State v. Copeland

THE STATE OF TEXAS, Appellant, v. SHIRLEY COPELAND, Appellee.

NUMBER 13-11-00701-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Delivered: December 12, 2013

On appeal from the County Court at Law No. 1

of Victoria County, Texas.

MEMORANDUM OPINION ON REMAND

Before Chief Justice Valdez and Justices Garza and Longoria

Memorandum Opinion on Remand by Chief Justice Valdez

This interlocutory appeal by the State challenging the trial court's order granting a motion to suppress filed by appellee, Shirley Copeland, is before this Court on remand from the Texas Court of Criminal Appeals. See State v. Copeland, 380 S.W.3d 214 (Tex. App.—Corpus Christi 2012), rev'd & remanded, 399 S.W.3d 159, 162 (Tex. Crim.App. 2013). For the reasons set forth below, we conclude that the State failed to meet its burden to prove the reasonableness of the warrantless vehicular search that led to the discovery of the suppressed evidence because it procedurally defaulted on an essential element of a consensual search, the only legal theory it offered to establish the reasonableness of the search. See Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002). Specifically, the State failed to argue, prove, or purport to prove that the consent was granted freely and voluntarily. See Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985) (en banc). Furthermore, on appeal, the State has inadequately briefed, and thus waived, the issue of whether the trial court erred in failing to find that the consent was granted freely and voluntarily. See TEX. R. APP. P. 38.1(i). Accordingly, we conclude that the trial court's order must be affirmed based on the State's procedural default.

I. BACKGROUND ¹

Deputy Jesse Garza of the Victoria County Sheriff's Department observed Copeland approach a known drug house that he had under clandestine surveillance and watched her temporarily disappear from his sight before returning to the passenger seat of the sports-utility vehicle ("SUV") in which she was traveling. He tailed the SUV in his police cruiser until he observed the driver commit two traffic violations by failing to signal a lane change and failing to come to a complete stop at a stop sign. At that point, he initiated a traffic stop.²

When both vehicles had come to a stop, Deputy Garza ran the license plates of the SUV and learned that Wayne Danish was the registered owner. Deputy Garza then walked up to the driver's side window, made contact with the driver, Wayne Danish, and directed him to step out of the SUV. Danish complied.

After Danish exited the SUV, Deputy Garza instructed him to stand behind the SUV, so that he would be in front of the police cruiser. He then informed Danish of the reason for the traffic stop. He asked Danish where "he was coming from," and Danish said from a "friend's house." He asked Danish where he was going, and Danish said to "Wal-Mart." According to Deputy Garza, he saw no "signs that . . . [Danish] had been using drugs or anything of that nature," and he knew Danish did not have any outstanding warrants. Nevertheless, Deputy Garza did not write a ticket, issue a warning, or let Danish go because, in his opinion, "[t]he story didn't make no sense."

Deputy Garza then left Danish detained behind the SUV and walked over to the passenger side of the vehicle, where he made contact with Copeland, who was still sitting in the front passenger seat. He "got her side of the story, where they were coming from." She said they were coming "from a friend's house." According to Deputy Garza, Copeland identified her friend as "Rhino" or Raymond Hollander and she indicated that Deputy Garza had "heard about [his house] . . . before." According to Deputy Garza, Copeland said something to the effect that it was not a "good" place. At that point, Deputy Garza asked if there was anything illegal inside the SUV, but Copeland said no.

Still suspicious, Deputy Garza walked back over to Danish and asked him for consent to search the SUV, which Danish granted.³ Deputy Garza did not state whether he advised Danish that he had the right to refuse consent. Deputy Garza then asked for consent to search Danish's person, which Danish granted. Again, Deputy Garza did not state whether he advised Danish that he had the right to refuse consent. Searching Danish's person, Deputy Garza found "a large sum of money," about "a thousand dollars." Danish explained that he had just cashed a check.

After searching Danish, Deputy Garza approached Copeland and "asked her to step out" of the SUV. "At first she was going to . . . , [but] [t]hen she stopped and stated that she didn't want to." After that, she "stated she wasn't giving . . . [Deputy Garza] consent." At that point, Deputy Garza "advised her that . . . [Danish] was giving . . . [him] consent, he was the registered owner." Deputy Garza then asked her again to step out of the vehicle, and this time, she complied. Deputy Garza did not indicate where she was being detained at that point. She continued arguing with him, "saying she's not giving . . . [him] consent." Consequently, Deputy Garza "ran the license plate again so she could hear it because she was stating to . . . [him] that she was the owner." Deputy Garza did not indicate whether Copeland was in the police cruiser at that time, but that is where he was when he previously "ran the license plate." According to Deputy Garza, Copeland was close enough to the police radio to hear the dispatcher confirm that Danish was the registered owner of the SUV.

As before, Deputy Garza continued to keep Copeland and Danish physically separated. It is unclear who had the keys to the SUV at that point, but according toDeputy Garza, Danish and Copeland were not free to leave. Deputy Garza walked back over to Danish and asked him, "Are you still giving me consent?" Danish said yes. Again, Deputy Garza did not state whether he advised Danish that he had the right to refuse to consent. The record reflects that Deputy Garza knew that Danish and Copeland were married (because both Copeland and Danish had told him that they were married), that Copeland was claiming ownership of the SUV (as Danish's wife), and that she was purporting to veto the consent granted by Danish. However, Deputy Garza determined that Danish had superior authority to grant consent because he was the registered owner and driver of the SUV and because he was "still" purporting to grant consent over his wife's protests.

Roughly twenty minutes after pulling over the SUV, Deputy Garza initiated a search and discovered in the center console of the vehicle two white pills later identified as Tramadol, a "dangerous drug." See TEX. HEALTH & SAFETY CODE ANN. § 483.001(2) (West 2010). According to Deputy Garza, Copeland subsequently admitted that she was holding the pills for a friend. She was then arrested. Deputy Garza issued Danish a warning for his traffic violations and released him from the detention.

Copeland was later charged with class A misdemeanor possession of a controlled substance. See id. § 483.041(a), (d) (West 2010). Her attorney filed a motion to suppress the evidence of the two pills. See TEX. CODE CRIM. PROC. ANN. art. 28.01, § 6 (West 2006). In the motion, her attorney asserted two alternative grounds for relief: (1) Deputy Garza's extended detention of her was unlawful under Terry v. Ohio, 392 U.S. 1, 30 (1968); and (2) her refusal to consent prohibited the search of the SUV under Georgia v. Randolph, 47 U.S. 103, 121 (2005).

The trial court held an evidentiary hearing on the motion to suppress. At the outset of the hearing, the State stipulated that it had the burden of proof because this was a case involving a warrantless search and seizure. The State announced that it would prove that the traffic stop was valid, that the extended detention was justified, and that the search was lawful based on Danish's consent. As indicated above, Deputy Garza was the sole witness, and he gave the testimony reflected in this opinion.

In its closing argument, the State asserted that Copeland had no standing to challenge the lawfulness of the search. According to the State, Copeland had failed to prove the existence of a valid common law marriage such that she had a possessory interest in the SUV. The State also argued, in the alternative, that the search was lawful because Danish gave valid consent. The State maintained that Copeland's refusal to grant consent was essentially irrelevant. According to the State, Danish had the superior authority to grant or refuse consent because, as the registered owner and driver of the SUV, he was "the captain" of the vehicle. The State failed to assert in its closing argument that Danish's consent was voluntary.⁴ The State's closing argument also failed to address the lawfulness of the detention, though it conceded in its opening statement that the detention was "extended."⁵

During his closing argument, Copeland's attorney argued both grounds for relief raised in the motion. With respect to the first ground, he told the trial court the following:

I would say that Terry versus Ohio . . . tells the Court that [twenty minutes] . . . is an unreasonable amount of time to detain somebody when they don't have any alcohol on their breath, they don't have any drug activity that's in plain view, they don't have any warrants, nothing out of the normal, and he confirmed and the Court can judge it at its will, going to Wal-Mart if you're a shift worker is not uncommon at 1:00 o'clock in the morning.

With respect to the second ground, counsel argued that Copeland had standing to challenge the lawfulness of the search because the evidence proved that she and Danish had a common law marriage. Counsel argued that Copeland had a reasonable expectation of privacy with regard to the SUV. Counsel argued further that Copeland's physical presence, assertion of her ownership and possessory interests in the SUV, and refusal to grant consent obviated any consent...