Opinion issued October 22, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-01027-CR
WILLIE PAUL WALTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1116405
MEMORANDUM OPINION
The State indicted Willie Paul Walton for the felony offense of possession with intent to deliver a controlled substance, Alprazolam, weighing between twenty-eight and two hundred grams. See Tex. Health & Safety Code Ann. §§ 481.104, 481.117(c) (Vernon Supp. 2009). After the trial court denied Walton’s motion to suppress evidence seized from his vehicle, Walton pleaded guilty and the trial court assessed punishment at three years’ confinement. Walton appeals the denial of his motion to suppress, arguing that (1) the search of his vehicle was an invalid search incident to arrest pursuant to the United States Supreme Court’s recent decision in Arizona v. Gant, and (2) Walton did not give consent to search his vehicle. We hold that Gant, which limits the scope of searches incident to arrest but does not alter the scope and validity of other exceptions to the Fourth Amendment’s warrant requirement, does not prohibit valid consent searches. We further hold that the trial court did not abuse its discretion in determining that Walton consented to the search of his vehicle and therefore affirm.
Background
Houston Police Department Officer M. Lopez was investigating several pharmacy burglaries when he received “credible and reliable” information from a street informant that a suspect in the burglaries, and possible parole violator, frequented a house on Jasmine Tree Street in Houston. On May 11, 2007, Officer Lopez began surveillance and observed Walton drive up to the address, exit his vehicle, and enter the residence. Approximately ten minutes later, Walton came out of the residence carrying a white transparent bag and returned to his vehicle. While following Walton’s vehicle, Officer Lopez noticed that Walton failed to signal a lane change and had illegal tinting on his vehicle’s windows. After notifying a sheriff’s deputy in a marked unit from the Harris County Sheriff’s Office, Officer Lopez and the deputy conducted a traffic stop.
The deputy asked Walton to exit the vehicle while Officer Lopez approached the passenger side, where he saw a white transparent bag containing several large prescription bottles sitting on the front seat. As Officer Lopez walked around to the driver’s side of the vehicle, he saw two more prescription bottles wedged between the driver’s seat and the center console. After Walton denied having any illegal narcotics or weapons in the vehicle, Officer Lopez asked Walton for consent to search the vehicle, which Walton “unequivocally granted.” Ultimately, officers recovered 120 Alprazolam pills and five empty prescription bottles from Walton’s vehicle.
In August 2007, the State indicted Walton for the felony offense of possession with intent to deliver a controlled substance, Alprazolam, weighing between twenty-eight and two hundred grams. In October 2007, Walton moved to suppress all contraband seized from his vehicle, arguing that the officers lacked probable cause to conduct the traffic stop, warrantless search, and arrest, in violation of the Fourth Amendment. Walton supplied an affidavit in support of the motion to suppress, in which he stated that Officer Lopez asked to search the vehicle and, after Walton questioned why Lopez wanted to search, Lopez handcuffed Walton, placed him in the back of the patrol car, and proceeded to search Walton’s vehicle. According to Walton, Lopez did not obtain consent to search the vehicle.
On November 5, 2007, the trial court heard Walton’s motion to suppress, and on the basis of Walton and Lopez’s contradicting affidavits describing the traffic stop, the court denied the motion. Later that day, Walton pleaded guilty to possession with intent to deliver a controlled substance and the trial court assessed punishment at three years’ confinement. In April 2009, the United States Supreme Court decided Arizona v. Gant, 129 S. Ct. 1710 (2009), which limits the scope of searches incident to arrest in the vehicular context. On May 22, 2009, Walton requested written findings of fact and conclusions of law from the trial court regarding the denial of his motion to suppress. The trial court found that (1) Officer Lopez validly arrested Walton based on his failure to signal a lane change and the illegal tinting, (2) Walton gave consent to search the vehicle, and (3) the ensuing search was valid based on that consent and as a search incident to arrest.
Discussion
Standard of Review
We review a trial court’s ruling on a motion to suppress for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We must view the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). When ruling on a motion to suppress, the trial judge is the “sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. The trial judge may choose to believe or disbelieve any or all of a witness’ testimony.” Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). As such, we defer to a trial court’s express or implied determination of historical facts, as well as to its application of law to fact questions if those questions turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo application of law to fact questions that do not fall into this category. See id.; Wiede, 214 S.W.3d at 25. If the trial court’s ruling on a motion to suppress is reasonably supported by the record and correct on any theory of law applicable to the case, we must sustain the ruling. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
Arizona v. Gant and Searches Incident to Arrest
Walton contends that the trial court erred in denying his motion to suppress based on the United States Supreme Court’s recent holding in Arizona v. Gant, 129 S. Ct. 1710 (2009), that the Fourth Amendment does not authorize vehicular searches incident to arrest after the police secure the vehicle’s occupant in a way that prevents his access to the interior of the vehicle. 129 S. Ct. at 1714. The Gant Court also held that vehicular searches incident to an arrest do not violate the Fourth Amendment if it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. See id. Walton argues that since the search of his vehicle occurred after he was secured in the back of the deputy’s patrol car and neither of the offenses for which he was arrested, failure to signal a lane change and illegal tinting, required a search of the interior of the vehicle, nor could officers reasonably believe that evidence of those offenses would be present in the vehicle, this search was an invalid search incident to arrest under Gant.
Gant restates the principle of Fourth Amendment jurisprudence that warrantless searches are per se unreasonable unless the State can prove that the search meets one of the specifically defined and narrow exceptions to the warrant requirement. Id. at 1716. After encountering Gant at a house police believed was used to sell drugs, officers ran a records check and discovered that Gant had a suspended driver’s license and an outstanding warrant for driving with a suspended license. Id. at 1714–15. The officers returned to the house later in the evening, and when Gant also returned, the officers immediately arrested Gant, handcuffed him, and secured him in the back of a patrol car. Id. at 1715. Officers then searched Gant’s car and discovered a gun and a bag of cocaine located in a jacket pocket on the back seat. Id. On review of the denial of Gant’s motion to suppress, the Supreme Court noted the twin purposes of the search incident to arrest exception: (1) protecting the officers making the arrest from potential weapons, and (2) preventing the concealment or destruction of evidence. Id. at 1716. If no possibility exists that the arrestee could reach into the area being searched, neither justification for this exception is present, and thus a warrantless search is invalid. Id. Therefore, the State can justify a warrantless search only when “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. at 1719. The State may also validate a warrantless search when it is reasonable to believe that evidence “relevant to the crime of arrest” might be found in the vehicle. Id. (emphasis added). The Court acknowledged that in most cases in which the defendant is arrested for a traffic violation, there is no reasonable basis to believe that the vehicle contains evidence relevant to that traffic offense, and thus the search incident to arrest exception will not justify a warrantless search. Id.
Although Gant limits the scope of vehicular searches incident to arrest, the Supreme Court intended to leave the other exceptions to the warrant requirement intact. See id. at 1723–24 (“When these justifications [for a search incident to arrest] are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”). The Gant Court specifically mentions that its holding does not disturb the longstanding rule that, if probable cause exists that a vehicle contains evidence of criminal activity relevant to any offense, police may search any area of the vehicle where that evidence might be found. See id. at 1721 (citing United States v. Ross, 456 U.S. 798, 820–21, 102 S. Ct. 2157, 2170–71 (1982)).
Here, even though the trial court found that the search of Walton’s vehicle was legitimate as a “search pursuant to a valid arrest,” the State does not rely on the search incident to arrest exception to justify the warrantless search of Walton’s vehicle. Instead, the State contends that the search is legitimate as a search pursuant to valid consent from Walton. In denying Walton’s motion to suppress, the trial court expressly found that Walton consented to the search and that the “search of the car was legitimate based on the consent given.”
Consent Searches
Although the Fourth Amendment generally requires police officers to conduct a search with a valid warrant supported by probable cause, an established exception to both the warrant and probable cause requirements allows for a search conducted pursuant to valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Walton argues on appeal that he did not consent to Officer Lopez’s search of his vehicle. In his affidavit supporting his motion to suppress, Walton stated that when asked by Lopez to give consent to search, Walton asked Lopez why he wanted to search, whereupon Lopez handcuffed him and placed him in the back of the patrol car. According to Walton, he “did not consent to a seizure or search of [his] car,” contradicting Lopez’s statement in his responding affidavit that Walton “unequivocally granted” consent to search. On appeal, Walton attacks Lopez’s credibility by posing the question of why Walton would consent to a search if he knew illegal drugs would be found. Walton also points out that Lopez never attempted to obtain written consent for a search. Written consent to search, however, is not required to satisfy this exception to the warrant requirement. See Montoya v. State, 744 S.W.2d 15, 25 (Tex. Crim. App. 1987) (“A consent to search may be oral and still be valid.”), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Similarly, refusing to sign a written consent form does not render verbal consent invalid, but may indicate that the defendant never gave verbal consent. See Smith v. State, 789 S.W.2d 350, 355 (Tex. App—Amarillo 1990, pet. ref’d) (“The fact that appellant did not sign the consent-to-search form does not impair the validity of his oral consent, but goes instead to the existence of such oral consent.”). The record does not indicate that Officer Lopez presented a written consent form to Walton or asked for written consent.
In the findings of fact and conclusions of law, the trial court explicitly found that Walton “gave consent to have his car searched.” Faced with contradicting affidavits from Walton and Officer Lopez, the trial court made the determination to believe Officer Lopez’s testimony over Walton’s. We defer to the trial court’s determination that Walton consented to the search of his vehicle. In Officer Lopez’s affidavit, he avers that Walton “unequivocally granted” consent to search. This statement supports the trial court’s finding that Walton consented, and thus, we will not disturb it. See Green, 934 S.W.2d at 98–99 (citing Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990) (“Since the trial court is the sole fact finder at a suppression hearing, this Court is not at liberty to disturb any finding which is supported by the record.”), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)). Accordingly, we hold that the trial court did not abuse its discretion in finding that Walton consented to the search of his vehicle.
Conclusion
Although Arizona v. Gant limits the scope of searches incident to arrest, the additional exceptions to the Fourth Amendment’s warrant requirement remain intact. The record supports the trial court’s finding that Walton gave valid consent to search. We therefore hold that the trial court properly denied Walton’s motion to suppress, and affirm the order of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.4.