IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
PD-1320-10
DENNIS WAYNE LIMON, JR., Appellant
v.
THE STATE OF TEXAS
On Discretionary Review
from the Thirteenth Court of Appeals,
San Patricio County
Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Price,
Johnson, Keasler, Hervey, Cochran, and Alcala, JJ., joined. Meyers, J., filed a
dissenting opinion.
The appellant, Dennis Wayne Limon, Jr., was convicted of the offense of deadly conduct
and sentenced to three years’ imprisonment. On appeal he challenged the trial court’s denial of
his pretrial motion to suppress evidence, and the Thirteenth Court of Appeals reversed.1 We
granted the State’s petition to review to the following issues: (1) Is it reasonable for police to
believe that a person who answers the door of a residence in the middle of the night has authority
1
Limon v. State, 314 S.W .3d 694 (Tex. App.–Corpus Christi 2010).
Limon - 2
to invite police to enter, or must police inquire as to that person’s authority? (2) Does a teenager
lack authority to invite officers inside a residence simply because he is a minor? (3) Does Illinois
v. Rodriguez2 require officers to make further inquiry when they are faced with ambiguity
regarding the authority of a third party to consent to an entry or search?3
I. Background
At the pretrial hearing on the appellant’s motion to suppress evidence, Detective Gus
Perez of the Aransas Pass Police Department testified to the circumstances surrounding the entry
of the appellant’s residence. Around 10:00 pm on June 28, 2007, Perez was called to investigate
two incidents of “shots fired” in Aransas Pass. During his investigation, Perez received
information that a green, four-door car was seen leaving the area of the first incident and that a
resident living in the area of the second incident “believed that the Limon kids were involved.”
Perez, who knew of only one Limon family in Aransas Pass, proceeded to the Limon residence.
When he arrived, Perez saw a “green Buick four door” parked on the street adjacent to the house.
The hood of the car was still warm, and the passenger door appeared to have a bullet hole in it.
Perez called for back-up and waited for three other officers to arrive before knocking on a front
door4 of the house at approximately 2:00 a.m.
The door was opened by a boy whom we shall call “A.S.” Detective Perez testified that
he did not know who A.S. was or how old he was. He later learned A.S.’s age to be 13 or 14.
Perez did not ask A.S. if he owned or possessed the residence, but “assumed that because
2
497 U.S. 177 (1990).
3
A fourth issue (“Is error automatically harmful under Rule of Appellate Procedure 44.2(a) if the State does
not argue that error is harmless?”) is not necessary to our resolution of the case, and it is dismissed.
4
The house apparently has two front doors.
Limon - 3
he opened the door that he was one of the residents.” Perez told A.S. that he was investigating a
shooting case, and he asked for permission to enter the residence. A.S. admitted Perez and
another officer.
When the officers entered the house, “there was an odor of marijuana coming from the
residence itself.” Perez and the other officer then proceeded to search the house, seizing certain
evidence and arresting the appellant.
II. Applicable Law
The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures.5 The entry into a residence by police officers is a “search” for purposes of the
Fourth Amendment.6 A warrantless police entry into a residence is presumed unreasonable unless
the entry falls within one of a well-defined group of exceptions.7 Voluntary consent is one such
exception.8
Consent to entry “from one who possesses common authority over premises or effects is
valid as against the absent, nonconsenting person with whom that authority is shared.”9 Common
authority is derived from the third party’s use of the property rather than his legal property
interest:
[t]he authority which justifies the third-party consent does not rest upon the law of
property, with its attendant historical and legal refinements, but rests rather on
5
See Illinois v. Rodriguez, 497 U.S. 177, 179 (1990).
6
See Valtierra v. State, 310 S.W .3d 442, 448 (Tex. Cr. App. 2010).
7
Ibid.
8
Ibid.
9
United States v. Matlock, 415 U.S. 164, 170 (1974).
Limon - 4
mutual use of the property by persons generally having joint access or control for
most purposes, so that it is reasonable to recognize that any of the co-inhabitants
has the right to permit the inspection in his own right and that the others have
assumed the risk that one of their number might permit the common area to be
searched.10
Even if actual authority does not exist, consent may be validly obtained from an
individual with apparent authority over the premises.11 Apparent authority is judged under an
objective standard: “would the facts available to the officer at the moment warrant a man of
reasonable caution in the belief that the consenting party had authority over the premises?”12 As
the Supreme Court discussed in Georgia v. Randolph,13 reasonableness hinges on “widely shared
social expectations” and “commonly held understanding about the authority that co-inhabitants
may exercise in ways that affect each other’s interest.”14
The State must prove actual or apparent authority by a preponderance of the evidence.15
On appeal, determinations of actual and apparent authority are reviewed de novo as mixed
questions of law and fact.16 When the trial court does not enter findings of fact, as in this case,
10
Id., at 171 n.7 (citations omitted).
11
Rodriguez, 497 U.S., at 188.
12
Id. (internal quotations omitted).
13
547 U.S. 103 (2006).
14
Id., at 111.
15
See Hubert v. State, 312 S.W .3d 554, 562 (Tex. Cr. App. 2010). Under Article I, Section 9 of the Texas
Constitution, the voluntariness of consent must be proved by clear and convincing evidence. Ibarra v. State, 953
S.W .2d 242, 245 (Tex. Cr. App. 1997) (“W e thus hold, as we consistently have, that the State must prove the
voluntariness of a consent to search by clear and convincing evidence.”). W hile the appellant alleges violations of
both the Fourth Amendment and Article I, Section 9, he does not argue with the State’s assertion that the proper
burden of proof for authority to consent is the “preponderance of the evidence.” Since the appellant has not argued
that Article I, Section 9 offers broader protections, we analyze this case under the Fourth Amendment.
16
Id., at 559-60.
Limon - 5
reviewing courts view the evidence in the light most favorable to the trial court’s rulings and
assume that the trial court resolved any issues of historical fact or credibility consistently with its
ultimate ruling.17
III. Analysis
In the present case, the State does not contend that A.S. had actual authority over the
premises. It argues in its first ground for review that it is reasonable for police to believe that a
person who answers the door of a residence in the middle of the night has authority to invite
police to enter. We do not find support for such a per se rule in Fourth Amendment cases. The
test set out by the Supreme Court is whether the officer’s belief in an individual’s authority is
reasonable under the facts known to the officer.18
Similarly, we need not consider a per se rule that children may, or may not, give consent
to entry. Under given circumstances, and taking into account “widely shared social expectations”
and “commonly held understanding,” it may be reasonable or unreasonable to believe that a child
has authority to consent to a particular intrusion. As the Supreme Court stated in Randolph, “‘a
child of eight might well be considered to have the power to consent to the police crossing the
threshold into that part of the house where any caller, such as a pollster or salesman, might well
be admitted,’ but no one would reasonably expect such a child to be in a position to authorize
anyone to rummage through his parents’ bedroom.”19 Based on the Supreme Court’s example in
17
Id., at 560.
18
Rodriguez, 497 U.S., at 188.
19
Randolph, 547 U.S., at 112 (quoting 4 W . LaFave, Search and Seizure §8.4(c), at 207 (4th ed. 2004)); see
also Allen v. State, 44 So.3d 525 (Ala. Crim. App. 2010) (collecting cases and demonstrating the substantial majority
of states allowing minors to give valid consent to search).
Limon - 6
Randolph, the Fourth Amendment does not prohibit a minor child from consenting to entry when
the record shows the officer’s belief in the child’s authority to consent is reasonable under the
facts known to the officer.
Under the circumstances of the present case, we find five key facts supporting the
reasonableness of Perez’s belief.20 First, A.S. opened the door by himself in response to Perez’s
knock. The trial court could have believed that his act suggests a greater level of authority to
permit entry than, for example, if he had answered “What do you want?” from behind the door,
or if he had answered the door with an adult in view behind him. Second, viewing the evidence
in the light most favorable to its ruling, the trial court reasonably could have inferred from
Perez’s testimony that A.S. appeared to be at least a teenager of significant maturity, if not a
young adult.
Third, A.S. consented to mere entry through the front door, as opposed to entry or search
of less public areas of the house. The trial court could have believed that it was reasonable to rely
on a teenager’s authority to consent to such a limited scope of entry, while it would not have
been reasonable to rely on his authority to consent to a more intrusive search.
Fourth, the officer’s announced purpose was to conduct an emergency public-safety
function. We think it an even more widely shared social expectation that a teenager would have
authority to permit entry for an emergency public-safety function than, for example, entry for a
salesperson to make a sales pitch.
20
Numerous other facts are described by the Court of Appeals. These facts may be relevant to whether
exigent circumstances arising before and after the entry permitted a warrantless search of the house, whether the
appellant’s father’s post-entry consent to search was voluntary, whether the appellant’s subsequent statement was
voluntary, and whether any taint from an improper entry had attenuated before the appellant gave his statement.
Those issues are not before us because the Court of Appeals resolved the appeal on the basis that A.S. did not have
apparent authority to consent to entry. W e therefore have stated only those facts relevant to apparent authority.
Limon - 7
Finally we consider the time of the entry: 2:00 a.m. The Court of Appeals found that the
hour weighed against believing that A.S. had authority because he may have been awakened from
sleep and not thinking clearly. On the other hand, the trial court could have found it reasonable
for Perez to believe that an individual opening the door at 2:00 a.m. was a resident rather than a
guest. Furthermore, there is no evidence in the record that A.S. was in fact awakened from sleep
or not thinking clearly. More importantly, lack of sleep and clarity of thought would be evidence
relevant to the voluntariness of the consent rather than apparent authority to consent.
The Court of Appeals also stated, “These circumstances created an ambiguity that Officer
Perez was obligated to resolve before entering the home, requiring him to ask further questions,
such as whether the child actually lived at the home, whether the child’s parents were available,
whether the child understood that he did not have to consent, or whether the child wished to
consult an adult on the premises.” To support this statement, the Court cited Illinois v. Rodriguez
for a “well-established rule that an officer may not proceed in an ambiguous situation without
first verifying that the person purporting to consent to the entry has authority to do so.”21
But we need not address the Court’s formulation of such a rule because we find no
ambiguity with respect to A.S.’s apparent authority. Under the facts available to Officer Perez at
the moment, a mature teenager, possibly an adult, opened the front door to him at 2:00 a.m. and,
after hearing that he was investigating a shooting, gave him consent to enter through the front
door. We find that a person of reasonable caution could reasonably believe that A.S. had the
21
Limon, 314 S.W .3d, at 703 n.4 (citing Rodriguez, 497 U.S., at 186).
Limon - 8
authority to consent to mere entry under those circumstances.22
We hold that the court of appeals erred in finding that A.S. did not have apparent
authority to consent to entry. We therefore need not address the State’s fourth point of error
regarding harm. We reverse and remand to the court of appeals for proceedings not inconsistent
with this opinion.
Delivered June 15, 2011.
Publish.
22
W hether A.S. had apparent authority to consent to a search of the house, as distinguished from a mere
entry, might be a closer question. However, that question is not presented for review. There is no evidence that Perez
asked for or received consent from A.S. to search further. Rather, Perez’s testimony indicates that the search of the
house was conducted on his own initiative after smelling marijuana upon entering through the door. References by
the Court of Appeals to A.S.’s consent to search the appellant’s bedroom, Limon, 314 S.W .3d, at 702 and 703, were
without any basis that we can find in the record.
Limon, Dennis Wayne Jr.
Combined Opinion