author: JOHN S. ANDERSON, Justice.

text:
    Douglas Huff FLORES, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-01379-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 23, 2005.

      Clay S. Conrad, Houston, for appellant.
    Lori DeAngelo Fix, Houston, for appel-lee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

JOHN S. ANDERSON, Justice.

Following the denial of his motion to suppress, appellant pled guilty to the offense of possession of marihuana weighing more than fifty pounds and less than two thousand pounds. In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant to confinement for nine years in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant argues the trial court abused its discretion in denying his motion to suppress. We conclude the trial court should have suppressed the marihuana discovered during the warrantless search of appellant’s home. Accordingly, we reverse and remand.

Motion To Suppress

Prior to entering a guilty plea, appellant filed a motion to suppress seeking to have all evidence discovered as a fruit of the warrantless search of his home suppressed pursuant to the Fourth Amendment of the United States Constitution, Article I, Section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. See U.S. Const, amend. IV; Tex. Const, art. I, § 9; Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). After an oral hearing, the trial court denied appellant’s motion. Appellant subsequently entered a guilty plea and filed a notice of appeal. We review whether the trial court abused its discretion in denying appellant’s motion to suppress.

A. The Hearing

At the motion-to-suppress hearing, the parties stipulated the search was made without a warrant. The relevant facts from the motion-to-suppress hearing are as follows:

On January 21, 2002, Deputy James A. Saveli of the narcotics task force team of the Harris County Sheriffs Department received a “narcotics tip or clue call, [from an] anonymous person [who] called into [the] office, indicating that there was a person at [the address of] 812 English, who was involved in the sale of narcotics, specifically, large amounts of marijuana.”

On January 22, 2002, Saveli contacted Sergeants Donald Pierce and Robert Barber, both members of the narcotics enforcement team of the Harris County Sheriff’s Department, and informed them of the tip. The three officers met and proceeded to 812 English in three separate marked patrol cars; all three officers were in uniform. Around 4:00 p.m. or 5:00 p.m., the officers arrived at 812 English, a single story residence in a middle class neighborhood. Saveli went to the front door and knocked, and a woman answered the door. Saveli asked the woman who was in the residence at the time, and she stated her son and grandson were home. She told Saveli her son’s name was Douglas Flores, appellant. Saveli asked to speak to him. She told him appellant was in the garage and went back inside the house to get appellant.

Saveli did not wait at the front door for appellant’s mother to return and instead walked with Sergeant Pierce around the corner of the house, back towards the garage. Sergeant Barber already had positioned himself where he could see the back of the house. All three officers proceeded toward the back of the house where appellant’s mother had indicated appellant was located. They walked down the driveway toward the garage. Saveli did not go through any fencing to get to the back area of the house. The officers then saw appellant exit the rear of the residence, and Saveli asked appellant his name. Appellant was cooperative and identified himself. Saveli described appellant as appearing apprehensive.

Saveli told appellant he needed to talk about a narcotics investigation and asked him if he would come to the front yard with the officers. Appellant accompanied the officers to the front of the house. At the front of the house, Saveli told appellant he had gotten information appellant was selling large quantities of marihuana from his residence. Appellant denied it. Pierce asked appellant for consent to search his residence. Appellant did not consent.

Pierce then indicated to Saveli they needed to secure appellant, “for his safety, as well as ours, and [they] were going to weigh out some options as far as continuing the investigation.” According to Sa-veli, appellant was detained to maintain the status quo. It was Saveli’s experience that people who are suspected of dealing large amounts of narcotics often carry weapons. Consequently, for officer safety, appellant was patted down prior to being placed in the back of the patrol car. As Saveli patted appellant down, he “immediately recognized an item similar to being a bag containing a course [sic] leafy substance in [appellant’s] front right pants pocket.” Saveli’s experience led him to recognize the item as being consistent with a bag of marihuana. Saveli removed the item from appellant’s pocket and discovered it was a bag of marihuana.

Appellant was handcuffed and seated in the rear of a patrol car. Saveli told appellant he was not under arrest, they were conducting an investigation, and someone would return to talk to him in a minute. Appellant was not given Miranda warnings. According to Saveli, appellant was handcuffed and placed in the back of the patrol car “[s]o [appellant] could be in a secure place ... not roaming around the scene or trying to make contact or trying to regain entry into the house, keep him from contaminating the investigation, basically.”

Appellant’s mother came out of the house and asked to talk to one of the officers. Pierce spoke to her briefly. Sa-veli then went back to the patrol car and opened the door where appellant was seated. Appellant asked to speak to his mother; Pierce brought her over to the car. Appellant spoke with his mother. Saveli was not privy to the substance of their conversation.

Pierce spoke to appellant about his options. Appellant then signed a written consent for search of his property. Saveli witnessed appellant reading and signing the consent form. When questioned about appellant’s consent to the search, Saveli replied:

Yes.... It was our — my opinion, at that point, when we were talking to him in the vehicle, that we would have enough evidence, provided we could get a canine unit to come out and assist, that we had enough evidence for a search warrant. So, there was no need to try to coerce him or threaten him into signing this consent. The only thing that the consent did for us was eliminate a couple of hours of our time.

Saveli had spent about ten to fifteen minutes with appellant before he signed the consent form.

After signing the consent form, appellant told Saveli he had marihuana in his garage. Appellant asked to be present during the search; handcuffed, appellant accompanied the officers in their search. Appellant told the officers how to open the garage door. Saveli smelled a strong odor of marihuana within a few feet of the garage door, and when the door was opened, he saw some blankets covering some objects in the back of the garage. The objects were sixty-five bundles of marihuana, weight scales, cellophane wrapping paper, duck tape, axle grease, saws, and cutting saws, items used for packaging and repackaging bundles of marihuana. During the search, appellant sat in the front of the garage and watched. Marihuana also was found inside the house.

Sergeant Pierce next testified at the motion-to-suppress hearing as to his recollection of the events of January 22, 2002. Pierce accompanied Saveli and Barber to appellant’s residence at 812 English, and he went to the front door with Saveli. Appellant’s mother opened the door and in response to questioning told them appellant and her grandson lived there. After she said appellant was in the garage, Pierce walked down the side of the house and saw appellant emerging from the back door. The officers and appellant then walked to the front of the residence. Sa-veli informed appellant that officers had received information about narcotic traffic at his residence. At this point, appellant did not consent to a search.

Pierce told Saveli to secure appellant in the back of the patrol car for officer safety “[bjecause weapons and narcotics go hand in hand.” Saveli patted appellant down for weapons, and, during the pat-down, Saveli found a bag of marihuana. Appellant was handcuffed and placed in the back of a patrol car.

Pierce went to speak with appellant’s mother and asked her who had care, custody, and control of the residence. She told him that she lived in the residence with appellant and her grandson. She also stated appellant paid the rent. Pierce then approached appellant and asked him if he was sure that he did not want to give consent. Pierce also told appellant that it would be necessary to secure the residence if appellant did not consent to a search. Pierce explained securing the residence meant appellant’s mother and son would have to exit the house. Pierce had to make sure no one else was in the house. Appellant told Pierce he would sign the consent form, but first, he wanted to speak to his mother. Pierce brought appellant’s mother over to speak to him, but Pierce did not know what they said. Subsequently, appellant signed a written consent to search.

Appellant accompanied the officers when they searched the garage. Appellant told Pierce the marihuana was in the back of the garage. Some marihuana also was found in a bedroom, and a small amount of cocaine was recovered.

Sergeant Barber also testified at the motion-to-suppress hearing. Barber testified that when he, Pierce, and Saveli arrived at appellant’s residence, he walked around to the side of the house to make sure it was safe in the back and to prevent anyone from escaping through the back door. Pierce and Saveli knocked on the front door. Barber testified he did not go through the backyard fence. He saw appellant exit the back of the residence, and, when appellant was asked by the officers to come over and talk, he was cooperative. Pierce and Saveli spoke with appellant while Barber maintained security around the residence. Barber was present when appellant signed the consent to search.

Appellant was the last witness to testify regarding what transpired on January 22, 2002. Appellant was watching television when his mother answered a knock at the door. His mother told him an officer wanted to talk to him and that they were going to the back, so appellant intended to meet them in the back by going out the back door. When he went outside, two officers were in his back yard. To get to his back yard, the officers had to go through the driveway and open the gate to his back yard. One officer was looking in the wash room, and appellant asked if he could help him. The officer asked if he was Douglas Flores, and appellant replied affirmatively. The officer told appellant they needed to talk and asked him to accompany them to the front of the residence. Appellant complied; appellant did not feel he had a choice.

After returning to the front of the residence, appellant was asked whether he had marihuana in his garage, and appellant said he did not. The officer asked appellant if officers could search the garage. Appellant replied “no” and asked the officers if they had a warrant. One officer said he did not have a warrant, but he would get one.

Appellant was searched and placed in the back of a patrol car. Appellant described the search of his person. When the officer approached, appellant told him that he had a small pocket knife. The officer took the pocket knife out of appellant’s pocket. The officer placed his fingers in appellant’s pockets during the search and pulled a small bag of marihuana from a small front pocket of his pants. One of the officers informed appellant that he would be placed in the back of the patrol car until a warrant was issued. Appellant was handcuffed and placed in the back of the patrol car.

While in the back of the patrol car, an officer asked appellant to sign a written consent; appellant replied that “[he’d] rather see the warrant.” The officer directed another officer to bring appellant’s mother out of the house. Appellant thought the officer was going “to take” his mother. Consequently, appellant told the officer that he would sign the consent form if the officers allowed his mother to go back inside the house. Appellant signed the consent form and told the officers that there was marihuana in the garage. Appellant admitted that the officers never had their guns out or threatened or raised a hand to appellant or his mother.

After considering the arguments of counsel and the evidence, the trial court denied appellant’s motion to suppress.

B. Standard of Review

We review the trial court’s ruling on a motion to suppress evidence under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). If supported by the record, a trial court’s ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex.App.-Houston [1st Dist.] 1995, pet. refd). At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex.Crim.App.1993); Hill, 902 S.W.2d at 59. We give almost total deference to the trial court’s determination of historical facts that the record supports, especially when the trial court’s findings turn on evaluating a witness’ credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give the same amount of deference to the trial court’s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Ross, 32 S.W.3d at 856. We consider de novo issues that are purely questions of law. Id. If the trial court’s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal, 935 S.W.2d at 138.

In the case at bar, the trial court did not make explicit findings of historical facts. We therefore review the evidence in a light most favorable to the trial court’s ruling. See Carmouche, 10 S.W.3d at 327-28. We assume the trial court made implicit findings of fact supported in the record that buttress its conclusion. See id. at 328. We review de novo the lower court’s application of the relevant Fourth Amendment standards. See id.

C. The Voluntariness of Appellant’s Consent

Appellant argues the trial court abused its discretion in overruling his motion to suppress because his written consent to search was (1) the fruit of unattenuated illegal police activities; and (2) involuntary because it was the product of duress and coercion.

We first address appellant’s contention that his consent was the product of duress and coercion. Appellant argues the totality of the circumstances show he did not give consent voluntarily because he did not consent until after (1) being handcuffed and locked in a police car; (2) being subjected to coercive police procedures; (3) twice declining the officers’ request for consent to search; (4) acquiescing to a search after being told his mother and son would be detained outdoors in January if he failed to do so; (5) being aware that incriminating evidence would be found; (6) being surrounded by at least three armed police officers; (7) being placed in a police car; (8) the officers telling appellant they believed he possessed a large quantity of marihuana; (9) the officers having previously been denied consent by appellant twice; and (10) the officers’ failing to inform appellant of his right to refuse consent.

“At the core of the Fourth Amendment ... is the fundamental concept that any governmental intrusion into an individual’s residence or expectation of privacy must be strictly circumscribed.” Payton v. New York, 445 U.S. 573, 582 n. 17, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is “ ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One of the specifi cally established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent, so long as the consent is voluntary. Schneckloth, 412 U.S. at 219-23, 93 S.Ct. 2041. The validity of a consent to search is a question of fact to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). The consent must “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991) (“The consent must be shown to be positive and unequivocal, and there must not be any duress or coercion.”). By the same token, consent is not established by “showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (holding where officer falsely represented he had a valid search warrant, consent not voluntary). In determining the meaning of a voluntary consent, two competing concerns must be accommodated— the legitimate need for such searches and the equally important requirement of assuring the absence of coercion. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. In Texas, the State is required to prove the voluntariness of consent by clear and convincing evidence based on the totality of the circumstances. See Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App.2000). In this case, the issue of consent does not turn upon an evaluation of credibility and demeanor, so it is subject to de novo review. See Reyes-Perez v. State, 45 S.W.3d 312, 316 (Tex.App.-Corpus Christi 2001, pet. ref d).

In making a determination of voluntariness, courts consider various factors, including the following: whether the consenting person was in custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing consent, the constitutional advice given to the accused, the length of detention, the repetitiveness of the questioning, and the use of physical punishment. See Laney v. State, 76 S.W.3d 524, 532 (Tex.App.-Houston [14th Dist] 2002), aff'd, 117 S.W.3d 854 (Tex.Crim.App.2003). Courts also consider the characteristics of the consenting person, including the person’s youth, education, and intelligence. Id.; see Reasor, 12 S.W.3d at 818. Additionally, “[wjhile a warning that an individual does not have to consent to a search and has the right to refuse is not required nor essential, the showing of a warning is of evidentiary value in determining whether a valid consent was given.” See Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App.1985).

In this case, the trial court heard testimony from four witnesses at the hearing on the motion to suppress, three officers and appellant. Giving proper deference to the trial court’s ruling, the circumstances surrounding appellant’s consent to search may be summarized as follows:

• Saveli received an uncorroborated anonymous tip, that a person at 812 English was involved in the sale of large amounts of marihuana.

• Three officers went to the above address to conduct a “knock and talk.”

• Two officers knocked on the front door of 812 English, and appellant’s mother answered. A third officer kept an eye on the back portion of the house.

• When appellant’s mother went inside the house to get appellant, the officers did not wait for her to return but went around the side of the house to the backyard.

• When the officers approached the backyard, they saw appellant going out the back of the house; appellant identified himself and agreed to accompany the officers to the front of his house.

• Once at the front of the house and after being told by the officers that they received information he was selling large quantities of marihuana from his residence, appellant refused consent to a search of his residence.

• After appellant refused consent, to maintain the “status quo,” the officers decided to detain him. Appellant was patted down for officer safety.

• During the pat-down, a small bag of marihuana was discovered in appellant’s pocket.

• Appellant was handcuffed and seated in the back of a patrol car. Appellant was told he was not under arrest.

• Appellant was not given Miranda warnings.

• After appellant was handcuffed and sitting in the patrol car, one of the officers told him that his residence would be secured if he did not give consent to a search. Appellant was further informed that his mother and young child would be required to stay out of the house for security purposes.

• After appellant spoke to his mother, he signed a written consent to search.

• The officers did not physically threaten appellant.

• The consent form informed appellant that he had the “right not to have a search made of [his residence] without a search warrant” and a “right to voluntarily consent to such a search.”

• After signing the written consent form, appellant told the officers he had marihuana in his garage, and he accompanied the officers in their search of the garage, during which the officers discovered sixty-five bundles of marihuana.

• The time between the officers’ arrival at appellant’s residence and appellant’s written consent was about ten to fifteen minutes.

We conclude that the totality of the circumstances, as outlined above, show appellant’s consent was not freely and voluntarily given. Rather, appellant’s consent was the result of coercive police tactics aimed at forcing appellant to consent to a search of his residence.

First, the officers knew they could not obtain a warrant to search appellant’s residence solely based upon the anonymous tip because the tip, standing alone, did not establish probable cause. See State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002) (holding anonymous tip, that someone at the residence was dealing drugs, did not amount to anything; the tip was never substantiated, and none of the occupants were ever charged with drug dealing); see also Elardo v. State, 163 S.W.3d 760, 768 (Tex.App.-Texarkana 2005, pet. ref d) (“[A] mere anonymous tip, standing alone, will not establish probable cause. The police can provide other indi-cia of reliability by independent corroboration of the informant’s information. However, corroboration of only innocent details is usually insufficient.” (citation and footnotes omitted)); Parish v. State, 939 S.W.2d 201, 203 (Tex.App.-Austin 1997, no pet.) (“[A]nonymously provided information must contain some indicia of reliability or be ‘reasonably corroborated’ by police before it can be used to justify a search.”). Here, the officers never made any attempt to corroborate the information provided in the tip; the officers did not conduct surveillance of the address or otherwise substantiate the tip. We also note that the tipster alleged an individual at appellant’s home address was involved in the sale of large amounts of marihuana; appellant was not charged with selling drugs but with possession. Due to the inadequacy of the tip, the officers’ only lawful means of a warrantless search of appellant’s residence was by obtaining appellant’s consent, and it was apparent from the moment the officers arrived that this was their goal.

Additionally, the anonymous tip did not establish reasonable suspicion to justify the pat-down search of appellant. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (stating reasonable suspicion is dependent on both the content of the information possessed by police and its degree of reliability). “An anonymous telephone call may justify the initiation of an investigation, but ... alone, it will rarely establish the level of suspicion required to justify a detention.” Johnson v. State, 146 S.W.3d 719, 721 (Tex.App.-Texarkana 2004, no pet.) (“Reasonable suspicion requires [an anonymous tip] be rehable in its assertion of illegality, not just in its tendency to identify a determinate person. When more information is available, however, a police officer may reasonably conclude the tip is rehable, thus justifying an investigatory detention.” (citations omitted)). SaveU explained he patted appellant down for officer safety, based on his experience that people who are suspected of deahng large amounts of narcotics often carry weapons. However, there was no independent corroboration of the tip to substantiate the presence of narcotics at the residence nor any information indicating the tip had sufficient indicia of reliability. Consequently, the officer’s fear of weapons was unfounded, and, thus, the subsequent pat-down search of appellant’s person was unjustified. This coercive tactic is what led to the discovery of marihuana on appellant’s person, thereby providing the officers with the requisite probable cause they needed to arrest appellant.

The coercive nature of appellant’s consent is further evidenced by the officers’ failure to read appellant his Miranda rights upon his arrest. "Whether police give a defendant Miranda warnings is a factor relevant to consent. Gallups v. State, 104 S.W.3d 361, 366 (Tex.App.-Dallas 2003), aff'd, 151 S.W.3d 196 (Tex.Crim.App.2004). Appellant was under arrest when he was handcuffed and placed in the back of the patrol car subsequent to the officer’s discovery of a small bag of marihuana on his person during the unlawful pat-down search. See Tex.Code CRiM. PROG. Ann. art. 14.01(b) (Vernon 2005) (“A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”); Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (stating for Miranda rights to be necessary, a police interrogation must be custodial; the questions must be asked after the suspect has been taken into custody or otherwise deprived of freedom of action in a significant way). In their haste to obtain appellant’s consent to search his residence, the officers did not read appellant his Miranda rights when he was arrested or before he gave written consent to search. The officers’ failure to give appellant Miranda warnings is a factor indicating appellant’s consent was the product of duress and coercion.

Finally, in a last ditch effort to obtain consent to search the house, and, while appellant was handcuffed in the back of the patrol car, the officers told him that if he did not consent, his mother and young son would be required to vacate the house while the officers secured the residence, despite the officers having no basis for doing so. After this threat was made, appellant spoke to his mother; appellant then agreed to sign the written consent to search. The officers’ threats to remove appellant’s family from the residence are what lead appellant ultimately to consent to a search of his residence. Such antagonistic action by the police against a suspect’s family is a factor which significantly undermines the voluntariness of any subsequent consent given by the suspect. See United States v. Ivy, 165 F.3d 397, 403-04 (6th Cir.1998) (holding consent invalid where defendant threatened by officer that everyone in the house would go to jail if he did not sign consent form); United States v. Bolin, 514 F.2d 554, 560-61 (7th Cir.1975) (holding consent invalid where defendant signed consent form while undergoing custodial interrogation and only after he had been impliedly threatened that his girlfriend would be arrested if he did not sign).

Given the totality of the circumstances, the State did not meet its burden of proving by clear and convincing evidence that appellant’s consent was freely and voluntarily given. The coercive conduct surrounding appellant’s consent leads to only one conclusion, that appellant’s consent was involuntary and his will was overcome. Thus, appellant’s consent was invalid. Because the State has not argued that the search was supported by probable cause and a warrant or any other recognized exception to the warrant requirement, no other grounds to legitimize the search may be upheld.

We hold the trial court abused its discretion in denying appellant’s motion to suppress because appellant’s consent was involuntary and the product of duress and coercion. Thus, the search of appellant’s residence was unreasonable under the Fourth Amendment, rendering the seized contraband the inadmissible fruit of that unlawful activity.

Accordingly, we sustain this part of point one. We need not address appellant’s alternative argument that his consent was invalid because it was the product of unattenuated illegal official acts.

Conclusion

We reverse and remand for further proceedings consistent with this opinion.

      . At the time of his plea, appellant had signed a written waiver of his right to appeal, and this court initially dismissed his appeal. See Flores v. State, No. 14-02-00560-CR, 2002 WL 1899920 (Tex.App.-Houston [14th Dist.] Aug. 15, 2002, no pet.) (not designated for publication). Appellant then filed an application for writ of habeas corpus alleging his plea was involuntary because he had been told that he could appeal the denial of the motion to suppress and he would not have entered a guilty plea otherwise. The Texas Court of Criminal Appeals granted appellant’s request for habeas corpus relief. See Ex parte Flores, No. 74778, 2003 WL 22348943 (Tex.Crim.App. Oct. 15, 2003) (not designated for publication).

      . Upon being cross-examined about the anonymous tip, Saveli explained:
      "[H]e had one anonymous tip in regards to this residence the night prior to this incident. The same informant gave another tip which led to the arrest of a suspect in over 50 burglaries in another case. So, it's the same informant. So, this is an informant that I've used in the past and he’s been reliable.... Its anonymous for the purpose of this report. If you’ll read in my report, it says on here that the persons providing the information wish to remain anonymous, for reasons of personal safety."

      . See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Questions of voluntariness and attenuation of taint are closely related; however, an attenuation analysis is logically distinct from one involving only questions of voluntariness. Arcila v. State, 834 S.W.2d 357, 358-59 (Tex.Crim.App.1992), overruled, on other grounds, Guzman v. State, 955 S.W.2d 85, 88-90 (Tex.Crim.App.1997); Brick v. State, 738 S.W.2d 676, 680-81 (Tex.Crim.App.1987).

      . Appellant details the coercive police procedures as follows: the officers’ refusal to wait at the front door of appellant's residence for him and instead walking around to the back of the house; the officers’ detaining him in the backyard and requesting consent to search, which appellant denied; the officers’ search and arrest of appellant after he denied consent to search; and the officers' threats to appellant that if he did not consent to a search, his mother and young son would be detained and forced to wait outside while the police searched the house.

      . In contrast, the federal constitution requires consent to be proven by a preponderance of the evidence. See Maxwell, 73 S.W.3d at 281. Because appellant challenged the voluntariness of his consent under both the federal and Texas constitutions, the State was required to show by clear and convincing evidence that appellant’s consent was valid.

      . The Schneckloth Court developed the standard by which consent is tested for voluntariness. 412 U.S. at 226, 93 S.Ct. 2041. In determining whether a defendant’s will was overborne in a particular case, trial courts are to assess "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Id.


source: Caselaw Access Project

author: J. HARVEY HUDSON, Justice.

license: Public Domain

text:
    Lanny LOWN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00147-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 25, 2005.

      Jeffrey Karl Hale, Houston, for appellant.
    Markay Stroud, Houston, for appellee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

Appellant, Lanny Lown, was convicted by a jury of theft of property of the aggregate value of over $200,000. The trial court assessed punishment at incarceration for life in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. In his sole issue on appeal, appellant complains that the trial court erred in admitting into evidence computer data disks allegedly obtained in violation of the Fourth Amendment and in allowing testimony about the contents of the disks. We affirm.

From May 2001 through March 12, 2003, appellant engaged in a Ponzi scheme via an entity known as One West Financial Services that involved the alleged purchase of titanium and other metals through fictitious contracts with the United States government. Appellant lured potential investors into investing in his scheme by telling them that One West had long-term contracts with the U.S. government to purchase metals, including titanium, which were mined and forged in New Guinea for use in the production of U.S. Navy submarines. Claiming the information was secret, appellant would not reveal to investors the contracts with the government or the name of the forge in New Guinea. However, appellant did tell investors that his purported contact with the government was Admiral Steven Morgan. Appellant perpetuated this charade by claiming to receive calls from Admiral Morgan on his cell phone. Appellant would pretend to converse with Admiral Morgan in front of other people and then after hanging up, he would inform whoever was present that the person on the other end was Admiral Morgan.

The Pentagon has a website that provides biographies for all Navy flag officers. After appellant told Charles Harper, an investor in his scheme, that Admiral Morgan was his contact person with the government, Harper found his biography on the Internet. Harper testified that Admiral Morgan’s biography contained information about submarine and supply activities, which, to Harper, fit the investment perfectly and gave Harper confidence in the investment. After appellant was arrested, Harper spoke to Admiral Morgan and determined he had had no contact with appellant. Harper passed this information on to the Harris County District Attorney’s Office.

Admiral Morgan testified that he had never heard of appellant or One West until he was contacted by the Harris County District Attorney’s Office in 2003. He explained that titanium is not even used in the production of U.S. Navy submarines. Admiral Morgan’s command was responsible for purchasing spare parts, not commodities or raw materials for use in the manufacture of vessels. In fact, quantities of materials sufficient to build a vessel are acquired by the contractor that manufactures the vessel; therefore, any contracting for the acquisition of raw materials would be done by the contractor building the vessel.

From May 23, 2001, through March 12, 2003, appellant’s victims invested $14,987,000 in his fraudulent titanium venture using funds from various sources, including 401(k) retirement accounts, mortgages, and student loans. Of that $14,987,000, $4,616,564.71 was paid directly or indirectly back to investors, while $9,010,357.88 was spent on appellant, his family, and his friends, including $1,426,000 on cars, $1,118,000 on credit cards, $1,615,000 on jewelry, $773,000 on homes, $349,000 on artwork, $101,000 on pools, $358,000 on office and home furniture, $44,000 on travels, and $60,000 on charter jets. Appellant also withdrew $235,000 in cash.

Appellant was arrested on March 12, 2003, for the sale of unregistered securities, and a search warrant for appellant’s home and One West’s offices was executed on March 13 and 14, 2003. After the District Attorney’s office examined the documents seized pursuant to the search warrant, appellant was arrested a second time on March 26, 2003, for theft. Two additional search warrants were issued on April 4 and 7, 2003.

Expectation of PRIVACY

In his sole issue in this appeal, appellant claims the trial court erred in admitting into evidence computer data disks that were obtained by the Harris County District Attorney’s Office in violation of the Fourth Amendment and in allowing testimony about the contents of the disks. Allan Madar, a witness called by the State, testified that appellant’s assistant, Lori Franz, asked him to back up the data on One West’s computer system. When Ma-dar backed up the system, he made two sets of disks, keeping one set with the knowledge of Franz. The backup disks were not seized pursuant to any search warrant or subpoena. Instead, Madar turned the disks over to the District Attorney’s office when the prosecutor contacted him and requested the disks.

Before the State called Madar to testify, a discussion about the backup disks was held outside the presence of the jury. The prosecutor explained that the backup disks were not obtained as a result of any search of One West’s offices, but were made at appellant’s request. The prosecutor also stated that the District Attorney’s office did not subpoena the disks from Madar:

MR. BASS [Counsel for appellant]: Judge, before they’re brought in, this next witness, I believe, is going to testify about making backups of computers, I believe. If we could agree those computers were seized during the search of Mr. Lown’s office.
MS. STROUD [Prosecutor]: These backup disks have nothing to do with the search, however. They were done before the computers were ever seized.
MR. BASS: But they were done pursuant to the search warrant.
MS. STROUD: Not these, no. They were done pursuant to his request, your client’s.
MR. BASS: My client requested—
MS. STROUD: That work be done on his computers. They backed the computers up before they did the work, and these are—
THE COURT: He was having his computer serviced by a company and requested backups and the company kept the backups?
MS. STROUD: The company kept a second copy of the backups.
THE COURT: Okay.
MR. BASS: And y’all subpoenaed those?
MS. STROUD: No.

The trial court then allowed appellant’s counsel to voir dire Madar out of the presence of the jury. The voir dire examination essentially concerned whether anyone at One West had authorized Madar to make copies of the backup disks or to take a set of disks from One West’s office. Madar responded that Lori Franz, appellant’s assistant, had authorized him to make copies of the backup disks and to take the copies with him. Following the voir dire examination of Madar, appellant’s counsel lodged the following objection based on the backup disks being acquired without appellant’s consent:

My objection would be, Your Honor, that these copies were not acquired with the consent of Mr. Lown, the owner of the company, and that, therefore, that property was acquired without the effective consent of the owner in violation of Texas law and should be suppressed under Article 28.33 [sic] of the Code of Criminal Procedure.

The trial court overruled appellant’s objection. Madar then testified in the presence of the jury that Charles Harper, one of the investors in appellant’s titanium scheme, is his boss at Air Liquide America. Harper asked Madar to upgrade and maintain One West’s computer system. He initially looked at One West’s system on December 4, 2002, but did not perform the backup until March 14, 2003. Franz told Madar that appellant wanted to make sure all the servers were backed up. When he backs up a computer system, Madar puts all the data on a tape or DVD, so if something happens, he can go back to the DVD and restore the server to its prior state. In this case, Madar saved all the information stored on the server to DVDs so that it could be retrieved later if necessary. Madar made two sets of disks and told Franz that he was going to keep one set in case anything happened to the other set. Madar held the second set of disks for One West as One West’s property. He later turned the set of backup disks he was holding over to the District Attorney’s office, not pursuant to a warrant or subpoena, but at the request of the prosecutor.

During the State’s examination of Ma-dar, appellant’s counsel again questioned Madar on voir dire, eliciting testimony that Madar did not see appellant at One West’s offices on the day he backed up the system. Upon the conclusion of the voir dire examination, appellant’s counsel reiterated his previous objection to the backup disks:

I have the same objections I previously made, Your Honor, but no additional objections to State’s 84 through 89.

The trial court overruled appellant’s objection.

At the conclusion of Madar’s testimony, and after the trial court had excused the jury, appellant’s counsel objected again and moved to strike the exhibits for the first time based on a warrantless search:

Now comes the defendant, and we move the Court to strike from the record State’s Exhibits 84, 85, 86, 87, 88 and 89 on the grounds that said exhibits were acquired through an illegal search without a warrant. Mr. Madar testified that he was holding that property, obviously as an agent for One West Financial. It was their property. And he turned it over at the request of the District Attorney’s Office without a warrant, without a subpoena. And so we would ask that the Court strike those exhibits and exclude them from evidence in this case, the jury having not been privy to any of its content at this juncture.

The trial court deferred ruling on appellant’s objection. When court resumed, appellant’s counsel again objected on the basis of a warrantless search:

With reference to State’s Exhibits 84 through 89, we object on the grounds that they were acquired through an illegal search and seizure without a warrant without even a subpoena. They were turned over because of the District Attorney asking an agent to turn them over.

The State responded:

... Your Honor, Mr. Lown has no standing to argue the search, whether it’s legal or otherwise. And, in fact, if you wish to deem it a search, it was certainly a search by consent, which is an exception to the warrant requirement.
The bottom line is if he wants to call it a search, whether it be legal or otherwise, Mr. Lown has no standing to argue it. Those tapes were given to Mr. Ma-dar to take for his care, custody and control.

The trial court overruled appellant’s objection.

To preserve an error in the admission of evidence, the defendant must make a timely and specific objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim.App.2000). A motion to strike must also be made in a timely fashion. Rhoades v. State, 934 S.W.2d 113, 127 (Tex.Crim. App.1996). An objection is timely if it is made as soon as the ground for the objection becomes apparent, i.e., “as soon as the defense knows or should know that an error has occurred.” Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991).

As described above, prior to Ma-dar’s taking the stand, the prosecutor informed the trial court and appellant’s counsel that the backup disks had “nothing to do with the search,” but, instead, were made pursuant to appellant’s request and One West allowed Madar to keep a second copy of the backup disks. Thus, at this point, the basis for the objection, which appellant now brings on appeal, became apparent. However, while appellant’s counsel objected on the basis that the copies of the backup disks were not acquired with appellant’s consent, he waited until after Madar had testified to object on the basis of an allegedly illegal warrantless search and to strike the exhibits. See Rhoades, 934 S.W.2d at 127 (holding that motion to strike was untimely because basis for motion became manifest when State elicited complained-of testimony). Thus, this issue has not been preserved for appellate review.

Even if appellant had preserved his complaint on appeal, we find the trial court did not abuse its discretion in admitting the backup disks into evidence. A trial court’s ruling on the admissibility of evidence is reviewed under the abuse-of-discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). The appellate court will not reverse the trial court’s evidentiary ruling if it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (opinion on reh’g). Therefore, we must uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Willover, 70 S.W.3d at 845.

“The purpose of both the Fourth Amendment and Article I, § 9, ⅛ to safeguard an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.’ ” Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996) (quoting Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1998)). A defendant has standing to challenge a search under the Fourth Amendment if he had a legitimate expectation of privacy in the place subject to intrusion by the government. Granados v. State, 85 S.W.3d 217, 222-28 (Tex.Crim.App.2002), cert, denied, 538 U.S. 927, 123 S.Ct. 1578, 155 L.Ed.2d 321 (2003). Because the accused has greater access to relevant evidence, he bears the burden of proving facts establishing a legitimate expectation of privacy. Villarreal, 935 S.W.2d at 138. The defendant can meet his burden by proving (1) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (2) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id. The following factors, although not exhaustive, are relevant to a determination of whether the defendant’s claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Granados, 85 S.W.3d at 223. We are instructed to examine the circumstances surrounding the search in their totality. Id.

Appellant contends he had a reasonable expectation in the information contained in his computer files just as a reasonable expectation of privacy exists in the contents of closed containers and digital storage devices. In support of his claim, appellant relies on United States v. Barth, 26 F.Supp.2d 929 (W.D.Tex.1998). In Barth, when the defendant began experiencing problems with his office computer, he called a computer technician, Kellar. Id. at 932. Kellar picked up the hard drive portion of the defendant’s computer from his office and took it home with him to work on it because the defendant wanted it returned by the following morning. Id. Kellar started opening individual files in search of potential viruses and came across a jpeg picture file. Id. When he opened the file, Kellar, who was also a confidential informant for the FBI, observed what appeared to be ehild pornography. Id. Kellar contacted his supervising agent at the FBI, who instructed him to copy all of the files on the hard drive. Id. Following this conversation, Kellar opened more files, finding more images of child pornography. Id. at 932-33. The next morning, Kellar took the hard drive to the Odessa Police Department where officers viewed the child pornography files. Id. at 933.

The court in Barth found that by placing data files in a storage device such as his hard drive, the defendant manifested a reasonable expectation of privacy in the contents of those files. Id. at 936-37. The court further determined the defendant did not lose his reasonable expectation of privacy in his closed, individual files when he gave the hard drive to Kellar because he gave it to him for the limited purpose of repairing a problem unrelated to specific files and also expected that he would have the hard drive returned to him the following morning. Id. at 937.

Appellant argues that while he may have given up a certain right to privacy by the fact that the backup disks exist just as a person may give up certain rights about the size or shape of a container, he still had a legitimate expectation of privacy in the information contained in those computer files that society recognizes as valid. Appellant argues the sole purpose of backing up the data was so that it could be stored in a separate place in case the files at the office were damaged. Appellant maintains there is no indication that he or anyone at One West expected that the files would be opened and reviewed by others, particularly law enforcement officers without a warrant.

The State argues Barth is not applicable because unlike this case, the computer technician in Barth, who was also a government informant, did not have authority to open files unrelated to repairs to the computer left with him for that purpose. Here, the express purpose of Madar’s actions was to back up the entire system, which, the State asserts, presumably would involve viewing all files on it.

The State further argues this case is factually more like Rogers v. State, 113 S.W.3d 452 (Tex.App.-San Antonio 2003, no pet.). In Rogers, the defendant took his computer to a computer repair store when it was not functioning properly. Id. at 454. The technician determined the computer system had a virus, which had corrupted many areas of the computer system, including the backup, and advised the defendant that his only option was to wipe the hard drive and reload it. Id. at 455. The defendant specifically requested that all jpeg files be backed up. Id. The proper procedure in the computer repair industry requires verification of data that has been backed up so that the customer will only be charged for work properly performed. Id. The technician was required to double check the information being backed up. Id. In conducting the verification process, the technician detected some photographs he believed were child pornography. Id.

The court of appeals in Rogers held the defendant had a subjective expectation of privacy in his jpeg files. Id. at 457. Therefore, the question in Rogers was whether society is prepared to recognize that expectation as objectively reasonable. Id. The court of appeals explained that although the defendant had an interest in the computer hard drive, he did not have complete dominion or control over it because he had voluntarily relinquished control to the computer repair store. Id. at 458. The Rogers court also observed that the defendant did not take normal precautions to protect his privacy because he expressly directed the computer repair technician to backup the jpeg files. Id. Finally, the court determined the defendant’s claim of privacy was not consistent with historical notions of privacy because a person has no legitimate expectation of privacy in information that is voluntarily turned over to third parties. Id.

Thus, by requesting that the computer repair technician back up the jpeg files, the Rogers defendant voluntarily turned those files over to the technician for backing up, and the standard operating procedure required the files to be viewed during the process; therefore, after the defendant directed the computer technician to back up his jpeg files, he no longer had a legitimate expectation of privacy in those files. Id.

Appellant argues Rogers is distinguishable because the defendant had specifically asked the technician to back up the files at issue and it was “standard operating procedure” to view the files during the back up process. Appellant argues that unlike in Rogers, there is no indication in this case that it was “standard operating procedure” to view the files in question or that anyone looked at the files until an investigator for the District Attorney’s office did so.

Even if appellant showed that he had a subjective expectation of privacy in the information stored on the computer system located in One West’s offices, he has not shown that any such expectation of privacy, under the facts of this case, is one that society accepts as objectively reasonable. There is no evidence that any of the files were the subject of a confidentiality agreement or that any measures had been taken to preserve or protect the documents from disclosure. Appellant did not show that he owned the computers in One West’s offices or that he owned One West rather than being a One West employee. Moreover, as the State points out, there is no evidence indicating that appellant’s assistant, Lori Franz, lacked authority either to request that Madar back up the entire computer system for One West or to give him permission to take a set of copies of the backup disks. Therefore, appellant faded to demonstrate that he had either a property or possessory interest in, or complete dominion or control over, the computers in One West’s offices.

Furthermore, there is no evidence demonstrating that appellant took any precautions (such as encryption) to protect his privacy in the information contained on the computer system. Indeed, the evidence showed that appellant wanted the computer system at One West backed up, but not that he took steps to maintain the confidentiality of the information contained in the system. Finally, actions in requesting that the system be backed up and allowing Madar to keep copies of the backup disks are not consistent with historical notions of privacy. See Rogers, 113 S.W.3d at 458 (explaining that when defendant directed computer technician to back up jpeg files, he no longer had legitimate expectation of privacy in those files).

Having failed to show that he has a subjective expectation of privacy that society is prepared to recognize as objectively reasonable, we conclude appellant does not have standing to challenge the acquisition of the backup disks by the State. Therefore, even if appellant had properly preserved error, his argument would have no merit because the trial court did not abuse its discretion in denying appellant’s motion to strike. Appellant’s sole issue in this appeal is overruled.

Accordingly, the judgment of the trial court is affirmed.

      . David Pliant, a fraud examiner for the Harris County District Attorney's Office, testified that a Ponzi scheme is a theft in which the early investors’ money is rapidly spent or misused, and later investors' money is used to pay a small return to the first investors. Pay-merits have to be made in order to keep new money coming in — when the first investors are receiving a return, additional investors will put up money believing they also will see a return on their investment. The theft occurs when the victim gives his money to the perpetrator, not when it is spent.

      . One West had made arrangements with some of its investors to pay mortgages and bills for those investors rather than paying them directly.

      . A computer forensic examiner for the Harris County District Attorney's Office, William Brown, testified that there was no data on the computer system seized from One West's offices on April 4, 2003, because either a new hard drive had been installed or the servers had been "wiped with a software.” Brown explained that this could not have happened accidentally, but that "someone had gone in there and wiped of [sic] the data off of the desktops and more than likely replaced the server hard drives with brand-new ones” between March 14, 2003, when Madar created the backup disks, and April 4, 2003, when the computers were seized. Brown found no reference on the backup disks or the computer seized from appellant’s home to any government contracts, overseas bank accounts, the actual purchase of metals, Admiral Morgan, or a forge in New Guinea.

      . The Court of Criminal Appeals has observed that while the proper time for an objection is generally when the evidence is admitted, there may be circumstances under which the grounds for objection are not present until after the evidence has been admitted and, thus, the proper time for an objection may not arise until then. Johnson v. State, 878 S.W.2d 164, 167-68 (Tex.Crim.App.1994). However, that was not the situation in this case, where the basis of the objection or the motion to strike was apparent prior to the admission of the backup disks into evidence and Madar's testimony.

      . See United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.”).

      . See United States v. Reyes, 922 F.Supp. 818, 832-33 (S.D.N.Y.1996) (finding that defendant had reasonable expectation of privacy in contents of pager’s memories); United States v. Chan, 830 F.Supp. 531, 535 (N.D.Cal.1993) (finding that defendant had reasonable expectation of privacy in contents of pager’s memory); United States v. Bias, 1990 WL 265179, at *21 (E.D.Wis. Dec.4, 1990) (finding that individual has same expectation of privacy in pager, computer, or other electronic storage and retrieval device as in closed container).