Opinion
No. 05-09-00028-CR
Opinion Filed October 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F08-71151-PX.
OPINION
This is an appeal by the State of Texas of a trial court's order granting appellee Dennis James Jenkins's motion to suppress evidence seized from a residence without a warrant. Appellee was charged by indictment with possession of four ounces or less but more than two ounces of marijuana in a drug-free zone. See Tex. Health Safety Code Ann. §§ 481.121(b)(2), 481.134(e)(1) (Vernon Supp. 2009). Following a hearing, the trial court granted appellee's motion to suppress based on article 14.05 of the Texas Code of Criminal Procedure. For the first time on appeal, the State contends appellee did not meet his burden of proof that he had standing to challenge the search in question. Reviewing that issue on appeal de novo, we conclude, as a matter of law, appellee did not meet his burden of production to show he had standing to contest the search; consequently, we reverse the trial court's order and remand this case to the trial court for proceedings consistent with this opinion.
Article 14.05 provides:
In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the arrest unless:
(1) a person who resides in the residence consents to the entry; or
(2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.
Tex. Code Crim. Proc. Ann. art. 14.05 (Vernon 2005).
Standing
Although the State did not raise an issue as to appellee's standing in the trial court, the State does raise a standing issue for the first time on appeal. See State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (holding the State can challenge for the first time on appeal a defendant's standing to complain about a search and the lack of a challenge to a defendant's standing in the trial court should not be viewed as a "failure of the government"). It is undisputed the search of the residence was conducted without a warrant. It is also undisputed no consent was given for the search. Nor was there any evidence offered showing the existence of exigent circumstances justifying entry into the residence. Nevertheless, an accused may challenge a search under the federal and state constitutions only if he had a legitimate expectation of privacy in the place that was searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002).Appellee's Motion to Suppress
Appellee's motion does not explicitly state he had standing to challenge the search of the house where the drugs were found and where he was arrested. Nor does the motion specifically complain that the search violated article 14.05 of the Texas Code of Criminal Procedure on which the trial court granted appellee's motion to suppress. Nor did appellee, either personally or through counsel, stipulate it was his house or that he resided there. Nor did appellee testify at the suppression hearing. Briefly, the evidence presented through the State's two testifying witnesses adduced the following facts. Detective Joshua Sanderlin testified he was a ten-year veteran with the Dallas Police Department. On June 12, 2007, Sanderlin came into contact with a person he later came to know as appellee. Sanderlin identified appellee in court. Sanderlin encountered appellee at 931 Cleardale in Dallas, Texas, a location within a thousand feet of an elementary school. Sanderlin and several other officers, including a sergeant, went to that location in response to a citizen's complaint about possible drug sales at the location. The officers did not have a warrant and Sanderlin testified that at the time they went to the residence, they did not have enough information to obtain a search warrant. Sanderlin and Officer Daniel Foster went up to the front door of the residence. Foster knocked on the door which both officers testified was slightly ajar. Upon Foster's knocking, the "slightly ajar" door swung open a little bit further, enabling Foster, without entering the house, to see appellant standing inside and also to see some marijuana in a baggie on a bookcase shelf in the front room. Upon seeing the marijuana in plain view, Foster went inside to seize the marijuana. Sanderlin followed Foster inside, at which time he also saw what he believed to be marijuana in plain view. Sanderlin described the interior of the house, including its furnishings. The house had very little furniture, personal clothing, or other items indicating someone lived there. The residence "had bars on all the windows and the door. The bars on the door just happened to be open that day." One of the officers found a pistol in or under the couch and also an SKS assault rifle (an AK-47 style). The weapons were found within the "grab area" of where appellee was when the officers arrived. During a protective sweep of the residence, additional drug paraphernalia was found. Sanderlin described the residence as looking "like a plain dope house." Appellee was in possession of a key to the house. On cross-examination, Sanderlin testified the residence was in a high crime zone. There were bars on the door through which the officers entered, although "[t]hey were open that day." There were also bars on the windows. It appeared to be a very secure residence. Sanderlin did not recall the exact location of the bookcase shelf on which Foster told him he saw the marijuana. Sanderlin remembered it was a small baggie of marijuana but he did not specifically remember the packaging. Sanderlin did not find other marijuana in the house but other officers found marijuana in at least one other place. Sanderlin, who is shorter than Foster, did not see the marijuana from outside the house; he only saw it after he entered the house. Scales were found on the kitchen table; some marijuana seeds and a "few little flakes" were around the scale. Sanderlin agreed with defense counsel that operating a drug house with the door open was an "insecure" fashion in which to do so. Defense counsel then asked Sanderlin, "Essentially what you are alleging is that he was operating a dope house that had drugs in it, with the front door open?" Sanderlin responded, "Yes, sir, it appeared so." Daniel Foster testified he had been with the Dallas Police Department approximately seven years. On June 12, 2007, he came into contact with a person he later learned to be appellee. Foster identified appellee in court. Foster encountered appellee at 931 Cleardale in Dallas, Texas, a residence within a thousand feet of an elementary school, to which he had gone in response to a citizen's complaint about drugs. Foster worked for Southwest Crime Response Team and its primary responsibility is to respond to citizen's complaints about drugs being sold or about drug houses. Foster and other officers went to the location in question on a "knock and talk." Foster and Sanderlin walked up to the front door of the house; Foster knocked on the door. The door came open "a couple of feet." When the door "came open" in response to his knock, Foster was able to see appellee as well as a bag of marijuana on a bookcase shelf "all in plain view" in the front room. Foster briefly talked to appellee. Appellee said it wasn't his house. Foster "believe[d]" appellee said he knew whose house it was or "something like that." Appellee was alone in the house. The officers entered the house and seized the drugs and placed appellee under arrest. After appellee was placed under arrest, the officers did "like a Terry frisk" around his immediate area to make sure there were no weapons. Under the couch, a foot or two from appellee, they found an assault rifle and a pistol. A protective sweep was then done of the rest of the house. Foster described the appearance of the interior of the house: very little furniture, it was barred up, there was a surveillance system in place, and a small TV with maybe a Play Station hooked up to it. Based on his training and experience, Foster believed the house was being operated as a drug house. Foster recalled that appellee had a key to the house in his pocket. The front room was fairly small. Foster remembered only that the baggie on the shelf was big enough for him to see it from the door. On cross-examination, Foster confirmed the search was without a warrant. He also agreed appellant did not give consent to search. Foster could not remember where the cameras and monitor to the surveillance system were located. The door was ten feet from the wall on which he saw the marijuana. The front door swung to the right and the shelf on which the marijuana was found was just to the left. The baggie was a little lower than eye level on the shelf. Foster believed the marijuana was in a "clear blue baggie." Foster did not recall how much marijuana was in the baggie. More marijuana, however, was found in another location in the house. Foster believed the amount of marijuana taken was approximately a hundred grams. He agreed there are 28 grams in an ounce. He also agreed that if more marijuana was found in another location, then there would have been less than two ounces of marijuana in the baggie on the shelf. When asked if he took the keys from appellee at the scene, Foster replied, "I don't know where the keys are, if they are in evidence or not." Foster did not believe he personally took the keys from appellee at the scene, and he was not sure if anyone else did or not. Although it is standard procedure to check to see if a recovered key fits the lock to the house, he did not recall anyone doing that in this case. Although Foster did not remember who asked appellee if he had a key to the house or how that was done, he just knew that it was done. On redirect examination, Foster testified that other officers assisting in the search found the key on appellee. In response to questions from the trial judge, Foster testified that part of his work with the Crime Response Team was to do surveillance from covert vehicles; however, Foster did not know if surveillance was done in this case. The usual procedure is that in initial response to a tip, the officers go and do a "knock and talk" and seek consent to search. If consent is not given, surveillance is usually done. If surveillance reveals "activity," then they "should go get a warrant." The officers like to stop people who are leaving a suspect location and confirm they are buying drugs there. Then they can get a warrant. When Foster knocked on the door he did not announce "Police." Appellee did not try to run when the door came open. Appellee was alone in the house. At the conclusion of the evidence, the State argued the officers had a right to do a "knock and talk" and when Foster saw the marijuana "in plain view" the officers had a right to seize the marijuana. The trial judge disagreed, and based on article 14.05 of the Texas Code of Criminal Procedure, granted appellee's motion to suppress. This appeal ensued.Appeal
In its sole issue on appeal, the State contends the trial court erred in granting appellee's motion to suppress. More specifically, the State contends appellee did not meet his burden to show he had standing to challenge the search of the house or seizure of evidence seized therein and that the police acted reasonably in entering the house to seize the drug evidence. Appellee did not file a brief in this case. We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We give "almost total deference to a trial court's determination of historical facts" but we review de novo the court's application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When the trial court makes no explicit findings of historical facts, we view the evidence in the light most favorable to the trial court's ruling. Id. at 327-28.Law
A defendant may challenge a search under the federal and state constitutions only if he had a legitimate expectation of privacy in the place that was searched. Rakas, 439 U.S. at 143; Granados, 85 S.W.3d at 222-23. The burden of proof is on the defendant to show a legitimate expectation of privacy. A defendant may make such showing by "establishing that he had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable." Granados, 85 S.W.3d at 223. In determining whether a defendant's claim of privacy is objectively reasonable several factors must be considered. By bringing the motion to suppress, appellee had the burden of establishing all of the elements of his Fourth Amendment claim. Klima, 934 S.W.2d at 111 (citing Rawlings v. Kentucky, 448 U.S. 98, 105 (1980)). Part of that proof included establishing his own privacy interest in the premises searched. Id. (citing Rakas, 439 U.S. at 149-50; Wilson v. State, 692 S.W.2d 661, 666-67 (Tex. Crim. App. 1994)). 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. The record before us does not contain a State's written response to appellee's motion to suppress even though the motion did not contain an explicit allegation of appellee's standing to complain about an unlawful search. The hearing on the motion to suppress, however, is itself enough to put the trial court on notice that the State contests every element of the defendant's burden of production, including the burden to show standing. Klima, 934 S.W.2d at 112 (Clinton, J., concurring). The trial court did not expressly decide whether appellee had standing to contest the search of the house and the seizure of evidence therein, but by granting appellee's motion to suppress and excluding the evidence for all purposes, the trial court implicitly concluded appellee had standing. See United States v. Ibarra, 948 F.2d 903, 905 (5th Cir. 1991). The trial court's conclusion is reviewed de novo. Id. The objective prong of standing, i.e., whether appellant's subjective expectation of privacy was one that society was prepared to recognize as reasonable, is a question of law. In Chapa v. State, the court of criminal appeals explained:Whether a particular expectation of privacy is one society is willing to recognize [as reasonable] is in the nature of a legal rather than a factual inquiry. All that is necessary to be proven as a factual matter is the particular context in which [the defendant] harbored that expectation. It is then left to be resolved as a matter of law whether in the context shown society is willing to sanction that expectation as reasonable. . . .Chapa v. State, 729 S.W.2d 723, 728 n. 3 (Tex. Crim. App. 1987).