No. 05-05-01004-CR
Opinion Filed January 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-57465-R. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice LANG.
Malcolm Joaquin Calhoun appeals the trial court's judgment convicting him of unlawful possession with the intent to deliver a controlled substance, cocaine, in an amount of four grams or more, but less than two hundred grams. Calhoun entered an open plea of guilty prior to the pronouncement of the trial court's judgment of guilt. The trial court assessed his punishment at fifteen years of imprisonment and a $2,000 fine. In his sole issue on appeal, Calhoun argues the trial court erred when it denied his motion to suppress the evidence. The State claims Calhoun does not have standing to challenge the search of the apartment which led to the discovery of the cocaine and the other evidence of drug trafficking. We conclude the trial court did not err when it denied Calhoun's motion to suppress the evidence because he failed to meet his burden of showing he had a legitimate expectation of privacy in the apartment. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Verbal conducted surveillance of 2615 Clarence Street, Dallas, Texas after receiving reports that drugs were being sold at that location. The location under surveillance was an apartment complex surrounded by a seven- to eight-foot wrought iron fence with a security keypad at the two entry gates. Officer Verbal parked a covert van on the street. He observed three or four cars lined up on the street and individuals, usually passengers from the cars, enter the apartment complex for two or three minutes. On a few occasions, a person leaving the apartment complex would hold the security gate open for the next person to enter. The individuals would walk to the courtyard and meet with Calhoun. Officer Verbal observed Calhoun open his cupped hands and the individuals look at them. After the individuals received an object from Calhoun, they would give him U.S. currency in exchange. Officer Verbal observed six of these transactions within thirty minutes. Officer Verbal wanted to detain Calhoun and further investigate his observations because he believed a felony was being committed in his presence so he requested the presence of uniformed police officers. The uniformed officers arrived, and Officer Castro jumped over the fence and opened the gate for the other officers because their attempt to pass through the gate before it closed had failed. When Calhoun saw this, he fled. The officers chased Calhoun into the breezeway. Calhoun ran into an apartment and closed the door. Officer Starr hit the door with his shoulder as it closed, knocking it open, and followed Calhoun into the bathroom where Calhoun was attempting to flush drugs down the toilet, but only succeeded in clogging it. The officers removed the toilet from the base and recovered one hundred sixty-eight baggies of crack. Calhoun told the officers it was not his apartment. The officers located the apartment manager who also said it was not Calhoun's apartment. The apartment was vacant except for a couch and table. There was no bed or other furniture in the apartment. Also, the officers found a pistol, a bulletproof vest, and a ledger they believed documented drug sales. Before trial, Calhoun moved for the trial court to suppress the evidence. After a hearing, the trial court denied his motion. Calhoun pleaded guilty to the unlawful possession of, with the intent to deliver, cocaine in an amount of four grams or more, but less than two hundred grams. He also pleaded true to the enhancement paragraph in the indictment alleging he was previously convicted for the delivery of a controlled substance. The trial court found Calhoun guilty of the offense charged and the enhancement paragraph true, and assessed his punishment at fifteen years of imprisonment and a $2,000 fine. II. LEGITIMATE EXPECTATION OF PRIVACY
The State argues, for the first time on appeal, that Calhoun does not have standing to challenge the search of the apartment because he had no legitimate expectation of privacy. Specifically, the State argues there is no evidence that Calhoun was a lessee of the apartment and he told the police the apartment was not his. An analysis of whether a defendant is able to claim a violation of his Fourth Amendment rights falls within the purview of substantive Fourth Amendment law, not that of standing. See Minnesota v. Carter, 525 U.S. 83, 88 (1998). In order to claim protection under the Fourth Amendment, a defendant must demonstrate he had a legitimate expectation of privacy. See id. However, whether couched as an issue of "standing" or the existence of a protected interest, the gravamen of the State's argument is that Calhoun did not enjoy a legitimate expectation of privacy in the Clarence Street apartment. See U.S. v. Vega, 221 F.3d 789, 795 (5th Cir. 2000). A. Standard of Review
The issue of whether a defendant had a legitimate expectation of privacy that permits him to assert a Fourth Amendment challenge to the admission of evidence obtained by a governmental intrusion is a question of law that appellate courts review de novo. See Turner v. State, 132 S.W.3d 504, 507 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); State v. Johnson, 896 S.W.2d 277, 285 (Tex.App.-Houston [1st Dist.] 1995), aff'd, 939 S.W.2d 586 (Tex.Crim.App. 1996). B. Applicable Law
A defendant cannot assert a Fourth Amendment claim challenging the admission of evidence obtained by a governmental intrusion unless he had a legitimate expectation of privacy in the place invaded. See e.g., Carter, 525 U.S. at 88; Rakas v. Illinois, 439 U.S. 128, 143 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex.Crim.App. 2002); see also Smith v. State, 176 S.W.3d 907, 913 (Tex.App.-Dallas 2005, no pet. h.). To have a legitimate expectation of privacy, a defendant must show that: (1) by his conduct, he exhibited an actual subjective expectation of privacy (i.e., a genuine intention to preserve something as private); and (2) circumstances existed under which society is prepared to recognize the defendant's subjective expectation as objectively reasonable. Granados, 85 S.W.3d at 223; see also Smith, 176 S.W.3d at 913. The six factors for determining whether a defendant's subjective expectation is one that society is prepared to recognize as objectively reasonable are: (1) whether the defendant had a proprietary interest in the place invaded; (2) whether the defendant was legitimately in the place invaded; (3) whether the defendant had complete dominion or control and the right to exclude others from the place invaded; (4) whether the defendant took normal precautions customarily taken by those seeking privacy before the intrusion; (5) whether the defendant put the place invaded to some private use; and (6) whether the defendant's claim of privacy is consistent with historical notions of privacy. Granados, 85 S.W.3d at 223; see also, Rawlings v. Kentucky, 448 U.S. 98, 105 (1980); Vega, 221 F.3d at 795-96. However, these factors are not exhaustive and no factor is dispositive of an assertion of privacy. See Granados, 85 S.W.3d at 223. Rather, the circumstances surrounding a search are reviewed in their totality. Id. A defendant bears the burden of demonstrating he had a legitimate expectation of privacy because he has greater access to the relevant evidence. See e.g., Granados, 85 S.W.3d at 223; Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App. 1988); see also Smith, 176 S.W.3d at 913. The State is permitted to assert a defendant's lack of the legitimate expectation of privacy for the first time on appeal. See State v. Klima, 934 S.W.2d 109, 111 (Tex.Crim.App. 1996). C. Application of the Law to the Facts
In his written motion to suppress the evidence, Calhoun argued "the officers illegally entered and forced their way into [his] residence without a search warrant or probable cause." At the hearing on his motion to suppress, Calhoun did not offer any evidence. Officer Starr stated Calhoun told the police the apartment was not his and the apartment manager confirmed it was not Calhoun's apartment. Also, Officer Starr stated the apartment was vacant with only a couch and table inside. There was no bed or furniture. Accordingly, we conclude Calhoun may not challenge the search of the apartment because he failed to meet his burden of showing he had a legitimate expectation of privacy in the apartment. Calhoun's sole issue on appeal is decided against him. IV. CONCLUSION
Calhoun may not challenge the search of the apartment because he had no legitimate expectation of privacy. The trial court's judgment is affirmed.