TONYA LEE CALDWELL v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Francis

Following the trial court's denial of her pretrial motion to suppress evidence, Tonya Lee Caldwell pleaded guilty to four counts of child endangerment.   In accordance with a plea agreement, the trial court deferred a finding of guilt and placed Caldwell on community supervision for three years and fined her $750.   In one issue on appeal, Caldwell contends the trial court abused its discretion by denying her motion to suppress evidence.

We must decide whether sheriff's deputies, who entered Caldwell's residence on the invitation of a young child, could reasonably believe the child had such authority.   We conclude they could not.   Accordingly, we reverse the trial court's order deferring adjudication and remand for further proceedings consistent with the opinion.

Caldwell was indicted on charges that she placed four children in danger by engaging in the sale or distribution of methamphetamine and by leaving “controlled substances, dangerous drugs, drugs, and drug paraphernalia” in places and locations in her residence that were readily accessible to the children.   Before trial, Caldwell filed a motion to suppress the evidence that Kaufman County sheriff's deputies found after they entered her residence without a warrant.

Evidence at the suppression hearing showed that between six and eight p.m. on February 13, 2009, the Kaufman County Sheriff's Office received a request from a Child Protective Services caseworker for assistance.   The caseworker had received a report that methamphetamine was being “cooked” at a residence on McKinnon Lane in the town of Scurry.   The caseworker, who was waiting at a nearby gas station, requested deputies to secure the residence so she could conduct a child welfare investigation.

Because the call involved drugs, five deputies responded, two of whom testified at the suppression hearing, Lt. Brian Simmons and Deputy Robert McGee.   The deputies parked at the end of the street and walked to the residence, a mobile home, so as not to alert anyone inside.   Four deputies went to the door while the fifth, McGee, waited at the side of the home.   Simmons, who was the on-scene supervisor, testified he knocked on the door and “very quickly” it opened and “a little girl [ ] was standing there.   She said, ‘come in.’   We start in.   As we did, she turned around and said, ‘[I]t's the police.’ ”   When asked whether the child was five years old, Simmons said he did not remember how old the child was at the time, nor did he provide any testimony concerning the child's demeanor, maturity, or appearance.   He did, however, say he believed the child had the authority to invite them in because she “announce[d] who we were” and “[n]obody told us not to come in or not to enter.”   When asked why he did not ask for a parent to come to the door, Simmons replied, “I didn't believe it was necessary.   We were told to come in the house.   It was announced that we were law enforcement.”

Simmons immediately went in and was the first person inside the residence.   As he entered, he saw an adult man sitting at the kitchen table about eight feet away.   Simmons said the man did not object when the deputies entered.   Simmons went directly to the man and asked if he resided there, and the man said no.   Simmons said the man seemed “very nervous” and “fidgety,” which caused him safety concerns.   After the man said he did not live there, Simmons asked the little girl where her parents were.   The little girl said, “they are back here,” and Simmons began walking “that direction” and was met by two women, one of whom was Caldwell, the girl's mother.  (The second woman was identified as Connie Caldwell.)   Simmons said he explained their purpose and acknowledged Caldwell “may have” told him to leave:  “She—like I said, she may have.   But at that point, we were already there.”

While Simmons was talking to the two women, McGee (who was the last officer to enter the residence) approached the man seated at the table.   The man was “extremely nervous,” and kept asking if he could leave.   McGee asked him if anyone else was in the house.   The man said no, but then McGee heard a toilet flush in a bathroom behind him, and a third woman, Tiffany Caldwell, came out of the room.   Given the man's demeanor and the fact he lied about whether there were other people in the house, coupled with allegations the residence was a drug house and the fact deputies were preparing to bring in a CPS worker, McGee decided to perform a protective sweep as a safety measure.   McGee determined that four adults were in the house—the three Caldwell women and the man seated at the table—and one child.   Also during the sweep, McGee said he saw a marijuana cigarette and two small glass vials with what appeared to be PCP, all in plain view.   McGee reported his findings to Simmons, who then contacted Sgt. Robert Ramsey, who is assigned to narcotics.   When Ramsey arrived at the residence, the adults were either already seated on the couch or Ramsey had them placed there.   He had one of the deputies search the couch for weapons, and during the search, the deputy found a baggie of methamphetamine.   Ramsey then obtained a warrant to search the premises and found various drug paraphernalia in a safe and pill bottles not bearing the name of the resident.

With respect to the entry into the residence, McGee said he heard a child say “come in” after Simmons knocked on the door.   He estimated the little girl's age to be between six and eight.   Like Simmons, he believed it was appropriate to enter the house because the child opened the door, invited them in, and no one objected, although there was an adult only six to eight feet away.   McGee said a person would have been able to see the man seated at the table with the door open.   When asked why the officers did not stay outside the door and ask the child to get her parents, McGee said he did not know.

At the conclusion of the evidence, the trial court denied the motion to suppress.   The trial court specifically found that “the child saying ‘come on in,’ plus an adult in the near vicinity not contradicting the invitation gives the officers the right to be inside the trailer.”   Further, the trial court found the flushing of the toilet, combined with the statement by the man in the kitchen that no one else was in the house, was sufficient to justify a protective sweep.   The trial court also found the search of the couch was reasonable under the circumstances, and the officers could reasonably believe the cigarette contained marijuana and the vials were “at least suspicious.”

On appeal, Caldwell contends the trial court erred in denying her motion to suppress evidence because it was unreasonable for the trial court to conclude, based on the totality of the circumstances, that a “five-year-old child could give legal and valid consent to an officer's request to enter a residence.”   Further, she asserts that because the evidence failed to show the little girl had the authority to allow entry by law enforcement and that entry was illegal, the State was required to show they had both probable cause and exigent circumstances to validate entry into the home, and neither was present here.

In response, the State first asserts Caldwell failed to establish standing to complain about the search of the premises.   Second, the State contends the record is insufficient to review the merits of the complaint because the motion to suppress and record are insufficient to establish “what ‘the fruits' of any search are or whether the fruits were somehow used by the State.”   Finally, assuming Caldwell has standing and has preserved her complaint, the State argues the record supports the trial court's findings that the officers acted properly.

We begin with the State's assertion that the record fails to show Caldwell's standing to complain.   Because standing is an element of a Fourth Amendment claim, the State may raise the issue for the first time on appeal.  Kothe v. State, 152 S.W.3d 54, 60 (Tex.Crim.App.2004).   Proof of a “reasonable expectation of privacy” is at the forefront of all Fourth Amendment claims.   Id. at 59.   Any defendant seeking to suppress evidence obtained in violation of the Fourth Amendment has the burden to first show she personally had a reasonable expectation of privacy that the government invaded.  Id. She must prove she was a “victim” of the unlawful search or seizure.  Id. She has no standing to complain about the invasion of someone else's personal rights.  Id. Only after a defendant has established her standing to complain may a court consider whether she has suffered a substantive Fourth Amendment violation.  Id.

In its brief, the State argues Caldwell did not offer any witnesses or evidence to support the motion to suppress.   The State asserts that none of the State's witnesses testified as to who owned the house or actually lived there, and defense counsel offered no stipulation that his clients lived at the house or had a particular possessory interest nor was there any evidence that the Caldwell women “were ‘legitimately’ on the premises.”

We agree the testimony presented at trial was vague, at best, concerning Caldwell's interest in the property that was searched.   However, the State offered, and the trial court admitted, the search warrant and supporting affidavit in this case.   In the affidavit, Sgt. Ramsey attests that the place to be searched is a mobile home at 6395 McKinnon Lane and the said suspected place “is in the charge of and controlled by” Tonya Caldwell.   Given this evidence, we conclude there is sufficient evidence to support Caldwell's standing to challenge the search of the premises.

The State next argues Caldwell has failed to preserve her claim on the merits “by failing to provide to this Court a record from which this Court can:  (1) identify exactly what evidence she would have had the trial court suppress, and (2) determine that the fruits of the search—the specific evidence in question—were ‘used’ by the State.”   Again, we disagree.

We use a two-step inquiry when deciding whether to address the merits of a claim regarding the trial court's denial of a pretrial motion to suppress evidence prior to a guilty plea.  Gonzales v. State, 966 S.W.2d 521, 524 (Tex.Crim.App.1998).   First, we must identify “the fruits” that the trial court held would not be suppressed, and, second, we must determine that these fruits have “somehow been used” by the State.  Id. Under this latter prong, our inquiry is satisfied whenever the complained-of evidence is inculpatory.   Id. at 523.   If it is not clear from the testimony and exhibits what “the fruits” are or if the fruits have not “somehow been used” by the State, then we need not address the merits of the claim.  Id. at 524.

Although the State argues the record does not establish what actual evidence Caldwell claimed below should be suppressed, we believe it is clear that Caldwell wanted the drug evidence suppressed, including the bag of methamphetamine found in the couch and the drug paraphernalia officers located in a safe;  this evidence was used against Caldwell to induce her plea of guilty.   Having concluded Caldwell has standing and has preserved her complaint, we now turn to the merits of her issue.

When reviewing the ruling on a suppression motion, the trial judge's determination of facts—if supported by the record—is afforded almost total deference.  State v. Woodard, 341 S.W.3d 404, 410 (Tex.Crim.App.2011).   We view the evidence in the light most favorable to the trial judge's ruling regardless of whether the judge granted or denied the motion.  Id. We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.  Id. When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those findings.  State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).   We review a trial court's application of the law of search and seizure to the facts de novo.  Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010).  “We will sustain the trial judge's ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’ ”  Id. at 447–48.

The Fourth Amendment protects citizens against unreasonable searches and seizures.   U.S. Const. amend.   IV;  Illinois v. Rodriguez, 497 U.S. 177, 181 (1990);  Limon v. State, 340 S.W.3d 753, 756 (Tex.Crim.App.2011).   The entry into a residence by police officers is a “search” for purposes of the Fourth Amendment.  Limon, 340 S.W.3d at 756.   A warrantless police entry into a residence is presumed unreasonable unless the entry falls within an exception.  Id. at 756.   One of those exceptions is when voluntary consent has been obtained from the individual whose property was searched or from a third party who possessed common authority over the searched premises.   Rodriguez, 497 U.S. at 181;  Limon, 340 S.W.3d at 756.  “ ‘Common authority’ rests ‘on mutual use of the property by persons generally having joint access or control for most purposes․' ”  Limon, 340 S.W.3d at 756 (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).   It is “derived from the third party's use of the property rather than his legal property interest[ .]” Id. Even if actual authority to consent does not exist, “consent may be validly obtained from an individual with apparent authority over the premises.”  Id. (citing Rodriguez, 497 U.S. at 188).   We determine apparent authority using an objective standard and ask “ ‘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?’ ”  Id. (quoting Rodriguez, 497 U.S. at 188 (internal citations omitted)).   The question “is whether the officer's belief in an individual's authority is reasonable under the facts known to the officer.”   Id. (citing Rodriguez, 497 U.S. at 188).   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.”  Id. at 756–57 (citing Georgia v. Randolph, 547 U.S. 103, 111 (2006)).   The State must prove actual or apparent authority by a preponderance of the evidence.  Id.

Here, the question we must answer is whether it was reasonable for Kaufman County sheriff's deputies to believe the child who appeared to be six to eight years of age had apparent authority to invite them to enter.   The State argues, and the trial court agreed, that it was reasonable because an adult was seated eight feet away and did not object.

This case is controlled by the court of criminal appeals' recent opinion in Limon.   There, four officers investigating two incidents of “shots fired” went to the Limon residence.   The lead detective knocked on the door, which was opened by a boy who the detective later learned was 13 or 14 years old.   The detective told the boy he was investigating a shooting case and asked permission to enter.   The boy admitted the detective and another officer.   Once they entered the home, the officer smelled the odor of marijuana and searched the house, seizing certain evidence and arresting the appellant.  Limon, 340 S.W.3d 755–56.

On appeal, the court rejected a per se rule that children may, or may not, consent to entry into a residence.  Id. at 757.   The court explained, “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.”  Id. Making a distinction between consent to entry and consent to search, the court noted that 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.”  Id. (quoting Randolph, 547 U.S. at 112).

The court then considered “five key facts” that it determined supported the reasonableness of the detective's belief the boy had authority to invite the police to enter:  (1) the boy opened the door by himself in response to the officer's knock, which suggested a “greater level of authority” than if he had answered from behind the door or if he had answered the door “with an adult in view behind him;” (2) the trial court could have reasonably inferred from the testimony that the child appeared to be “at least a teenager of significant maturity, if not a young adult;” (3) the boy consented to entry through the front door, not entry or search of less public areas of the house;  (4) the officer's announced purpose was to conduct an emergency public-safety function;  and (5) the time of the entry, 2 a.m., suggested that the boy was a resident rather than a guest.  Id. at 757–58.

Applying those factors here, we reach a different conclusion than that in Limon.   Similar to Limon, the girl opened the door by herself and, according to evidence, told the officers to “come in.”   The trial court found the officers' belief that they could legally enter reasonable because an adult was in the vicinity who did not contradict the invitation.   The analysis in Limon certainly undercuts this finding.   See id.  (“The trial court could have believed that his act [in opening the door by himself] 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.”)   Regardless, Simmons, who was the first officer in, testified after he heard the girl say “come in,” and not hearing anything else, he assumed he could enter.   The State then asked, “Now, when you crossed the threshold, what did you see immediately after that?”   Simmons said he “noticed the man seated at the table.”   When specifically asked whether it was possible “to have seen this gentleman eight feet away when the door opened,” Simmons responded that he “was focused on who answered the door.”   The only reasonable construction of the evidence is that Simmons did not see the man before he entered the house;  consequently, that the man did not contradict the girl's invitation simply is not relevant to an inquiry about the officers' belief before entering the home.   Furthermore, while the child's consent was limited in scope, Simmons testified he immediately approached the adult man seated at the kitchen table eight feet away and then began to follow the child down the hallway, suggesting Simmons did not treat the invitation as having a limited scope (not to mention his testimony that he may have been asked to leave by Caldwell but refused).

Even assuming the trial court could reasonably construe these facts favorably to the State, we cannot ignore the fact that this child is much younger than the teen-aged boy in Limon.   Although defense counsel consistently referred to her at the hearing and again on appeal as a five-year-old, there was no evidence establishing her age;  however, one officer testified that he estimated she was six to eight years old.   More importantly, unlike Limon, there is nothing in this record from which the trial court could reasonably infer any level of maturity consistent with “widely shared social expectations” or “commonly held understanding” that would allow the officers to reasonably believe the child had apparent authority to consent to their entry.   Finally, the latter two factors do not tilt the balance in this case.   The record does not indicate the officers announced their purpose before entering the house.   And, while the time of entry does not suggest one way or the other that the child is a resident, the officers could reasonably believe she was, given they were there to assist a CPS worker on a child welfare call.   Even so, we are still left with the lack of any evidence to suggest the child had the capacity, intelligence, or authority to give constitutionally effective consent to the police entry.

In sum, considering the evidence before the trial court and allowing every possible reasonable inference in support of its determination, we conclude the trial court erred in finding the officers' entry into the Caldwell home was legal and in then denying Caldwell's motion to suppress.   The State has made no alternative arguments to justify the officers' search of the house, nor has our review of the record disclosed any.

Finally, in reaching in our conclusion, we have considered the practical realities facing the deputies that night and, in particular, that they were responding to a call for assistance from Child Protective Services.   Nevertheless, law enforcement is not allowed to dispense with the Fourth Amendment even when assisting in these types of calls.   Cf. Gates v. Tex. Dep't of Protective and Regulatory Svcs., 537 F.3d 404, 419, 421 (5 th Cir.2008) (noting that Fourth Amendment regulates social workers' civil investigations as well police conduct).   Without some objective evidence that the child answering the door has the authority, actual or apparent, to invite officers in, those officers may not enter unless they have a warrant or circumstances dictate that some other exception to the warrant requirement applies.   We sustain the sole issue.

We reverse the trial court's order deferring adjudication and remand for further proceedings consistent with the opinion.

MOLLY FRANCIS JUSTICE