Reversed and Remanded and Memorandum Opinion filed November 4, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00903-CR
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JOSEPH DAVID MENA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause No. 1169356
M E M O R A N D U M O P I N I O N
Appellant Joseph David Mena pleaded guilty to the misdemeanor offense of possession of marijuana, and the trial court placed appellant on six months’ deferred adjudication. In a single point of error, appellant contends the trial court erred in denying his pretrial motion to suppress because he did not consent to the search. We reverse and remand.
On April 21, 2003, Officer Peter Bacon of the Webster Police Department stopped a car because it had a defective headlight and an expired registration. The car was occupied by appellant and three other males. Officer Bacon discovered that only one occupant had any form of identification and that the driver of the vehicle had open warrants.
Another officer arrived as backup. Because the two officers were outnumbered by the occupants of the car, Officer Bacon conducted a pat down search for weapons.[1] During the search Officer Bacon found a baggie of marijuana on one of the passengers, Larry King. Officer Bacon then told all of the occupants to remove their shoes. Appellant did so, and Officer Bacon discovered a baggie of marijuana inside appellant’s shoe. The driver was arrested based on the open warrants, and appellant and King were arrested for possession of marijuana.
Appellant moved to suppress the evidence, arguing that he did not consent to the search of his shoes. After the trial court denied his motion, appellant pleaded guilty and was placed on six months’ deferred adjudication community supervision.
In his sole point of error, appellant contends the trial court erred in denying his motion to suppress. We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). At a suppression hearing, the trial court is the sole judge of the weight and credibility of the evidence, and the trial court’s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). In reviewing a trial court’s ruling on a motion to suppress, we afford almost total deference to the trial court’s determination of the historical facts that the record supports, especially when the trial court’s findings turn on an evaluation of a witness’s credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Although great weight should be given to the inferences drawn by the trial judges and law enforcement officers, determinations of probable cause should be reviewed de novo on appeal. Id. at 87.
Both the United States and Texas Constitutions protect citizens against unreasonable searches and seizures. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. A warrantless search is per se unreasonable, subject to certain exceptions. See United States v. Karo, 468 U.S. 705, 717 (1984); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). Freely and voluntarily-given consent is one of the established exceptions. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Whether consent is valid is a question of fact to be determined from all of the circumstances. Id. Among the factors to consider when determining whether consent is valid are the following: (1) whether the consenting person is in custody; (2) whether he was arrested at gunpoint; (3) whether he was informed that he did not have to consent; (4) his age, intelligence, and education; (5) the constitutional advice given to him; (6) the length of the detention; (7) the repetitiveness of the questioning; and (8) the use of physical punishment. Laney v. State, 76 S.W.3d 524, 532 (Tex. App.—Houston [14th Dist.] 2002), aff’d, 117 S.W.3d 854 (Tex. Crim. App. 2003). The United States Constitution requires the State to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the State to prove the validity of the consent by clear and convincing evidence. Maxwell, 73 S.W.3d at 281.
At the suppression hearing, the only evidence regarding the search consisted of the offense report entered by Officer Bacon, to which appellant and the State stipulated. Officer Bacon reported:
The last subject was identified as defendant, Joseph David Mena, white male, 9/21/1985. He appeared to be very nervous. I told him and the other subjects to remove their shoes, a common place to secret [sic] contraband. Inside of Mena’s right shoe was a large baggy of marijuana, 28 grams.
The State argues that appellant’s removal of his shoes indicates consent. However, whether this consent was voluntary must be determined from the surrounding circumstances. Maxwell, 73 S.W.3d at 281. Compare Kendrick v. State, 93 S.W.3d 230, 234 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding acquiesence was voluntary based on circumstances of police request), with Carmouche v. State, 10 S.W.3d 323, 333 (Tex. Crim. App. 2000) (holding acquiescence was not voluntary based on circumstances of police request). The evidence is silent as to the circumstances surrounding the request—i.e., whether the officers had their guns drawn, whether appellant was informed he did not have to consent, whether he was advised of his constitutional rights, the length of the detention, and the repetitiveness of the questioning.[2] See Laney, 76 S.W.3d at 532. Further, appellant had already been subjected to an involuntary search, which may have led him to conclude that the second search was not optional. See Carmouche, 10 S.W.3d at 333. Based on the evidence in the record and giving deference to the trial court’s findings of historical fact, the State did not prove the voluntariness of the search by clear and convincing evidence. See Maxwell, 73 S.W.3d at 281.
The State argues, in the alternative, that the search was proper because of exigent circumstances. We will uphold the trial court’s admission of evidence if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Another exception to the per se unreasonableness of a warrantless search applies when the search was based on probable cause and when exigent circumstances made the procuring of a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause to search exists if the facts and circumstances known to the officer would allow a person of reasonable prudence to believe evidence of a crime will be found. Id. Exigent circumstances may exist when the State shows that “the police could have reasonably concluded that evidence would be destroyed or removed before they could obtain a search warrant.” Id. at 107.
The State argues that Officer Bacon had probable cause to believe evidence of a crime would be found by the search because (1) marijuana was found in King’s possession, (2) additional marijuana was found, apparently also in King’s possession,[3] and (3) appellant “appeared to be very nervous.”[4] Such facts may be considered in determining whether probable cause exists. See, e.g., Voelkel v. State, 717 S.W.2d 314, 316 (Tex. Crim. App. 1986) (considering possession of marijuana by a companion in addition to other factors); LeBlanc v. State, 138 S.W.3d 603, 608 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (considering nervousness in addition to other factors). However, we cannot say that these facts standing alone lead to “a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Thus, the State did not prove that Officer Bacon had probable cause to search appellant. See McNairy, 835 S.W.2d at 106.
Accordingly, we sustain appellant’s point of error, reverse the judgment of the trial court, and remand the cause to that court for further proceedings consistent with this opinion.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed November 4, 2004.
Panel consists of Justices Yates, Fowler, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The propriety of that search is not questioned.
[2] The parties did stipulate that appellant was seventeen years of age at the time of the arrest and had obtained his GED, factors to be considered when evaluating whether consent was voluntary. See Laney, 76 S.W.3d at 532. However, appellant’s age and education do not weigh in favor of considering his consent voluntary.
[3] Although the record does not expressly state the additional marijuana was found in King’s possession, the offense report indicates it was found during Officer Bacon’s search of King. Officer Bacon reported:
While checking the right, rear passenger, I found a large tight bulge in the right leg cargo pocket of his pants. Based on playing field [sic], my experience led me to believe that the item was a baggy of marijuana. I recovered the item and found that it was indeed a baggy of marijuana, 17 grams. I, also, removed a Philly’s blunt brand cigar box that contained a marijuana blunt cigar and a pack of rolling papers. The subject was identified as defendant, Larry Franklin King, Jr., white male, 7/18/1984.
King was also the only person arrested for marijuana possession other than appellant.
[4] The State also points out that (1) the officers were outnumbered, (2) the officers had already conducted a search for weapons, and (3) drug offenders commonly conceal contraband in their shoes. We conclude that the factors are not relevant to a probable cause determination in this case.