Summary
In King, the court held that the defendant had failed to establish a privacy interest in the tractor-trailer in which he had been living because the seizure of evidence from it occurred both after his arrest and after the tractor-trailer had been returned to his employer.
Summary of this case from Fitzgerald v. StateOpinion
NO. PD-0330-22
06-28-2023
Terry Wayne KING II, Appellant v. The STATE of Texas
Mary B. Thornton, for Appellant.
Mary B. Thornton, for Appellant.
OPINION
McClure, J., delivered the opinion of the Court in which Keller, P.J., Hervey, Richardson, Yeary, Newell, Keel, and Slaughter, JJ., joined.
Does an employee retain standing to contest a search or seizure in his work vehicle several days after he was arrested and after the vehicle was returned to his employer? Possibly. In this case, however, we hold that Appellant has not met his burden to establish a reasonable expectation of privacy as would confer standing.
BACKGROUND
On April 19, 2018, in Fort Worth, Appellant Terry King assaulted a twelve-year-old girl who was on her way to the school bus. At all times relevant to this case, Appellant was working as a truck driver, operating a semi-tractor trailor (hereinafter, "truck") owned by his employer, John Feltman. Due to the nature of his work as a long-haul truck driver, Appellant lived out of the truck while working on the road. On July 17, 2018, Appellant was arrested in Oklahoma City, Oklahoma near the tractor trailer truck he drove. On the same day, the Oklahoma police searched the truck pursuant to a warrant. During the search, detectives found Appellant's cell phone and intended to seize it, but inadvertently left the cell phone in the truck. The gathered evidence, minus the cell phone, was transported to the Fort Worth Police Department. Upon realizing the cell phone was missing, Fort Worth Police Detective Pat Henz contacted the truck owner, Feltman, and asked him to retrieve the phone and send it to the police department. Upon receipt on August 9, 2018, a search warrant for the contents of the cell phone was issued and executed. Child pornography was found on the cell phone.
During punishment, the State sought the admission of the child pornography into evidence. Appellant moved to suppress this evidence, arguing that the cell phone was seized from the truck after the search warrant expired and was no longer valid. The State acknowledged that the warrant had expired, but argued that Appellant had no standing to challenge the seizure because he retained no expectation of privacy in the truck when the phone was seized, given that the truck belonged to Feltman. The trial court denied the motion to suppress, explaining on the record that Appellant's expectation of privacy in the truck had expired by the time the phone was seized.
COURT OF APPEALS
On appeal, Appellant argued, among other things, that the trial court erred in denying the motion to suppress the photographs containing child pornography. The First Court of Appeals found in Appellant's favor and reversed. The court held that Appellant had standing to challenge the seizure of the phone because his expectation of privacy in the truck had not ended or diminished when Feltman seized the cell phone for the police. The court reached its conclusion by analyzing the factors enumerated in Granados v. State to determine whether Appellant had an expectation of privacy. King v. State , 650 S.W.3d 241, 275 (Tex. App.—Houston [1st Dist.] 2021) (citing Granados v. State , 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) ). The following is a reproduction of the factors analyzed by the lower court followed by a summary of its analysis.
(1) Whether the accused had a property or possessory interest in the place invaded:
Not only did Appellant have his employer's permission to possess and operate the truck, but because of the nature of his work as a trucker, Appellant lived out of the truck while working. The other items seized included clothing, toiletries, a backpack, medication, a journal, a social security card, electronics, and personal pictures reflect that the truck was a living space.
(2) Whether he was legitimately in the place invaded:
Ownership is only one factor to consider in a search and is not a prerequisite for standing. The Supreme Court of the United States held in Byrd that a person has a reasonable expectation of privacy in a motor vehicle owned by another. This case was based on the reasonable expectation of privacy an individual has in a rental car. The Supreme Court of the United States has likewise held that employees often have a reasonable expectation of privacy in the workplace, even where that workplace is shared with other employees.
(3) Whether he had complete dominion or control and the right to exclude others:
Appellant's use of the truck demonstrates lawful control and a right to exclude others.
(4) Whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy:
The cell phone was located in the semi-truck alongside Appellant's personal belongings and valuables.
(5) Whether he put the place to some private use:
Appellant lived out of the semi-truck.
(6) Whether his claim of privacy is consistent with historical notions of privacy:
Historically, homes are protected with the utmost respect for privacy. Meanwhile, workplaces have been given a moderate amount of reverence.
Following the lower court's reversal, the State petitioned this Court on the following ground: Did the court of appeals err in concluding that an employee retained an expectation of privacy in his work vehicle several days after he was arrested and after the vehicle was returned to his employer? The State argues that the lower court's decision "unreasonably extends an employee's expectation of privacy in a work vehicle."
ANALYSIS
To reach the State's question of whether Appellant had an expectation of privacy in the truck at the time the cell phone was seized, we address the following preliminary questions: (i) What is standing? (ii) Who bears the burden of establishing standing? (iii) Did Appellant meet this burden?
i. What Is Standing?
To challenge the constitutionality of a search, a defendant must have "a legitimate expectation of privacy in the place invaded." Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (plurality opinion). In a motion to suppress, the issue of whether a legitimate expectation of privacy exists—whether a defendant has "standing" to contest a search—is determined by a trial court after consideration of the "totality of the circumstances surrounding the search." Ex parte Moore , 395 S.W.3d 152, 159 (Tex. Crim. App. 2013). When reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings and view them in a light most favorable to the prevailing party, but review the legal issue of standing de novo. Kothe v. State , 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Absent a legitimate expectation of privacy, a defendant lacks standing to raise this issue and we may not consider the substance of his complaint. Id.
As the First Court of Appeals noted, courts look to several factors when deciding whether a person has a reasonable expectation of privacy in a place or object searched. They are:
(1) whether the person had a proprietary or possessory interest in the place searched;
(2) whether the person's presence in or on the place searched was legitimate;
(3) whether the person had a right to exclude others from the place;
(4) whether the person took normal precautions, prior to the search, which are customarily taken to protect privacy in the place;
(5) whether the place searched was put to a private use; and
(6) whether the person's claim of privacy is consistent with historical notion of privacy.
Granados , 85 S.W.3d at 223. Because this list is not exhaustive and no one factor is dispositive of a particular assertion of privacy, we examine the circumstances in their totality. Id.
ii. Who Bears the Burden?
Appellant has the burden of establishing all the elements of his Fourth Amendment claim. Klima , 934 S.W.2d at 111 (citing Rawlings v. Kentucky , 448 U.S. 98, 105, 100 S. Ct. 2556, 65 L.Ed.2d 633 (1980) ). As noted in Wilson v. State , 692 S.W.2d 661, 669 (Tex. Crim. App. 1984), defendants are on notice that a privacy interest in the searched premises is an element of a Fourth Amendment claim which they have the burden of establishing.
Allegations in a motion to suppress are not "self-proving" and are insufficient to establish standing without proof. Calloway v. State , 743 S.W.2d 645, 650 (Tex. Crim. App. 1988) ; accord Handy v. State , 189 S.W.3d 296, 299 (Tex. Crim. App. 2006) (holding that Handy's assertion made in the motion to suppress that the residence searched belonged to the defendant was insufficient where "he presented no proof of such claim"). Evidence must prove both that the defendant "exhibited an actual subjective expectation of privacy" and that society recognizes this expectation as an objectively reasonable one under the circumstances. Villarreal , 935 S.W.2d at 138.
Part of that proof includes establishing his own privacy interest in the premises searched. Id. (citing Rakas v. Illinois , 439 U.S. 128, 149–50, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ; Wilson v. State , 692 S.W.2d 661, 666–67 (Tex. Crim. App. 1984) ). A defendant, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Villarreal , 935 S.W.2d at 138.
This reasonable expectation of privacy must exist at the time of the seizure or search . See McDuff v. State , 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (analyzing McDuff's expectation of privacy "at the time of the search"). A person can have a reasonable expectation of privacy in a location at one point in time and lose that expectation when his status with respect to the location changes. See , e.g. , Tilghman v. State , 624 S.W.3d 801 (Tex. Crim. App. 2021) ; Granados , 85 S.W.3d at 225. Relevant to this proceeding, Appellant must establish that he had a reasonable expectation of privacy at the time his phone was seized.
iii. Did Appellant Meet His Burden?
At the hearing on the motion to suppress, the defense offered a copy of the affidavit, the search warrant, and return and inventory for purposes of the hearing. The only witness called to testify was Detective Jeremy Perkins with the Oklahoma City Police Department. Perkins testified that he wrote the warrant for the search, helped conduct the search, and located a cell phone with a shattered screen that was mounted to the front windshield. Detective Perkins testified he did not collect the cell phone, did not recall seeing somebody else collect it, and did not have possession of the phone.
Appellant stipulated to the following facts:
(1) Appellant was arrested in Oklahoma County on July 17, 2018;
(2) Appellant was arrested near and after driving the tractor trailer in question;
(3) The tractor trailer is owned by John Feltman;
(4) There was a search of that tractor trailer pursuant to a warrant;
(5) As a result of that search, what was thought to be the Defendant's cell phone was found and was photographed;
(6) The phone was inadvertently left in the truck and not seized by the joint search of the Oklahoma City Police Department and the Fort Worth special crime — or major case unit;
(7) Detective Henz, upon receiving the inventory from that search, realized that that phone was not in property;
(8) Detective Henz contacted the owner of the tractor trailer, John Feltman;
(9) Mr. Feltman looked in the truck and found the phone;
(10) John Feltman shipped the phone via FedEx to Detective Henz and was reimbursed for the shipping costs;
(11) On August 9, 2018, Detective Henz gained possession of the actual cell phone, which matched the photograph taken during the search on July 17, 2018;
(12) The contents of the phone were searched by a separate warrant (which is not contested by Appellant).
While the lower court analyzed whether Appellant retained an expectation of privacy of the trailer at the time of his arrest , that court did not analyze whether Appellant had an expectation of privacy of the trailer at the time of the seizure of the cell phone . See McDuff , 939 S.W.2d at 618. Instead, it appeared to hold that because Appellant had an expectation of privacy when he was arrested and because his arrest alone could not be used as supporting an expired expectation of privacy, that he retained such expectation. King , 650 S.W.3d at 280. It ignored one glaring issue: the burden lies with Appellant to establish a reasonable expectation of privacy at the time the search occurred. See Kothe , 152 S.W.3d at 59 ; see also McDuff , 939 S.W.2d at 618.
With the proper time frame and burden in mind, we hold that Appellant failed to establish his own privacy interest in the truck at the time of the seizure of the cell phone. Specifically, no questions were asked regarding Applicant's right to privacy in the tractor trailer at the time of the seizure of the cell phone such as Appellant's employment status, whether Appellant's keys or other personal property remained in the trailer, whether he had the right to exclude others from the trailer, or whether the truck was still being put to private use by Appellant. Likewise, no questions were asked of John Feltman, such as the date when the seizure occurred. In fact, John Feltman was not called to testify at all.
Ultimately, Appellant produced insufficient evidence of his reasonable expectation of privacy in the search of the tractor trailer. Nor did the parties’ stipulation establish any reasonable expectation of privacy on Appellant's behalf. See Moore , 395 S.W.3d at 161 ; see also Villarreal , 935 S.W.2d at 139. Viewed in the light most favorable to the trial court's ruling, the record shows Appellant failed to meet his burden of establishing his subjective expectation of privacy that society is prepared to recognize as objectively reasonable under the circumstances. See Granados , 85 S.W.3d at 225–26 ; Villarreal , 935 S.W.2d at 138–39.
CONCLUSION
From this record, we find that Appellant did not put on any evidence indicating that—at the time of the seizure of the phone—he had any proprietary or possessory interest in the tractor trailer, or, for that matter, any evidence demonstrating a reasonable expectation of privacy in the tractor trailer when John Feltman took the phone from the truck and mailed it to the detective. See generally Esco v. State , 668 S.W.2d 358, 361 (Tex. Crim. App. 1982). Therefore, we hold as a matter of law that Appellant failed to establish standing to assert a Fourth Amendment claim. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court's judgment.
Walker, J., filed a dissenting opinion.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
Today, the Court concludes that Appellant did not meet his burden to establish a reasonable expectation of privacy as would confer standing because he did not testify or present enough evidence demonstrating a reasonable expectation of privacy at the suppression hearing. I cannot agree. I believe Appellant met his burden because there was no evidence that his reasonable expectation of privacy in the truck, his secondary home, was diminished to the level of losing standing by the time the second search was executed. Because I would affirm the judgment of the court of appeals, I respectfully dissent.
I. There Is Little or No Evidence that Appellant's Expectation of Privacy May Have Been Diminished.
Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [.]" U.S. CONST. amend. IV. The chief concern underlying the Fourth Amendment is the protection from police officers’ "unbridled discretion to rummage at will among a person's private effects." State v. Martinez , 570 S.W.3d 278, 283 (Tex. Crim. App. 2019) (citing Arizona v. Gant , 556 U.S. 332, 345 (2009) and State v. Rodriguez , 521 S.W.3d 1, 8–9 (Tex. Crim. App. 2017) ). It is well-established that there is a strong privacy interest in one's home. See United States v. York , 895 F.2d 1026, 1029 (5th Cir. 1990) ("[T]he right to be free from unreasonable government intrusion into one's own home is a cornerstone of the liberties protected by the fourth amendment.") (citing Payton v. New York , 445 U.S. 573, 583–89 (1980) ).
A defendant "has standing to challenge the admission of evidence obtained by an unlawful search or seizure only if he had a legitimate expectation of privacy in the place invaded." State v. Betts , 397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (internal quotation marks omitted). A defendant seeking to suppress evidence from a search or seizure bears the burden of showing that he had a reasonable expectation of privacy. State v. Klima , 934 S.W.2d 109, 111 (Tex. Crim. App. 1996) (citing Rawlings v. Kentucky , 448 U.S. 98, 105 (1980) ); Kothe v. State , 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) ("He must prove that he was a ‘victim’ of the unlawful search or seizure."). To meet this burden, a defendant must prove: (1) he has a subjective expectation of privacy in the place searched; and (2) society is prepared to recognize that expectation as "reasonable." State v. Granville , 423 S.W.3d 399, 405 (Tex. Crim. App. 2014).
In determining whether a defendant's subjective expectation of privacy is one that society is prepared to recognize as objectively reasonable, this Court looks to the totality of the circumstances as well as the following non-exhaustive list of factors:
(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, before 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 v. State , 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) (citing Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) ). The question here concerns whether Appellant established that his expectation of privacy in the truck remained intact at the time of the subsequent search several days later. See McDuff v. State , 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (analyzing a defendant's expectation of privacy in the context of abandonment "at the time of the search").
When Appellant presented his motion to suppress to the trial court, he offered Defendant's Exhibit 7. The exhibit included an affidavit for the search warrant of the truck, the search warrant itself, and the return and inventory list from the warrant's execution. The warrant affidavit states:
Appellant offered Defense Exhibit No. 7. See Reporter's Record Volume 6, at 9. ("[Defense counsel]: Well, Judge, for that purpose, I would like to introduce for purposes of this [suppression] hearing only what I marked as Defense Exhibit No. 7, which is just a copy of the affidavit and – the affidavit, warrant, and return of the truck that was written in ... Oklahoma County, Judge.").
During this investigation it was discovered Terry is employed as a truck driver that drives cross country to complete deliveries. Terry regularly drives a green tractor trailer ... during these deliveries and that it is believed he lives out of this vehicle while he is away from home. It is therefore reasonable to assume that the suspect would keep items such as cellphones, clothing, and backpacks within this vehicle as he travels ....
The return and inventory list of items seized included items such as: prescription medications, personal documents, photos, clothing, toiletries, a journal, a cell phone, and other personal items.
In contrast, the State presented no evidence at the suppression hearing to affirmatively refute that Appellant lost his expectation of privacy other than the fact that Appellant's employer was in possession of the truck due to his arrest. The State did not call any witnesses, and it did not cross-examine the witness called by Appellant. There is no evidence that the employer fired Appellant, that another driver was using the truck in his absence, or that there was an employment policy in place regarding possession of the truck if a driver is absent. Had he been able to post bail, Appellant may well have returned to living in the truck to continue making deliveries. Moreover, the subsequent search occurred only several days after Appellant's arrest. I hesitate to find that one loses standing to challenge a search of his secondary home simply because he was arrested several days earlier and needs the owner of the property to take possession of the property in his absence.
Appellant's use of the truck demonstrates that he had permission to operate and possess the truck, put the truck to private use, and it is likely that based upon his private use, he had the right to exclude others from the truck. See Rakas v. Illinois , 439 U.S. 128, 143 n.12 (1978) ("[O]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude."). Appellant's use of the truck as a secondary home is also common among cross-country truckers, indicating that Appellant's subjective expectation of privacy is consistent with historical notions of privacy found in the home and the workplace.
The Majority faults Appellant for not producing any exhibits at the hearing on the motion to suppress. Majority Opinion at 657–58. However, as I discussed above, Defendant's Exhibit 7 was produced and was sufficient evidence to show Appellant's reasonable expectation of privacy in the truck as to confer standing. The Majority also faults Appellant for not calling his employer to testify and for not testifying himself about his employment status and the status of the truck at the time of the search. Majority Opinion at 658–59. While such evidence would have bolstered Appellant's motion to suppress, it is unnecessary. Appellant offered solid evidence of his private use of the truck—he possessed the truck, he lived in it, he worked out of it, he likely had to right to exclude others from it, and there is no evidence that he was evicted from the truck. This is sufficient to demonstrate standing to challenge the State's search.
II. It Is Immaterial that Appellant Did Not Own the Truck.
It should also be noted that the fact that Appellant was not the owner of the truck or only had access to it through his employment does not destroy his expectation of privacy. The Fourth Amendment right against police intrusion has been extended to protect the homes of tenants, hotel guests, and overnight guests in certain circumstances. See Stoner v. California , 376 U.S. 483, 490 (1964) ("No less than a tenant of a house, or the occupant of a room in a boarding house ... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures."); Tilgham v. State , 624 S.W.3d 801, 811 (Tex. Crim. App. 2021) (a hotel guest has a reasonable expectation privacy unless hotel staff take affirmative steps to evict the guest); Granados , 85 S.W.3d at 226 (an overnight guest loses his expectation of privacy once he has been asked to leave by one with authority to exclude).
In the employment context, the Supreme Court has found that employees may have a reasonable expectation of privacy against police intrusion in their workplace. O'Connor v. Ortega , 480 U.S. 709, 716 (1987). The Supreme Court reasoned in O'Connor that "[a]s with the expectation of privacy in one's home, such an expectation in one's place of work is ‘based upon societal expectations that have deep roots in the history of the [Fourth] Amendment.’ " Id. (quoting Oliver v. United States , 466 U.S. 170, 178, n.8 (1984) ).
In Appellant's case, the property searched served both as his workplace and his living space, weighing in favor of finding an expectation of privacy. The State's only argument at the suppression hearing was that the employer had possession of the truck after he was arrested. There is no evidence to conclude that Appellant was fired or otherwise evicted from the truck. The employer's possession of the truck is not fatal to Appellant's standing argument because the nature of the property involved would require the employer to take possession of the truck. This fact does not mean that the truck was removed from Appellant's use altogether. Therefore, based on the totality of the circumstances, I am unable to conclude that Appellant had no standing to challenge the State's search in the place where he worked and lived.
III. Conclusion
I believe Appellant met his burden to show standing. Appellant had standing to begin with, and there was no evidence that he lost that standing. Had the State attempted to rebut Appellant's argument and show that he had lost his expectation of privacy, my opinion may be different, but the State failed to do this. Therefore, I would affirm the judgment of the court of appeals. I respectfully dissent to the Court's decision to reverse.