Opinion
No. 14-03-01215-CR
Memorandum Opinion filed July 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 942,653. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Following the trial court's denial of her pre-trial motion to suppress evidence, appellant Jennifer Renee Salazar pleaded guilty to the offense of possession with intent to deliver more than four but less than 200 grams of methamphetamine. The trial court assessed punishment at ten years' deferred adjudication and a $1000 fine. Appellant claims in her sole point of error that the trial court erred in denying her motion to suppress. We affirm. On March 18, 2003, Harris County Sheriff's Deputy Ron Morrison received information from a confidential informant that drug transactions were occurring at a residence at 12011 Lennington in Houston. At approximately 3:00 a.m., Deputy Morrison and the informant went to 12011 Lennington. The informant told Deputy Morrison that "Jon" lived there, and a license check of the vehicle in the driveway showed it to be registered to Jonathan Duhig. Deputy Morrison, who had now been joined by five other officers, decided to conduct a "knock and talk" investigation. Though a television appeared to be on in a bedroom at the front of the house and he heard movement inside, no one answered the door after Deputy Morrison knocked approximately ten times. He then shined a flashlight through a window at the top of the door and observed on the coffee table items that he believed to be drug contraband Deputy Morrison and his team then moved to the back of the house, where he again saw the drug contraband through the glass patio door, which was open about six inches. He also smelled the odor of marijuana from an air conditioning unit hanging out of a back window, and when he looked through a crack in that window, he saw a marijuana growing lab with approximately 150 marijuana plants. Deputy Morrison's team entered the house and found appellant hiding in a bedroom under some blankets and her co-defendant, Duhig, under the bed in a different bedroom. Appellant and Duhig were removed from the residence. Deputy Morrison then obtained a search warrant and seized the contraband he had previously observed. Appellant filed a motion to suppress, complaining of the warrantless search of the residence. We do not reach the issue of the propriety of the warrantless search because we conclude, as did the trial court, that appellant has no standing to challenge the search. A party bringing a motion to suppress bears the burden of establishing all of the elements of a Fourth Amendment claim. State v. Klima, 934 S.W.2d 109, 111 (Tex.Crim.App. 1996). One of those elements requires proof that the individual has a privacy interest in the premises searched. Id. This concept is often referred to in terms of "standing" to assert a Fourth Amendment claim. Standing is a question of law that we review de novo. 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). Appellant asserts that "[a] person cannot be in a more private place than in her own bed in her own bedroom." However, no record evidence establishes that either the bed or the bedroom were hers. The evidence shows only that she was present in Duhig's house and hiding in a bed when the police entered. Appellant correctly states that overnight guests have a legitimate expectation of privacy in their host's home. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). However, she offered no evidence that she was in fact Duhig's overnight guest. Mere presence at night does not establish status as an overnight guest. See Taylor v. State, 995 S.W.2d 279, 282 (Tex.App.-Texarkana 1999) (concluding that appellant was not an overnight guest, "[a]lthough he was indisputably there at night"), pet. dism'd, improvidently granted, 55 S.W.3d 584 (Tex.Crim.App. 2001); see also Minnesota v. Carter, 525 U.S. 83, 90 (1998) ("[A]n overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not."). Appellant presented no evidence to show that she was an overnight guest, such as the presence of overnight bags or toiletries or being dressed in sleeping attire. The record is bare of facts to explain appellant's presence at Duhig's house or her relationship with Duhig, nor is there any other indicia of a legitimate expectation of privacy in his residence. It was appellant's burden to establish a privacy interest, and we will not infer facts to grant her standing. See Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App. 1988). We overrule appellant's point of error. Having overruled appellant's sole point of error, we affirm the trial court's judgment.
The United States Supreme Court has stated a preference for using language focusing on an the individual's Fourth Amendment expectation of privacy rather the concept of "standing," but it noted that the inquiry under either approach is the same. Rakas v. Illinois, 439 U.S. 128, 138-40 (1978). Because Texas courts have continued to use standing language, see, e.g., Klima, 934 S.W.2d at 111, we will do so as well for ease of reference.
At the suppression hearing, Deputy Morrison, when describing what he saw upon entering the residence, stated that he found appellant "in her room hiding under some blankets" while Duhig was "hiding under his bed." As appellant did not testify or offer any other evidence, this is apparently what she relies on when stating in her brief that she was in her bed in her bedroom when Deputy Morrison found her. From this statement, appellant would have us infer that when Deputy Morrison entered the house, he knew the residents and knew which room they occupied. Appellant cannot meet her burden to establish a legitimate expectation of privacy with such inference and speculation. See Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991) (stating that defendant cannot meet burden of showing need for disclosure of informer's identity with "mere conjecture or speculation").