Opinion
No. 05-15-00611-CR
04-27-2016
THE STATE OF TEXAS, Appellant v. KENNARD HENRY RICHARDS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F-1457714-X
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang, and Justice Brown
Opinion by Chief Justice Wright
Kennard Henry Richards was charged with possession with intent to deliver more than four grams but less than two hundred grams of a controlled substance (cocaine). He filed a motion to suppress, which the trial court granted. The State appeals the trial court's order and, in one issue, argues the trial court erred in granting the motion to suppress because appellee did not demonstrate he had a legitimate expectation of privacy in the place that was searched. We reverse and remand.
Background
Officer Emmanuel Strand of the Dallas Police Department testified he was assigned to the knock-and-talk task force within the narcotics division. Strand and four other officers were dispatched to respond to complaints that drugs were being sold at 9475 and 9479 Olde Village Court in Dallas. Upon arrival, the team set up surveillance and Strand approached the townhouse at 9479 Olde Village Court. Strand was wearing a recording device. The front door of the townhouse was open, but the open doorway was covered by closed burglar bars. Strand saw five people in the living room of the townhouse; appellee appeared to be asleep on a sofa just inside the door. Strand also saw a "marijuana grinder" on the coffee table and smelled the odor of marijuana through the open door. Strand asked who lived in the townhouse. Anthony Rider first stated that he lived in the townhouse; Rider then stated he did not live there but the townhouse belonged to his sister, Rachel Smith. Rider held his cellphone to the door so Strand could speak with a woman who identified herself as Rachel. Rachel claimed the townhouse belonged to her and said she would be returning soon.
After the phone call, Strand asked Rider to open the burglar bars but he refused. At that point, Strand noticed the occupants were getting restless. One said he needed to find his shoes so he could get out of there. Another grabbed something from the kitchen counter and ran up the stairs. As the occupants began to scatter, one of them slammed the front door shut. According to Strand, he and the other police officers were concerned evidence would be destroyed so they made a forced entry into the townhouse. The first thing Strand saw as he entered the townhouse was a gun on the sofa. Strand saw appellee in the kitchen by the back door. When Strand yelled for appellee to drop what was in his hands, Strand saw appellee throw something toward the kitchen trash can. Officers found a clear bag filled with baggies of white rocks next to the trash can. The officers secured the occupants and obtained a search warrant to search the townhouse.
Appellee filed a motion to suppress the evidence obtained during the search. After a hearing, the trial court found that appellee "had a personal expectation—a personal privacy interest violated by this search" and granted appellee's motion to suppress. The State appealed.
Motion To Suppress
In one issue on appeal, the State argues the trial court erred in granting appellee's motion to suppress because appellee does not have standing to complain about the search.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013); State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013); Lloyd v. State, 453 S.W.3d 544, 546 (Tex. App.—Dallas 2014, pet. ref'd). We review the trial court's factual findings for an abuse of discretion and the trial court's application of the law to the facts de novo. Turrubiate, 399 S.W.3d at 150; Lloyd, 453 S.W.3d at 546. When the trial court does not issue findings of fact, we imply findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, supports those findings. Turrubiate, 399 S.W.3d at 150; State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Almost total deference is given to the trial court's implied findings, especially those based on credibility and demeanor. Turrubiate, 399 S.W.3d at 150; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
APPLICABLE LAW
The Fourth Amendment of the U.S. Constitution and Article 1, Section 9 of the Texas Constitution protect individuals from unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. 1, § 9; see also Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). The rights secured by the Fourth Amendment and Article 1, Section 9 are personal. See Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014); see also Katz v. U.S., 389 U.S. 347, 350-51 (1967) ("[T]he Fourth Amendment protects people, not places."). In evaluating the trial court's ruling on the motion to suppress, we initially consider whether appellee has standing to challenge the search of the townhouse that resulted in the discovery of the cocaine for which he was charged. See Ex parte Moore, 395 S.W.3d at 158. To have standing to complain about the legality of a governmental search, a person must show that he personally had a reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143 (1978). If appellee personally did not have a reasonable expectation of privacy in the townhouse, he cannot complain of the alleged violation of his constitutional rights resulting from that search. See Ex parte Moore, 395 S.W.3d at 158.
The defendant who challenges a search has the burden of proving facts establishing a legitimate expectation of privacy in the place invaded. See id.; see also Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). He must show (1) he exhibited an actual subjective expectation of privacy in the place invaded, and (2) "society is prepared to recognize that expectation of privacy as objectively reasonable." State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)); see also Villarreal, 935 S.W.2d at 138. In determining whether a person's expectation of privacy is reasonable, we examine the totality of circumstances surrounding the search, including whether:
(1) the accused had a property or possessory interest in the place invaded;Villarreal, 935 S.W.2d at 138 (citing Calloway v. State, 743 S.W.2d 645, 651 (Tex. Crim. App. 1988)). This is a non-exhaustive list of factors, and no one factor is dispositive. See Ex parte Moore, 395 S.W.3d at 159. Although we defer to the trial court's factual findings, we review the legal issue of standing de novo. Betts, 397 S.W.3d at 204.
(2) he was legitimately in the place invaded;
(3) he had complete dominion or control and the right to exclude others;
(4) before the intrusion, he took normal precautions customarily taken by those seeking privacy;
(5) he put the place to some private use; and
(6) his claim of privacy is consistent with historical notions of privacy.
DISCUSSION
Appellee did not produce any exhibits, call any witnesses, or testify at the hearing on his motion to suppress. Strand was the only witness to testify. Strand testified that none of the occupants of the townhouse lived there, and none of the occupants had standing to consent to a search of the premises. Nevertheless, appellee argues that Strand's testimony and the State's exhibits proved that appellee had a legitimate expectation of privacy in the searched residence.
Appellee first claims the evidence demonstrated he had a possessory interest in the townhouse because Strand stated in the search warrant that appellee had "care, custody, and control" of the residence. Our review of the evidence reflects that the search warrant affidavit states "[s]aid suspected place and premises are in charge of and controlled by the following person(s)" and thereafter lists all of the occupants that were inside the townhouse at the time the police entered. During the hearing, Strand agreed that his search warrant affidavit states the occupants had control of the residence, but he explained the occupants had control because they locked themselves inside the townhouse.
Appellee next contends the evidence shows he was legitimately in the residence, but he does not direct us to where such evidence may be found in the record. Appellee also contends the evidence shows he put the residence to a private use because Strand testified that appellee appeared to be taking a nap on the sofa when the police arrived. And finally, appellee contends the evidence shows he slammed the door shut, thus demonstrating his control of the premises and his right to exclude others from the premises. In his search warrant affidavit, Strand indicated that appellee was the individual who closed the door. At the hearing, Strand testified that someone other than Rider ran up and slammed the front door shut; he further testified that he was not certain that appellee was the person who slammed the door.
The trial court was the sole judge of the credibility of witnesses and the weight to be given their testimony. See Valtierra, 310 S.W.3d at 447; Villareal, 935 S.W.2d at 138. Viewed in the light most favorable to the trial court's ruling, the evidence suggests appellee was a guest in the townhouse and exhibited a subjective expectation of privacy. The evidence also established that appellee and the other occupants took normal precautions to protect their privacy (such as closing the burglar bars and ultimately closing the front door), and they put the place to some private use. However, the evidence did not establish that appellee's subjective expectation of privacy was one that society is prepared to recognize as objectively reasonable under the circumstances. See Granados v. State, 85 S.W.3d 217, 225-26 (Tex. Crim. App. 2002) (no reasonable expectation of privacy once guest has been asked to leave by someone with authority to exclude him); Villareal, 935 S.W.2d at 138-39 (no reasonable expectation of privacy for casual, temporary visitor). Our conclusion is grounded on the totality of the circumstances established by the evidence. See Ex parte Moore, 395 S.W.3d at 161; Villareal, 935 S.W.2d at 139. The townhouse where the search and seizure occurred was not owned by appellee or any of the individuals present in the townhouse when the police officers arrived. There is no evidence that appellee or any of the other occupants lived in the townhouse or were overnight guests in the townhouse. At most, appellee and the other occupants were in the townhouse as casual or temporary guests. There is no evidence that appellee or any of the other occupants had clothing or other belongings in the townhouse. There is no evidence that appellee had complete dominion or control over the townhouse, or the right to exclude others from the townhouse. We conclude that society is not willing to sanction as objectively reasonable the subjective expectation of privacy of someone who is in a residence under the circumstances presented in this case. See Villareal, 935 S.W.2d at 139; see also Ex parte Moore, 395 S.W.3d at 160-61; Hollis v. State, 219 S.W.3d 446, 458 (Tex. App.—Austin 2007, no pet.).
Because appellee did not have a reasonable expectation of privacy in the townhouse, he cannot complain of an alleged violation of his rights under the Fourth Amendment of the U.S. Constitution or Article 1, Section 9 of the Texas Constitution resulting from the search at issue. We conclude the trial court abused its discretion in granting appellee's motion to suppress and sustain the State's sole issue.
Conclusion
We reverse the trial court's order granting appellee's motion to suppress and remand this case to the trial court for further proceedings.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE Do Not Publish
TEX. R. APP. P. 47
150611F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F-1457714-X.
Opinion delivered by Chief Justice Wright. Justices Lang and Brown participating.
Based on the Court's opinion of this date, the order of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered April 27, 2016.