
    Barbara STONE, Appellant, v. The STATE of Texas, Appellee.
    No. 07-05-0393-CR.
    Court of Appeals of Texas, Amarillo.
    Dec. 21, 2006.
    Opinion Denying Rehearing Feb. 28, 2007.
    Discretionary Review Refused Aug. 22, 2007.
    
      Frederick M. Stangl, Chappell & Lane-hart, P.C., Lubbock, for appellant.
    Kollin Shadle, Assistant Criminal District Attorney, Lubbock, for appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellant Barbara Stone appeals her conviction for possession with intent to deliver a controlled substance (cocaine) in an amount- of less than 200 grams but more thamfour grams and her sentence of 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Background

Lubbock police officers were involved in a drug investigation focused on Kevin Kennedy. During the investigation, the officers learned that appellant was Kennedy’s drug source and decided to place appellant’s apartment under surveillance. On September 7, 2004, an undercover officer arranged, through a confidential informant, to purchase drugs from Kennedy. After meeting with the undercover officer, Kennedy went to appellant’s apartment and returned to complete the drug transaction. On September 9, the undercover officer again set up a drug buy with Kennedy who went to appellant’s home before completing the second transaction. Kennedy was arrested after the second transaction.

As the police continued their surveillance of appellant’s apartment, the officers observed a female matching appellant’s description leave the residence. Believing that appellant could be leaving with evidence, i.e., drugs or currency marked by law enforcement, officers detained the female and questioned her. The officers learned that the female was not appellant. Neither could they confirm any connection between the female and the apparent drug transactions. At that time, the police officers who were wearing clothes identifying them as law enforcement believed that they had exposed their presence and had possibly endangered their investigation. Concerned that the officers’ exposure had placed them in danger and that the occupants of appellant’s apartment could destroy evidence, the lead officer made the decision to enter the apartment. The police forcibly entered the apartment and secured the occupants of appellant’s home before requesting consent from appellant. Appellant consented to the search and directed the police to the location of the drugs. The police found cocaine, prescription pills, and methamphetamine. Appellant was then arrested for possession of a controlled substance with intent to deliver cocaine.

Appellant filed a motion to suppress the evidence gathered during the search contending the officers lacked probable cause or exigent circumstances to enter appellant’s residence, and that any consent given afterwards was not voluntarily given. The trial court denied appellant’s motion to suppress. Appellant then pled guilty and the trial court, upon finding her guilty, sentenced her to 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant contends that the trial court erred in overruling her motion to suppress. Specifically, appellant contends that the police did not have probable cause nor exigent circumstances to justify the war-rantless entry into her apartment by force. Further, while appellant concedes that she consented to the search, she contends that the consent was rendered involuntary by the circumstances at the time consent was given.

Motion to Suppress Evidence Gained By Warrantless Entry

For search and seizure issues, we engage in a mixed review. Johnson v. State, 68 S.W.3d 644, 652 (Tex.Crim.App.2002). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, while we review de novo any application-of-law-to-fact questions that do not turn upon credibility and demeanor. Id. at 652-53.

Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. See Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App.2005). If probable cause is present, the inquiry becomes whether exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry. McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991). Exigent circumstances include (1) rendering aid or assistance to persons whom officers reasonably believe are in need of assistance; (2) preventing the destruction of evidence or contraband; and (3) protecting officers from persons whom they reasonably believe to be present, armed and dangerous. See Parker v. State, 206 S.W.3d 593, 597 n. 16 (Tex.Crim.App.2006) (citing McNairy 835 S.W.2d at 107). If either probable cause or exigent circumstances are not established, a warrantless entry will not past muster. See id. at 597.

Neither party disputes that entry was made without a warrant. Therefore, the burden is upon the State to prove the legality of the warrantless search. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). Thus, the State had the burden to prove that probable cause plus exigent circumstances existed that rendered the procurement of a search warrant impractical. See Estrada, 154 S.W.3d at 608.

As to probable cause, the State points to testimony that Kennedy sold illicit drugs on two occasions by visiting appellant’s home prior to each sale, with the second transaction occurring just minutes prior to the officers entering the home. Giving almost total deference to the trial court’s evaluation of the police officers’ testimony, we conclude that a person of reasonable prudence in possession of the knowledge held by the officer would be led to believe that evidence of a crime would be found in the apartment. Therefore, we conclude that the trial court did not err in conelud-ing that probable cause was present to allow a police officer to believe that evidence of a crime was present within the apartment.

However, even with probable cause present, the State must also show that exigent circumstances existed such that the procurement of a search warrant was impractical. The State contends that the exigent circumstances arose when officers confronted the white female outside of the apartment. According to officer testimony, the encounter was within view of the apartment and, if seen, could have led to the destruction of evidence and possible violence and armed resistance from the occupants. However, the apartment occupants must have been aware of the officers’ presence before it can be said that knowledge of the officers’ presence somehow influenced the occupants’ actions. See Grimaldo v. State, 223 S.W.3d 429, 434 (Tex.App.-Amarillo 2006, no pet. h.). Inferences, opinions, and conclusions stimulating police action must be reasonably objective and supported by fact as opposed to speculation and surmise. Id. Although the lead officer believed that evidence could be destroyed, and that officers were potentially in danger, the record does not contain facts rendering the lead officer’s beliefs objectively reasonable. See id. Thus, we conclude the State did not establish the existence of exigent circumstances necessary for a warrantless search. Therefore, we conclude that, although probable cause existed, the absence of exigent circumstances make the warrantless entry into appellant’s home unlawful.

Having concluded that the State did not establish exigent circumstances sufficient for a warrantless entry, we must determine whether appellant’s consent is sufficiently attenuated from the unlawful entry to be considered voluntary.

Voluntariness of confession and admissibility of evidence tainted by unlawful entry

In determining whether the trial court erred in denying appellant’s motion to suppress, the issue is whether, after affording almost total deference to the trial court’s determination of the historical facts that are supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing evidence that the consent was voluntary. See Montanez v. State, 195 S.W.3d 101, 108 (Tex.Crim.App.2006). Under an abuse of discretion, a reviewing court should not reverse the trial judge’s decision whose ruling was within the zone of reasonable disagreement. See Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App.1996). To establish the validity of consent after an illegal search or seizure, the State must prove by clear and convincing evidence that the taint inherent in the illegality had dissipated by the time consent is given. See Brick, 738 S.W.2d at 678. In that respect, we consider (1) the temporal proximity between the unlawful entry and the given consent; (2) whether the war-rantless entry brought about police observation of the particular object for which consent was sought; (3) whether the entry resulted from flagrant police misconduct; (4) whether the consent was volunteered or requested; (5) whether appellant was made fully aware of the right to refuse consent, and (6) whether the police purpose underlying the illegality was to obtain the consent. See id. at 680-81.

In this matter, a police officer testified that consent was given after officers secured the apartment and its occupants. Although a specific time period is not mentioned, we infer from the officer’s testimony that a short time period of minutes elapsed between the time of entry until consent was given. Therefore, the first factor weighs against the dissipation of the taint of illegality. Next, the officers secured the location and performed a protective sweep, but did not encounter or observe any particular object for which consent was sought. Only after consent was given did the officers locate illegal drugs. In addition to the requested consent, appellant, on her own volition, led the police to the location of the drugs. Therefore, this factor weighs in favor of admissibility since the illegal drugs were not obtained by the unlawful entry but by appellant’s consent as well as appellant’s additional cooperation. Next, appellant contends that the police’s misconduct was flagrant because they had no intention of ever gaining a search warrant; however, testimony was presented to the contrary. Further, we previously concluded that the officers did have probable cause to suspect that drugs and marked, identifiable currency used in the transaction would be found within the apartment. In giving almost total deference to a trial court’s evaluation of credibility and demeanor, see Johnson, 68 S.W.3d at 652-53, we recall that the lead officer’s stated rationale for entering the residence was the lead officer’s belief that the investigation had been exposed and that the destruction or removal of evidence was a strong possibility. While we previously concluded that this belief was not proven to be objectively reasonable, it indicates that the lead officer believed, albeit mistakenly, that the officers were justified in entering the residence. See Self v. State, 709 S.W.2d 662, 667-68 (Tex.Crim.App.1986) (conduct not in accordance with state law does not necessarily rise to the level of flagrant conduct); Renfro v. State, 958 S.W.2d 880, 887 (Tex.App.-Texarkana 1997, pet. ref'd) (when probable cause is present, police conduct though illegal, doesn’t necessarily rise to level requiring censure). Further, the illegal entry in the present case was not shown to have been calculated to cause fear, surprise, or confusion, or to have been undertaken for the purpose of “turning something up.” Brown v. Illinois, 422 U.S. 590, 605, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Therefore, the third factor weighs in favor of admission. The fourth factor favors suppression of the evidence since appellant did not volunteer consent but gave consent only after the police requested consent. The fifth factor weighs in favor of admission because appellant was informed of her right to refuse consent. Appellant contends the notice of her right to refuse consent was tainted by the proximity of the forcible entry as well as her being handcuffed. However, an officer testified that appellant was informed of her rights without threat or coercion and in a normal tone of voice. Once again, we give almost total deference to the trial court’s evaluation of credibility and demeanor, and without direct evidence that the right to refuse consent was nullified by the circumstances, we conclude that the State informed appellant of her right to refuse consent. Finally, the sixth factor considers the rationale or purpose of the police in performing the warrantless entry. The lead officer testified that his intention for ordering the breach of the apartment was to secure the residence while they obtained either consent or a search warrant. Deferring to the trial court’s evaluation of credibility and demeanor, see Johnson, 68 S.W.3d at 652-53, we conclude that this final factor weighs in favor of admissibility since the officer’s stated purpose was not simply to obtain consent, but was also to protect the officers and evidence of the investigation. But see Grimaldo, 223 S.W.3d at 434 (court determined that officers had the intent to immediately enter home irrespective of their ability to obtain a warrant).

However, we have not reviewed the Brick factors for the purpose of re-weighing the evidence in order for this court to determine whether the State proved by clear and convincing evidence that the taint of the illegality has dissipated prior to the consent. Were we to make the determination that the State had failed to prove by a clear and convincing standard that the consent was tainted by the illegal entry, we would impermissibly eliminate the abuse of discretion standard of review afforded a trial court’s decision on issues of evidence admissibility. See Montanez, 195 S.W.3d at 108. Instead, we have reviewed the record to determine whether the trial court abused its discretion by finding that the State had proven by clear and convincing evidence that appellant had voluntarily given consent. Having conducted an analysis under the Brick factors, we cannot say that the trial court was outside the zone of reasonable disagreement in concluding that the State met its burden to prove by a clear and convincing standard that the taint from the illegal search had dissipated by the time consent was given. Therefore, the trial court did not abuse its discretion in overruling appellant’s motion to suppress the evidence found as a result of the unlawful entry into appellant’s apartment. We overrule appellant’s third issue.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

QUINN, C.J., dissenting.

CAMPBELL, J., concurring.

BRIAN QUINN, Chief Justice,

dissenting.

I respectfully dissent from the majority’s opinion to the extent it holds that appellant’s consent was voluntary and sufficiently attenuated from the illegal entry and detention. Simply put, there is no material distinction between the facts here and those in Grimaldo v. State, 223 S.W.3d 429 (Tex.App.-Amarillo 2006, no pet. h.); thus, the decision in Grimaldo controls the outcome at bar.

The decision to enter without a valid warrant was made once it was determined that the substance obtained from the house was contraband. That is, the officers “decided to go ahead and make entry into the apartment, secure the persons inside, either until [they] could obtain a search warrant or [they] could obtain consent to search from whoever was in charge of the residence.” So, the purpose of the officers was clear when they undertook to unlawfully enter the home with guns drawn. They were intent on conducting a search, one way or the other.

Additionally, it is difficult to deny that police observation of the contraband arose from the unlawful entry into and sweep of the location. Again, no warrant authorized the entry or a search, the contraband they sought was not within plain view, and mere minutes lapsed from the decision to undertake forced entry to the discovery of the cocaine.

Finally, while it may be that appellant was told of her right to refuse consent, one can only wonder if her response evinced a legitimate choice. By that time, the officers had already entered the home illegally with guns drawn, and seized all present without legal justification. Nothing of record suggests that the officers would have left the premises or momentarily released their detainees had consent been denied. The contrary would seem true given the general intent to search one way or another. Nor can I discount the undeniable affect on one’s ability to think clearly of the unlawful presence of armed police officers roaming throughout the home.

As previously stated, the circumstances here are materially indistinguishable from those in Grimaldo. So, I conclude that appellant’s motion to suppress should have been granted.

JAMES T. CAMPBELL, Justice,

concurring.

I concur that the Court’s opinion properly applies the Court of Criminal Appeals case law that binds us, and so join in the Court’s opinion, but I write to express my concern over the adequacy of the Brick factors in cases like this one. Brick involved a consensual search of a residence that followed an assertedly unlawful arrest made at another location. Brick v. State, 738 S.W.2d 676, 677 (Tex.Crim.App.1987). The attenuation issue in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), concerned an incriminating statement given at the police station after an unlawful arrest. Here, like in Grimaldo, the relationship between the evidence the State introduced at trial and the unlawful police conduct is much more direct. Here, police received consent to search the same apartment that, we have concluded, they had just forcibly and unlawfully entered. The physical evidence the police found is the same evidence whose destruction they said they sought to prevent by their sudden entry into the apartment. It seems to me that the Brick factors are inadequate to evaluate fully whether denying the State the use of the evidence obtained under such circumstances fits the purposes of the exclusionary rule. See, e.g., Brown, 422 U.S. at 609, 95 S.Ct. 2254 (Powell, J., concurring) (“The point at which the taint can be said to have dissipated should be related, in the absence of other controlling circumstances, to the nature of that taint.”).

ON MOTION FOR REHEARING

MACKEY K. HANCOCK, Justice.

By an opinion dated December 21, 2006, we affirmed the trial court’s decision on appellant’s motion to suppress evidence gathered following forced entry into appellant’s residence and appellant’s consent to search the residence. Appellant has filed this motion for rehearing contending that this court has failed to properly evaluate her case under a Brick analysis. See Brick v. State, 738 S.W.2d 676, 678 (Tex.Crim.App.1987). In that opinion, we reviewed the trial court’s decision denying appellant’s motion to suppress evidence by analyzing the legal issues of probable cause, exigent circumstances, and volun-tariness of consent. In its motion for rehearing, appellant only raises the issue of voluntary consent by contending error in our Brick analysis. Appellant’s motion for rehearing is denied.

In appellant’s motion for rehearing, appellant contends that this court improperly weighed the evidence under three of the six Brick factors. Specifically, appellant contends that we improperly concluded that (1) the warrantless entry did not produce the police’s observation of evidence within the home; (2) the entry was not the result of flagrant police misconduct; and (3) the police purpose underlying the war-rantless entry was not to obtain consent.

However, appellant misinterprets our opinion. In our original opinion, we clearly state that our purpose in reviewing the evidence was not to re-weigh the evidence under Brick to determine whether the evidence should have been suppressed. Upon appeal, our duty is to determine whether the trial court erred in denying appellant’s motion to suppress by abusing its discretion in finding that the State proved by clear and convincing evidence that the consent was voluntary after affording almost total deference to the trial court’s determination of the historical facts that are supported by the record. See Montanez v. State, 195 S.W.3d 101, 108 (Tex.Crim.App.2006) (emphasis added). In our review of the Brick factors, and specifically on two of the three factors to which appellant now complains, we give almost total deference, to the trial court’s ruling because its ruling was based on questions of historical fact and application-of-law-to-fact questions that turned upon its evaluation of the officer’s credibility and demeanor. See Johnson v. State, 68 S.W.3d 644, 652 (Tex.Crim.App.2002). Were we to make the determination that the State had failed to prove by a clear and convincing standard that the consent was tainted by the illegal entry, we would impermissibly eliminate the abuse of discretion standard of review afforded a trial court’s decision on issues of evidence admissibility. See Montanez, 195 S.W.3d at 108. Hence, our analysis of the trial court’s decision on the voluntariness of appellant’s consent was correct.

Appellant’s motion for rehearing is denied.

QUINN, C. J., would grant motion for rehearing. 
      
      . The State contends that appellant did not preserve the attenuation argument at trial because she only requested the trial court to find that her consent was not voluntary. However, careful review of appellant's trial brief (Defendant's Reply to State’s Response to Defendant’s Brief in Support of Defendant’s Motion to Suppress) demonstrates that appellant contended that "[t]he totality of these circumstances strongly suggests that [appellant]'s consent was obtained by exploitation of the illegal entry and sweep and, therefore, was not voluntary.” This language is similar to the language in Brick v. State, 738 S.W.2d 676, 678 (Tex.Crim.App.1987). Therefore, we conclude, as did the Court of Criminal Appeals in Brick, that appellant raised both issues of attenuation and volun-tariness at trial. Id. at 681. Therefore, appellant properly preserved both issues.
     
      
      . In Grimaldo, this court found evidence in five out of the six Brick factors favoring suppression of the evidence. Evidence included testimony that the officers in Grimaldo made the decision to enter the residence irrespective of whether they had the time or ability to obtain a warrant, and that the decision to enter was made prior to appellant's suspicious activity. See Grimaldo, 223 S.W.3d at 434. The present case is significantly different in that our analysis reveals only two of the six Brick factors favor suppression of the evidence.
     
      
      . Grimaldo v. State, No. 223 S.W.3d 429 (Tex. App.-Amarillo 2006, no pet.)
     
      
      . In its supplemental brief, the State argues Reasorv. State, 12 S.W.3d 813 (Tex.Crim.App. 2000), provides a standard for analysis of the attenuation issue, noting that it dealt with a consensual search following an unlawful protective sweep of the same premises. Despite its “taint” language, it is not clear that the opinion in Reasor was intended to address an attenuation issue, since it gives the issue the same "short shrift” the court criticized in Brick. See Reasor, 12 S.W.3d at 819 ("[a]ny taint from the illegal sweep was sufficiently attenuated when appellant voluntarily consented to the search of his residence”); Brick, 738 S.W.2d at 678 (quoting similar language from court of appeals opinion).
     