Carmouche v. State
2000 WL 60020, 10 S.W.3d 323, 2000 Tex. Crim. App. LEXIS 8 (2000)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Consent to search must be freely and voluntarily given, not merely acquiescence to a show of authority, and under the Texas Constitution, the State must prove voluntariness by clear and convincing evidence; contradictory objective evidence, such as a videotape, may negate a finding of voluntary consent.
Facts:
- On August 1, 1996, a police informant telephoned Sergeant Ricky Allen, a narcotics investigator, stating that she and Carmouche planned to drive from Houston to Nacogdoches that evening, and Carmouche would be carrying approximately ten ounces of cocaine.
- The informant, who had a history of providing accurate information, also advised Allen that Carmouche was renting the car and had refused to provide descriptive details, so Allen asked her to stop at a specific gas station in Corrigan, Texas, for officers to identify the vehicle.
- Sergeant Allen, Texas Ranger Dwayne Williams, and Lt. Allen Alexander set up surveillance at the gas station, and at approximately 8:25 p.m., the informant and Carmouche pulled in driving a green Toyota Camry.
- Officers followed the Camry, radioed a description to Trooper Kervin Largent, who then pulled the car over after observing a traffic violation (which Largent later admitted was a 'ruse' to protect the informant's identity).
- Largent separated Carmouche and the informant, obtained consent to search the Camry's interior, and after the informant told a DPS communications operator to search Carmouche's person, Largent conducted a pat-down of Carmouche, finding over $1,900 in his front pocket.
- While Largent searched the trunk, Ranger Williams arrived, and the informant told him Carmouche had placed cocaine in his pants.
- Williams, accompanied by three other officers, approached Carmouche and asked to search him again; according to Williams, Carmouche threw his hands up, said "All right," and turned around to place his hands on the car.
- Williams then reached for the crotch area of Carmouche's pants and recovered a package containing approximately 253 grams of powder cocaine, without ever obtaining a warrant to search Carmouche or the car.
Procedural Posture:
- Carmouche was convicted by a jury in a trial court for the offense of possession of a controlled substance.
- The trial court sentenced Carmouche to twenty years confinement and assessed a $10,000 fine.
- Carmouche appealed his conviction to the Ninth Court of Appeals, arguing the trial court erred in admitting evidence obtained in violation of the Fourth Amendment and Texas Constitution.
- The Ninth Court of Appeals affirmed Carmouche's conviction, finding the stop, initial pat-down, and subsequent search justified.
- Carmouche, as appellant, filed a pro se petition to the Texas Court of Criminal Appeals to review the appellate court's decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a defendant's action of throwing up his hands and saying "All right" while surrounded by multiple police officers, after already being searched and being ordered into a search position before being asked for consent, constitute voluntary consent for a second search under the Fourth Amendment and Article I, Section 9 of the Texas Constitution?
Opinions:
Majority - MEYERS, J.
No, Carmouche's actions did not constitute free and voluntary consent for the second search. The Court first affirmed the initial warrantless stop, finding it constitutionally justified based on the informant's reliable tip, her history of providing accurate information, and the corroborating events at the gas station, applying the "totality of the circumstances" test. The Court also found the initial pat-down search by Trooper Largent for weapons justified under Terry v. Ohio, reasoning that officers could reasonably believe a narcotics suspect might be armed and dangerous, and the subsequent seizure of money from Carmouche's pocket was permissible under the "plain feel" exception as Largent immediately recognized it as money. However, regarding the second search by Ranger Williams, the Court held that the record did not support the Court of Appeals' finding of clear and convincing evidence that Carmouche's consent, if given at all, was free and voluntary as required by the Texas Constitution. The Court declined to give "almost total deference" to the trial court's implicit factual findings on consent because a videotape of the stop directly contradicted essential portions of Ranger Williams' testimony. The videotape showed Carmouche closely surrounded by four officers, ordered to turn around and place his hands on the car before Williams asked, "Mind if I pat you down again?" and Williams began reaching for Carmouche's pants as he made the request, with no audible oral response from Carmouche. Given these circumstances, including Carmouche having already been searched once and not being informed of his right to refuse consent, a reasonable person would not have felt they had the choice to withhold consent, but rather that it was an acquiescence to an overwhelming display of police authority. Thus, the consent was not voluntary, and the search could not be justified on that basis. The case was remanded for the Court of Appeals to consider the State's alternative argument of probable cause for the search.
Analysis:
This case is significant for its application of the voluntariness standard for consent searches, particularly under the Texas Constitution's clear and convincing evidence requirement. It establishes that appellate courts will not defer to trial court factual findings when objective evidence, such as a videotape, fundamentally contradicts officer testimony regarding the circumstances of alleged consent. The ruling reinforces that consent must be truly free and uncoerced, distinguishing it from mere submission to authority, and provides important guidance for law enforcement on obtaining valid consent, especially in multi-officer and high-pressure situations. This precedent is crucial for protecting individual Fourth Amendment rights and emphasizes the evidentiary weight of video recordings in suppression hearings.
