Summary
This document is the State of Texas’s First Amended Petition for Discretionary Review in State v. Pena, seeking review by the Texas Court of Criminal Appeals of a Thirteenth Court of Appeals decision affirming suppression of evidence. The petition challenges the Court of Appeals’ conclusions regarding police misconduct, the voluntariness of consent to search, and application of the Brick factors under the Fourth Amendment.
Topics
Practice areas
Questions Presented
- Whether the canine sniff of the home's front porch constituted an unlawful Fourth Amendment search.
- Whether Pena's consent was voluntary despite the prior unlawful search and police conduct.
- Whether the taint of the unlawful search had dissipated under the six Brick factors.
- What standard of review applies to the trial court's voluntariness and suppression determinations.
Holdings
- A drug-sniffing dog used on the front porch of Pena's residence conducted a search under the Fourth Amendment, and the search was unlawful because police lacked probable cause or other lawful authority.
- Pena's consent was not voluntary because the State failed to show by clear and convincing evidence that the taint from the unlawful search had dissipated before consent was given.
- A defendant's knowledge of the right to refuse consent is one factor favoring voluntariness, but it is not entitled to greater weight than the other Brick factors and does not by itself establish voluntary consent.
- The appellate court must defer to the trial court's historical findings and credibility-based determinations, while reviewing the application of law to facts for abuse of discretion and reviewing pure legal questions de novo.
Key quotations
“The entire point of Brick and its progeny is that fully informed consent may nevertheless be considered involuntary because of prior improper police conduct.” (at 21)
“In light of all the Brick factors, deferring to the trial court’s fact findings but reviewing its legal conclusions de novo, see Martinez, 348 S.W.3d at 923, we conclude that the trial court did not err in determining that Pena’s consent was given involuntarily.” (at 22)
Factual background
Police went to Pena's residence based on an anonymous Crime Stoppers tip concerning possible narcotics activity. Before knocking, officers positioned themselves around the property and used a drug-sniffing dog on the front porch; the dog alerted, and the officers told Pena about the alert. Pena initially refused consent, but officers continued questioning him, discussed the consequences of contraband being found, and eventually obtained written consent less than an hour after the canine sniff. The search uncovered a rifle and approximately 0.34 grams of cocaine.
Procedural history
Pena was indicted for unlawful possession of a firearm by a felon and possession of less than one gram of cocaine. The trial court granted his motion to suppress after finding that police conducted an illegal canine sniff and entry into the home's curtilage and that Pena's subsequent consent was involuntary. The State appealed, and the Thirteenth Court of Appeals affirmed.