Nored v. State

875 S.W.2d 392, 1994 Tex. App. LEXIS 1013, 1994 WL 76465

• Court: Court of Appeals of Texas
• Decided: March 14, 1994
• Docket: 05-93-00208-CR
• Status: Published

Opinions

OPINION

LAGARDE, Justice.

Jerry Mack Nored appeals his conviction for burglary of a building. After the trial court overruled appellant’s motion to suppress, appellant pleaded guilty. Pursuant to a plea bargain, the trial court sentenced appellant to twenty-five years’ imprisonment. Appellant brings two points of error contending that: (1) the police violated appellant’s Fourth Amendment rights by monitoring a mobile tracking device and by entering appellant’s property without a warrant; and (2) the police failed to obtain a statutorily required court order before installing a mobile tracking device. We overrule the points and affirm the trial court’s judgment.

FACTUAL BACKGROUND

Highland Park police officer Greg Brand-statter testified that due to a rash of burglaries in an area of Highland Park, the police set up a “sting” operation to attempt to catch a burglar. The police placed a bicycle equipped with a mobile tracking device (a beeper) in a residential garage leased for that purpose. Theft-detection dye was placed on the handle bars and other parts of the bicycle. When the beeper signaled that the bicycle was being moved, the officers hurried to the garage; the bicycle was gone. The officers traced the beeper’s signal on receivers in their squad cars and followed the signal to an apartment complex in Dallas about one-half mile outside the Highland Park city limits and less than a mile from the garage where the police had placed the bicycle.

The apartment was located within a yard surrounded by a wooden “privacy” fence. As Officer Brandstatter walked next to the fence, he heard a noise. He looked through a knothole in the fence and saw a bicycle matching the description of the bicycle taken from the garage. After officers with hand-held receivers confirmed that the beeper was inside the fence, the officers entered the gate and approached the apartment.

Officer Brandstatter knocked on the door. He testified that the officers intended to investigate whether the bicycle was in fact the one taken from the garage. "When a man came to the door, the officers asked him to step outside. Officer Brandstatter asked him whether anyone was still in the house, and the man said, ‘Tes, the guy who Uves here is in there.” Officer Brandstatter then “summoned him out.” When this man, appellant, came to the door, Officer Brandstat-ter “gave him over to Officer Barrow.” When Officer Barrow saw that appellant had the theft-detection dye on his hands, he arrested him.¹ The police checked the serial number on the bicycle and confirmed that it was the bicycle taken from the garage. Thirteen minutes elapsed from the time the beeper indicated that the bicycle was being moved until the officers arrested appellant.

MOTION TO SUPPRESS

Burden of Proof

When a defendant seeks to suppress evidence on the basis of the right to be free of unreasonable search and seizure, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). In Russell, the court of criminal appeals further explained the burden of proof as follows:

As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.

Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the State is unable to produce evidence of a warrant, it must prove the reasonableness of the search or seizure.

Russell, 717 S.W.2d at 9-10 (citations and footnote omitted). However, the State is not required to prove the propriety of the search beyond a reasonable doubt. Lalande v. State, 676 S.W.2d 115, 117-18 (Tex.Crim.App.1984).

Standard of Review

At a suppression hearing, the trial judge is the sole judge of the witnesses’ credibility and the weight given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial judge may accept or reject any or all of the witnesses’ testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990), cert. denied, — U.S. -, 111 S.Ct. 2914, 115 L.Ed.2d 1078, overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991). We do not engage in our own factual review. We only consider whether the trial court improperly applied the law to the facts. See Romero, 800 S.W.2d at 543. Absent a showing of an abuse of discretion, we do not disturb the trial court’s findings. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). We view the evidence in the light most favorable to the trial court’s ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988). If the evidence supports the trial court’s ruling, we do not disturb that ruling. Johnson, 803 S.W.2d at 287. We must uphold the trial court’s ruling if it can be upheld on any valid theory, regardless of whether the State argued it in the trial court or on appeal. See Lewis v. State, 664 S.W.2d 345, 347 (Tex.Crim.App.1984) (disposing of motion to suppress on grounds of appellant’s lack of standing despite fact that State did not argue lack of standing at trial or on appeal).

FOURTH AMENDMENT RIGHTS

In his first point of error, appellant contends that the trial court erred in overruling his motion to suppress because the police violated his Fourth Amendment rights (1) by monitoring the beeper after appellant brought it within an area in which he had a reasonable expectation of privacy and (2) by entering onto the property without a warrant.²

Monitoring the Beeper

Appellant does not contend under this point of error that the beeper was illegally installed or that the police could not monitor the beeper while the bicycle was in a public place. Appellant argues that the monitoring of the beeper violated his Fourth Amendment rights after he brought the bicycle inside the privacy fence surrounding his apartment. To resolve this issue, we must determine whether the monitoring of the beeper infringed “an expectation of privacy that society is prepared to consider reasonable.” United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 3302, 82 L.Ed.2d 530 (1984) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)).

In support of his argument, appellant relies on a series of federal cases concerning the monitoring of legally obtained chemicals that can be used in the process of manufacturing or refining illegal drugs. See Karo, 468 U.S. 705, 104 S.Ct. 3296; United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); United States v. Cassity, 631 F.2d 461 (6th Cir.1980); United States v. Bailey, 628 F.2d 938 (6th Cir.1980). In each of these cases, law enforcement officers placed beepers inside containers of chemicals that were sold to the suspects. The officers monitored the beepers as the chemicals were transported and then were taken inside a private area. The courts held that the monitoring of the beepers did not violate the suspects’ reasonable expectations of privacy as long as the chemicals were in public areas, such as during transportation on public highways. However, the courts held that the monitoring did violate the suspects’ reasonable expectations of privacy when the chemicals were taken out of public areas, such as inside a private residence. From these cases, appellant concludes that the monitoring of the beeper in this case violated appellant’s reasonable expectation of privacy after the bicycle left the public area and entered appellant’s private area, namely, the yard surrounded by the privacy fence.

The Karo, Knotts, Cassity, and Bailey cases are all distinguishable, however, because they involved legally obtained chemicals. It is not unreasonable to assume that property legally obtained will be free of police monitoring.

The courts have not applied the same reasoning to contraband. See United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) (“[T]here is a clear line of demarcation between, on the one hand, contraband and other items, such as stolen goods, whose possession is illegal, and on the other, goods, whatever their suspected use, whose possession is legal.”), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). The courts have consistently held that police installation and monitoring of beepers placed inside contraband does not violate the Fourth Amendment. See, e.g., United States v. Most, 789 F.2d 1411, 1416 (9th Cir.1986) (installation in heroin); United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir. Unit A Sept. 1981) (installation and monitoring in heroin), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982), overruled on other grounds by United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir.1992) (en banc); United States v. Botero, 589 F.2d 430, 432 (9th Cir.1978) (installation and monitoring in cocaine), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); United States v. Dubrofsky, 581 F.2d 208, 211-12 (9th Cir.1978) (installation and monitoring in heroin); United States v. Bishop, 530 F.2d 1156, 1157 (5th Cir.) (per curiam) (installation and monitoring in money stolen from bank), cert. denied, 429 U.S. 848, 97 S.Ct. 133, 50 L.Ed.2d 120 (1976).

Thus, the cases upon which appellant relies are distinguishable. As the chemicals and contraband cases illustrate, society is willing to recognize as reasonable a higher expectation of privacy for legally obtained property than for contraband. Unlike the chemicals eases cited above, where the beepers acted as intrusions on the legitimate privacy expectations of the suspects, the beeper in this case acted as a sophisticated burglar alarm. Besides simply notifying the police of the fact of the theft of the bicycle, the beeper provided a means for the police to trace and recover the stolen property. Appellant does not explain why a thief has a right to assume that property he steals will not have a means of crying out its unfortunate fate to its owner and the police as well as notifying them of its position so that it can be recovered and returned to its lawful owner. Nor does appellant explain why a thief has, or should have, a reasonable expectation that once he takes his booty behind closed doors the police will discontinue monitoring the distress signal emitted by the stolen property. Such an expectation of privacy is not one that society is prepared to recognize as reasonable. Cf. Lucas v. United States, 411 A.2d 360 (D.C.1980) (department store’s electronic search of items for inventory tag to prevent shoplifting not unreasonable). The invasion of privacy in this case was minimal — the beeper informed the police of only the location of the stolen bicycle and beeper. We hold that the monitoring of the beeper after appellant took the bicycle and beeper behind the privacy fence did not violate appellant’s reasonable expectation of privacy. Accordingly, appellant has not shown a violation of his Fourth Amendment rights.

Entering Appellant’s Property

Appellant next argues that the officers’ warrantless entry onto his property violated his Fourth Amendment rights. Officer Brandstatter testified that appellant’s apartment was inside a yard surrounded by an eight-foot high privacy fence. The entrance to the property was through a gate “with a regular gate latch on it.” Appellant concedes that his apartment had only one door. The officers walked through the gate, through the patio area, and to appellant’s door. The purpose of entering onto the property was to talk to the occupants of the apartment “to determine if in fact this is our bicycle and if in fact these people were the ones that took it, basically investigating.”³

The police have the same right as any other person to enter onto residential property and walk up to the front door. Bower v. State, 769 S.W.2d 887, 897 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 , 106 L.Ed.2d 611 (1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (1991). If the person in possession of the property has not made express orders prohibiting any form of trespass, and if the police follow the usual path to the front door, then the police have not violated the person’s Fourth Amendment rights. Id. In this case, the record does not show that “No Entry” or “No Trespassing” signs were posted on the fence or gate. The gate was not locked and could be opened by pushing down on the handle. Nor does the record show that the police deviated from the usual path in their approach to appellant’s only door. Accordingly, the record does not show that the trial court abused its discretion in determining that the police did not violate appellant’s reasonable expectation of privacy by entering appellant’s property through the closed gate. Thus, no warrant was necessary for the police to enter onto the property.⁴ We overrule appellant’s first point of error.

ARTICLE 18.21, SECTION 14

In his second point of error, appellant contends that the trial court erred in overruling his motion to suppress because the police did not obtain a court order authorizing installation of the mobile tracking device under article 18.21, section 14 of the Texas Code of Criminal Procedure. See Tex.Code CRiM. PROcAnn. art. 18.21, § 14 (Vernon Supp. 1994). The record, however, does not show that a court order for installation of the device was not obtained. Accordingly, appellant has failed to show that the trial court abused its discretion in overruling the motion to suppress on this ground.⁵ We overrule appellant’s second point of error.

We affirm the trial court’s judgment.

1 . In the briefs and at oral argument, the parties disputed whether the officer arrested appellant before examining his hands to determine whether appellant’s hands were stained with the theft-detection dye. After submission, both sides filed supplemental citations to the statement of facts in support of each side's interpretation of the record. The issue is only marginally relevant, however, because appellant did not present a point of error challenging the legality of the arrest on this ground. We have thoroughly reviewed the record. Our interpretation is supported by the statement of facts viewed in the light most favorable to the trial court's ruling.

2 . The point of error reads, "The fruits of the arrest and/or search should be suppressed because the 'monitoring’ of an electronic tracking device became illegal when the police failed to secure an arrest and/or search warrant before entering an area in which the defendant had an expectation of privacy.” We interpret this point as challenging (1) the monitoring of the beeper after appellant brought it behind the fence and (2) the police’s warrantless entry onto the property. We do not interpret this point as contending that the police’s checking the serial number on the bicycle was an illegal search.

3 . Contrary to the assertions of the dissent, the record does not show that "one of their [the police's] purposes was to get the serial number from the bicycle.” Nored v. State, 875 S.W.2d 392, 401 (Tex.App.—Dallas 1994, n.w.h.) (Chapman, J., dissenting) (footnote omitted). Nor does the record show that "the officers entered to investigate, and, obviously, to obtain the serial number.” Id. at 401 (Chapman, J., dissenting). The only evidence of the police's intent on entering the property was "to see who was in there and determine if they were in fact the ones that took the bicycle.”

4 . The issue of whether the police violated appellant’s Fourth Amendment rights by searching the bicycle for the serial number without first obtaining a search warrant is not before us. We make no ruling on the propriety of that search. See supra note 2.

5 . We express no opinion of the applicability of the statute to property in which a suspect has no present or future legitimate property interest.