Limon v. State

court hearing, or the trial set for motion, or the Velas on

ruled court’s to rule.

objected the trial failure

Therefore, pre have failed to the Velas Hightower v. error on this issue.

serve Ctr., Med.

Baylor Univ. (Tex.App.-Dallas pet.

224-225

struck.) ruling failed to (appellant obtain continuance and therefore motion for error); v. Bank preserve Mitchell

failed to (Tex. Am., N.A., 156 S.W.3d denied) (same). Be pet.

App.-Dallas error, preserve failed to the Velas

cause judg

we overrule their sole issue. court is

ment of the trial affirmed. LIMON, Wayne Jr., Appellant,

Dennis Texas, Appellee.

The STATE

No. 13-08-00551-CR. Texas, Appeals

Court

Corpus Christi-Edinburg.

June

the location of the shooting, second N. 11th Street.

At the scene of the second shooting, Officer Perez recovered three “shotgun waddings,” which he projec- described as Holstein, Christi, Corpus Ap- Rick for shotgun. tiles from a spoke He to a wit- pellant. ness named “Lupe Ortiz” or “Guadalupe Ortiz,” who advised that he had seen a Patrick L. Retha Flanigan, Atty., Dist. green four-door leaving car the area. Or- Cable, Sinton, Atty., E. Asst. for Dist. make, tiz provide model, could not a or Appellee. plate license for the car. The rest of the YÁÑEZ, BENAVIDES, Before Justices witnesses at the residence were reluctant cooperate. VELA. Officer proceeded Perez then to the lo- OPINION cation of the shooting. first When he ar- rived, he approached was Opinion by by “person Justice a BENAVIDES. that in the vicinity live[d] who advised Limón, Jr., Appellant, Wayne Dennis that person [him] believed that of deadly convicted conduct with a Limón kids were involved.” Officer Perez firearm, a third-degree felony, and sen- admitted that he did not know the name of years’ tenced to three in the imprisonment informant, his but he believed the Department Texas Justice— Criminal was a neighbor or resident that lived in the Institutional Division. See Tex. Penal area. (Vernon 2003); § 22.05 id. at Code Ann. (Vernon 2009). § Supp. By single 12.34 Officer Perez testified that he knew of issue, argues Limón the trial court only Pass, one Limón in family Aransas erred denying suppress his motion to and he they knew where lived. He went illegally-obtained evidence. We reverse to the Limón arriving ap- and remand. a.m., proximately 2:00 where he observed a

green Buick four-door car. He felt the I. BACKGROUND hood, warm, which he stated was and ob- appeared served what be bullet hole Limón was indicted for the offense of passenger front. door. Officer Perez deadly August conduct with a firearm on testified on cross-examination that the bul- 10, 2007, 2007. On October Limón let hole indicated to him that the car had filed a “Motion to Determine the Admissi- been shot at. Officer Perez then called for bility Illegally Obtained Evidence and backup, and three other officers arrived Statements.” The trial court held a hear- within minutes. ing on the motion on October Officer Gus Perez testified at the hear- Officer Perez testified that he did not ing on the motion to suppress that on June have a search warrant an or arrest war- 28, 2007, rant, he received a call at about 10:00 and it would have taken him an about p.m. informing him that there was a shoot- hour get and a half to two hours to ing Aransas Pass at the 1400 block of warrant. Officer Perez went to the front location, way W. Matlock. On his to that door and knocked. The door was an- Officer Perez was advised that another swered A.S. Officer Perez testified that (hereinafter shooting had proceeded occurred. He to he knew that father Limón’s Sr.”), or “Limón, adult, greater in the resi- the owner lived during the that residence? possession On direct examination dence. hearing, Perez testified pretrial No, sir, I not. [Perez]: their encounter: identity A.S.’s about ap- that he And at the time [Defense]: you is? [A.S.] Do know who [State]: felt you you proached[,] indicated not, but I At the I did time adult; [Perez]: knew not an you that he was nephew was a later learned that [he] correct? is that Mr. Limón and cousin I found No. I indicated [Perez]: Defendant. adult, not a he wasn’t an but he’s out Do Okay. is [A.S.]? How old [State]: I young maybe he is kid. believe know? you 13, somewhere in that area. aware, I’m not sir. [Perez]: you So at time weren’t [Defense]: Is he an adult? sure? [State]: I do not believe so. [Perez]: That’s correct. [Perez]: [A.S.], any- if you did tell What [State]: you any Did him for ask [Defense]: thing? identification? I I was in- advised [Perez]: [A.S.] No, sir, I not. did [Perez]: and asked vestigating shooting case you he Did ask him how old [Defense]: the permission for to enter residence. was? you did in? And he let come [State]: No, sir, I did not. [Perez]: Yes, sir, he did. [Perez]: you grade Did him what ask [Defense]: any come Did other officers in [State]: gone he had school? you? with sir, No, I did not. [Perez]: Yes, sir, Hernandez. Officer [Perez]: was Perez that while he Officer testified cross-examination, fur- On Officer Perez home, any the he not see outside did the testified about into

ther visibly being crimes committed inside home: he the home. He stated that when outside And on the you stood [Defense]: door, a “rea- arrived at the front he had porch long front a conversation how suspicion suspect sonable that there was you young man who did with this It likely inside.... It was didn’t know. —I juvenile is a [A.S.]? probable more approaching cause but was It conversa- fairly was a short [Perez]: suspicion.” than a reasonable was, I him who I what tion. advised home, Perez inside the Officer Once with[,] why I department was I marijuana. that he and smelled He stated there. was in bedroom Officer Hernandez went to the And ask him if he you [Defense]: residence, the southwest corner of that resi- possession owned or they Limón and two other where observed dence? bed, lying apparently sleeping males I that because he [Perez]: assumed their lights on. officers had with The opened the that he was one of door drawn, they Limón and guns told the residents. get Limón was hand- up. two males to Okay. moved the common area you And did ask him cuffed and into [Defense]: if there was there who the home. someone was officer, Officer Perez stated that another an area enclosed a privacy fence be- Rhodes, Officer was outside the residence longing Limón residence. through a into the south- looking 'window searching After the residence and find- bedroom, informed

west and he Officer guns, Officer Perez obtained con- Perez saw in the weapons that he room. Limón, sent to search the vehicle from who Officer Perez stated that was “[t]here [sic] parents bought stated his the vehicle handguns two towards the front where vehicle, for him to drive. In the were their heads to the west side of jacket Perez found a metal from an un- point bed at went which we ahead caliber weapon. known everybody detained in the se- time, Officer Perez testified that at that all cured them so we secure those could he probable “felt there was cause for if weapons and see there was [sic] arrest,” and he arrested Limón. Li- other Perez weapons.” Officer stated that transported món was station handguns one of a .22 was caliber booked, which took approximately one handgun and other was a .380 caliber hour. Limón was for jail about handgun. thirty minutes before he was his Officer Perez testified one of warnings; following Miranda warn- bedroom, officers went into the southeast a.m., ings, provided 5:01 he statement. parents, which belonged Limon’s who Limón, were Sr. sleeping. trial court denied Limon’s motion to dressed, nightgown and Mrs. Limón had a without suppress stating grounds the on. Both were handcuffed. Mrs. Limón findings of issuing fact and conclusions of home, in was taken to common area the trial, the attempted law. At when State to Limón, lie on and Sr. was told to face down statement, videotaped admit Limon’s the floor, despite completely the being naked. following exchange occurred: Officer the Perez testified that officers me, [Defense]: Excuse Ms. Cable. clothes, got “went and him some ahead Judge, at I this time would reassert restraints, removed the hand and that’s trial, prior the motions filed to and I when for we asked consent.” object any testimony regarding to

Officer stated he Perez asked for those matters. Sr., Limón, written to search from consent up The Court: come for a Would /all speak who that he to to his stated wanted second? wife he see. Li- because could not Mrs. (Bench conference) món then to gave written consent search suppress There was a motion [State]: the home. statement, the and it was denied consent, obtaining After Officer Perez Judge Whatley. residence, the photographed and he testi- I’m showing The Court: an October [sic] fied that .22 gun ammunition for a caliber Whatley Judge of heard mo- shotgun and a in the 12-gauge were found tion. bedroom, drug para- southwest with along Right. And so I’m reassert- [Defense]: that, phernalia. He stated outside the res- purposes getting it for vicinity idence of the southwest bed- ruling into the on this Court’s record room, a “Remington the officers located matter. shotgun gauge.” semiautomatic just I be agreed shotgun

Perez that the was “near The Court: Fine. want to sure we’re all the same page. window of southwest bedroom” on Constitution, it, 9 of the Texas Octo- section is when we had That [Defense]: 1.04, 1.06, Texas and 38.23 of the articles ber. of Criminal Procedure. U.S. Code Const. I remember the date. don’t [State]: Const, I, 9; IV, § XIV; Tex. art. amend. Yeah. [Defense]: 1.06, 1.04, Proc. Ann. arts. Tex.Code Crim. I the docket sheet. rely on [State]: (Vernon 2005).1 Thus, the burden 38.23 well, go ahead. And [Defense]: prove exception then — an to the State shifted requirement. to the warrant adopt The Court will Court: Judge Whatley in this prior rulings ais “Voluntary consent to search objection is overruled. matter. Your the warrant exception to well-established from search of The evidence obtained requirements probable cause car, the search of States Amendment United Fourth trial, at were admitted Limon’s statement State, 195 Montanez v. Constitution.” deadly con- convicted of and Limón was (Tex.Crim.App.2006). id. by use of a firearm. See duct constitution, the under the federal While (e). 22.05(b)(2), § prove by preponder must State evidence, our State constitution ance of II. Standard Review voluntary con requires prove state seeking suppression An accused Id. convincing evidence. sent clear and an unlawful alleged evidence based Const, 9).2 I, § art. (citing Tex. bears the burden of search seizure court’s reviewing a trial that the rebutting presumption “[W]hen suppress, a motion deny Russell v. decision proper. conduct total ‘should afford almost (Tex.Crim.App.1986); appellate Harris court to a trial court’s determination (Tex.App. deference ref'd). sup record pre To of the historical facts rebut pet. Waco fact the trial court’s ports especially that the when sumption, the accused must show an of findings are evaluation a war based search or seizure occurred without State, 708, (quoting credibility demeanor.’” Id. and rant. Johnson v. 864 S.W.2d (Tex. State, 85, 1998), v. 955 89 912 S.W.2d aff'd, Guzman (Tex.App.-Dallas 714 Harris, same def Crim.App.1997)). We afford the (Tex.Crim.App.1995); 227 S.W.2d ques applying to law to fact proof rulings of erence 994 S.W.2d at 930. burden tions, questions known as mixed produce to otherwise then shifts to the State either “ fact, ‘if the of those of law and resolution prove or that the warrantless warrant Russell, questions ultimate turns on an evaluation was reasonable. search seizure ” Harris, credibility (quot Id. 10; and demeanor.’ 994 S.W.2d at of 717 S.W.2d at 89). Guzman, “Finally, at sup ing in his 955 S.W.2d argued Limón to 930. motion may a de novo appellate of an court conduct the search the home was press ques resolution mixed review where the of made a warrant violation without on an to of law fact does not turn Amendments tions and Fourth Fourteenth I, Constitution, credibility evaluation of and demeanor.” the United States Article court, below, only upon State argue 2. In the trial relied Limón and does not 1. Court, requirement: exception argue one warrant to this the standards for admitting provi- Because the State any under these consent search. of search, we required justify the warrantless is different from the federal constitu- sions ground. analysis. to this limit our discussion tional

701 17, any Id. Where a trial court does not enter S.W.3d 24 (Tex.Crim.App.2007) (citing fact, 465, findings “ Maryland Dyson, 466, we must view the evidence v. 527 U.S. 119 2013, (1999)). ‘in S.Ct. 144 442 light favorable to the trial L.Ed.2d most One ” “ exception is consent to search. ruling1 court’s and ‘assume that the tri Schneck Bustamonte, 218, loth v. 219, 412 U.S. findings al court made fact 93 implicit (1973); S.Ct. 36 854 support ruling long its as those L.Ed.2d Max findings ” State, (Tex. well v. are record.’ S.W.3d supported by (quot Id. (Tex. Ross, Crim.App.2002). State Crim.App.2000)). par a third “[W]hether Consent to enter and search ty authority had actual to consent to a property can be either by the indi search of property another’s whether vidual whose is property searched or finding officer was reasonable that a party third who possesses common author party third to con apparent ity premises. over the Illinois v. Rodri sent are mixed of law questions and fact guez, 177, 181, 110 497 U.S. which reviewing courts should examine de (1990); L.Ed.2d 148 Patrick v. novo.” Hubert v. S.W.3d (Tex.Crim.App.1995). (Tex.Crim.App.2010). 559-60 “Common authority “mutual is use of the property by persons having joint generally

III. A.S.’s Consent to Enter access or purposes.” control for most Pat the Residence rick, 906 “Although prop The Fourth Amendment erty are interests relevant this determi provides: United States Constitution nation, commonality of authority to rights of to be secure in people [t]he solely by is not determined the law houses, persons, papers, their and ef- property.” Hubert, 312 S.W.3d at 560. fects, against unreasonable searches Rather, we look to whether it is “reason seizures, violated, be shall not and no able to recognize that the co-inhab issue, upon shall but probable Warrants permit itants has the right inspec cause, affirmation, supported Oath or tion in his own and that the others particularly describing place to have assumed the risk one of their searched, be persons and the or things number might permit the common area to to be seized. be searched.” Id. at 560-61. The State bears Const, proving the burden of actual authori I, U.S. amend. IV. Article section ty by presenting that facts show mutual 9 of pro- the Texas further Constitution property by use of and control the over the vides that: person. third Id. at 560-62. people secure in per- [t]he shall be their sons, houses, papers possessions, facts do not support When the from all unreasonable seizures or finding authority, a a may actual search searches, any and no warrant to search be if consent-giver valid the is clothed with place, any person or to thing, seize apparent Rodriguez, authority. 497 U.S. shall issue them describing without at 110 A law S.Ct. 2793. enforcement be, near as may probable nor without person’s officer’s warrantless of a search cause, supported oath or affirmation. premises may justified be under the doc Const, I, authority” § “apparent trine of when consent Tex. A art. 9. search without a from party to search is a third presumed unreasonable, warrant to be obtained is reasonably whom the officers believe at but there are to the exceptions warrant possess See v. the time of the search to common requirement. Wiede 214 Alberti v. of the room. See but who does a search authority premises, over (Tex.Crim.App.1973) authority. Id. at not, fact, possess such (“[A]n enter a resi- party’s invitation to officers to 186-89, A third 110 S.Ct. 2793. to as an ordinarily if facts available construed valid “the cannot be consent is dence search.”). Thus, warrant consent to [would] at the moment invitation or the officer only in the belief be sus- entry of reasonable caution can a man the warrantless authority had warrant consenting party if the facts available would tained 188, 110 Id. at in the belief premises.” caution person over of reasonable to prove premises The State has the burden authority had over that A.S. authority, 110 S.Ct. id. at apparent authority. apparent under the doctrine of if, not met when and this burden is suppres- Perez testified at situation, offi- an ambiguous with faced that A.S. was hearing that he knew sion making proceeds nevertheless without cer adult, was A.S. an he believed not 186-89, Id. at any inquiry. further old, and knew years or fourteen thirteen do not learn If the officers S.Ct. 2793. Sr., Limón, an to belonged that the house fail if to enough and the circumstances that he did Officer Perez admitted adult. subject is to clarify property whether the house, he if he A.S. if lived at the not ask consent-giver, authority by the common house, or control of the possession is unlawful. search then warrantless was, or he attended grade old he what how Id. Rather, he he told A.S. was at school. Li- A.S. was undisputed It is there a shoot- investigate officer to món, nephew Limoris cousin. Sr.’s to enter. permission then asked for ing and the State testimony presented by at would that because The dissent conclude provide not suppression hearing does the front door of the home opened A.S. whether A.S. regarding information a.m., reasonably con- Officer Perez 2:00 just or was lived at the Limón residence A.S. a resident cluded that was that he did visiting. Officer Perez testified logic for several But this is flawed house.3 of or control inquire as A.S.’s use reasons. this lack of property. Based on over First, at a resi evidence, presence failed mere it is clear that the State authority support a reason actual dence is insufficient to that A.S. had demonstrate into has able belief to consent officers’ Hubert, pres at 562-65 to a search. The State must home. Cf. presence mere sufficient to ent more evidence than (holding that evidence was authority. finding apparent implied support that the defen justify finding Cos, See, 498 F.3d grandfather e.g., the exclusive own United States dant’s (10th Cir.2007); Riordan v. validly er of the home consented bedroom). State, (Tex.App.-Aus search of defendant’s 1995, pres mere Moreover, pet.) (holding dif no consent a home is tin to enter does relationship to defendant premis than ence ferent consent to search ap has es, justify conclusion that presented and there was no of an authority). mere act authority parent to allow the A.S.’s that A.S. had actual night the door the middle of swering bedroom for proceed officers to to Limon’s case; behalf. did in this ment on its 3. The State not file a brief thus, any argu- of we are without the benefit itself, not, ing Officer Perez’s him to justify questions, ask further such as authority con- that A.S. had to conclusion whether actually child lived at home, more to into the sent home, parents whether the child’s were bedroom, particu- into Limon’s specifically, available, whether the child understood larly that Officer Perez knew that an consent, that he did not have to or whether premises. on the adult owned and resided the child wished to an on consult adult Bustamante, premises. See Schneckloth v. Second, generally incap a child is 218, 227, 2041, U.S. waiving rights of his own without able (1973) (holding knowledge L.Ed.2d 854 of is even less fit guidance, instruction or the right to refuse consent is one factor to rights of another. See to surrender 351, State, totality be taken into account in the v. of Reynolds 781 S.W.2d circumstances); Riordan, pet. (Tex.App.-Houston [1st Dist.] see 905 S.W.2d 'd) (holding given by ref that consent (holding at 772 that officer rely could not son was not twelve-year-old defendant’s cursory appar- conversation to establish effective). however, importantly, More authority). ent simply Had Officer Perez may child who have been awakened from name, asked A.S.’s he would have realized unlikely his or her slumber at 2:00 a.m. is that A.S. did not share the same last name thinking clearly capable making to be or Limón, Upon discovery, Sr. a reasoned decision whether to admit offi Perez Li- speak should have asked to McCaughey, cers into the home. See Matt món, Sr., relying instead of on a thirteen- And a Shall Lead Them: The Valid Child fourteen-year-old’s consent to enter. ity Children’s Consent to Warrantless pres- The State did not meet its burden to Home, Family Searches 34 U. demonstrating ent evidence a reasonable (1996) J. Fam. L. Louisville authority belief that A.S. had to allow the (“[C]hildren likely are far less to under officers to enter.4 consent, consequences stand the of their thus, may capacity some not have the The cites con dissent Russell voluntarily to consent to a warrantless cluding permission to search a resi search.”). testify Officer Perez did not given by dence a minor has been held to consequences (Tex. that he advised A.S. of the be sufficient. 739 S.W.2d his to search or that A.S. under App.-Dallas pet. w.o.j.). dism’d a rea consequences stood those and made case, however, readily facts of that are soned decision. case, distinguishable. In that Russell was in sixteen-year-old girl being who was ambigu-

These circumstances created an vestigated for murder. Id. at 925-26. ity obligated that Officer Perez was home, on her front entering requir- spoke police resolve before Russell creating ity Rodriguez, we are to do Illinois v. 497 U.S. 4. The dissent claims that so. 177, 186-89, "new rule of law for to follow when 110 S.Ct. 111 L.Ed.2d 148 (1990). Here, conducting requir ambiguity just we are an existed not searches" because minor, questions certain A.S. but also because officers to ask minors because Limón, permit owned the make sure the minor has Officer Perez knew that Sr. a child entry. See Limon v. house and it was 2:00 a.m. When - a.m., Christi, 2010, (Tex.App.-Corpus pet. no answers the door at 2:00 and the officer Rather, home, J., h.) (Vela, dissenting). it unrea- Not we knows who owns the is not so. enforcing require an officer to determine if are rule that sonable to well-established not, home, may proceed ambiguous in and if ask to officer not in an situ the child lives owner, verifying person speak to the which Officer Perez ation without first that the entry purporting to author- not do. consent to has Second, go to with them to Id. Russell involved sixteen- doorstep agreed and police give year-old girl police station to statement. Id. who lied to and told station, adult, police At the Russell informed them she was an and there was no felony proba was on police that she adult veracity story. reason to doubt the of her tion and told the officers she was Finally, importantly, and Rus- Id. most eighteen years age providing sell, instead of probably reaching while the correct age According her true of sixteen. Id. result, reasoned, poorly pointed was out facts, appeals’ the court of recitation of case, by appears the dissent had no reason to disbelieve Russell officers state that of consent voluntariness her age, ap when she told them as she person savory turns on whether the is of a mature. Id. at peared (Whitham, J., character. Id. 929-30 Thus, dissenting). inappo- we find Russell day, The next to the Russell returned present site and hold that the State did not test, police polygraph station for justify entry evidence to the warrantless test, after the the officers asked for her apparent into the home based on the au- consent to her Id. The search residence. thority A.S. explained officer to Russell that she could refuse consent and that she was under Application op IV. investigation for murder. Id. Russell Exclusionary Rule signed the consent. Id. The search of her residence uncovered evidence connect- suppression hearing, At the the State the alleged her to murder. Id. Rus- argued the evidence obtained at the suppress sell moved to the evidence at her residence could be admitted at trial be- trial, claiming that her consent was not home, Li- cause after the into the voluntary because she was a minor. Id. parents mon’s consented to a search of the disagreed, explaining The court as follows: argues parents’ residence. Limón that his only years The fact that Russell consent to search the home was tainted was therefore, home; illegal entry into the preclude finding old that her does all the pursuant evidence discovered voluntary. consent and confessions were consent should be excluded. Limón fur- years she Russell said was 18 old and ther argues acted like it. She no his statement stranger arrest, police after his which justice system, the criminal on adult fel- was based evidence, illegally-obtained ony probation felony with another was tainted conduct and should have been charge pending. Having cut a neigh- agree. excluded. We telephone anger bor’s wires in then beaten an old woman to death with a A. The Limons’ Consent Search

hammer, Russell was not the sort of person expect easily one would to be Supreme As the has ex Court intimidated, by police. even plained, Id. at 928. exclusionary prohibits rule intro- [t]he distinguishable tangible

Russell is because that into materi- duction search, case did not concern a apparent during child’s als seized an unlawful rather, testimony concerning knowledge to search a but and of acquired during involved the voluntariness of a minor’s con- an unlawful search. that, Beyond sent. Id. There are exclusionary no facts Russell rule also indicating suggesting that prohibits another the introduction of derivative evidence, testimonial, property tangible controlled the that was searched. both Next, evi- Officer Perez product primary that is the of the testified he was dence, acquired as investigating shooting or that is otherwise the and did not have search, of the unlawful probable an indirect result cause to arrest Limón at the time the connection up point to the at which he arrived at the home. Officer Perez was “so with the unlawful search becomes looking relating for evidence to the shoot- dissipate attenuated as to the taint.” ings, illegal entry and the into the home guns allowed him to view in the southwest States, Murray v. United U.S. bedroom, providing him further suspi- with 2529, 101 L.Ed.2d 472 108 S.Ct. cion that Limón was involved.5 subse- (1988). whether consent to To determine quent consent to search the rest of the search, illegal entry following police’s the home further revealed ammunition in that by illegal the premises, onto is tainted Accordingly, bedroom. this factor sup- following look to the fac entry, we must ports exclusion of the evidence. Id. tors: (1) the temporal proximity the between Third, flagrant there was in misconduct consent; the entry unlawful this case. Officer Perez obtained informa- (2) entry whether the warrantless tion from an that the unidentified police about observation of the brought “Limón kids” were in the involved shoot- object for which consent was particular fact, ings. In he admitted that at the time (3) sought; entry whether the resulted house, he arrived at the Limón he had a (4) misconduct; flagrant police from suspicion suspect reasonable that a inwas the consent was volunteered or whether house, probable the but he did not have (5) appellant was requested; whether cause. He testified that he went to the fully aware of the to refuse made Limón “investigate” residence 2:00 (6) consent, police pur- the whether door, Upon encountering a.m. A.S. at the illegality to ob- pose underlying absolutely inquiry Officer Perez no made tain the consent. as to A.S.’s to consent to his (Tex. Stone v. entry, and he and the other officers imme- ref'd) (adapting App.-Amarillo pet. diately to the proceeded back bedroom of the factors set forth Brick house, Li- sleeping. Limón was where (Tex.Crim.App.1987), to an un other males in the bed- món and two lawful followed room were handcuffed and moved search). par- common area of the house. Limon’s ents, First, shortly the consent occurred after who Officer Perez had no reason shootings, suspect being the Limón home and involved entered in the weapons. sleep home for This factor were awakened from their swept the Limón, night. Sr. was hand- weighs in favor of exclusion of the evi- middle on the cuffed and made to lie face-down dence. Id. ny showing Although another the officers could have Officer Perez testified that privacy officer outside a window to the southwest handguns from outside the viewed the pointed guns Thus, out the to Officer Per- bedroom that the fence. the State did not show ez, attempt justify State curtilage protected area was not that is handguns admission of the into evidence State, Fourth Amendment. See Pool v. ability to view based on the other officer’s pet.). (Tex.App.-Waco no fact, outside the residence. In them from Accordingly, the officers would not been evidence showed that area outside yard a war- without either able search privacy southwest bedroom was enclosed in a fence, rant or consent. did not offer testimo- State 706 State, obtained, illegally Perez See 615 was and Officer

floor—naked. Green arrest, (Tex.Crim.App.1980) 708 did not have a warrant for his his S.W.2d flagrant misconduct was (holding police therefore, illegal, arrest was and the state- from the defendant was awakened where gave police custody ment he while in the of the sleep his and arrested middle should be excluded. Officer Perez admit- clothing). and without night gunpoint sought permission ted that at the time he Sr., Limón, get was allowed to Although to enter the Limón he did not dressed and his handcuffs were removed probable have cause to arrest Limón and consent, the officers asked for there before he did not have a warrant. Officer Perez significant lapse no time between testified that after the search of the resi- circumstances, these events. Under these dence, illegal, which we have held was he weighs excluding factor in favor of this probable believed he had cause to arrest Illinois, Brown v. 422 evidence. See U.S. Limón and took him to the station. police 590, 605, 95 S.Ct. 45 L.Ed.2d 416 arrival, Shortly gave after his Limón (1975) (holding that the manner of arrest police upon statement to was relied indicated it was “calculated cause sur- obtain his conviction. confusion,” prise, fright, and where the an anonymous tip, arrest was based on and Here, illegal Limon’s arrest was by police ambushed offi- defendant was warrant, because it was without a home); gunpoint way cers at on his see necessary proba information to establish also Bell v. 724 790 S.W.2d illegal entry ble cause was the result of the (Tex.Crim.App.1986) (listing cases where and search of the home. Sturchio v. found). flagrant misconduct was (Tex.App.-San 25 Antonio Fourth, the consent was not volun- (“Because pet.) no the warrantless teered, requested, but was which favors arrest and search incident to arrest Fifth, Li- exclusion of the evidence. discovery led to the of the cocaine were mons were made aware of illegal based on the seizure of the crack consent, admitting refuse which favors pipe, they illegal were as well. Conse Finally, pres- evidence. the State did not quently, the evidence obtained as a result ent whether the down, arrest, the pat warrantless purpose underlying illegality was to search incident to arrest should been consent, above, obtain the but as stated suppressed.”). To determine whether a the police justified misconduct such a con- statement, given defendant’s after an ille Brown, clusion. See U.S. at arrest, gal illegal was attenuated from the taking S.Ct. 2254. When these factors (1) ity, we must look at giving together, it is clear that the State failed to (2) Miranda warnings; temporal prox prove meet its burden to the taint (3) confession; imity of the arrest and the illegal entry sufficiently from the dissi- circumstances; presence intervening pated given. before the consent was See (4) purpose flagrancy Brick, 738 at 681 (holding Brown, 422 official conduct. at 603- U.S. State). Accordingly, burden is on the all 04, 2254; Bell, S.W.2d at 788. of the evidence discovered at the residence First, undisputed should have been excluded. it is that Limón re- warnings giving ceived Miranda before his B. Limon’s Statement fact, however, statement. This does not Next, Bell, argues carry weight analysis. Limón that because much all of the evidence at the house repeated discovered S.W.2d at 788. “[E]ven purge are warnings enough alone V. Harmful Error illegal of an arrest.” the taint otherwise argued Limón below argues to this Second, the statement was Id. that the Court evidence in this case was Per- after Limon’s arrest. Officer shortly obtained and admitted trial in violation took hour from the ez testified that it of his Fourth right Amendment to be free him to Limon’s arrest to transfer time of from unreasonable searches and seizures. him, station and book and Limón police the Const, IV, amend. See U.S. XIV. Because thirty for minutes before Officer jail was in constitutional, the error below was ap- we rights him his Perez read Miranda error ply analysis the harmless under Tex- statement. id. at 788-89 obtained the See 44.2(a). Appellate as Rule of Procedure (holding that a time of one to span & n. 4 State, 106, Hernandez v. See 60 S.W.3d temporal “close three hours is considered 44.2(a) (Tex.Crim.App.2001). Rule Third, to Officer proximity”). according the provides appellate record in a “[i]f Perez, no circum- intervening there were criminal case reveals constitutional error having any Officer Perez stances. denied review, subject that is to harmless error Limón, with nor Limón conversations appeals court of judg- the must reverse a or con- any significant time to reflect ment of conviction or punishment unless prior anyone sult with to his statement. beyond the court determines a reasonable Finally, of the analysis at 788-89. our Id. that the error doubt did not contribute to con- purpose flagraney police of the Tex.R.App. punishment.” the conviction or analysis duct is the same as our of the 44.2(a). explic- P. While this rule does not entry resulting improper taint from of the burden itly place on the State to show Accordingly, the home. Id. at 789-90. error, “the harmless ‘default’ is to reverse statement not attenuated Limon’s Thus, unless harmlessness if illegal entry the taint of the is shown. from party anything, search of the and should have neither does the case will excluded.6 This requires been be reversed. the State to separate paragraph likely Li- 6. The dissent would refuse to consider as a because —most argument, characterizing final Limon’s nton's any of the vehicle did reveal search challenge being to the statement as based on relevant, evidence, rather, damaging re- but vehicle, illegal of the search not the resi- vealed ammunition from an unknown caliber The the evi- dence. dissent concludes that weapon that was never tied to the crime at show dence does not that Officer Perez paragraph, In the next the brief issue. consenting into coerced Limón to the vehicle exclusionary launches into discussion of the search, object and that Limón to the did not rule, stating initially state- that “[Limon’s] admission of his statement on the basis that a ar- ment was obtained after his warrantless consent to vehicle was not written search the rest based on this warrantless search.” at trial. admitted narrowly reading Rather than this sentence narrowly brief should not con- The be so rights, of the brief to invoke waiver of picks The strued. dissent out one isolated does, we read the as a whole and dissent brief presents if statement from brief and it as the statement refer to the brief's construe argu- entirety Limon's it constitutes prior discussion of warrantless search argument portion brief is ment. We Limón did not the residence. hold that Rather, distinct not divided into sections. argument waive his at trial because he ob- argument attacks each action in chro- ruling presence of the tained a outside the order, nological spending significant time dis- did, fact, 103, jury, and he see cussing aspects all initial into the Tex.R. Evid. objection admission of the home, reassert his protective sweep, and the consent prior based on the warrantless the home. mentions statement to search The brief then of the car in set off the residence. the search a brief sentence search of why appel recognize with the co- come forward reasons able to right court should find the error harmless.” has the permit late inhabitants (Tex. v. inspection Merritt 982 S.W.2d his own and that (cit pet.) no App.-Houston [1st others have assumed the risk that one of Dist.] ing Arnold might permit their number the common (Tex.Crim.App.1990) the burden (placing be area to searched. State to error under on the show harmless 171 n. 415 U.S. 81(b)(2), predecessor rule the to former omitted) (em- (1974) (citations 242 L.Ed.2d 44.2(a)); State, v. see also 195 rule Davis added). Matlock, phasis In line with the 311, 317 (Tex.App.-Houston [14th S.W.3d appeals court of criminal has stated: 2006, pet.). no has Dist.] The State not person validly for a third order to [I]n has provided brief this case and

filed search, to a must argument why no or reason us with of equal equal control and the use constitutional the error in this case was re- property searched. And we have beyond a harmless reasonable doubt. Ac cently emphasized party’s that the third cordingly, we for a reverse and remand legal property interest is not dispositive trial. new determining au- whether he has the search, saying to consent to a thority VI. Conclusion authority that “common derives from reasons, all foregoing For we re- use property, mutual of judgment verse trial court’s and re- ownership or lack thereof.” for further proceedings. mand (Tex. State, 50, 93 Welch v. (footnotes omitted) (em Crim.App.2002) Dissenting Opinion by Justice ROSE added). phasis nor Neither Mattock VELA. Welch drew distinction between minors Dissenting Opinion by Justice VELA. Furthermore, of this adults. facts impression, In this case of first the ma- do not case warrant the creation of simply jority police may gain holds that before a new of law for when rule to follow warrantless into a home via third- conducting such searches in Court’s this party consent from a minor is a close who jurisdiction. Because I ma conclude the owner, of the home relative officer jority require created has an inflexible questions must ask the minor certain to ment law enforcement follow must authority per- make sure the minor to has in failing give proper and has erred entry. Op. mit at 702-03. Neither the deference the trial court’s determina States nor Supreme United Court the Tex- tions, I would hold that the trial court Appeals required as Court Criminal has its denying not abuse discretion in procedure. enforcement to law follow this suppress. motion to Matlock, Supreme In States v. United Standard of Review explained: Court authority justified apply which third- Courts bifurcated standard party upon consent does not the law reviewing rest when a motion to evi- suppress State, property, George with its historical attendant dence. St. v. 237 S.W.3d refinement, legal 720, rather (Tex.Crim.App.2007). but rests review We by persons mutual use trial property application de novo the court’s law facts, generally having joint access or control but we defer court to the trial purposes, for most so it is credibility reason- on determinations of histor- Id.; 2041, (1973); v. ical fact. Guzman 36 L.Ed.2d 854 v. Maxwell (Tex.Crim.App.1997). 281 (Tex.Crim.App. given voluntarily 2002). consent was un- Whether Whether it is reasonable under the der the Fourth Amendment to the United Fourth Amendment for an officer rely a fact question States Constitution is on consent question is a that is determined Robinette, deference. is Ohio by examining totality of the circum 136 L.Ed.2d 347 U.S. Maxwell, stances. 73 S.W.3d at 281 (citing (1996). “[Wjhether party a third had actu- Robinette, 417). 519 U.S. 117 S.Ct. al an- authority consent to search of “A party third can consent to a search to property other’s and whether an officer the detriment privacy of another’s interest reasonable in that a finding par- third if the party third has actual over ty apparent authority to consent are the place thing to be searched.” Hu questions mixed of law and fact which bert, words, 312 S.W.3d at 560. In other reviewing courts should examine de novo.” party may, the third in his own right, give State, 554, Hubert v. 312 S.W.3d 589-60 absent, valid consent when he and the non- When, (Tex.Crim.App.2010). as in this consenting person share common authority case, findings “a trial court not enter does Matlock, over the premises property. or fact, a court reviewing must view the S.Ct, 170, 988; 415 U.S. at 94 Becknell v. light evidence in a most favorable to the State, 526, 720 S.W.2d 528 (Tex.Crim.App. rulings trial court’s and assume that the 1986), though property Even are interests any trial court resolved issues of historical determination, relevant to this we do not credibility fact ulti- consistently or with its commonality determine a ruling.” ruling mate Id. We review solely by property. law of a suppress motion to evidence for abuse of Matlock, 7, 988; 415 at 171 n. 94 U.S. S.Ct. light discretion and view the facts in the Maxwell, Rather, 73 S.W.3d at 281. favorable most to the trial court’s decision. party authority by common shows State, 681, Shepherd v. 273 S.W.3d 684 (Tex.Crim.App.2008). We will sustain the property by persons mutual use of the trial if ruling ruling court’s “is reason- generally having joint access or control ably supported by the cor- record and is purposes, for most so that it is reason- any theory applicable rect on of law to the recognize any able to that co- Dixon, 587, case.” State v. 206 S.W.3d 590 right permit inhabitants has the (Tex.Crim.App.2006). inspection his own and that the others have assumed the risk that one of

Third-Party Consent might permit their number the common The Fourth Amendment provides pro area to be searched.

tection from “unreasonable” searches and Hubert, at (citing 312 S.W.3d 560-61 Mat by government seizures officials. U.S. lock, 988). 7, 415 at 171 n. 94 U.S. S.Ct. Const, Generally, amend. IV. searches “A who has thus defendant assumed performed without a warrant are unrea may permit risk that another a search of Maryland Dyson, sonable. v. 527 U.S. property premises may their shared 465, 466, 119 144 442 S.Ct. L.Ed.2d complain that search under the Fourth (1999); Wiede v. 214 S.W.3d 24 Amendment.” Id. (Tex.Crim.App.2007). exception An general rule arises when someone volun The State bears the burden to show that tarily consents to a v. who consented to a search either search. Schneckloth Bustamonte, 218, 219, 412 apparent authority U.S. 93 S.Ct. had actual or to con-

710 any Rodriguez, that neither Officer Perez nor other sent. Illinois U.S. L.Ed.2d officer threatened or deceived A.S. or- (1990); (7) home; Malone v. gain entry der to into the 2005, pet. (Tex.App.-Texarkana 797-98 permitted A.S. the officers to enter the ref'd). burden, the State (8) “To meet its home; minority despite A.S.’s party evidence that a third provide must status, able to communi- Officer Perez was mutual access to and control either had A.S., capacity cate with and he searched, or that place over the why Officer Perez wanted to understand conducting the officers the search reason enter the home. The record contains no ably provided believed facts to them evidence to show that A.S. was either party legally third that would been asleep or under the influence of sub- justify sufficient to a search as reason prior opened stance to the time he Hubert, 312 S.W.3d at 561-62. able.” examining totality front After door. Amendment, the Fourth the State Under circumstances, I would hold that the preponderance of the evi must show presented supporting State dence that it was reasonable for an officer A.S., implied finding party, that the third on the information available to proceed voluntarily consented to the officers’ Maxwell, at 281. officer. Hubert, into the home. See “[wjhether (stating consent was Analysis given voluntarily under the Fourth court, denying appellant’s The trial question Amendment is a fact to be motion, implied suppression findings made deference.”). testimony of fact that Officer Perez’s was minority A.S.’s status does not automati credible and the facts were as he testified. cally voluntarily he not have mean could Ross, n. 22 State S.W.3d See, entry consented of the home. Likewise, (Tex.Crim.App.2000). this e.g., Russell v. accepts also as true and Court credible (Tex.App.-Dallas pet. w.o.j.). dism’d testimony suppres- Officer Perez’s at the conclude, I examining would also after Hubert, hearing. sion S.W.3d 560- circumstances, totality of the presented supporting State implied finding joint that A.S. had access Authority Actual premises to or control over the and that testimony On basis of the elicited reasonably Perez believed A.S. during suppression hearing, the trial permit entry. had the See Fanch (1) court could have found: that Mr. and (Tex.Crim. er v. Mrs. Limón owned the home that the offi- App.1983) (explaining that well “[i]t is es (2) searched; cers that Officer Perez had in Texas that parties tablished third have suspicion reasonable to believe that authority they a search when Limón kids were inside the Limons’ resi- equal control over equal use (3) dence; that Officer Perez knocked on searched.”). premises being early the Limons’ front in the door morn- Hubert, (4) In appeals the court of criminal drive-by following shootings; authority stated that “under the common that Mr. Limon’s thirteen- or fourteen- test, A.S., year-old par- where the defendant lives with a nephew, opened the front (5) relative, door; that Officer Perez for ent other close and the relative asked A.S. permission to enter the consents to a search of defendant’s bed- house because he (6) room, investigating drive-by was courts that the shooting; presume most rela-

7H authority tive has sufficient common over reasonable caution. An might officer rea- to authorize the consent sonably who, the bedroom believe that a in the Id., (internal search.” at 563 early morning, opens the front door of a omitted). quotes though appellant Even response knock, home in to a is a resident have overcome this presumption could of the house and has “mutual use of the presenting evidence that he had exclusive Matlock, property.” See 415 U.S. at 171 n. possession premises,1 searched 988; Welch, 94 S.Ct. 93 S.W.3d at 53. suppression evidence elicited at the hear- case, In the person opened this who ing showed that the door to the bedroom front door was Mr. nephew. Limon’s Offi- in which appellant Officer Perez found have, therefore, cer Perez could made a open, light and the bedroom was turned good-faith inference that reasonable A.S. that, I would on. hold on the facts as the validly could give him and Officer Hernan- them, trial court was entitled to view A.S. dez consent to enter the home. I would authority had actual to consent to the en- hold that good Officer Perez acted in faith try into the home. id. See and made a reasonable inference based on the facts of the situation. upon Based Authority Apparent circumstances, totality of the the evidence if A.S. Even did not have actual authori- supported an implied finding that Officer ty to consent to the entry, is reasonably Perez believed A.S. had “apparent authority” reasonable under the and, common premises over the Hubert, doctrine. See 312 S.W.3d at 561 therefore, apparent authority to con- “[ajctual (stating authority is not nec- to the entry sent into the home. Accord- essarily prerequisite for a valid consen- ingly, the trial court did not abuse its search....”). sual The United States Su- discretion in denying the motion to sup- preme explained Court has that when an press based on the initial consent to enter reasonably, though erroneously, officer be- the home. n lieved that a party purporting third

provide authority consent has actual over Because an invitation to officers to enter searched, the place thing apparent to be ordinarily a residence cannot be construed exists, purported and the consent search,2 as an invitation or I consent party from the third can serve make the address whether Officers Perez and Her- Rodriguez, search reasonable. 497 at U.S. proceed nandez could to the southwest “ 186, words, 110 In S.Ct. 2793. other ‘protective sweep’ bedroom. A a is “[ejven party if the third lacks actual au- ‘quick and limited search premises, of inci- is, thority to consent—that he does not dent to an arrest protect and conducted to actually joint have access to or control safety police the officers or others.’” premises purported over the consent —his Sheppard, State v. 271 290 n. S.W.3d can nevertheless validate a search if it (Tex.Crim.App.2008) (quoting Mary- 30 reasonably appears police to the that he Buie, 325, 327-28, land v. 494 110 U.S. Hubert, in fact authority.” does (1990)). 1093, 108 L.Ed.2d 276 “The S.W.3d at 561. permits properly Fourth Amendment a Here, presented protective sweep conjunction the State evidence limited sup- an porting implied finding searching with an in-home Officer arrest when did, fact, Perez act as would a a possesses officer reasonable belief based (Tex. 1. Hubert v. 312 S.W.3d 562-64 2. Alberti v. 495 S.W.2d (Tex. App.2010). Crim.App.1973) (op. reh'g). Crim. on 'd). 2003, pet. ref The [1st Dist.] and articulable facts Houston specific Brick an factors include: swept area to harbors individual be to those on the arrest posing danger a to the ar- proximity consent Buie, 494 at 110 S.Ct. scene.” U.S. rest, brought whether the seizure about State, 12 (quoted in Reasor v. particular observation of the ob- pro- (Tex.Crim.App.2000)). ject they sought which only ‘jus- when sweep permitted tective “is search, illegal whether the seizure was reasonable, suspicion articulable misconduct, tified flagrant police whether harboring person pos- that the house is consent was volunteered rather than re- officers, ing danger quested by detaining to those on arrest wheth- ” Reasor, fully aware of (quot- at 816 er the arrestee was made scene.’ 1093). Buie, the fact that he could decline to consent at 110 S.Ct. U.S. and thus an immediate search of prevent upon what Officer Perez was told Based residence, the car or and whether the shootings, about the when considered with underlying illegality police purpose car presence green, four-door was to the consent. obtain he had rea- outside Limón Brick, 680-81. were in the suspects son to believe respect With to whether Mr. and Mrs. sup- weapons. house with This Limons’ written consent to search their ported implied finding specific voluntary, home was the evidence showed officers, danger articulable facts of a that when the the home officers secured sufficient to enable Officers Perez and weapons, they for made Mr. Limón lie on Hernandez to move forward inside the Li- they his bedroom floor and handcuffed món residence to bedroom under him. wife and taken His was handcuffed auspices protective sweep. of a to a common area of the house where she protective Even assuming was seated. Officer Perez allowed Mr. unlawful, sweep were if the State showed stand, handcuffs, Limón removed convincing clear and evidence that Mr. get him to After and allowed dressed. sufficiently and Mrs. Limon’s consent was handcuffs, removing the Perez from illegal entry attenuated asked him for consent to search the house. sweep, the evidence found in the search is Mr. Limón told him to talk to his wife. Reasor, admissible. See at 819. removed, Mrs. Limon’s handcuffs were illegal When consent to search follows an and Officer Perez took Mr. Mrs. Li- and property, analyze onto we the con There, explained món into the kitchen. he sent, using the factors set out in Brick v. the situation to them and read them the State, (Tex.Crim.App. 738 S.W.2d 676 consent-to-search form. This form made 1987), to determine whether it was tainted them right aware of their to refuse consent by illegal police conduct. Beaver v. of their See to search home.3 Mr. and Mrs. him (Tex.App.- gave 106 S.W.3d Limón consent to search their stated, premises my 3. The consent-to-search form in rele- hereafter mentioned under part: vant right control and also a constitutional to any I, give him refuse to or other officer con- having Dennis Limón Limon/Beatrice to make a search and that such sent such by been informed the hereafter named Tex- Officer, rights guaranteed by are to me both as Peace that I have a constitution- Constitutions, hereby having Texas and U.S. do al to be free from him or other voluntarily rights.... make a waive officers warrantless search of those home, signed they of them the form.4 the fact that and both could decline to consent they testified that were not to a search prevent Perez of their home and thus wearing under arrest and were not hand- an immediate search. they the search.

cuffs when consented to I conclude that even if the officers un- totality Reviewing the circum- lawfully home, and swept entered stances,5 I hold that the evidence would an supports implied finding that supports implied finding clear and Mr. and Mrs. Limon’s to search convincing evidence that Mr. Mrs. Li- their home was sufficiently attenuated mon’s consent to search their home was any Reasor, from illegality. See voluntary free and not result of 819. Accordingly, at the trial court did not v. duress coercion. See Gutierrez err in denying the motion suppress to 686 (Tex.Crim.App.2007) the basis of unlawful entry protec- (stating validity “[t]he consensual sweep. tive I hold trial court did not fact, question search is a State abuse its discretion denying the motion prove by bears the burden to clear and suppress on this basis. convincing evidence that consent was ob- I would overrule the issue and affirm voluntarily” tained and “was not the result the trial judgment. court’s For these rea- coercion”). of duress or sons, I respectfully dissent. factors, Applying remaining Brick Mr. and Limón Mrs. consented shortly police swept

search after the home

for weapons. Finding weapons in

plain in the may view southwest bedroom

have encouraged police request home,

search they the entire but did not search after the entire home until receiv- CO., Haley HARLOW LTD. and LAND police written consent to search. The Harlow, Harlow, Trustees, or Ruth Sr. flagrant. conduct was not Officer Perez Living Trust, Harlow Dated December information the Limón kids were 30, 1997,Appellants, involved in one of the and that a shootings

green, car leaving four-door was seen area shooting. of the other When he ar- MELISSA, Texas, Appellee. CITY OF rived green, the Limón No. 05-08-01178-CV. was parked four-door car out front. It had a warm hood and a bullet hole in the Texas, Appeals of Court of front-passenger door. The Dallas. way force their into the house investi- June 2010. gate rather, shootings; Perez told A.S. he was investigating shooting

and obtained his consent enter. Mr. fully Mrs. Limón were made aware of

4. The consent-to-search form was admitted 5. See 686- Gutierrez suppression hearing into at the (stating (Tex.Crim.App.2007) that to deter- burden, State's exhibit It was admitted into evi- mine whether the State met its we guilt/innocence dence at the trial on as State’s circumstances). totality look at the exhibit 78.

Case Details

Case Name: Limon v. State

Court Name: Court of Appeals of Texas

Date Published: Jun 17, 2010

Citation: 314 S.W.3d 694

Docket Number: 13-08-00551-CR

Court Abbreviation: Tex. App.