IN THE COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
________________________________________________
ALJANON LARAY SMITH
Appellant,
V.
THE STATE OF TEXAS,
Appellee.
________________________________________________
Appeal in Cause Number F-10-25739-X
In Criminal District Court No. 6
Dallas County, Texas
________________________________________________
BRIEF FOR APPELLANT
________________________________________________
Russ Henrichs
P.O. Box 190983
Dallas, Texas 75219
214/651-0759
Texas State Bar No.09475000
Attorney for Appellant
On Appeal
5th Court of Appeals
FILED: 07/03/2012
14:00
Lisa Matz, Clerk
05-11-01675-CR
_______________________________________________
PARTIES TO THE CASE
Pursuant to Rule 38 of the Texas Rules of Appellate Procedure, the parties to the
case were:
1. The State of Texas, Appellee
2. ALJANON LARAY SMITH, Appellant
Representing the State of Texas, Appellee, are members of the Dallas County
District Attorney’s Office, 133 N. Riverfront Blvd., Dallas, TX 75207.
Appearing at trial was:
HON. JOSH HEALY
SBOT No.24026288
District Attorney’s Office
133 N. Riverfront Blvd.
Eleventh Floor
Dallas, TX 75202
Representing the Appellant, ALJANON LARAY SMITH , at trial:
Hon. LADONNA HARLAN
SBOT 24037472
276 Hickerson Street
Cedar Hill, Texas 75104
Representing the Appellant, ALJANON LARAY SMITH, on appeal:
RUSS HENRICHS
P.O. Box 190983
Dallas, Texas 75219
ii
TABLE OF CONTENTS
PAGE
Parties to the Case ................................................................................................. ii
Table of Contents .................................................................................................. iii
Index of Authorities ............................................................................................. iv-v
Statement of the Case............................................................................................2
Issues Presented for Review..................................................................................2
Statement of Facts ............................................................................................. 2-3
Point of Error No. One Restated ............................................................................4
THE APPELLANT’S HOME WAS SEARCHED BY POLICE
OFFICERS WITHOUT A SEARCH WARRANT IN VIOLATION OF
THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTION 9, OF THE TEXAS
CONSTITUTION.
Summary of the Argument ............................................................................... 4-21
Argument ........................................................................................................ 21-29
Prayer ...................................................................................................................30
Certificate of Service ............................................................................................30
iii
INDEX OF AUTHORITIES
PAGE
CASES
Amos v. United States, 255 U.S. 313 (U.S. 1921) ...............................................26
Arizona v. Gant, 556 U.S. 332 (U.S. 2009) ................................................... 19, 20
Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App. 1989) ............................... 21, 22
Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91
S. Ct. 2022, 29 L. Ed. 2d 564 (1971) ..............................................................23
Davalos v. State, 2012 Tex. App. LEXIS 3485 (Tex. App. Houston 1st Dist.
May 3, 2012) ................................................................................................. 23-24
Edwards v. State, 813 S.W.2d 572 (Tex. App. Dallas 1991) ...............................16
English v. State, 647 S.W.2d 667 (Tex. Crim. App. 1983) ...................................21
Fla. v. Bostick, 501 U.S. 429 (U.S. 1991) ............................................................27
Georgia v. Randolph, 547 U.S. 103 (U.S. 2006) ..................................................25
Jones v. United States,(supra) 357 U.S. 493 (U.S. 1958) ...................................26
Juarez v. State, 758 S.W.2d 772 (Tex. Crim. App. 1988) ............................. 23, 25
United States v. Munoz-Guerra, 788 F.2d 295, 297 (5th Cir. Tex. 1986) ............23
United States v. Nieto, 510 F.2d 1118, 1119 (5th Cir.),
cert. denied, 423 U.S. 854, 96 S. Ct. 101, 46 L. Ed. 2d 78 (1975) .................23
United States v. Soriano, 482 F.2d 469, 472 (5th Cir. 1973) ..............................23
Zayas v. State, 972 S.W.2d 779 (Tex. App. Corpus Christi 1998) .......................19
iv
STATUTES
Tex. Const. art. I, § 9 ..................................................................................... 23, 24
U.S. Const. amend. IV................................................................................... 23, 24
U.S. Const. amend. XIV .......................................................................................23
v
05-11-01675-CR
________________________________________________
IN THE COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
________________________________________________
ALJANON LARAY SMITH
Appellant,
V.
THE STATE OF TEXAS,
Appellee.
________________________________________________
Appeal in Cause Number F-10-25739-X
In Criminal District Court No. 6
Dallas County, Texas
The Honorable Jeannine Howard Presiding
________________________________________________
BRIEF FOR APPELLANT
________________________________________________
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the Appellant, ALJANON LARAY SMITH, by and through
his attorney of record, Russ Henrichs, and respectfully submits his brief setting
out points of error of which the Appellant is seeking to reverse his conviction in
Cause No. F10-25739 from Criminal District Court No. 6, Dallas County, Texas,
1
for the offense of Possession of a Controlled Substance, to wit: cocaine, in an
amount of 1 gram or more but less than 4 grams.
STATEMENT OF THE CASE
The Appellant pled guilty to the felony offense of possession of cocaine in
an amount of 1 gram or more but less than 4 grams in Criminal District Court No.
6, the Honorable Judge Jeannine Howard presiding (R10). The court overruled
the appellant’s motion to suppress evidence and the appellant entered into a plea
bargain wherein the State dismissed two enhancement paragraphs (R97,98,99).
(R56) The appellant was sentenced to four years in the Institutional Division of
the Texas Department of Corrections on November 2, 2011 (R 94) and gave
timely notice of appeal on November 29, 2011. (R101)
ISSUES PRESENTED FOR REVIEW
I. THE APPELLANT’S HOME WAS SEARCHED BY POLICE OFFICERS
WITHOUT A SEARCH WARRANT IN VIOLATION OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTION 9, OF THE TEXAS CONSTITUTION.
STATEMENT OF THE FACTS
On December 9, 2010, Randall Todd Hawkins was working as a gang unit
officer with the Garland police department. He knew the appellant from previous
contacts and began watching the appellant’s house for some three months after
2
receiving unspecified complaints from neighbors about drug trafficking in the
appellant’s residence at 221 Lake, in Garland. At about 7:30 p.m., Officer
Hawkins saw a vehicle parked in front of the appellant’s house which Hawkins
said was parked illegally since the tires were more than 18 inches from the curb.
Inside the car was a male driver and a female passenger who owned the vehicle.
The appellant was seated in the back seat.
Officer Hawkins had all three step outside of the vehicle and put the two
men in separate squad cars. After the appellant had been placed in the police
car, Officer Hawkins noticed that the appellant appeared high and was not
permitted to exit the squad car. Hawkins went to the front door of the appellant’s
residence and asked the appellant’s fiancé, Lanail Richardson, if he could enter
the house. Upon entering, Hawkins discovered cocaine in a tin box on a table.
It was undisputed that the appellant and his fiancé were co-occupants of
the residence. Neither the appellant nor his fiancé testified as witnesses in the
Motion To Suppress hearing, but his affidavit as well as two affidavits from
Ms. Richardson and an examining trial proceeding (attached to the appellant’s
suppression brief) were referred to by both the defense and the State. Following
the hearing, the appellant pled guilty to possession of the cocaine discovered,
and was permitted to appeal the court’s ruling on his motion to suppress
evidence.
3
POINT OF ERROR NUMBER ONE RESTATED
THE APPELLANT’S HOME WAS SEARCHED BY POLICE OFFICERS
WITHOUT A SEARCH WARRANT IN VIOLATION OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1,
SECTION 9, OF THE TEXAS CONSTITUTION.
SUMMARY OF THE ARGUMENT
It was undisputed that Garland police officer Randall Todd Hawkins
searched the appellant’s home without a search warrant. Officer Hawkins
testified at the appellant’s Motion to Suppress Evidence on August 18, 2011, that
on December 9, 2010, he came into contact with the appellant at about 7:14 p.m.
[Motion To Suppress, RR 6]. Officer Hawkins saw a car parked in a cul-de-sac in
front of the appellant’s home [RR 7]. The right tires were beyond 18 inches from
the curb, Hawkins said. When Hawkins pulled up behind the vehicle, he saw that
there were three occupants in the vehicle. The appellant was sitting in the
backseat and another male was in the driver’s seat, and a female was sitting in
the vehicle has a passenger [RR 8].
The owner of the vehicle was the female occupant [RR 9]. Hawkins said
that he could not tell when he came up to the vehicle whether anything was going
on inside the vehicle. Nevertheless, he had all of them exit the vehicle [RR 9].
Hawkins said he recognized the appellant from prior contacts, some of them
being in reference to violent contacts. All three occupants of the car were patted
down and the two male subjects were placed in separate squad cars [RR 10].
4
When Hawkins patted down the occupants, he found no weapons and
found no drugs. He placed the two male occupants in his car and when one of
his backup officers arrived, the two males were placed in separate cars [RR 10].
The appellant was placed in Officer Hawkins’ car and the other male was placed
in a different officer’s squad car [RR 10-11].
Regarding the illegal parking, Hawkins stated that he considered that the
right tires were more than 18 inches from the curb, but he did not issue a traffic
ticket [RR 11-12]. The female passenger was put in front of one of the squad
cars and was asked for consent to search her vehicle for illegal narcotics and
weapons and with her consent, Hawkins searched the vehicle. Hawkins
acknowledged that he searched the vehicle because the appellant was inside of
the vehicle:
Q:
(By defense attorney) So Mr. Smith is your sole reason for searching
this vehicle?
A:
Due to what I had been told, yes. [RR 12, ll 22-25].
When searching the vehicle, the police did find a clear plastic capsule, but
did not know exactly what it was. The capsule did not engender any arrest or
charges. Officer Hawkins finished searching the vehicles and found no weapons,
nor did he find any drugs [RR 13-14]. He decided to let everyone go except the
appellant.
After the appellant remained in Officer Hawkins’ vehicle, he proceeded to
do “a narcotics investigation” based on information that he said he had received
5
over the past weeks that the appellant was dealing illegal narcotics [RR 15].
Hawkins testified that he had been receiving information for three or four weeks
from concerned citizens. He did not know the names of the concerned citizens.
Officer Hawkins said that neighbors on that same cul-de-sac that would stop him
and other officers to complain as they drove by. [RR 16].
Hawkins, a gang officer, received his information from narcotics officers.
Hawkins received no identifying information from the neighbors nor did he get
statements from the neighbors. He did not bring them down to the police station
to question them for any length of time, did not get photographs and did not get
any specific information such as dates or times or any actual evidence that the
appellant was selling drugs [RR 16-17].
Officer Hawkins said he personally never saw the appellant sell in the
three or four week span. If he would have, he said, he would have already
arrested him for it, but he did have information that that was happening and the
narcotics officers also had information that that was happening. Officer Hawkins
said he could not have easily gotten statements from the citizens because they
generally don’t want anything further to do with any investigation.
During the three or four weeks that Hawkins was gathering information
about the appellant, Hawkins watched the appellant’s house on a regular basis
[RR 19]. Several times he saw the appellant leave the location, but before he
could get over to contact him, he would go back in the house, so he could not
6
contact him. During those three weeks he never did go and knock on the door.
Hawkins said he did not have enough evidence to obtain a search warrant.
With regard to the stop of the vehicle, Officer Hawkins said he initiated a
narcotics investigation at that time based on what had been said to him and other
officers by concerned citizens regarding what had been taking place at the
residence. However, he acknowledged there was nothing new that he saw
happen on that day. No citizen stopped him right before the traffic violation, to
complain about drug activity. Hawkins said he did not have enough information
for probable cause before the stop to get a search warrant.
Nothing happened pursuant to the alleged parking violation because he
didn’t arrest anyone for drugs, didn’t issue any citations, and didn’t see anything.
Hawkins acknowledged that the appellant could not step out of his squad car and
leave just because everyone else had left. He was told to stay there inside the
squad car. The appellant was in the backseat of the squad car, and Hawkins
spoke to him briefly. Hawkins said the appellant was in a state where he felt the
appellant was intoxicated from some form of drug, not alcohol. The appellant had
slurred speech. Hawkins asked the appellant at that time if anybody was inside
the house. The appellant told him no. Hawkins said he asked the appellant if
anybody else stayed at the house. He said he and his fiancé were the only ones
that lived there, that his grandmother actually owned the house, but that he and
his fiancé lived there. The same house had been a point of interest for several
weeks.
7
Hawkins asked the appellant why his speech was slurred, but denied that
the appellant told him that he had an abscessed tooth which required medication
nor that he had been to a dentist. However later that evening, Hawkins did learn
that the appellant had an abscessed tooth. Hawkins did no field sobriety tests to
determine if the appellant was under the influence of either drugs or narcotics
[RR 22]. At some point Hawkins decided he wanted to search the house.
Hawkins said, “I decided I was going to ask for consent if anyone was home to
search the house, yes.” Hawkins said that he did not ask the appellant for
consent to search the house, but he knew that the appellant did live in the house
and the search of the house would be with reference to the appellant based on
what he had been told [RR 23]. In an affidavit attached to his motion to suppress
evidence, the appellant states that he told Hawkins he could not search without a
warrant. (R 48-51) Exhibit “A”
Hawkins agreed that he did not have probable cause before the stop or
even after the stop to search the house. He did not have enough evidence to get
a search warrant [RR 23, ll 21-25]. Hawkins stated that the reason he did not ask
the appellant to search the house was that the appellant was not in any state of
mind to give consent to search based on his assumption that the appellant was
of a state of intoxication pursuant to drug use.
Hawkins reiterated that in his mind, the auto search and arrest incident to
the car search had nothing to do with the subsequent search of the house [RR
25]. Hawkins went up, knocked on the door, and a young female opened the
8
door. Hawkins said, “I knocked on the door. A young female answered the door. I
asked her what he name was. She identified herself as Lanail, I believe,
Richardson, Mr. Smith’s fiancé. I asked if we could step in and speak to her, and
she readily invited us into the house” [RR 25. Ll 2-10].
At this time, the appellant remained in Hawkins’ squad car, which was
approximately 20 yards from the door where Hawkins went to knock [RR 25].
Hawkins agreed that the appellant being 20 or 30 yards away could not make an
objection to the entry into his house because he was sitting inside a squad car
and the doors were shut [RR 25].
Hawkins continued and stated, “I said (to the appellant’s fiancé), may we
step in and talk to you, and she readily invited us in at that time.
“Q:
And you said you immediately saw some – what you believe may
have been some narcotics on the table?
“A:
Narcotics paraphernalia, yes, and some unknown pills at that time.”
[RR 27, ll 13-18].
Hawkins said he did not recall saying to the fiancé, I know what’s been
going on because I’ve been sitting across the street behind the school watching.
Hawkins said, “I may have said that to her, yes, ma’am I don’t recall saying it, but
it’s possible.” He asked her for consent to search the house after talking to her. “I
talked to her lengthily about how she was involved with the house” [RR 25]. Mrs.
Richardson said she paid the bills, but that the owner of the house was actually
9
the appellant’s grandmother who was in a nursing home and allowed her and the
appellant to live there [RR 28].
Hawkins said the appellant, inside the police car, was not in the position to
make an objection when he contacted his fiancé at the house.[RR 26]. Hawkins
said, “Well, when we first stepped in the house, I immediate saw a glass tabletop
in the middle of the living room. On top of that tabletop was a razor blade with a
white, powdery substance on it that I believed to be cocaine. Also on the tabletop
was a plastic bag full of unknown pills at that time.” The only person in the house
was Mrs. Richardson [RR 26]. Hawkins said when he walked up to the door, he
saw the paraphernalia and even though he saw the paraphernalia, which
possibly could have been narcotics, he still asked for permission to enter [RR
29]. He did not get consent in writing to search [RR 29].
After Mrs. Richardson gave consent to search, Hawkins reached under the
table where the other paraphernalia had already been seen. He looked at the
pills and asked her about the pills, and was told that the pills were medicine for
the appellant’s tooth. [RR 29]. Hawkins then removed the lid off a Christmas tin
and immediately observed cocaine inside the tin there [RR 29].
Hawkins said as soon as he concluded the search, he went outside and
arrested the appellant and charged him with possession of cocaine based on
what they found in the house and based on Mrs. Richardson’s statement to him.
With regard to the initial stop of the car, Hawkins said it was never established if
there were drugs in the car or not. It was an empty capsule with clear powder in
10
the vehicle [RR 32]. Hawkins was asked again about his conception of the
connection between the auto search and arrest and the search of the house in
front of which the car was parked:
“Q:
(By defense attorney) Just so I am clear, your search of the home
had nothing to do with your initial detention of Mr. Smith; that search of the home
had nothing to do with that traffic stop?
“A:
(By Mr. Hawkins) The traffic stop? (sic)
“Q:
Yes.
“A:
No. The search had nothing to do with the traffic stop.” [RR 33, ll 4-
11].
Hawkins said that he had known the appellant for a long time as a member
of the Trey 5-7 Crip Gang [RR 34]. [RR 34].
Hawkins said that on December 9, 2010, he went to patrol the area near
the appellant’s house at 221 Lake in Garland because he had been investigating
the appellant’s house [RR 35]. He first noticed the appellant in the car when he
went up to the driver’s side. He immediately saw the appellant in the backseat.
Hawkins said since it was dark, he had the occupants exit the vehicle for his
safety and consequently placed the appellant and the other male occupant in
separate squad cars. Hawkins knew that the appellant had a conviction for
evading arrest and took special caution with him. Hawkins said that the appellant
was being detained but was not under arrest at the time that he was put into the
squad car.
11
State’s Exhibit No. 2, a razor blade and a black digital scale were received
into evidence. Hawkins said that the razor blade was laying in plain view on the
glass tabletop when they entered the home. The scale, however, was found
inside the Christmas tin which contained the narcotics and was not in plain view.
Hawkins amplified his testimony regarding his contact with Mrs.
Richardson. “When she answered the door, I asked her if we could step in and
speak to her. We stepped in. I told her why we were there, that we were doing a
narcotics investigation because we had been advised that Mr. Smith was selling
illegal narcotics out of the residence as well as on the street. I asked her if she
was aware of this. At that time she said no. I asked her if she would give her
consent while I talked to her about how she came to live in the house and what
her – how she was connected to the house. Ms. Richardson said she paid bills
but lived there with permission of the appellant’s grandmother. And then I asked
her for consent to search the residence, and she readily gave it” [RR 41, ll 2-14].
Eventually Ms. Richardson wrote out a statement in which she stated, “I
pay all the bills in that house” [RR 42]. Hawkins said that he and another officer
searched the residence.
State’s Exhibit No. 3, the crack cocaine found in the tin, was received into
evidence as well.
The search of the house continued and Mrs. Richardson was asked if she
knew where the appellant kept his drugs. She told Hawkins to look in a white
shoebox. When they located the shoebox, there was nothing inside of it [RR 45].
12
In the squad car the appellant denied that any of the cocaine was his at
that time. Lanail Richardson received Miranda warnings and admitted to Officer
Hawkins that the appellant was selling crack cocaine [RR 46]. The police officers
searched the entire house but only found the cocaine in the tin can [RR 49].
State’s Exhibit No. 1 is a photograph of the cul-de-sac at 221 Lake in
Garland, Texas. It was received into evidence as well. Officer Hawkins said
testified that when he saw that the vehicle was parked more than 18 inches from
the curb, it was a violation of the transportation code.
The Court asked questions regarding the cul-de-sac, the vehicle violation
of the vehicle being parked in the cul-de-sac. The Court asked the following
question:
“THE COURT: At the time you went and approached the house and spoke
with Mrs. Richardson, was she aware that her boyfriend was in custody outside
the house?
“OFFICER HAWKINS: We told – I did tell her that we had him detained
outside, yes.
“THE COURT: Before you went in or after you went in?
“OFFICER HAWKINS: I asked her if we could step in and talk to her, and I
explained to her why I was there, and I told her we had Aljanon detained outside.
“THE COURT: And then she let you in?
13
“OFFICER HAWKINS: Well, she let us in. I asked if we could step in and
talk to her. She let us in. When I went in, I explained to her that we had Aljanon –
after we were inside. I explained to her we had Aljanon in the vehicle outside.”
The court asked if she had been looking out the window or curtains, and
Officer Hawkins said he did not notice that.
The appellant’s affidavit was attached to his motions to suppress evidence
as were the affidavits of Lanail Richardson. Lanail Richardson’s first affidavit,
given to police officers, stated, “I heard a knock at the door. When I answered it,
it was a police officer. He asked to step in and speak to me, so I let him in. We
proceeded to talk and he told me he had Aljanon outside and if there was
anything going on the house or anything in the house to let him know.”
In a subsequent affidavit given May 2, 2011, Ms. Richardson stated that on
December 9, 2010, a Thursday night after she arrived home from work, she
noticed a bright light out through her window and peeked out the curtain at about
7:30 p.m. After ten or fifteen minutes, there was a knock on the door. Ms.
Richardson said, “I asked who it was, and I believe he answered Gang Unit. I
opened the door, and it was very cold that night. The officer asked me could he
come in and talk to me. I said yeah, you can come talk.
As soon as he came in, followed by a second officer, he immediately
started saying, ‘If there’s anything in this house, you need to tell me now or I will
put it all on you.’ I told him that to my knowledge there is nothing in the house. He
says, ‘I know what’s been going on because I’ve been sitting across the street
14
behind the school watching.’ I once again told him that to my knowledge there is
nothing in the house. He told me again that he would put whatever he finds on
me. I finally told him that I have nothing to hide and that he can look around
because there is nothing in the house.”
The affidavit of Aljanon Smith stated in pertinent part that on December 9,
2010, the day he was arrested, he drove up to North Dallas with his friend known
as Hammer and Hammer’s girlfriend. They pulled up to 221 Lake Drive at around
7:00 or 8:00 p.m. The appellant’s affidavit recites:
“Shortly after parking, a Garland police unit pulled up behind up. A officer
approached Hammer. The police officer took Hammer out, searched him, and
then put him in a police car uncuffed. The officer then came back and got
Hammer’s girlfriend from the car and searched her, and they told her to get
behind the police unit. I believe Officer Hawkins of the Garland Gang Unit told me
to step out of the car from the backseat. I was then searched and placed in the
backseat of another police unit that had arrived on the scene. The officers then
searched the vehicle. It seemed a little suspicious to me, especially since the
officers did not arrest the driver, nor did they write the driver a ticket. Eventually
the driver and the passenger was (sic) allowed to leave.”
The appellant’s affidavit continues:
“The officer then said, ‘Someone’s in there (221 Lake Drive) because the
lights keep going off and on.’ The officer then asked, ‘Can I go inside and search
the house?’ I told him no. If he had a search warrant then he could go in. The
15
officer told me, ‘Well, your girlfriend is going to let me in.’ The officer turned away
and walked to the front door of the home. He knocked on the door. Lanail
Richardson opened the door. I could not hear what was said between the officer
and my girlfriend, but I did see the officer and one other enter the house. They
were in there for about 20 to 30 minutes. I was still being held the entire time. I
was told I could not move.” [R 48-49].
ARGUMENT
The uncontested facts are that the police searched the appellant’s house
without a search warrant. Officer Hawkins said that he had no probable cause
and was therefore unable to get a search warrant to search the appellant’s
house. The appellant did not give Officer Hawkins permission to search the
house. Hawkins claimed that he did not ask the appellant permission because
the appellant appeared to be high on drugs. Yet, Hawkins questioned the
appellant inside his squad car and was able to learn who owned the appellant’s
house and who occupied it. The appellant’s affidavit states that he refused to
give Hawkins consent to search the house1.
1
The trial court considered as evidence the affidavit of the appellant and two affidavits of cotenant Lanail Richardson. No objection was made by either the State of Defense that the
affidavits were inadmissible hearsay. Moreover, the State, in its summation, asked the court to
consider the affidavits. (RR 66)
“Tex. R. Crim. Evid. 802 now states in pertinent part: Inadmissible hearsay admitted without
objection shall not be denied probative value merely because it is hearsay. The new rule does
not automatically accord probative value to hearsay evidence. The trier of fact has the
responsibility to determine the probative force of particular items of evidence.” Edwards v. State,
813 S.W.2d 572 (Tex. App. Dallas 1991)
16
It is uncontested that the appellant was inside the police car twenty to thirty
yards from his home and not permitted to go to his home when Hawkins knocked
on the door of the appellant’s home at 221 Lake in Garland. Hawkins testified
that he arrested the appellant only after he found cocaine inside the house and
got a statement from the appellant’s fiancé, Lanail Richardson that tended to
incriminate the appellant.
Officer Hawkins admitted that he sought to search the car only because
the appellant was in the car. Seated in the back seat and having nothing to do
with the alleged parking violation, the appellant was removed from the vehicle
and detained without probable cause.
Only after he was inside the squad car, did Officer Hawkins purportedly
notice that the appellant was high on drugs. But the appellant should never have
been removed from the parked car nor put into Hawkins police car in the first
place. The illegal detention enabled Hawkins to prevent the appellant from taking
part in the knock and talk procedure. Further, by keeping the appellant inside the
police car, Hawkins was able to intimidate Lanail Richardson by telling her that
he had the appellant in the police car, had been watching the home and knew
drug trafficking was going on and that if she did not let him search, she would
face charges instead of the appellant.
The appellant contends that he did not give consent to search his home.
Aside from the appellant’s affidavit, it is clear that the illegal arrest and continued
17
detention inside Hawkins squad car prevented the appellant from communicating
with his fiancé and from objecting to the warrantless search of the home.
UNLAWFUL ARREST OF THE APPELLANT
The police where never justified in removing the appellant and detaining
him: he was seated in the back passenger seat when Officer Hawkins
approached a vehicle parked more than 18 inches from the curb. The vehicle
was parked in a cul-de-sac in front of the appellant’s home which he shared with
his fiancé. The appellant contends that narcotics recovered by the police inside
his home were “the fruits of the poisonous tree”: As a passenger in a car which
was allegedly parked in some 18 inches from the curb, the arresting officer had
no probable cause to arrest the appellant and keep him inside a squad car and
then search his home with no search warrant.
Even if the appellant had been the driver of the parked vehicle rather than
a passenger in the back seat, the police would have had no justification in
removing him from the vehicle and conducting a warrantless search. Officer
Hawkins admitted that he wanted to see if the appellant might be inside the
automobile and really had no other legitimate basis for either removing the three
persons from the vehicle or searching the vehicle. He issued no traffic citations
And after letting both the driver and front passenger go, he held the
appellant inside his squad car.
“For a temporary investigative detention to be valid, factors must be
present: (1) an unusual activity must be occurring or have occurred,
18
(2) the accused must be connected with the suspicious activity, and
(3) the suspicious activity must be connected with crime.
“A person is arrested when he has been actually placed under
restraint or taken into custody by an officer. Zayas v. State, 972
S.W.2d 779 (Tex. App. Corpus Christi 1998)
In Arizona v. Gant, (below) a motorist was placed under arrest for driving
with a suspended license. Although the appellant was a passenger and unlike
Gant, not the driver, the principles of Gant are applicable:
“After respondent was arrested for driving with a suspended license,
handcuffed, and locked in the back of a patrol car, police officers
searched his car and discovered cocaine in the pocket of a jacket on
the backseat. The Court determined that the search-incident-toarrest exception to the Fourth Amendment's warrant requirement did
not justify the search because (1) police could not reasonably have
believed that respondent could have accessed his car at the time of
the search since the five officers outnumbered the three arrestees,
all of whom had been handcuffed and secured in separate patrol
cars before the officers searched respondent's car, and (2) police
could not reasonably have believed that evidence of the offense for
which respondent was arrested might have been found in the car
since he was arrested for driving with a suspended license, an
offense for which police could not expect to find evidence in the
passenger compartment of his car. Also, the doctrine of stare decisis
did not require adherence to a broad reading of Belton; the safety
and evidentiary interests that supported the search in Belton simply
were not present in the instant case. Arizona v. Gant, 556 U.S. 332
(U.S. 2009)
Unlike Gant, the appellant was not lawfully arrested. The person in the
driver’s seat ostensibly committed a parking violation by parking more than 18
inches from the curb. As in Gant, there was no probable cause to search the
automobile or justification to remove the three occupants from the automobile.
“Searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the
19
Fourth Amendment--subject only to a few specifically established
and well-delineated exceptions. Among the exceptions to the
warrant requirement is a search incident to a lawful arrest. The
exception derives from interests in officer safety and evidence
preservation that are typically implicated in arrest situations.”
“Although a motorist's privacy interest in his vehicle is less
substantial than in his home, the former interest is nevertheless
important and deserving of constitutional protection. It is particularly
significant that Belton searches authorize police officers to search
not just the passenger compartment but every purse, briefcase, or
other container within that space. A rule that gives police the power
to conduct such a search whenever an individual is caught
committing a traffic offense, when there is no basis for believing
evidence of the offense might be found in the vehicle, creates a
serious and recurring threat to the privacy of countless individuals.
Indeed, the character of that threat implicates the central concern
underlying the Fourth Amendment--the concern about giving police
officers unbridled discretion to rummage at will among a person's
private effects.” (Stevens, J., joined by Scalia, Souter, Thomas, and
Ginsburg, JJ.) Arizona v. Gant, (SUPRA) 556 U.S. 332 (U.S. 2009)
In the present case, Officer Hawkins had no probable cause to either
search the vehicle in which the appellant was a passenger nor proceed further
and search the appellant’s home. His continued detention of the appellant and
entry into the appellant’s home derives from the initial removal of the appellant
from the vehicle in which he was an innocent passenger. The unlawful arrest of
the appellant enabled the police to search his home without a warrant under the
guise of a valid knock and talk procedure. The search of his home and discovery
of cocaine within, was the fruit of the poisonous tree.
Officer Hawkins freely admitted that he had no probable cause to obtain a
search warrant to search the appellant’s home. He pointedly stated that the
20
removal of the appellant and two passengers had nothing to do with his search of
the appellant’s home. The State will contend that Hawkins’ knock and talk
procedure made the appellant’s removal and arrest from the car irrelevant; but
the arrest of the appellant and his isolation inside the police squad car some 20
to 30 yards from his home enabled the police to get into his home and conduct a
warrantless search.
There were no exigent circumstances to justify the warrantless search of
the appellant’s home. Cocaine discovered there was the fruit of the poisonous
tree and should be disallowed.
The fruits of a poisonous tree were not permitted in English v. State
(below):
“The appellant was convicted of aggravated robbery. Appellant
challenged his conviction, contending that there was insufficient
evidence to prove that the offense involved the use of a deadly
weapon, and that evidence seized from the illegal search of his
apartment should have been excluded. No knife was introduced at
trial, and the victim admitted that he did not get a good look at the
knife. On appeal, the court held that appellant and his confederate
clearly implied by their words and actions that in the manner of its
use or intended use the knife was capable of causing death and
serious bodily injury, and the evidence as set out in the victim's
testimony was sufficient to support the jury's implied finding that the
knife exhibited or used in the robbery was a deadly weapon.
However, reversing appellant's conviction, the court found that there
were no exigent circumstances that justified the warrantless entry
and search of appellant's apartment. The court held that the
admission of the fruits of the illegal search constituted reversible
error.” English v. State, 647 S.W.2d 667 (Tex. Crim. App. 1983)
Similarly, exploitation of an illegal arrest led to the exclusion of evidence
seized in Boyle v. State (below):
21
“A criminal appellant challenged his conviction and sentence for
capital murder from the 320th District Court of Potter County
(Texas). Appellant contended that his arrest pursuant to a material
witness attachment was illegal and that any consent to the
warrantless search of his truck was obtained through exploitation of
his illegal arrest.”
“The appellant was convicted of the offense of capital murder.
Appellant challenged his conviction and sentence on the grounds
that his arrest pursuant to the material witness attachment was
illegal in that the law enforcement officers lacked probable cause to
either arrest him or search his truck, and that any consent to the
warrantless search of his truck was obtained through exploitation of
his illegal arrest. The court reversed the judgment of conviction. The
court held that appellant was arrested on an unauthorized
attachment because the warrant attachment did not comply with the
code of criminal procedure. Appellant was not a resident of the
county in which the attachment was issued. The court also held that
the issuance of the grand jury material witness attachment was an
improper artifice employed to illegally detain appellant. The court
held that because appellant was arrest illegally, all evidence
obtained as a direct result of the illegal detention and arrest of
appellant had to be suppressed. The court also held that because
the search of appellant's truck directly flowed from appellant's arrest,
the circumstances militated strongly against the attenuation of the
taint.
OUTCOME: The court reversed appellant's conviction because the
issuance of the grand jury material witness attachment was
improperly used to illegally detain appellant, and because he was
arrested illegally, all evidence obtained as a direct result of the illegal
detention and arrest had to be suppressed.” Boyle v. State, 820
S.W.2d 122 (Tex. Crim. App. 1989)
In the present case, the police exploited the illegal arrest of the appellant.
They isolated him from his home by keeping him inside of a police car and then
searched his home despite his demand that they obtain a search warrant. The
police exploited this unlawful arrest and detention by confronting his fiancé about
the appellant’s arrest and their prior surveillance of their home. His fiancé's
22
consent was not voluntary. She knew that the appellant was inside a police car
and was told that the police would charge her with possession of the illegal
narcotics if she did not cooperate.
THE KNOCK AND TALK AND WARRANTLESS SEARCH OF
THE APPELLANT’S HOME:
“A warrantless search is per se unreasonable unless the government
can demonstrate that it falls within one of a carefully defined set of
exceptions to the fourth amendment's warrant requirement. Coolidge
v. New Hampshire, 403 U.S. 443, 474-75, 91 S. Ct. 2022, 29 L. Ed.
2d 564 (1971); United States v. Nieto, 510 F.2d 1118, 1119 (5th
Cir.), cert. denied, 423 U.S. 854, 96 S. Ct. 101, 46 L. Ed. 2d 78
(1975); United States v. Soriano, 482 F.2d 469, 472 (5th Cir. 1973). “
United States v. Munoz-Guerra, 788 F.2d 295, 297 (5th Cir. Tex.
1986)
“The basic purpose of U.S. Const. amend. IV is to safeguard the
privacy and security of individuals against arbitrary invasions by
governmental officials. The same is true of Tex. Const. art. I, § 9,
and it is well settled under U.S. Const. amend. IV, and U.S. Const.
amend. XIV that a search conducted without a warrant issued upon
probable cause is per se unreasonable subject only to a few
specifically established and well-delineated exceptions.” Juarez v.
State, 758 S.W.2d 772 (Tex. Crim. App. 1988)
Even casting aside the illegal arrest of the appellant, the appellant
maintains that the “knock and talk” procedure employed under the circumstances
of the present case was invalid.
The parameters of “knock and talk” police procedures were summarized in
Davalos v. State:
“As long as a person in possession of property has not made
express orders prohibiting trespass, a police officer may enter upon
residential property, follow the usual path to the home's front door,
and knock on it for the purpose of asking the occupant questions.
23
Federal and state laws provide that a police officer may approach a
citizen in a public place or knock on a door to ask questions or seek
consent to search. Courts have defined a knock-and-talk as a
noncustodial procedure in which the officer identifies himself and
asks to talk to the home occupant, and then eventually requests
permission to search the residence. The knock-and-talk strategy is a
reasonable investigative tool. The purpose of a knock-and-talk is not
to create a show of force, make demands on occupants, or to raid a
residence. Instead, the purpose of a knock-and-talk approach is to
make investigatory inquiry or, if officers reasonably suspect criminal
activity, to gain the occupant's consent to search. A police officer
need not have reasonable suspicion or a basis for suspecting a
particular person to simply ask questions of that individual or request
consent to search, so long as the officer does not indicate
compliance with his request is required. Such an encounter is a
consensual interaction, which the citizen is free to terminate at any
time. The encounter is not considered a seizure, triggering Fourth
Amendment scrutiny or constitutional analysis, unless it loses its
consensual nature. Only when the officer, by means of physical
force or show of authority, has restrained the liberty of a citizen may
a court conclude that a seizure has occurred. Courts will uphold
knock-and-talk procedures as constitutionally permissible
consensual encounters, so long as a reasonable person would feel
free to disregard the police and go about his business. Whether a
consensual encounter loses its consensual nature and is thereby
rendered a seizure is evaluated under the totality of the
circumstances and the dispositive question is whether the officers
conveyed a message to appellant that compliance with their
requests was required.” Davalos v. State, 2012 Tex. App. LEXIS
3485 (Tex. App. Houston 1st Dist. May 3, 2012)
In the present case, police were unable to get consent from the appellant,
a co-tenant nor voluntary consent from his fiancé.
“One of the specifically established exceptions to the requirements
of both a warrant and probable cause is a search that is conducted
pursuant to consent. The protections afforded by U.S. Const.
amend. IV and Tex. Const. art. I, § 9 may be waived by an individual
consenting to a search. The burden of proof by clear and convincing
evidence is upon the prosecution to show that the consent was
freely and voluntarily given. The burden requires the prosecution to
24
show consent given was positive and unequivocal, and there must
not be duress or coercion, actual or implied. This burden cannot be
discharged by showing no more than acquiescence to a claim of
lawful authority. Consent to a search is not to be lightly inferred. It
should be shown by clear and convincing evidence, and any consent
must be voluntary and neither physically nor psychologically
coerced. And it must be remembered that consent to search is
invalid if granted only in submission to a claim of lawful authority.
The question of whether a consent to search was "voluntary" is a
question of fact to be determined from the totality of all the
circumstances.” Juarez v. State, 758 S.W.2d 772 (Tex. Crim. App.
1988)
The search of the appellant’s home involved the alleged consent of a cooccupant, who consented as the appellant was illegally detained in a squad car.
The appellant’s affidavit stated that he refused to consent. It was clear that he
was prevented from going to the door of his home to prevent or object to the
search.
A co-tenant’s consent was not sufficient in Georgia v. Randolph:
“Since a co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a
present and objecting co-tenant, his disputed invitation, without
more, gives a police officer no better claim to reasonableness in
entering than the officer would have in the absence of any consent
at all. Accordingly, in the balancing of competing individual and
governmental interests entailed by the bar to unreasonable
searches, the cooperative occupant's invitation adds nothing to the
government's side to counter the force of an objecting individual's
claim to security against the government's intrusion into his dwelling
place. A warrantless search of a shared dwelling for evidence over
the express refusal of consent by a physically present resident
cannot be justified as reasonable as to him on the basis of consent
given to the police by another resident. A physically present
inhabitant's express refusal of consent to a police search is
dispositive as to him, regardless of the consent of a fellow
occupant.” Georgia v. Randolph, 547 U.S. 103 (U.S. 2006)
25
“Save in certain cases as incident to arrest, there is no sanction in
the decisions of the courts, federal or state, for the search of a
private dwelling house without a warrant. Absence of any judicial
approval is persuasive authority that it is unlawful. Belief, however
well founded, that an article sought is concealed in a dwelling house
furnishes no justification for a search of that place without a warrant.
And such searches are held unlawful notwithstanding facts
unquestionably showing probable cause.” Jones v. United
States,(supra) 357 U.S. 493 (U.S. 1958)
A case similar to the present case involving implied coercion of a co-tenant
required reversal as well:
“Upon finding that defendant was not present at his home and store,
revenue officers told defendant's wife that they had come to search
the premises for violations of the revenue law. Contending that the
warrantless search of his home and store violated the Fourth and
Fifth Amendments, defendant filed a petition for the return of his
property and a motion to exclude the unlawfully seized evidence. On
appeal, the government claimed that defendant's petition and motion
were properly denied because the petition was presented after the
jury was empaneled and the motion was presented after the revenue
officers had testified about the search. The Court held that the
district court's rulings were erroneous because the allegations of the
petition for the return of the property were not denied and the
testimony of the revenue officers showed clearly the unconstitutional
character of the seizure. Because of the implied coercion presented
by officers demanding admission to make a search under
government authority, the Court concluded that no waiver of
defendant's constitutional rights was intended or effected.”
“OUTCOME: The Court reversed the district court's judgment and
remanded the case for further proceedings.” Amos v. United States,
255 U.S. 313 (U.S. 1921)
There was implied coercion in the present case as well. The appellant’s
fiancé was told that the appellant was confined in a police vehicle; that the police
had been watching the house; and that she would be charged if she did not
cooperate. (Defense exhibit C; RR 72-77)
26
Moreover, the appellant was illegally arrested and prevented from going to
his house which was 20 to 30 yards away. He told the police that he did not
consent to the search of his home and was forced to remain in a police vehicle
as Officer Hawkins went to his home to knock and talk to the appellant’s fiancé.
(Exhibit “A” R 48,4950,51)
“A bus passenger's decision to cooperate with law enforcement
officers authorizes the police to conduct a search without first
obtaining a warrant only if the cooperation is voluntary. "Consent"
that is the product of official intimidation or harassment is not
consent at all. Citizens do not forfeit their constitutional rights when
they are coerced to comply with a request that they would prefer to
refuse. “ Fla. v. Bostick, 501 U.S. 429 (U.S. 1991)
Hawkins said he did not recall saying to the fiancé, I know what’s been
going on because I’ve been sitting across the street behind the school watching.
Hawkins said, “I may have said that to her, yes, ma’am I don’t recall saying it, but
it’s possible.” He asked her for consent to search the house after talking to her. “I
talked to her lengthily about how she was involved with the house” [RR 25]. Mrs.
Richardson said she paid the bills, but that the owner of the house was actually
the appellant’s grandmother who was in a nursing home allowed her and the
appellant to live there [RR 28].
“When she answered the door, I asked her if we could step in and speak to
her. We stepped in. I told her why we were there, that we were doing a narcotics
investigation because we had been advised that Mr. Smith was selling illegal
narcotics out of the residence as well as on the street. I asked her if she was
aware of this. At that time she said no. I asked her if she would give her consent
27
while I talked to her about how she came to live in the house and what her – how
she was connected to the house. Ms. Richardson said she paid bills but lived
there with permission of the appellant’s grandmother. And then I asked her for
consent to search the residence, and she readily gave it” [RR 41, ll 2-14].
Lanail Richardson received Miranda warnings and admitted to Officer
Hawkins that the appellant was selling crack cocaine [RR 46]. The police officers
searched the entire house but only found the cocaine in the tin can [RR 49].
The Court asked questions regarding the cul-de-sac, the vehicle violation
of the vehicle being parked in the cul-de-sac. The Court asked the following
question:
“THE COURT: At the time you went and approached the house and spoke
with Mrs. Richardson, was she aware that her boyfriend was in custody outside
the house?
“OFFICER HAWKINS: We told – I did tell her that we had him detained
outside, yes.
“THE COURT: Before you went in or after you went in?
“OFFICER HAWKINS: I asked her if we could step in and talk to her, and I
explained to her why I was there, and I told her we had Aljanon detained outside.
“THE COURT: And then she let you in?
“OFFICER HAWKINS: Well, she let us in. I asked if we could step in and
talk to her. She let us in. When I went in, I explained to her that we had Aljanon –
after we were inside. I explained to her we had Aljanon in the vehicle outside.”
28
The court asked if she had been looking out the window or curtains, and
Officer Hawkins said he did not notice that.
In the present case, the police exploited the illegal arrest of the appellant.
They isolated him from his home by keeping him inside of a police car and then
searched his home despite his demand that they obtain a search warrant. His
fiancé's consent was not voluntary. She knew that the appellant was inside a
police car and was told that the police would charge her with possession of the
illegal narcotics if she did not cooperate.
In sum, the appellant contends that his motion to suppress evidence
should have been granted. The warrantless search of his home requires reversal.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant urges this
Honorable Court to review the point of error presented and to determine whether
or not reversal of this cause is required. If the Court finds that the points of error
presented do justify reversal, the Appellant would move that such reversal of the
conviction be granted.
Respectfully submitted,
_____________________________
RUSS HENRICHS
SBC NO. 09475000
P.O. Box 190983
Dallas, Texas 75219
214-651-0759
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant’s Brief was, on this the 5th day of July 2012, mailed to the District
Attorney’s Office, Appellate Division, Dallas County, Texas, by the undersigned.
_____________________________
RUSS HENRICHS
30