourth Amendment

is that of ‘objective’ reasonableness—what would the typical reasonable person

have understood by the exchange between the officer and the suspect?”).

        The only justification for Officer Smith’s illegal search of Hutchins’ vehicle

was his stated subjective belief that Hutchins had freely and voluntarily consented

to the full search of his car, including the car’s trunk and wheel well. Officer



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Smith testified that when he pulled Hutchins over for driving forty miles per hour

in a thirty-five-mile-per-hour zone he observed two prescription bottles in

Hutchins’ armrest. Although Hutchins told him the prescription drugs were his,

Officer Smith could reasonably have believed that the pills were contraband and

thus would have been justified in initiating a Terry stop to determine whether the

pills were, in fact, evidence of illegal activity. See Balentine, 71 S.W.3d at 768

(stating that officer may conduct Terry stop when he has reasonable suspicion that

individual is involved in criminal activity). Indeed, it is hard to conceive of any

reason for Officer Smith to have asked Hutchins for consent to search his car other

than the officer’s having seen the prescription pills in plain view in the armrest,

and the evidence supports no other reasonable inference.

      The record shows that Officer Smith did initiate a Terry stop, told Hutchins

to step out of the vehicle, handcuffed him, placed him in the back of his patrol car,

and went back to search Hutchins’ car and retrieve the pills.         Officer Smith

testified that at that time Hutchins was “detained” but not under arrest. This

evidence undermines Officer Smith’s testimony and the trial court’s finding that

Hutchins’ consent was freely and voluntarily given as opposed to being obtained

pursuant to Smith’s assertion of lawful authority to search the vehicle. Thus, these

facts weigh against a finding that Hutchins freely and voluntarily consented to the

search of his vehicle. See Schneckloth, 412 U.S. at 233, 93 S. Ct. at 2051 (holding



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that if, under all circumstances, it appears that consent was “granted only in

submission to a claim of lawful authority,” consent is invalid).

      Officer Smith also testified that he had in his patrol car—but did not give to

Hutchins—consent-to-search forms.       And he testified that he did not inform

Hutchins of his right to refuse to consent to a search of his vehicle. This is

evidence that Officer Smith had the ability to verify the verbal consent to search he

testified Hutchins gave him and thus also argues against an objectively reasonable

belief that Hutchins freely and voluntarily gave consent to search the vehicle.

Likewise, Hutchins’ unrebutted testimony that Officer Smith handcuffed him prior

to the search is evidence that any consent given was coerced and given only in

submission to the lawful authority to search the car that Officer Smith projected.

See id.

      Officer Smith then searched the front of the car, retrieved the two pill

bottles, and immediately took them to Hutchins, who verified that they were

unexpired prescriptions in his name. At that point, any further search became

objectively unreasonable in the absence of clear and convincing evidence that

Hutchins had consented to a full search of his car. See Balentine, 71 S.W.3d at

768–70 (stating that “[a]n investigative detention must be temporary and the

questioning must last no longer than is necessary to effectuate the purpose of the

stop”). There was no evidence that Hutchins had been or was engaged in any



                                         13
illegal activity. Thus, Officer Smith “lacked probable cause to search for non-

weapon contraband or other evidence.”         See Baldwin, 278 S.W.3d at 371–72

(stating that when conditions justifying “plain view” search “are not present, an

officer conducting a valid investigative detention must have probable cause in

order to conduct a search for non-weapon contraband or other evidence”).

      At the point at which Officer Smith conducted the full search of Hutchins’

car that turned up the evidence of contraband, the only justification for the further

detention of Hutchins and the full search of his vehicle was an objectively

reasonable belief that Hutchins had freely and voluntarily given him consent to

conduct a full search of his vehicle without doing so in submission to lawful

authority or by coercion, actual or implied, even though Officer Smith testified that

Hutchins was detained when handcuffed and placed in the back of the patrol car

prior to any search.    See Meekins, 340 S.W.3d at 459 (scope of consent is

objectively unreasonable when typical reasonable person would not have

understood defendant to have consented to full search).

      Given the totality of the circumstances, I can only conclude that the State

fell short of carrying its burden of showing by clear and convincing evidence that

Hutchins gave “positive and unequivocal” consent to a full search of his

automobile without “duress or coercion, actual or implied”—consent that an

objectively reasonable person observing the exchange would believe to have been



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freely and voluntarily given. See Meeks, 692 S.W.2d at 509; see also Schneckloth,

412 U.S. at 233, 93 S. Ct. at 2051 (consent that was “coerced by threats or force, or

granted only in submission to a claim of lawful authority” is invalid and search is

unreasonable); Meekins, 340 S.W.3d at 459 (scope of consent is objectively

unreasonable when typical reasonable person would not have understood defendant

to have consented to full search).

      As evidence of consent, the State presented only Officer Smith’s testimony

that Hutchins consented to the search. Hutchins, on the other hand, in addition to

denying that he consented to the search, presented evidence that while conducting

the search, Officer Smith kept him handcuffed in the back of his patrol car, not

having advised him of his right not to consent to the search and not having

confirmed Hutchins’ free and voluntary consent to the search by asking him to sign

the consent form Officer Smith had with him.           And the search itself was

unconstitutional unless conducted with the free and voluntary consent Officer

Smith testified that Hutchins gave him.

                                     Conclusion

      I find this case very troubling. It signals that a police officer’s credible

testimony that a defendant’s free and voluntary consent to a warrantless and

otherwise illegal search is sufficient by itself to establish by clear and convincing

evidence the legality of the search and to justify seizure of contraband as



                                          15
constitutionally permissible when all other evidence necessary to establish that the

consent was voluntary from the totality of the circumstances undermines that

conclusion. I would hold that the evidence in this case is insufficient to show

clearly and convincingly that Hutchins freely and voluntarily consented to the

search that turned up the evidence of the contraband upon which he was convicted.

Therefore, I would hold that Officer Smith’s full search of Hutchins’ vehicle was

an illegal search in violation of the Fourth Amendment and that the evidence of

contraband seized was inadmissible as the fruit of an illegal search in

contravention of the Fourth Amendment.

      I would reverse the trial court’s denial of Hutchins’ motion to suppress, and

I would remand the case to the trial court for proceedings consistent with this

opinion.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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