Opinion issued October 30, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00930-CR ——————————— KAYLEN DEWAYNE SIMMONS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 12-CR-2519
MEMORANDUM OPINION
Kaylen Dewayne Simmons pleaded guilty to the felony offense of burglary
of a habitation, and the trial court deferred adjudication and placed Simmons on
community supervision for six years. See TEX. PENAL CODE ANN. § 30.02 (West
2011). On appeal, Simmons contends that the trial court erred in denying his motion to suppress evidence seized in the search of a car in which he was a
passenger. We affirm.
Background
At the hearing on the motion to suppress, Officer L. De la Garza testified
that while on patrol one morning around 3:00 a.m., a car with no taillights passed
him. He followed the car to a gas station and activated his overhead lights as he
was entering the parking lot behind the car. One of the occupants started walking
towards the gas station store, while the driver and another passenger remained in
the car, acting “fidgety.” De la Garza told the man who left the car to come back.
De la Garza testified that he approached the car, identified the driver as Rudy
Ortiz, made Ortiz step out and put his hands behind his back, handcuffed him, and
advised him that he was under arrest for the traffic offense of having a defective
taillight.
While De la Garza was continuing with the traffic stop investigation, another
officer arrived with his K-9 partner and conducted a drug sniff of the car. The dog
“alerted” for the presence of narcotics. Subsequently, De la Garza searched the car
and found a number of items, including a pillowcase containing a Coach purse and
several electronics in the car’s trunk. It was later determined that the items in the
pillowcase were stolen during a recent burglary.
2 Simmons also testified at the hearing. He testified that he was riding in the
back seat of the car, was asked to exit the car, and was handcuffed.
Discussion
In two issues, Simmons contends that the trial court erred in denying the
motion to suppress because Officer De la Garza had no basis to search the car and
the State did not offer evidence that the K-9 was properly certified. The State
responds, arguing for the first time on appeal that Simmons does not have standing
to contest the search because he was merely a passenger in the car.
A. Standard of Review and Applicable Law
A defendant who asserts a Fourth Amendment claim has the initial burden to
establish, as an element of that claim, that he has standing. State v. Klima, 934
S.W.2d 109, 111 (Tex. Crim. App. 1996). To demonstrate standing to challenge
the search of another person’s vehicle, the defendant must show that he personally
has a legitimate expectation of privacy in the searched vehicle. See Klima, 934
S.W.2d at 111; see also Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App.
2014) (The accused “must show (1) that he exhibited an actual subjective
expectation of privacy in the place invaded (i.e., a genuine intention to preserve
something as private) and (2) that society is prepared to recognize that expectation
of privacy as objectively reasonable.”) (internal quotations omitted). The State
may raise the issue of standing for the first time on appeal. Klima, 934 S.W.2d at
3 110. We review standing de novo, as it is a question of law. State v. Allen, 53
S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Fourth Amendment rights are personal rights that may not be vicariously
asserted. Pham v. State, 324 S.W.3d 869, 874 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d) (citing Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 426
(1979)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). “‘A
person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person’s premises
or property has not had any of his Fourth Amendment rights infringed.’” Pham,
324 S.W.3d at 874 (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger
has no standing to contest the search of the vehicle without evidence showing a
legitimate expectation of privacy in the vehicle or a possessory interest in the
property seized. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993);
Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Allen, 53
S.W.3d at 732 (“[A] nonowner passenger does not have standing to challenge a
search of a car’s trunk.”).
B. Analysis
We agree with the State that Simmons did not meet his burden to show that
he had standing to challenge the search of the car’s trunk. The evidence presented
at the hearing conclusively showed that Simmons was a passenger in the back seat
4 of the car. Although it was his burden to do so, Simmons offered no evidence
regarding any expectation of privacy in the car or any possessory interest in any of
the items seized. See Klima, 934 S.W.2d at 111; see also Rakas, 439 U.S. at 148–
49, 99 S. Ct. at 433; Pham, 324 S.W.3d at 875–76.
Simmons relies on a single case in support of his argument that he has
standing to challenge the search, Brendlin v. California, 551 U.S. 249, 127 S. Ct.
2400 (2007). Simmons argues that Brendlin “unambiguously” holds that a vehicle
passenger “has a basis for challenging a search of the vehicle.” But Brendlin does
not support Simmons’s argument that he has standing here.
As the Fifth Circuit recently explained, “[i]n Brendlin, the [Supreme] Court
held that when the police stop a car, passengers in the car are ‘seized’ under the
Fourth Amendment to the same extent as a driver and thus have individual
standing to challenge the stop’s constitutionality.” U.S. v. Powell, 732 F.3d 361,
375 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). But “Brendlin [was]
clearly focused on the Fourth Amendment implications of a police stop on an
individual’s person and freedom of movement—the seizure of the person.” Id.
“Nothing in the [Supreme] Court’s opinion alters the standing analysis for
searching an area of a vehicle or an item found in a vehicle.” Id. “To gain Fourth
Amendment standing to challenge the validity of a search—not the validity of the
underlying seizure—passengers must continue to show a ‘legitimate expectation of
5 privacy’ in the area or item searched.” Id. (quoting Rakas, 439 U.S. at 148, 99 S.
Ct. at 433).
Since he did not own the vehicle, Simmons bore the burden to show that he
had an actual subjective expectation of privacy in the car’s trunk and that “society
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Opinion issued October 30, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00930-CR ——————————— KAYLEN DEWAYNE SIMMONS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 12-CR-2519
MEMORANDUM OPINION
Kaylen Dewayne Simmons pleaded guilty to the felony offense of burglary
of a habitation, and the trial court deferred adjudication and placed Simmons on
community supervision for six years. See TEX. PENAL CODE ANN. § 30.02 (West
2011). On appeal, Simmons contends that the trial court erred in denying his motion to suppress evidence seized in the search of a car in which he was a
passenger. We affirm.
Background
At the hearing on the motion to suppress, Officer L. De la Garza testified
that while on patrol one morning around 3:00 a.m., a car with no taillights passed
him. He followed the car to a gas station and activated his overhead lights as he
was entering the parking lot behind the car. One of the occupants started walking
towards the gas station store, while the driver and another passenger remained in
the car, acting “fidgety.” De la Garza told the man who left the car to come back.
De la Garza testified that he approached the car, identified the driver as Rudy
Ortiz, made Ortiz step out and put his hands behind his back, handcuffed him, and
advised him that he was under arrest for the traffic offense of having a defective
taillight.
While De la Garza was continuing with the traffic stop investigation, another
officer arrived with his K-9 partner and conducted a drug sniff of the car. The dog
“alerted” for the presence of narcotics. Subsequently, De la Garza searched the car
and found a number of items, including a pillowcase containing a Coach purse and
several electronics in the car’s trunk. It was later determined that the items in the
pillowcase were stolen during a recent burglary.
2 Simmons also testified at the hearing. He testified that he was riding in the
back seat of the car, was asked to exit the car, and was handcuffed.
Discussion
In two issues, Simmons contends that the trial court erred in denying the
motion to suppress because Officer De la Garza had no basis to search the car and
the State did not offer evidence that the K-9 was properly certified. The State
responds, arguing for the first time on appeal that Simmons does not have standing
to contest the search because he was merely a passenger in the car.
A. Standard of Review and Applicable Law
A defendant who asserts a Fourth Amendment claim has the initial burden to
establish, as an element of that claim, that he has standing. State v. Klima, 934
S.W.2d 109, 111 (Tex. Crim. App. 1996). To demonstrate standing to challenge
the search of another person’s vehicle, the defendant must show that he personally
has a legitimate expectation of privacy in the searched vehicle. See Klima, 934
S.W.2d at 111; see also Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App.
2014) (The accused “must show (1) that he exhibited an actual subjective
expectation of privacy in the place invaded (i.e., a genuine intention to preserve
something as private) and (2) that society is prepared to recognize that expectation
of privacy as objectively reasonable.”) (internal quotations omitted). The State
may raise the issue of standing for the first time on appeal. Klima, 934 S.W.2d at
3 110. We review standing de novo, as it is a question of law. State v. Allen, 53
S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Fourth Amendment rights are personal rights that may not be vicariously
asserted. Pham v. State, 324 S.W.3d 869, 874 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d) (citing Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 426
(1979)); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). “‘A
person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person’s premises
or property has not had any of his Fourth Amendment rights infringed.’” Pham,
324 S.W.3d at 874 (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger
has no standing to contest the search of the vehicle without evidence showing a
legitimate expectation of privacy in the vehicle or a possessory interest in the
property seized. See Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993);
Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Allen, 53
S.W.3d at 732 (“[A] nonowner passenger does not have standing to challenge a
search of a car’s trunk.”).
B. Analysis
We agree with the State that Simmons did not meet his burden to show that
he had standing to challenge the search of the car’s trunk. The evidence presented
at the hearing conclusively showed that Simmons was a passenger in the back seat
4 of the car. Although it was his burden to do so, Simmons offered no evidence
regarding any expectation of privacy in the car or any possessory interest in any of
the items seized. See Klima, 934 S.W.2d at 111; see also Rakas, 439 U.S. at 148–
49, 99 S. Ct. at 433; Pham, 324 S.W.3d at 875–76.
Simmons relies on a single case in support of his argument that he has
standing to challenge the search, Brendlin v. California, 551 U.S. 249, 127 S. Ct.
2400 (2007). Simmons argues that Brendlin “unambiguously” holds that a vehicle
passenger “has a basis for challenging a search of the vehicle.” But Brendlin does
not support Simmons’s argument that he has standing here.
As the Fifth Circuit recently explained, “[i]n Brendlin, the [Supreme] Court
held that when the police stop a car, passengers in the car are ‘seized’ under the
Fourth Amendment to the same extent as a driver and thus have individual
standing to challenge the stop’s constitutionality.” U.S. v. Powell, 732 F.3d 361,
375 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). But “Brendlin [was]
clearly focused on the Fourth Amendment implications of a police stop on an
individual’s person and freedom of movement—the seizure of the person.” Id.
“Nothing in the [Supreme] Court’s opinion alters the standing analysis for
searching an area of a vehicle or an item found in a vehicle.” Id. “To gain Fourth
Amendment standing to challenge the validity of a search—not the validity of the
underlying seizure—passengers must continue to show a ‘legitimate expectation of
5 privacy’ in the area or item searched.” Id. (quoting Rakas, 439 U.S. at 148, 99 S.
Ct. at 433).
Since he did not own the vehicle, Simmons bore the burden to show that he
had an actual subjective expectation of privacy in the car’s trunk and that “society
is prepared to recognize that expectation of privacy as objectively reasonable,” but
he presented no evidence of either. See Matthews, 431 S.W.3d at 606.
Accordingly, we hold that Simmons failed to establish that he had standing to
challenge the search. See Rakas, 439 U.S. at 148–49, 99 S. Ct. at 433 (passengers
who asserted neither property nor possessory interest in vehicle or items found
during search, and who made no showing of any legitimate expectation of privacy
in areas of vehicle where seized items were found, were not entitled to suppression
of seized items in their subsequent robbery prosecution); Hughes v. State, 24
S.W.3d 833, 838 (Tex. Crim. App. 2000) (passenger appellant showing no
possessory interest in vehicle or items seized from within it endured no
infringement of any right ensuring freedom from unreasonable searches and
seizures).
Because we have concluded that Simmons did not establish standing to
challenge the search of the car, we need not address the two grounds on which
Simmons challenges the trial court’s denial of his motion to suppress. See Wilson
v. State, 692 S.W.2d 661, 671 (Tex. Crim. App. 1984) (op. on reh’g) (reviewing
6 court may affirm trial court’s denial of motion to suppress on the ground that the
defendant failed to establish standing, even if standing was not raised in trial
court).
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).