State v. Trevino

63 S.W.3d 512, 2001 Tex. App. LEXIS 6390, 2001 WL 1090754

• Court: Court of Appeals of Texas
• Decided: September 19, 2001
• Docket: No. 04-00-00580-CR
• Status: Published

Opinions

Opinion by

PHIL HARDBERGER, Chief Justice.

The State of Texas (“State”) appeals the trial court’s order granting the motion to suppress filed by appellant, Jose “Joe” Angel Trevino (“Trevino”). This panel previously addressed the same issue raised by the State in State v. Scheineman, 47 S.W.3d 754 (Tex.App. — San Antonio 2001, pet. filed). For the reasons expressed in our opinion in Scheineman, the trial court’s order is affirmed.

BACKGROUND

Trevino and Michael Scheineman were taken into custody for questioning regarding an attempted burglary. They were initially placed in separate rooms. Trevino asked to speak alone with Scheineman before speaking further •with authorities.¹ A sheriffs deputy brought Scheineman into the room with Trevino and left them alone. Trevino and Scheineman proceeded to discuss the attempted burglary, making incul-patory statements. Neither Trevino nor Scheineman knew that the conversation was being monitored or recorded. The room did not contain any indication that a microphone or camera was in the room. Several minutes into their conversation, they noticed someone moving behind a mirror located on a wall in the room and became aware that their conversation was being monitored. They immediately stopped talking.

Trevino was indicted for attempted burglary and filed a motion to suppress the statements recorded by the State, asserting that they were obtained through the use of an unlawful recording and interception of an oral communication. After a hearing, the trial court granted the motion to suppress, and the State appealed. The parties submitted an agreed statement of the case in lieu of a reporter’s record.

Discussion

The State contends that Trevino did not have standing to challenge the admission of the recorded statements because he did not have a legitimate expectation of privacy in the room. In order to prove that he had a legitimate expectation of privacy, Trevino was required to show: “(a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable.” Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). In reviewing a trial court’s ruling on a motion to suppress, we afford deference to the trial court’s determination of the historical facts, but we decide de novo whether the trial court erred in misapplying the law to the facts. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997).

The record supports the trial court’s finding that Trevino had a subjective expectation of privacy, and we afford deference to that finding. See id. However, we must decide de novo whether Trevino’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, because that question is a question of law. See Villarreal, 935 S.W.2d at 138 n. 5.

In Scheineman, we concluded that Scheineman’s subjective expectation of privacy was objectively reasonable by societal standards, reasoning:

We agree with the State that under normal circumstances society is not prepared to recognize as reasonable an ar-restee’s subjective expectation of privacy with regard to conversations that occur in the back of a police car or in a jail or prison. See Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); United States v. Harrelson, 754 F.2d 1153, 1168-71 (5th Cir.1985); Op. Tex. Att’y Gen. No. JC-0208 (2000). However, the circumstances in this case go beyond mere secret recording in a place that the general public has no reason to believe would be a sanctuary for private discussions. In this ease, the deputy created a situation in which Scheineman and Trevino were led to expect privacy by the deputy granting Trevino’s request that he be permitted to speak with Scheineman alone. Society does not condone dishonesty. For this reason, society should not sanction the use of deliberate misrepresentations to enable law enforcement authorities to gather possible incriminating evidence. See State v. Calhoun, 479 So.2d 241, 243 (Fla.Dist.Ct.App.1985) (affirming trial court’s suppression of statements made in interview room where police officers deliberately fostered expectation of privacy by complying with appellant’s request to speak with brother privately, bringing brother into room and exiting); North v. Superior Court, 8 Cal.3d 301, 311-312, 502 P.2d 1305, 1311-1312, 104 Cal.Rptr. 833, 839-840 (Cal.1972) (holding expectation of privacy fostered where officer permitted suspect and wife to use his private office), overruled by statute, De Lancie v. Superior Court, 31 Cal.3d 865, 647 P.2d 142, 183 Cal.Rptr. 866 (Cal.1982) (statute only permits recording of detainee or prisoner’s conversation for safeguarding institutional security or protecting public but prohibits recording for purpose of gathering evidence). No evidence was presented in this case that the recording was conducted pursuant to a policy for security reasons rather than for purposes of gathering evidence. Compare United States v. Hearst, 563 F.2d 1331, 1344 (9th Cir.1977) (evidence presented that monitoring and recording were conducted pursuant to established jail policy for security reasons); State v. Wilkins, 125 Idaho 215, 868 P.2d 1231, 1237-38 (1994) (recording admissible where dispatcher testified that intercom was routinely on as safety feature). Where a law enforcement official lulls a defendant into believing his conversation with another will be confidential by allowing the defendant to speak privately with the other individual in a separate room but secretly records the conversation solely for purposes of gathering evidence, the defendant’s subjective expectation of privacy is objectively reasonable by societal standards.

47 S.W.3d at 756-57.

In Scheineman, we concluded that “society should not sanction the use of deliberate misrepresentations to enable law enforcement authorities to gather possible incriminating evidence” because “society does not condone dishonesty.” 47 S.W.3d at 756. Although one of the cases cited for support in Scheineman involves a conversation between spouses, the nature of the relationship between the parties to the conversation is not the determining factor in our analysis. The determining factor is the use of deliberate misrepresentations by law enforcement authorities to secretly record conversations to gather possible incriminating evidence in the absence of any evidence that the recording was conducted pursuant to a policy for security reasons. The analysis recognizes that a balancing must be undertaken in determining whether society should recognize a subjective expectation of privacy as objectively reasonable. However, when there is no policy requiring the taping of conversations for security reasons, one side of the balance is empty, while the other side is weighed down by the deliberate dishonesty of the law enforcement officials. If the State had introduced evidence of a policy or justification for recording the conversation in this case for security reasons, we may have reached a different conclusion. But, in view of the record before us, Trevino’s subjective expectation of privacy is objectively reasonable by societal standards.²

The trial court’s order is affirmed.

Dissenting opinion by PAUL W. GREEN, Justice

1 . Trevino states in the stipulation of evidence that he requested to talk alone with Scheine-man "[r]ather than talk to the deputy.” While Trevino may not have used the magic words "I am invoking my right to silence and right to counsel,” his intent is clear. Trevino was at least invoking his right to silence until after his private conversation with Scheine-man.

2 . The dissent contends that the majority opinion crafts a new per se rule and that the record evidence does not support the majority’s conclusion. This contention wholly ignores that the majority's analysis is based on a balancing test, not a per se rule. In addition, the record is devoid of any evidence of a policy or justification for the State’s recording of the conversation in this case. As is clear from the existing precedent, the balance would likely weigh heavily in the State's favor if such evidence had been introduced. It simply was not.