At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:
After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver's side window:
Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.
Officer: You don’t mind if we take a look?
Appellant: (Inaudible) Look in the car or what?
Appellant: I don’t have anything.
Officer: Okay. You don’t mind if I look? It’s yes or no, bud.
Appellant: What do you think?
Officer: What do I think?
Officer: I’m asking you to look in the car.
Officer: Don’t reach around, bud, just in case you got a gun.
Appellant: I ain’t got no gun or nothing.
Officer: You don’t mind if we look?
Appellant: I just…(inaudible) That it (inaudible).
Officer: I’m asking if I can look in the vehicle. It’s yes or no.
Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.
Appellant: I ain’t nervous.
Officer: Okay. Do you have anything illegal in your vehicle?
Officer: Okay. Do you mind if I look?
Appellant: I guess.
The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”
In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the "totality of the circumstances" and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.
Dissenting, Judge Meyers joined by Judge Price, states:
I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.
This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.