Villarreal v. State

935 S.W.2d 134, 1996 Tex. Crim. App. LEXIS 237, 1996 WL 668593

• Court: Court of Criminal Appeals of Texas
• Decided: November 20, 1996
• Docket: 0241-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

The Harris County grand jury indicted appellant, Charles Robert Villarreal, for felony possession of marihuana and felony possession of cocaine with intent to deliver. See Tex. Health & Safety Code § 481.112(a) & (c) and § 481.121(a) & (b)(4). Appellant, citing Article 38.23 of the Texas Code of Criminal Procedure, the Fourth Amendment to the United States Constitution, and Article I, § 9, of the Texas Constitution,¹ argued in a pretrial motion that the contraband in question should be suppressed as the fruit of an unreasonable police entry² into a private residence in which he was a non-overnight guest. The State counterargued, inter alia, that appellant had no legitimate expectation of privacy in the residence and, therefore, no standing to assert either of his constitutional claims. The trial court denied the motion to suppress after an evidentiary hearing, and appellant pled guilty to both offenses. The trial court then sentenced appellant to imprisonment for eight years for the marihuana offense and imprisonment for eight years and a $1,000 fine for the cocaine offense, the two sentences to run concurrently. The First Court of Appeals, with one justice dissenting, upheld the trial court’s denial of the motion to suppress on the ground that appellant’s subjective expectation of privacy was not one that society was prepared to recognize as reasonable. Villarreal v. State, 893 S.W.2d 559 (Tex.App.—Houston [1st Dist.] 1994). We granted appellant’s petition to review that decision of the court of appeals. See Tex.R.App. Proc. 200(c)(5). We now affirm.

At the suppression hearing, two witnesses testified regarding matters that related to appellant’s standing to assert his constitutional claims. Houston police officer Walter B. Redman testified as follows: At approximately 7:00 p.m., November 20, 1992, an anonymous informant telephoned the Houston Police Department and stated that a large quantity of marihuana would be sold that evening at the Gary Rick Varner residence at 8038 Turquoise Lane. The informant described in detail the buyers and sellers of the marihuana and the vehicles they would be driving. At approximately 9:00 p.m. that evening, two police officers drove by the Varner residence in an unmarked vehicle and confirmed that one of the vehicles described to them by the informant, a blue and gray pickup truck, was parked at the residence. The officers then left the area to confirm other aspects of the informant’s tip. The officers returned to the area at approximately 10:30 p.m. and found that the pickup truck had gone. They and several other police officers in other vehicles then set up surveillance of the residence. At approximately 12:15 a.m., the pickup truck returned and stopped in front of the residence. Appellant, who was the driver of the pickup, and two other adult males exited the pickup, unloaded three packages from the bed of the pickup, and proceeded to walk toward the front door of the residence. The police vehicles then converged on the residence.' The officers exited their vehicles, identified themselves as police, and instructed the suspects to stop. The suspects turned, saw the officers, and then ran into the residence, closing and locking the door behind them. The officers, after demanding but being denied entrance, forced the door open, entered, and arrested appellant and six other adult males. The officers observed marihuana and several firearms scattered throughout the residence in plain view. A search of the residence uncovered more than $59,000 in cash, and a search of the pickup revealed a “quantity of cocaine,” a “pocket gram scale,” and an electronic gram scale.

Appellant’s co-defendant, Gary Rick Var-ner, testified that: (a) appellant, whom he knew “really well,” was an “invited guest” in the Varner residence on the evening in question; (b) appellant was in the residence for “one to two hours” early that evening, then left, and then returned “ten or fifteen minutes” before the police arrived;³ (e) he did not expect appellant to stay overnight that night but appellant “was welcome to stay if he wanted to”; (d) appellant had no personal property in the residence that night; and (e) “eveiyone” in the residence was “drinking” that night.

The trial court gave no verbal explanation for its denial of appellant’s motion to suppress; nor did the trial court enter any findings of fact or conclusions of law into the record. Thus, the record does not reflect whether the trial court denied the motion on the ground that appellant lacked standing or on the ground that the police entry into the Varner residence was reasonable.

The court of appeals upheld the ruling of the trial court on a theory of law applicable to the case, to wit: that appellant had no standing to press his constitutional claims because his subjective expectation of privacy was not one that society was prepared to recognize as reasonable:

Standing is an individual’s right to complain about an allegedly illegal governmental search, and thus to exclude evidence. 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 [99 S.Ct. 421, 430, 58 L.Ed.2d 387] (1978).

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The court of criminal appeals has held that a guest in a hotel room rented by another does not have a reasonable expectation of privacy in that room. An individual who has no possessory or proprietary interest in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched. Additionally, an individual has no valid expectation of privacy in a home where he is simply a guest and does not control entrances or exits from the premises.

We have found no precedent that would impute an expectation of privacy for the purposes of standing to an invited guest who is not an overnight guest. We recognize that Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990), found that an overnight guest had a legitimate expectation of privacy in the residence in which he spent the night. We decline to extend this expectation to the more casual visitor such as appellant.

Finding that appellant did not have standing to challenge the search of the Varners’ residence, we overrule appellant’s four points of error.

Villarreal v. State, 893 S.W.2d at 561 (emphasis added; some citations omitted).⁴

Appellant argues now that the court of appeals erred in concluding that he had no legitimate expectation of privacy in the Var-ner residence. Appellant insists that several “connective factors,” i.e., factors that connected him to the Varner residence, demonstrated that he had. an actual subjective expectation of privacy in that residence that was, from the viewpoint of American society, reasonable under the circumstances:

Appellant had a possessory interest in the household premises because of the over six-hour length of his stay, his unrestricted access, and his being accorded by the householder/owner the privilege of staying overnight had he wanted. There is no question that Appellant was legitimately upon the premises, and demonstrated his right to exclude third parties. Further, Appellant, in concert with his co-defendants, took precautions customarily taken by those seeking privacy by blocking and locking the door of the residence to exclude police and others. The fact that the premises was a private residence demonstrates it was put to private use. Finally, Appellant’s claim of privacy is consistent with historical notions of privacy which have been associated with the sanctity of the home as an institution....

Appellant’s Brief at 8.

The purpose of both the Fourth Amendment and Article I, § 9, “is to safeguard an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.” Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1993). An accused has standing, under both constitutional provisions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Richardson v. State, 865 S.W.2d at 948-949; Fuller v. State, 829 S.W.2d 191, 202 (Tex.Crim.App.1992). Furthermore, the accused, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App.1988). To cany this burden, the accused must normally prove: (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.⁵ Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Richardson v. State, 865 S.W.2d at 948-949. The following, at least, are relevant to the court’s determination of whether the accused’s subjective expectation was one that society was prepared to recognize as objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Calloway v. State, 743 S.W.2d at 651.

A trial court’s ruling on a motion to suppress lies within the sound discretion of that court. At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The reason for this rule is that the trial court, who observes the demeanor and appearance of the witnesses, is in a better position to determine their credibility than the appellate court is by reading their testimony as it appears in the record. Therefore, an appellate court must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling, and must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the ease. Id.

Viewed in the necessary light, the record evidence and reasonable inferences therefrom established that early on the evening in question, appellant was in the Varner residence one or two hours in order to arrange'a business transaction, and that he left the residence and returned shortly after midnight, rushing into the residence to avoid arrest. Thus, the evidence established conclusively that appellant did in fact exhibit an actual subjective expectation of privacy in the Varner residence. However, the evidence did not establish that appellant’s subjective expectation of privacy was one that society was prepared to recognize as objectively reasonable under the circumstances. Our conclusion is grounded on the totality of the circumstances established by the evidence. There was, for example, no evidence that appellant had a property or possessory interest in, or unrestricted access to, the Varner residence. Nor was there any evidence that appellant had dominion or control over the residence, or the right to exclude others. Nor even was there any evidence that appellant intended to stay overnight. In our view, American 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.

In short, the trial court’s ruling on appellant’s motion to suppress is supported by the record and is correct on a theory of law applicable to the case. Therefore, the court of appeals did not err in upholding the trial court’s ruling. We AFFIRM the judgment of the court of appeals.

MALONEY, J., concurs in the result.

1 . Article 38.23(a) provides that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” The Fourth Amendment, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, Kerv. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963), provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Article I, § 9, provides that "[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches.”

2 . An unconsented police entry into a residence undoubtedly constitutes a “search” within the meaning of the Fourth Amendment and Article I, § 9, with respect to those persons who have a legitimate expectation of privacy in the residence. See McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991).

3 . Thus, a portion of Varner’s testimony conflicted with Redman’s testimony.

4 . We are uncertain that the court of appeals used the correct legal standard. See Arcila v. State, 834 S.W.2d 357, 360 (Tex.Crim.App.1992). That court should have focussed on the factors we set out in Calloway v. State, 743 S.W.2d 645, 651 (Tex.Crim.App.1988). If the court of appeals meant to suggest that a non-overnight guest can never have standing, then it was probably incorrect. See United States v. Davis, 932 F.2d 752 (9th Cir.1991) (non-overnight guest has legitimate expectation of privacy in residence under particular facts presented); Rose v. United States, 629 A.2d 526 (D.C.App.1993) (same).

5 . The court of appeals acted properly in deciding de novo the question of whether appellant's subjective expectation of privacy was one that society was prepared to recognize as reasonable, because that question was a question of law. In Chapa v. State, 729 S.W.2d 723, 728 n. 3 (Tex.Crim.App.1987), we explained:

Whether a particular expectation of privacy is one society is willing to recognize [as reasonable] is in the nature of a legal rather than a factual inquiry. All that is necessary to be proven as a factual matter is the particular context in which [the defendant] harbored that expectation. It is then left to be resolved as a matter of law whether in the context shown society is willing to sanction that expectation as reasonable....

Denominating the question as one of law is sensible, because an appellate court is in a better position to decide it correctly than is a trial court. See Miller v. Fenton, 474 U.S. 104, 113-114, 106 S.Ct. 445, 451-452, 88 L.Ed.2d 405 (1985); United States v. McConney, 728 F.2d 1195, 1200-1204 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).