NITIN KUMAR MADAS v. THE STATE OF TEXAS (2025)

MAJORITY OPINION

Reversed and Remanded and Majority and Dissenting Opinions filed March 20, 2025.

Appellant Nitin Kumar Madas ¹ pleaded guilty to the state jail felony offense of possession of a controlled substance less than one gram. Tex. Health & Safety Code Ann. § 481.115(a), (b). Pursuant to his plea agreement, the trial court assessed punishment at two years of imprisonment, suspended imposition of appellant's sentence, and placed appellant on community supervision for four years. Tex. Penal Code Ann. § 12.35; Tex. Code Crim. Proc. Ann. art. 42A.053.

In his appeal, appellant asserts the trial court erred by denying his motion to suppress evidence because the investigating officers “violated Appellant's rights under the 4th Amendment in patting down Appellant without reasonable suspicion and searching his person without a without a valid warrant or voluntary consent or other recognized exception to the warrant requirement.”² Concluding that the trial court erred in denying appellant's motion to suppress, we reverse the judgment of the trial court and remand for further proceedings with instructions that the trial court grant appellant's motion to suppress.³

I. BACKGROUND

The Corsicana Police Department's Narcotics Unit received information from a confidential informant about a suspected drug dealer. On November 15, 2021, in an unmarked patrol vehicle, officers had the suspected drug dealer under surveillance while parked in his vehicle in downtown Corsicana. The officers observed appellant walk up to the suspect's vehicle, get in briefly, exit the vehicle, and then leave on foot.

The officers watched appellant walking on the wrong side of the road down Main Street, so they pulled up behind him and activated their lights. One of the detectives stepped out of his vehicle, identified himself, and detained appellant for walking on the wrong side of the roadway. Appellant was asked to place his hands on the hood of the unmarked patrol vehicle while the detective performed a pat down of appellant for safety. The assisting law enforcement officer was within arm's reach of appellant during the pat down. No weapons were found.

While appellant still had his hands on the hood, the detective asked if he could search appellant's pockets. Appellant responded, “go ahead” and pulled his hands off the patrol vehicle toward his pockets. The detective, who was standing directly behind appellant, forced Appellant's hands back on the hood of the police vehicle. The search commenced and the officer assisting at the scene discovered a small bag of methamphetamine inside of appellant's watch pocket. The officers' body camera videos and dash cam video reflect that appellant was calm, polite, and compliant at all relevant times. Appellant filed a motion to suppress arguing the evidence of drugs should be suppressed because it was found in an illegal search. The trial court denied appellant's motion.

II. ANALYSIS

Although appellant identifies a single issue of error, he presents two distinct sub-arguments as to why the trial court erred in denying his motion to suppress: (1) the officers performed a pat-down search of his person without reasonable suspicion and (2) the officers performed a further search of his person without a warrant or recognized exception to the warrant requirement.

A. Standard of review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). At the hearing on the motion, the trial court is the sole fact-finder and judge of the credibility of the witnesses and of the weight to be given their testimony. Id. at 190. We therefore afford almost complete deference to the trial court's determinations of historical facts. Id. But, we review de novo the legal significance of the facts found by the trial court. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017). “When reviewing a trial court's ruling on a motion to suppress, appellate courts uphold the ruling of the court if it is correct under any ‘theory of law applicable to the case,’ even if the trial court did not rely on that theory in making its ruling.” See State v. Copeland, 501 S.W.3d 610, 612–13 (Tex. Crim. App. 2016).

When, as here, the trial court has made express findings of fact, an appellate court views the evidence in the light most favorable to those findings and determines whether the evidence supports the fact findings. See State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). Unless the trial court abused its discretion by making a finding not supported by the record, an appellate court will defer to the trial court's fact findings and not disturb the findings on appeal. See Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012); Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). An appellate court may review de novo “indisputable visual evidence” contained in a videotape. State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013).

B. Legal justification for the pat-down search

Appellant first argues that, while he was detained, the officers had no legal justification for the pat-down search that was conducted. It is undisputed that the encounter between appellant and the investigating officer was not a consensual encounter and had escalated to an investigatory detention. See Monjaras v. State, 664 S.W.3d 921, 932 (Tex. Crim. App. 2022) (“even though the officers used relatively mundane tones, did not initially display their weapons, and did not use their lights or sirens, a reasonable person in Appellant's position would not feel free to ignore [the officer's] statement”).

The pat-down search or “stop and frisk” by law enforcement personnel amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections. See Terry v. Ohio, 392 U.S. 1, 16 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). However, an officer is justified in engaging in a protective frisk if he reasonably suspects that the person who he has lawfully detained is presently armed and dangerous. Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016). The police need not be absolutely certain that the individual is armed. O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). The test is simply whether a reasonably prudent person under the circumstances would be warranted in believing that his safety or that of others was in danger. Id. The intrusion must be based on specific articulable facts which, in the light of the officer's experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion. Anderson v. State, 701 S.W.2d 868, 873 (Tex. Crim. App. 1985).

The trial court made findings of fact and conclusions of law in this case, including that the investigating officers “had sufficient reason to conduct a pat-down search for officer safety.” The record supports the trial court's conclusion. The officers here were unfamiliar with appellant. Based on his brief interaction with a suspected drug dealer, the investigating officers believed that appellant was involved in a drug transaction even though they did not see one. Although their interaction with appellant occurred in the middle of the day in the downtown area, the officers were unaware if appellant had a weapon. The mere fact that appellant was calm and compliant when he was detained does not eliminate any concerns for officer safety.

The Court of Criminal Appeals has held that “it is objectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous.” Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006) (citing Carmouche, 10 S.W.3d at 330 and cases cited (objectively reasonable for police to believe that seller of narcotics might be armed because concealed weapons are part and parcel of the drug trade)). Although the investigating officers suspected that appellant was purchasing narcotics, not selling them, they did not have certainty as to his role. We conclude the trial court did not err by finding that the investigating officers legally and reasonably conducted a pat-down search for weapons and did not violate appellant's constitutional rights.

We overrule appellant's first sub-argument.

C. Legal justification for search of appellant without a warrant

In his second sub-argument for suppression of the drug evidence, appellant argues there was no warrant for the search of his person. He asserts that he did not freely and voluntarily consent to the search of his person or pockets, and without his voluntary consent, there was no justification for the search. In response, the State argues that appellant's consent was freely given because it is unchallenged that appellant told the officer to “go ahead” when one of the investigating officers asked if he could search appellant's pockets. The State further maintains the investigating officer, although he did not inform appellant of his right to refuse the search, did not threaten or intimidate appellant. We agree with appellant.

1. Consent to search

At the hearing, the State's only theory for justifying the warrantless search was consent. Consent to search is one of the specifically-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997). “The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the circumstances.’ ” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (citing Schneckloth, 412 U.S. at 248–49). In order to be valid, the consent must “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228. By the same token, consent is not established by “showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 549 (1968).

Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires voluntariness be shown by clear and convincing evidence. Carmouche, 10 S.W.3d at 331. A trial judge must look at the totality of the circumstances surrounding the statement of consent in order to determine whether that consent was given voluntarily. Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006). If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding. See Johnson v. State, 803 S.W.2d 272, 286–87 (Tex. Crim. App. 1990), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991).

2. The findings of fact

The trial court found that one of the investigating officers “verbally asked the defendant for consent to search his pockets” and appellant “verbally gave [the investigating officer] consent for such a search.” The trial court then concluded that the search of appellant's pockets was a legal search “based on [appellant's] consent” and that no rights of appellant were violated because “consent is an exception to the constitutional requirement of both a warrant and probable cause.”

Appellant argued in the trial court that appellant's consent was not voluntary and that the State had not met its burden to show appellant's consent was voluntary. The trial court made no express findings regarding the voluntariness of appellant's consent. In the absence of express findings from the trial court regarding the voluntariness of appellant's consent, we apply the general rule that the trial court made any implicit findings of fact supported by the record. Lerma, 543 S.W.3d at 190. Therefore, we consider whether there was clear-and-convincing evidence in the record to support the trial court's implicit finding. In Carmouche, the Court of Criminal Appeals addressed a similar fact pattern. The defendant had been stopped for a traffic violation at night. Carmouche, 10 S.W.3d at 326. He was sitting or leaning on his vehicle surrounded by four different uniformed officers. Id. at 332. Police officers had already conducted a protective search of the defendant but then asked if they could search the defendant again after he was told to turn around and put his hands on the hood of his vehicle. Id. Defendant acquiesced although it was disputed whether he verbally consented. Id. at 331–32. The Court of Criminal Appeals found no clear and convincing evidence of voluntary consent:

We hold that the record does not support the Court of Appeals' finding of clear and convincing evidence that appellant's consent, if given at all, was free and voluntary. On the side of a darkened highway, appellant was closely surrounded by four police officers who had him backed up against the hood of his car. Officers told appellant to turn around and put his hands on the car. Only after appellant had assumed such position, and as he was reaching for appellant's pants, did Williams “ask,” “Mind if I pat you down again?” Moreover, appellant was never told during this exchange that he had a right to refuse consent․ Finally, appellant had already been searched once involuntarily during the earlier Terry frisk. Taken together with all of the other circumstances, this could have led a reasonable person to conclude that the second search, like the previous one, was not optional.

Id. at 333. Just as in Carmouche, appellant was detained by police and subjected to an involuntary pat-down search which was captured by irrefutable video evidence.⁴ Appellant had his hands placed on the police vehicle and both investigating officers were in close proximity to appellant when he was asked if they could search his pockets. The officer had just finished the pat-down search and only momentarily took his hands off appellant when he asked for consent to search appellant's pockets.

Unlike in Carmouche, the search of appellant's pockets happened in the middle of the day. However, the fact that the search of appellant's pockets occurred in broad daylight in downtown Corsicana does not significantly change the circumstances of the search. Appellant was alone with two plainclothes police officers, who although they did not have weapons in their hand, did have weapons on display on the front of their police vests. Despite the fact that the investigative detention had concluded without finding any weapons or contraband, the two investigating officers did not move. They were both within arm's reach, if not closer, of appellant, restraining his movement and preventing him from turning around before he was asked to consent to a search of his person. They forced his hands on the hood of the vehicle. The situation, like that in Carmouche, would not have led a reasonable person to conclude the search was optional.⁵ As discussed above, Carmouche is directly on point and is precedent we are obligated to follow. Therefore, we conclude that there was not clear and convincing evidence of the voluntariness of appellant's consent. Because the trial court erred in denying appellant's motion to suppress, we sustain appellant's second sub-argument.

III. CONCLUSION

Having concluded the trial court erred in denying appellant's motion to suppress, we reverse the final judgment of conviction and remand for further proceedings with instructions that the trial court grant appellant's motion to suppress.

DISSENTING OPINION

Reversed and Remanded and Majority and Dissenting Opinions filed March 20, 2025

This is a narrow dissent. The facts listed by the majority are accurate, even kind, given concerns from the body cams that are not relevant to the disposition of this case. The majority's statement of the law is also accurate. I agree that Carmouche is good law. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The majority is undeniably correct in their description of the bifurcated standard we must employ. The majority correctly notes that some relevant spots not covered in the trial court's written findings require us to defer to implicit findings which support the trial court's ruling on voluntariness.

If I was judging this motion to suppress, I might not have reached the same conclusion as to the voluntariness of appellant's consent as this trial judge did. In this case voluntariness should be gauged by more factors than saying “go ahead.” But I cannot go so far as to say that, on the implicit findings we must give deference to in this case, this trial court abused its discretion when it denied appellant's motion to suppress. I therefore respectfully dissent.

FOOTNOTES

1.   Appellant's first name is spelled as both “Nitin” and “Nidin” throughout the appellate record. In this opinion, we spell appellant's name as it appears in the trial court's final judgment of conviction.

2.   Although appellant waived his right to appeal his conviction, he requested, and the trial court granted, the right to appeal the trial court's denial of his motion to suppress. We therefore disregard the statement in the certification of the right to appeal reflecting that appellant has waived his right to appeal and consider this appeal.

3.   The Supreme Court of Texas ordered the Court of Appeals for the Tenth District of Texas to transfer this appeal (No. 10-23-00291-CR) to this court. Misc. Docket No. 23-9079 (Tex. Sept. 26, 2023); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. P. 41.3.

4.   We note that the testimony of the investigating officer at the motion to suppress hearing is not in conflict with any of the video evidence. The officer was not asked about the voluntariness of appellant's consent or the context of his search of appellant's pockets.

5.   Although appellant's knowledge of the right to refuse consent is one factor for the court to consider, the State need not prove knowledge in order to meet their burden of effective consent. Robinette, 519 U.S. at 39; Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002).

Tonya McLaughlin Justice