Opinion
NO. 01-11-00153-CRNO. 01-11-00154-CR
03-29-2012
LEON GAMBLE, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case Nos. 1218476 and 1218477
MEMORANDUM OPINION
After the trial court denied his motion to suppress evidence obtained during the execution of a search warrant, Leon Gamble, Jr. pleaded guilty to two counts of possession with intent to deliver a controlled substance. The trial court adjudged him guilty and assessed punishment at twenty-five years' confinement on each count, with the sentences to run concurrently. In his sole issue on appeal, Gamble contends the trial court erred in denying his motion to suppress because the search warrant affidavit failed to establish probable cause given its reliance on conclusory statements, stale information, activity that was not illegal per se, and the uncorroborated statements of a co-conspirator. Because we conclude that Gamble lacks standing to contest the search, we affirm the trial court's judgment.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010).
Standing
The police obtained a search warrant for "a trailer located in a boot leg mechanic shop lot in the block of 2309 ½ Ferguson Way, Houston, Harris County, Texas."Evidence gathered during the execution of thatsearch warrant gave rise to Gamble's conviction. Gamble argues that his conviction must be overturned because the facts stated in the search warrant affidavit were insufficient to establish probable cause.The State responds,for the first time on appeal,that Gamble did not establish a legitimate expectation of privacy in the trailer and thereforelacks standing to contest the search. Gamble has not replied to the State's standing challenge. After de novo review of the standingissue, we agree with the State. SeeState v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (en banc) (explaining that, because standing is element of unreasonable-search-and-seizure claim, State's failure to contest defendant's standing in trial court does not prevent court of appeals from considering it on appeal); Wilson v. State, 692 S.W.2d 661, 669 (Tex. Crim. App. 1984) (op. on reh'g) (same); see also 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) (observing that standing isquestion of law appellate courts review de novo).
Because the background of this case and the information stated in the search warrant affidavit are well known to the parties, we limit recitation of the facts.
The constitutional guarantees against unreasonable search and seizureare personal in nature and are invariably intertwined with the concept of standing. Wilson, 692 S.W.2d at 667 (citing Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S. Ct. 421, 427-28 (1978)). Defendants have long had notice that "the privacy interest in the premises searched is an element of their [unreasonable-search-and-seizure claim], which they bear the burden of establishing," and that "the State would be allowed to raise the issue of standing for the first time on appeal." Wilson, 692 S.W.2d at 669;see Handy v. State, 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006) ("a defendant seeking to suppress evidence obtained during a search always has the burden of proving standing to complain of the search").Thus Gamble, in moving to suppress evidence,had to show: (1) that he had an actual, subjective expectation of privacy in the premises searched and (2) his subjective expectation of privacy is one that society is prepared to recognize as reasonable. See Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002);Rodriguez v. State, 313 S.W.3d 403, 407 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
The record contains limited information about the premises searched in this case, describing it only as:
a trailer located in a boot leg mechanic shop lot in the block of 2309 ½ Ferguson Way, Houston, Harris County, Texas. The said trailer is brown in color and is one room situated on the west side of the lot with the front door facing south. The trailer . . . is constructed of a metal siding. The main entrance to the lot faces north. The lot is located on the south side of the roadway and typically has several vehicles in the lot with a gate across the front entrance into the lot.The record contains no explicit statement that Gamble has standing to challenge the search of the trailer.The search warrant affidavit states only that Gamble was present at the trailer andthat drugs were delivered to him there. While the motion to suppress contends that the "affidavit suggests the officer [testifying] had the residen[ce] of the defendant under surveillance," the affidavit does not affirmatively state that the trailer was Gamble's residence. AndGamble did not present proof to the trial court that he resided in the trailer. See Handy, 189 S.W.3d at 299 (finding bare assertion that premises searched was defendant's residence insufficient to establish standing to contest search). Neither didGamble, either personally or through counsel, stipulate that he owned the trailer,exercised control or dominion over the trailer, or had a possessory or other interest in the trailer consistent with historical notions of privacy. On this record, we conclude that Gamble failed to establish his standing to contest the search of the trailer—i.e., he failed to show that he had a reasonable expectation of privacy in the trailer. Consequently, we overrule his sole issue challenging the denial of his motion to suppress.See Wilson, 692 S.W.2d at 671 ("The reviewing court may properly sustain the trial court's denial on the ground that the evidence failed to establish standing as a matter of law, even though the record does not reflect that the issue was ever considered by the parties or the trial court.").
At the motion-to-suppress hearing, the State defended the search warrant affidavit using these words:
It appears the point of contention is the actual affidavit itself. And, again, our contention is that the five elements necessary are met in this one as well. Just for some background, the description, there is the address. There's a description of the person in control is Mr. Gamble. The description of the property is the contraband, it's the various drugs, and that an offense was committed. Of course Andre Roberson who we're relying on here, that there is probable cause.
Conclusion
Having overruled Gamble's sole issue on appeal, we affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. TEX. R. APP. P. 47.2(b).
We recognize that the State may lose its right to challenge standing for the first time on appeal if that challenge is inconsistent with the State's position in the trial court. Wilson, 692 S.W.2d at 668. At first blush, the prosecutor's statementmay seem to be a concession regarding standing. When the statement is considered in the context of the search warrant affidavit at issue, however, it is clear the prosecutor was referring to Gamble's "control" over the prescription drug operation being investigated, not the trailer searched. Thus, we do not find the statement to be contrary to the State's position on appeal or a waiver of the State's right to challenge Gamble's standing.