ROBERTS v. STATE (2026)

OPINION

This case presents a novel question concerning the constitutional standard governing the search of a visitor who enters a correctional facility. A jury convicted appellant, attorney Shawn Roberts, of two counts of possessing a controlled substance in a correctional facility. See Tex. Penal Code § 38.11(a)(1). In two issues, appellant challenges the admission of physical evidence found on his person and of his statements that were previously suppressed. Because we conclude that the officers possessed individualized reasonable suspicion to detain and search appellant and the search was reasonable in scope and manner under the circumstances, we hold that the trial court did not err in denying appellant's motion to suppress the physical evidence. We further conclude that the trial court did not abuse its discretion by admitting appellant's previously suppressed statements to rebut a false impression created by the defense. We affirm.

Background

Appellant's brother and client, William Roberts, was incarcerated at the Brazoria County Detention Center, a secure correctional facility operated by the Brazoria County Sheriff's Department.¹ The facility maintains controlled access procedures for all persons entering the premises. Prominently displayed at the entrance is a sign stating: “ALL PERSONS–VEHICLES ARE SUBJECT TO BE SEARCHED AT ANY TIME WHILE ON DETENTION CENTER PROPERTY.”

In December 2022, staff at the detention center observed an unusual pattern following three of appellant's visits with William on December 22, 27, and 28. After each visit, William was described as appearing “lethargic” and “intoxicated, ”and he was discovered by staff in a “comatose” or severely disoriented condition despite having left his cell “acting normal” before the visits. After William was found in a disoriented state for the third time following a visit with appellant, investigators began to suspect that appellant was bringing contraband into the facility and providing it to William during their visits. Investigators decided that if appellant returned to the detention center, they would investigate whether he was in possession of contraband prior to his meeting with William.

Captain Wayne Williams, the jail administrator for the Brazoria County Sheriff's Department, testified at the suppression hearing that attorneys and members of the general public do not visit inmates in the same location. According to Captain Williams, attorney visits occur in a designated area within the facility's main information center, which serves as the primary entry point to the detention center. He explained that this attorney visitation area is in a secure part of the facility and cannot be accessed unless the attorney is “buzzed” in by a detention officer before entry is granted.

Captain Williams further testified that the signage in the individual attorney visitation rooms states that electronics are prohibited during attorney visits. These rooms do not have physical barriers separating the attorney from the inmate; nothing prevents direct contact, including the passing of items between them; and attorney visits are neither recorded nor monitored. By contrast, visits by members of the general public occur in a separate area that is monitored by surveillance cameras, and the corresponding telephone calls are recorded.

When appellant returned for a fourth visit on December 29, 2022, he was admitted through the facility's ordinary attorney visitation process, and Captain Williams notified Dial King, an investigator assigned to the Brazoria County Narcotics Task Force, of appellant's arrival. King arrived in the attorney visitation area within fifteen minutes of receiving the notification. Joe Lares, a lieutenant with the Brazoria County Sheriff's Department, and a female officer also accompanied King to the attorney visitation area. The encounter between appellant and the officers was captured on the body-worn camera of a fourth officer. A redacted version of that footage was admitted into evidence for purposes of the hearing.

Based on the three, close in time, prior incidents involving William's condition following appellant's visits, the officers' purpose was to investigate whether appellant had previously introduced and presently possessed contraband in the correctional facility. Lares first approached the visitation room door, knocked, identified appellant by name, and asked him to step out of the room. Appellant is seen on video holding a tablet and a half-full clear bottle with a clear liquid in it. As appellant stepped out of the room, he took a drink from the bottle in front of the officers. Once outside of the room, Lares explained the reason for the investigation and asked appellant if he had anything on his person that was prohibited inside the jail.

As King began putting on gloves in preparation for the search, appellant gathered his belongings and attempted to leave the area. The officers immediately stopped him and told him that “you are in the jail facility[;] we have the right to search you.” King advised appellant that he would be conducting a search of his person and asked appellant if he had anything that he was not supposed to have inside the facility. Appellant then removed a vape pen from his front left pocket to which King responded “you're not supposed to have that in here.” King asked appellant what else he had, and appellant stated, “I got the vape․ This is all I got.”

King then had appellant turn around and put his hands up against the wall and proceeded to search appellant's person. He first removed appellant's baseball cap and inspected its brim. During this inspection, appellant continuously interfered with the search by turning away from the wall and insisting that he did not have anything on him. Officers had to hold appellant's left hand on the wall to prevent him from resisting. King then lifted appellant's shirt and removed a bank-type envelope containing several hundred dollars in cash and a small plastic capsule from appellant's right pants pocket. King then inverted appellant's pockets, lowered his pants slightly to search around the waistband while conducting a pat down of appellant's legs. Officers then had appellant remove his shoes and inspected them.

Subsequent testing of the capsule discovered in the envelope confirmed that the capsule contained fentanyl and alprazolam. Appellant was then placed under arrest for possession of a controlled substance in a correctional facility for both substances. Following his arrest, and before being advised of his Miranda warnings, appellant was asked a series of questions by the officers, including whether there was anything he wanted to tell them, whether the capsule contained fentanyl, and how he had purchased the capsule.

Before trial, appellant filed a motion to suppress the physical evidence seized during the search as well as certain statements he made at the time of his detention and subsequent arrest. He argued that the warrantless search of his person and property violated the Fourth Amendment to the United States Constitution; article I, section 9 of the Texas Constitution; and article 38.23 of the Texas Code of Criminal Procedure. He maintained, among other things, that he did not consent to the search and that, upon being informed of the officers' intent to search him, he attempted to leave the facility rather than submit to a search. Appellant also claimed that the officers lacked probable cause or exigent circumstances to justify a warrantless search and could not rely solely on general jail policies or signage to authorize the search of an attorney visiting a client.

The State responded that the search was lawful because it occurred on the grounds of a secure correctional facility and was supported by reasonable suspicion arising from William's condition following appellant's three prior visits. The State also argued that, in a correctional facility, a search is justified by reasonable suspicion and officers were not required to permit appellant to leave the premises once suspicion arose. The trial court denied appellant's motion to suppress the controlled substances recovered during the search. The State later conceded that appellant's responses to the four questions asked before being advised of his Miranda warnings should be suppressed. The trial court then granted the motion in part and ordered those statements suppressed.

At trial, appellant's defensive theory centered on lack of knowledge. He maintained that he was unaware of the capsule located at the bottom of the envelope and that he did not knowingly bring contraband into the correctional facility. During his opening statement, defense counsel suggested that someone other than appellant was responsible for the presence of the capsule in the envelope. During the cross-examination of King, defense counsel pursued this theory by questioning the circumstances under which the capsule was discovered. Counsel even emphasized that King may have placed the capsule in the envelope after the search began.

Outside the presence of the jury, the State argued that the defense had repeatedly highlighted appellant's purported lack of knowledge regarding the contents of the envelope and had insinuated officer misconduct. According to the State, this strategy created a misleading impression for the jury. The State further contended that it possessed evidence that directly rebutted this defensive theory. The State argued that the defense should not be permitted to rely on the court's suppression ruling as both a shield to exclude and a sword to advance a false narrative.

After hearing the parties' arguments, the trial court determined that appellant had “opened the door” to evidence concerning two statements: the identity of the substance in the capsule and the circumstances under which he had obtained it. The court then permitted the State to introduce otherwise suppressed statements to correct the false impression left with the jury by appellant. The jury found appellant guilty on both counts, and the trial court sentenced him to two years' confinement for each count to be served concurrently.

Motion to Suppress

In his first issue, appellant contends that the trial court erred in denying his motion to suppress the controlled substances discovered during the search of his person. Specifically, appellant asserts that when law enforcement officers prevented him from leaving the correctional facility, the detention became an arrest unsupported by probable cause. Alternatively, he argues that, even if the encounter was an investigative detention, the officers' search of his person exceeded the scope of a permissible Terry frisk.

The State responds that the search was permissible under the circumstances. It maintains that the search occurred at the Brazoria County Detention Center, which is a secure correctional facility with an established policy providing that all persons within the facility are subject to search. According to the State, appellant was on notice of this policy and, by choosing to enter and remain within the facility, subjected himself to its security protocols. The State further contends that law enforcement officers possessed reasonable suspicion at the time of the detention that appellant was in possession of contraband in the correctional facility for a fourth time while visiting William. Finally, the State argues that the officers were not required to provide appellant with the option to depart in lieu of submitting to the search once reasonable suspicion had developed and the detention center's security concerns were implicated.

A. Standard of Review

At a suppression hearing, a trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); see also Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019); Zuniga-Hernandez v. State, 473 S.W.3d 845, 848 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

We give almost complete deference to the trial court in its determination of historical facts, especially if they are based on an assessment of credibility and demeanor, and we give the trial court the same deference as to its rulings on applications of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). But for mixed questions of law and fact that do not fall within that category, we may conduct a de novo review. Id.; see also Ruiz, 577 S.W.3d at 545.

When, as here, the trial court does not make written findings of fact, we assume that the trial court made implicit findings that support its ruling, provided those implied findings are supported by the record. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005). We view the evidence in the light most favorable to the trial court's ruling, and we uphold the ruling on any theory of law supported by the evidence. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).

B. Governing Law

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; see also Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). It provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Article I, section 9 of the Texas Constitution also guarantees this right and also protects certain expectations of privacy. Tex. Const. art. I, § 9; Holder v. State, 595 S.W.3d 691, 697 (Tex. Crim. App. 2020). Article I, section 9 provides that

[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Tex. Const. art. I, § 9. As shown, the Fourth Amendment and article I, section 9 are almost identically worded, but the Court of Criminal Appeals interprets the Texas Constitution by “our own lights.” Holder, 595 S.W.3d at 697 (citing Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969)).

Generally, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation must be supported by a warrant or a recognized exception to the warrant requirement and must be reasonable under the totality of the circumstances. State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014). A search conducted without a warrant is “per se unreasonable ․ subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); Villarreal, 475 S.W.3d at 795. The State bears the burden of establishing that an exception applies. See McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); Garza v. State, No. 14-15-00902-CR, 2016 WL 7177710, at *2 (Tex. App.—Houston [14th Dist.] Dec. 8, 2016, no pet.) (mem. op., not designated for publication). The State principally argues that the recognized exceptions here are the reasonable suspicion standard for searching particular visitors in a correctional facility and consent.

1. Detentions

Not every encounter between a police officer and a citizen implicates the Fourth Amendment. State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008). “It is only when an officer, ‘by means of physical force or show of authority, has in some way restrained the liberty of a citizen,’ will courts conclude that a Fourth Amendment ‘seizure’ has occurred.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Such a seizure occurs when, considering the totality of the circumstances surrounding the encounter, a reasonable person in the individual's position would not have felt free to disregard the officer and continue on with their activities. See id. A seizure may take two forms: a detention or an arrest. See Hunter v. State, 955 S.W.2d 102, 104–06 (Tex. Crim. App. 1997); see also Terry, 392 U.S. at 16 (providing that a temporary detention constitutes a seizure under the Fourth Amendment).

A detention is justified when the officer possesses reasonable suspicion that the person has committed a crime or is about to commit a crime; that is, the officer is able to point to specific, articulable facts that, taken together with rational inferences from those facts, reasonably warrant the detention. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989); see also Terry, 392 U.S. at 19–20. The articulable facts used by the officer must indicate that some activity out of the ordinary is occurring or has occurred, that the detainee is connected with the unusual activity, and that the unusual activity is related to a crime. Garza, 771 S.W.2d at 558. When reasonable suspicion exists during a temporary investigative detention, a protective search is warranted, but the search must be carefully limited to that which is necessary to discover weapons that could reasonably harm police officers or others. Terry, 392 U.S. at 25–26. The plain feel doctrine permits an officer who is legitimately conducting a Terry frisk to seize an item “whose identity is already plainly known through the officer's sense of touch.” See Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000).

2. Searches Within Correctional Facilities

“Reasonableness” is the touchstone of the Fourth Amendment. Villarreal, 475 S.W.3d at 795 (citing Riley v. California, 573 U.S. 373, 381 (2014)). “[W]hat is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). The United States Supreme Court has explained that

[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.

Bell v. Wolfish, 441 U.S. 520, 559 (1979) (internal citations omitted).

In Wolfish, the Supreme Court upheld a prison policy requiring all inmates and pretrial detainees to expose their body cavities for visual inspection as part of a strip search conducted after every contact visit with a person from outside the institution. Id. at 558–60. The Court concluded that such searches did not violate the Fourth Amendment in light of the paramount interest in institutional security. Id. In reaching that conclusion, the Court weighed the significant and legitimate security interests of the institution against the privacy interests of the inmates. Id. at 560. Accordingly, the Court held that such searches may be conducted on a standard less than probable cause when justified by legitimate security concerns. Id.

But Wolfish does not resolve the distinct question presented here. Indeed, the Supreme Court has not addressed what constitutional standard applies when a visitor in a correctional facility—who, unlike an inmate, retains a greater expectation of privacy—may be subjected to a search based on suspicion of introducing contraband into the correctional facility.

The Supreme Court, however, has recognized that contact visits pose significant risks to institutional security because “[t]hey open the institution to the introduction of drugs, weapons, and other contraband.” Block v. Rutherford, 468 U.S. 576, 586 (1984). Relying on that rationale, several federal circuit courts have concluded that a visitor who seeks admission to a correctional facility has a diminished expectation of privacy and can expect to have his person and property searched, but he is not in the same position as an incarcerated detainee or inmate for purposes of the Fourth Amendment. See Gilmore v. Ga. Dep't of Corr., 144 F.4th 1246, 1254 (11th Cir. 2025); Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985) (“To be sure, those visiting a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy.”). Although visitors retain greater privacy interests than inmates and detainees, courts evaluating searches of visitors to a correctional facility likewise employ the balancing framework articulated in Wolfish, weighing the nature of the intrusion against the institution's legitimate security interests. See Thorne v. Jones, 765 F.2d 1270, 1274–75 (5th Cir. 1985) (“Taken together, Hudson, Block, and Wolfish indicate unmistakably that security-related decisions of prison officials are to be reviewed only for reasonableness; if the decisions are rational (an exceedingly undemanding standard), courts are to look no further.”).²

The degree of intrusion is also an important component of that analysis. See McGee, 105 S.W.3d at 616–17. The Court of Criminal Appeals has recognized that searches vary significantly in their intrusiveness and has articulated distinctions among several common forms of searches:

There are several different forms of searches, each involving a different degree of intrusion. Courts classify some of the more intrusive searches as “strip searches,” “visual body-cavity searches,” and “manual body-cavity searches.” The term “strip search” generally refers to an inspection of a naked person, without any scrutiny of the person's cavities. A “visual body-cavity search” includes a visual inspection of a person's anal or genital areas. A “manual body-cavity search” involves some degree of probing or touching a person's body cavities.

Id. at 615. The Court of Criminal Appeals has also explained that a pat down search, commonly referred to as a Terry frisk, allows a protective search for weapons that could reasonably harm officers. See Balentine v. State, 71 S.W.3d 763, 770 (Tex. Crim. App. 2002) (citing Terry, 392 U.S. at 25–26).

The search in this case, however, exceeded a traditional pat down for weapons but did not rise to the level of a strip or body-cavity search. Although neither the Court of Criminal Appeals nor this court has addressed the standard governing the search of a visitor within a correctional facility under circumstances such as those presented here, several federal circuit courts have.³

Applying the Wolfish balancing framework, courts have held that searches of visitors in a correctional facility must be supported by at least individualized reasonable suspicion when the search is intrusive. See Cates v. Stroud, 976 F.3d 972, 985 (9th Cir. 2020); Calloway v. Lokey, 948 F.3d 194, 202 (4th Cir. 2020); Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000); Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997); Wood v. Clemons, 89 F.3d 922, 928–29 (1st Cir. 1996); Romo v. Champion, 46 F.3d 1013, 1020 (10th Cir. 1995); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir. 1991); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982).

This reasonable suspicion standard has been a familiar part of Fourth Amendment jurisprudence since Terry, and it requires “a particularized and objective basis for suspecting the particular person” as judged by the totality of facts and circumstances known to the relevant officers at the time. Heien v. North Carolina, 574 U.S. 54, 60 (2014); see also Alabama v. White, 496 U.S. 325, 330 (1990). Requiring more than a mere “hunch” but less than probable cause, the “standard is not an exacting one” and demands “only ‘a moderate chance of finding evidence of wrongdoing.’ ” Braun v. Maynard, 652 F.3d 557, 561 (4th Cir. 2011) (quoting Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009)).

Of particular relevance, the Fifth Circuit has applied the balancing framework articulated in Wolfish to circumstances involving the search of a visitor in a correctional facility. See Thorne, 765 F.2d at 1274–77. In Thorne, the Fifth Circuit considered the reasonableness of a strip search under the Fourth Amendment of a visitor suspected of attempting to introduce contraband into a correctional facility. Id. In reaching its holding, the Thorne court relied in part on United States v. Lilly, 576 F.2d 1250 (5th Cir. 1978), which concerned searches of prison inmates. Id. Although Lilly involved inmates rather than visitors, the court rejected the proposition that inmates are entitled to greater Fourth Amendment protections within a correctional facility than visitors, reasoning that “it would be anomalous indeed to accord the former class [prison inmates] greater protection from unreasonable searches than the latter [prison visitors].” Id.

Drawing from that reasoning, the Fifth Circuit held that a strip search of a particular visitor in a correctional facility must be supported by individualized reasonable suspicion—that is, specific objective facts and rational inferences that law enforcement officers are entitled to draw from those facts in light of their experience. Id. (citing Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)). The Thorne court thus rejected the strip search of a visitor in a correctional facility when the search was not supported by suspicion specifically directed at the visitor to be searched. Id. at 1276 (“Here, no objective fact pointed to Mr. Thorne as a probable smuggler of drugs into LSP. That an informant pointed to Mrs. Thorne as a likely source of Scott Thorne's contraband does not suffice[.]”).

Although Thorne involved a strip search—a more intrusive search than the one here—its reasoning supplies an important principle: if individualized reasonable suspicion is required to justify a strip search of a visitor in a correctional facility, then a less intrusive search of a visitor is likewise governed by, and satisfied upon, a showing of individualized reasonable suspicion. See id. at 1276–77.⁴ The relevant inquiry is not merely whether a search falls within a particular category, but whether, under the totality of the circumstances, the degree of intrusion was reasonable in light of the governmental interests at stake. See Wolfish, 441 U.S. at 559.

The Court of Criminal Appeals explained that reasonable suspicion exists when an officer possesses specific, articulable facts that, combined with rational inferences from those facts, would lead the officer reasonably to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The inquiry is objective and considers the totality of the circumstances rather than evaluating each fact in isolation. Id. at 914–15. Conduct that appears innocent when viewed individually may nevertheless give rise to reasonable suspicion when considered collectively. Id.

In Derichsweiler, the court considered a series of unusual encounters in which the defendant repeatedly approached individuals in public parking lots and engaged in conduct that caused them concern. Id. at 908–10. Although the defendant's conduct was not itself demonstrably criminal, the court concluded that the repeated encounters, considered together, provided reasonable suspicion that criminal activity might be afoot and justified further investigation. Id. at 916–17. Thus, reasonable suspicion does not require officers to observe an offense firsthand; it may arise from a pattern of unusual conduct that, viewed objectively and in its entirety, reasonably suggests that criminal activity has occurred, is occurring, or may soon occur. See id.

3. Prohibited Substances in a Correctional Facility

Under section 38.11(a) of the Texas Penal Code, a person commits an offense if the person possesses with the intent to provide, among other things, a controlled substance or dangerous drug to a person in custody of a correctional facility. Tex. Penal Code § 38.11(a)(1). A “correctional facility” is defined as “a place designated by the law for the confinement of a person arrested for, charged with, or convicted of a criminal offense.” Tex. Penal Code § 1.07(a)(14); see also Tex. Penal Code § 38.11(f)(6). The term includes a municipal or county jail. Tex. Penal Code § 1.07(a)(14)(A).

C. Application

As appellant acknowledges, the search of his person occurred inside a secure area of the Brazoria County Detention Center. Before the search, officers had developed individualized reasonable suspicion that appellant had previously introduced contraband into the facility during three prior visits with William, an inmate in the facility. That suspicion arose from jail staff's observations that, on three occasions, William left his housing area “acting normal” before visiting with appellant but was discovered in an “intoxicated” and disoriented condition immediately afterward. See Thorne, 765 F.2d at 1276 (explaining that reasonable suspicion justifying the strip search of a particular visitor must be based on specific objective facts and rational inferences drawn from those facts); Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010) (recognizing that reasonable suspicion may arise from specific, articulable facts and rational inferences indicating that “a particular person is actually, has been, or soon will be engaged in criminal activity”). These repeated observations prompted officers to investigate appellant when he returned to the facility on December 29. We begin by considering whether those circumstances justified appellant's detention and then turn to whether the ensuing search of his person was reasonable.

1. The Detention

Appellant argues that his encounter with law enforcement officers constituted a seizure and that, when officers prevented him from leaving the detention center, the seizure became an arrest unsupported by probable cause. We agree that appellant was seized, but we disagree that the encounter constituted an arrest.

A temporary investigative detention is reasonable if it is supported by reasonable suspicion at its inception and remains reasonably related in scope to the circumstances justifying the detention. See Terry, 392 U.S. at 19–20. That standard was satisfied here.

The officers' suspicion was not based on a generalized concern about visitors or merely on appellant's presence at the detention center. Before appellant's detention, jail staff had observed a repeated and unusual pattern of conduct between William and appellant's unmonitored visits. On three different occasions within one week, William left his cell for his visit with appellant appearing normal but was then found in an intoxicated, lethargic, or severely disoriented condition immediately afterward. After each incident and suspecting that William had ingested contraband, jail staff searched William and his cell but found no contraband. William was housed alone in a medical-separation cell, had little to no contact with other inmates, and was observed at approximately twenty-minute intervals. The only meaningful contact William had with another person that coincided with his unusual and repeated behavior was with appellant. Their visits occurred in an attorney visitation private room that was not monitored or recorded and permitted unobstructed and direct physical contact between appellant and William. Thus, the circumstances substantially diminished the likelihood that William obtained contraband from another inmate and instead pointed to the visits with appellant as the source. See Crain, 315 S.W.3d at 52–53.

When appellant returned for a fourth contact visit with William in the same secure area, officers therefore had a reasonable basis to investigate whether he had previously introduced contraband into the facility and whether he possessed contraband on his fourth visit. See id. at 52. The fact that officers had not previously discovered contraband in appellant's possession did not negate their reasonable suspicion. Rather, their observations of William's condition following appellant's three prior visits, considered together with the circumstances of those visits, and of William's housing, objectively supported an inference that appellant had previously introduced contraband into the facility and did so on his last and final visit. See Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) (recognizing that reasonable suspicion may be based on evidence that a person has been engaged in criminal activity).

Viewed collectively, these specific, articulable facts provided individualized reasonable suspicion that appellant had previously introduced contraband into the correctional facility during prior visits—each a felony offense—and justified his temporary investigative detention on December 29. See Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002) (“A seizure based on reasonable suspicion or probable cause will generally be reasonable.”); see also Terry, 392 U.S. at 22 (providing that officers need only reasonable suspicion to stop and detain).

Appellant nevertheless contends that, even if reasonable suspicion existed, officers were required to allow him to terminate the visit and leave rather than continue their investigation. We disagree.

Several federal courts have recognized that prison visitors confronted with highly intrusive strip searches generally must be afforded the opportunity to decline the search and forgo the visit. See Cates, 976 F.3d at 983; Burgess, 201 F.3d at 945; Spear v. Sowders, 71 F.3d 626, 632 (6th Cir. 1995); Marriott By & Through Marriott v. Smith, 931 F.2d 517, 518–21 (8th Cir. 1991). Those decisions address the circumstances under which correctional officials may condition visitation on submission to an intrusive search. They do not establish that a visitor suspected of criminal activity has a general right to terminate an otherwise lawful investigative detention simply by requesting permission to leave. See e.g., Cates, 976 F.3d at 981–84; see also Smith, 931 F.2d at 518–21 (holding search of jail visitor after the visit unreasonable).

The circumstances here are materially different. Appellant had already entered the secure attorney visitation area, and officers possessed individualized reasonable suspicion that he had introduced contraband during prior visits. The suspected criminal activity therefore preceded the encounter at issue. Additionally, on the day of the detention, officers also observed that appellant was in possession of a clear bottle with a clear liquid inside, which he drank from as officers confronted him; a vape pen; and an electronic tablet. Officers were therefore not merely deciding whether to condition appellant's access to the facility on his submission to a search. They were investigating suspected criminal activity that had occurred within the facility. See Terry, 392 U.S. at 19–20.

A temporary investigative detention permits officers a limited opportunity to confirm or dispel reasonable suspicion through reasonable investigation. See Terry, 392 U.S. at 19–22; see also State v. Hardin, 664 S.W.3d 867, 872 (Tex. Crim. App. 2022). That purpose would be frustrated if a person lawfully detained on reasonable suspicion could terminate the detention merely by expressing a desire to leave. See generally Cates, 976 F.3d at 983. Accordingly, officers were not required to abandon the detention when appellant attempted to depart. The detention remained subject, however, to the requirement that its scope and duration be reasonably related to the circumstances justifying it. See Terry, 392 U.S. at 19–20; Wolfish, 441 U.S. at 559.

Because officers possessed individualized reasonable suspicion of appellant's introduction of contraband into the facility, his request to leave did not require them to terminate the investigative detention. We therefore reject appellant's argument that officers were required to allow him to depart.⁵

2. The Search

Having concluded that the officers possessed individualized reasonable suspicion, we now separately consider whether the search was reasonable under the correctional-facility balancing framework. See Wolfish, 441 U.S. at 559.

To determine whether the search was reasonable under the Fourth Amendment, we balance “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” See id.; see also T.L.O., 469 U.S. at 341. Applying these considerations, we hold that, in this case, correctional officials possessed individualized reasonable suspicion, based on specific and articulable facts, that appellant was in possession of contraband prior to his visit with William. Consequently, correctional officials were authorized to temporarily detain appellant to investigate the suspected ongoing criminal activity. The resulting search, however, must remain reasonably tailored to locating the suspected contraband and proportionate to the institution's substantial security interests. In this case, it did so.

Officers were not investigating whether appellant was armed or posed an immediate danger. Rather, they were investigating a specific, individualized suspicion that appellant was in possession of contraband in their facility. The governmental interest justifying the search was therefore substantial. It is well established that correctional officials possess a compelling interest in preventing the introduction and circulation of drugs and other contraband because such items threaten institutional security, inmate and officer safety, and institutional order. See Block, 468 U.S. at 586. As the Supreme Court has recognized, “[v]isitors can easily conceal guns, knives, drugs, or other contraband in countless ways and pass them to an inmate unnoticed by even the most vigilant observers.” Id. That institutional reality informs the reasonableness of searches conducted within secure correctional facilities.

The search here was also reasonably tailored to the circumstances. Officers were investigating the possession of suspected contraband that was small, readily concealable, and capable of being carried on a person's body and transferred to an inmate. Consistent with that objective, officers searched areas in which such an item could reasonably be hidden. King put gloves on before beginning the search and then removed appellant's baseball cap and inspected its brim, lifted appellant's shirt, removed an envelope from appellant's right front pocket, inverted his pockets, lowered his pants slightly, and directed him to remove his shoes for inspection.

Although the search exceeded the scope of a traditional Terry frisk for weapons, its scope and manner remained substantially less intrusive than the strip searches addressed in the authorities upon which appellant relies. See, e.g., Cates, 976 F.3d at 983; Burgess, 201 F.3d at 945; Spear, 71 F.3d at 632; Smith, 931 F.2d at 518–21. Appellant was not required to disrobe, expose intimate areas ordinarily associated with a strip search, or submit to a visual or manual body-cavity search. See McGee, 105 S.W.3d at 615 (“The term ‘strip search’ generally refers to an inspection of a naked person, without any scrutiny of the person's cavities.”); see also Gilmore, 144 F.4th at 1256; Cates, 976 F.3d at 983 (“A strip search is humiliating and intrusive.”). Each aspect of the search was directed toward locating the type of contraband officers reasonably suspected appellant had previously introduced into the facility. In light of the individualized basis for suspicion, the limited nature of the search, and the substantial security interests implicated by the introduction of drugs into a correctional facility, including the safety of inmates and officers and the orderly operation of the institution, the search remained proportionate to the governmental interests. See Block, 468 U.S. at 586; Gilmore, 144 F.4th at 1256 (holding that the officer needed at least reasonable suspicion to subject the prison visitor to a strip search).

The Fifth Circuit's decision in Thorne further informs our analysis. There, the court held that individualized reasonable suspicion may justify even the far more intrusive strip search of a prison visitor. 765 F.2d at 1276–77. Unlike the search at issue in Thorne, the search here did not involve exposing appellant's intimate areas or inspecting his body cavities. And unlike the officials in Thorne, the officers here possessed particularized facts connecting appellant to the suspected introduction of contraband. Those distinctions support our conclusion that the search was reasonable under the circumstances presented. See id.; see also Gilmore, 144 F.4th at 1256.

Balancing the degree of the intrusion against the governmental interests justifying the search, we conclude that the search was reasonable. It occurred inside a secure correctional facility, was directed toward a visitor whom officers reasonably suspected of possessing contraband in the facility, and remained reasonably tailored to locating the suspected contraband without employing the more intrusive procedures characteristic of a strip search. See Wolfish, 441 U.S. at 559; Thorne, 765 F.2d at 1276–77. Cf. Cates, 976 F.3d at 979–83.

Finally, appellant argues that he withdrew any implied consent arising from the posted signage when he attempted to leave the facility rather than submit to a search. We need not resolve whether appellant could withdraw any such implied consent because the validity of the search did not depend on consent. Rather, as discussed above, officers possessed individualized reasonable suspicion connecting appellant to the suspected introduction of contraband, and the ensuing search was reasonable in scope and manner in light of the institution's substantial security interests.

Considering the totality of the circumstances, we conclude that both appellant's detention and the subsequent search of his person were constitutionally reasonable. The trial court therefore did not err in denying appellant's motion to suppress. We overrule appellant's first issue.

Admission of Suppressed Statements

In his second issue, appellant argues that the trial court erred in admitting statements that it had properly suppressed. He asserts that he made statements identifying the capsule found in his pocket and stating that he had purchased it, and the State conceded that these statements were suppressible. According to appellant, once these statements were suppressed, there is no exception to article 38.23. The State responds the trial court properly admitted the statements for the limited purpose of rebuttal because the defense opened the door. We agree.

A. Standard of Review

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. at 83. We may reverse the trial court's ruling only if it “was so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).

B. Governing Law

Article 38.23 of the Code of Criminal Procedure is an exclusionary rule and guards against the admission of evidence obtained in violation of the constitutions or Texas law. Tex. Code Crim. Proc. art. 38.23; see also Holder v. State, 639 S.W.3d 704, 707 (Tex. Crim. App. 2022); Day v. State, 614 S.W.3d 121, 128 (Tex. Crim. App. 2020) (“The text of Article 38.23 addresses the admissibility of evidence at trial when the law has been violated.”).

Although a trial court's suppression ruling limits the State's use of evidence at trial when the law has been violated, it is well established that evidence that is otherwise inadmissible may become admissible if a party “opens the door” to such evidence. See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009); Sandoval v. State, No. 14-05-00389-CR, 2006 WL 3433805, at *2 (Tex. App.—Houston [14th Dist.] Nov. 30, 2006, pet. ref'd) (mem. op., not designated for publication). “A party opens the door by leaving a false impression with the jury that invites the other side to respond.” Hayden, 296 S.W.3d at 554. When a party opens the door, the opposing party is permitted to present evidence to correct the mistaken impression. See Houston v. State, 208 S.W.3d 585, 591 (Tex. App.—Austin 2006, no pet.).

This is true even of statements that were previously deemed inadmissible because they constitute custodial interrogations obtained without Miranda warnings. Haywood v. State, No. 01-13-00994-CR, 2014 WL 7131176, at *3 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, pet. ref'd) (mem. op., not designated for publication) (citing Harris v. New York, 401 U.S. 222, 224–25 (1971)). Opening the door, however, is limited in scope, and the evidence may not “stray beyond the scope of the invitation.” Sandoval, 2006 WL 3433805, at *2 (citing Schultz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997)).

C. Application

Here, the trial court granted appellant's motion to suppress four custodial statements. Two suppressed statements are at issue: one where appellant identified the capsule and another admitting that he had purchased it. Although the trial court suppressed these statements, the defense subsequently advanced a theory that appellant had no knowledge of the capsule's presence.

During opening statement, defense counsel expressly argued that

it is very clear Mr. Roberts is not aware of those drugs at the bottom of an envelope of cash when he's in the correctional facility. And if they can't prove that he knew the drugs were there, you have to acquit because that is a core element of the crime.

See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (holding that a defense opening statement may open the door to the admission of otherwise inadmissible evidence to rebut a defensive theory).

That defensive theory continued through cross-examination of King. Defense counsel repeatedly suggested that King planted the capsule during the search and that appellant had no knowledge of its existence. Counsel methodically walked King through the body-worn camera footage, emphasizing that the capsule was discovered off camera despite King's ability to document the discovery on video. Counsel questioned King about whether someone else could have placed the capsule in the envelope and focused on King's hand movements, expressly asking whether he could have been “sweeping” the capsule into the envelope. Counsel also inquired about the type of drug King believed was inside the capsule—questions aimed at undermining the integrity of the search and reinforcing the theory that the evidence had been fabricated.

By advancing a defensive theory that the capsule was planted and that appellant lacked any knowledge of it, defense counsel created a false impression that someone other than appellant was responsible for the presence of the contraband. See Hayden, 296 S.W.3d at 554; Sandoval, 2006 WL 3433805, at *2. In doing so, he invoked the exclusionary rule as both a shield and a sword and opened the door to rebuttal evidence. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (citing Hayden, 296 S.W.3d at 554). The suppressed statements—specifically, appellant's admission that the pill was fentanyl and that he had purchased it—were necessary to correct the false impression that the pill had been planted by King and that appellant lacked any knowledge of it. See Harris v. State, No. 03-16-00330-CR, 2017 WL 6273221, at *9–10 (Tex. App.—Austin Dec. 7, 2017, pet. ref'd) (mem. op., not designated for publication).

When a defendant injects an issue into the case and leaves the jury with a false impression, the State may introduce otherwise inadmissible evidence to correct that false impression. See Williams, 301 S.W.3d at 687; Hayden, 296 S.W.3d at 554. Because appellant advanced a defensive theory rooted in lack of knowledge and planted evidence, the trial court did not err in admitting the two suppressed statements for the limited purpose of rebuttal. See Schultz, 957 S.W.2d at 71 (providing that the inadmissible evidence may not stray beyond the scope of the invitation). Under these circumstances, the trial court's admission of the suppressed statements did not violate article 38.23, as appellant himself opened the door to their admission.

We overrule appellant's second issue.⁶

Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   To avoid confusion between appellant and his brother, who share the same surname, we refer to appellant's brother by his first name throughout this opinion.

2.   In Hudson v. Palmer, the court held that “prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches do not apply in prison cells.” 468 U.S. 517, 530 (1984). In Block, the court held that “the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.” 468 U.S. at 589.

3.   We recognize that the Court of Criminal Appeals and the Dallas Court of Appeals have applied the framework articulated in Wolfish to assess the reasonableness of visual body-cavity searches under circumstances different from those presented here. See McGee, 105 S.W.3d at 616–618; Bell v. State, 392 S.W.3d 680, 682 (Tex. App.—Dallas 2003, pet. ref'd). Although those cases do not address the search at issue, we consider the Wolfish framework in assessing its reasonableness.

4.   At least two sister states have concluded that a strip search of a visitor in a correctional facility must be supported by individualized reasonable suspicion directed at the particular person to be searched. See, e.g., State v. Williams, 255 P.3d 307, 312 (N. M. 2011) (“[W]e conclude that reasonable suspicion is the proper standard to justify an under-clothing search.”); Deserly v. Dep't of Corr., 995 P.2d 972, 978 (Mont. 2000) (“While prison visitors can be subjected to some searches, such as pat-downs or metal detector sweeps, merely as a condition of visitation, absent any suspicion, more intrusive searches, such as strip searches, require more.”).

5.   Although arising in the airport-security context, the Ninth Circuit's decision in United States v. Aukai, 497 F.3d 955 (9th Cir. 2007), is instructive because it reflects the same principle. When an airport screening search is reasonable, “all that is required is the passenger's election to attempt entry into the secure area of an airport”; he cannot avoid that process by deciding to leave after screening has begun. See id. at 961. The same principle applies here. Once officers lawfully initiated an investigative detention based on individualized reasonable suspicion that appellant had previously introduced contraband into the correctional facility, appellant could not unilaterally terminate the detention by requesting permission to leave the facility. As in Aukai, appellant's decision to leave after officers' suspicions arose did not negate the officers' authority to continue a lawfully initiated security procedure.

6.   To the extent that appellant argues that no authority permits the admission of suppressed statements under Texas Rule of Evidence 107, the premise of that argument is flawed. The doctrine of optional completeness—and, more broadly, the rule that a party may open the door to otherwise inadmissible evidence—does not turn on the basis for exclusion. See Tex. R. Evid. 107; Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim. App. 1999) (“Rule of Criminal Evidence 107, the ‘Rule of Optional Completeness,’ has been recognized as addressing or at least encompassing the ‘opening the door’ situation[.]”). When a defendant creates a false or misleading impression before the jury, the opposing party may introduce otherwise inadmissible evidence to correct that impression. See Tex. R. Evid. 107; Hayden, 296 S.W.3d at 554. The critical inquiry is not why the evidence was initially excluded, but whether its admission is necessary to dispel a false impression created by the opposing party. Thus, that the statements were previously suppressed does not categorically bar their limited use in rebuttal once appellant opened the door.

Maritza Antú, Justice