Giles, Christopher Patten v. The State of Texas--Appeal from 70th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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CHRISTOPHER PATTEN GILES, ) No. 08-01-00080-CR

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Appellant, ) Appeal from

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v. ) 70th District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# A-27,664)

O P I N I O N

Christopher Patten Giles appeals his convictions for three counts of aggravated robbery with a deadly weapon, enhanced by a prior felony conviction. Appellant entered a plea of guilty before a jury and the trial court conducted a unitary proceeding for the purpose of the jury assessing punishment. Appellant also entered a plea of true to the enhancement paragraph to each count. After finding Appellant guilty of each count, the jury found the enhancement paragraph true, and assessed punishment at imprisonment for a term of twenty-two years. By a single point of error, Appellant attacks the trial court=s denial of his motion to suppress evidence seized during a warrantless search of his mother=s home. We affirm.

FACTUAL SUMMARY

On August 19, 1999, Sgt. Rick Pippens and Detective Abalos of the Odessa Police Department traveled to Andrews, Texas to arrest Appellant for three robberies. A detective at the Andrews Police Department provided them with an address where Appellant was believed to live with his mother: 507 Northwest 9th Street. Other police officers told Pippens that Appellant drove a black Nissan pickup. They went to the residence but did not find anyone home. The officers then paid a visit to a trailer home where Appellant had recently lived, but they did not find him there either. They spoke with the landlord who told them that the residence had been abandoned by Appellant and he had removed all of his property from it. Consequently, they decided to return to the residence on 9th Street.

As they approached the house, Pippens saw a black Nissan pickup driven by Appellant backing out of the driveway. With their weapons drawn, the officers exited their vehicle, ordered Appellant out of his truck, and immediately arrested him. Appellant=s wife, Amy Giles, was a passenger in the pickup. Pippens explained to Amy why they had arrested Appellant and told her they were attempting to locate some clothing Appellant had worn during the robberies. Amy agreed that they could look for the clothing and she escorted them into the house. In response to a question by Pippens, Amy said that the couple lived in the house. She showed Pippens the bed on which they slept and pointed out where they kept their clothing. Pippens first found the shoes Appellant had worn during the robberies but he did not immediately locate the clothes. Amy then took Pippens to the laundry room and they looked through the dirty laundry until they found the pants, dress shirt, and undershirt Appellant had worn during the robberies. She gave Pippens permission to take the clothing and shoes.

Amy Giles testified that on August 19, 1999, she lived with her mother at 500 Northwest 10th in Andrews. She and Appellant had been separated for approximately six months. Appellant lived in a trailer home on Northwest 12th Street.[1] Only Appellant=s mother, Teresa Giles, and her husband resided at 507 Northwest 9th Street. She did not recall telling Pippens that she and Appellant lived at the house on Northwest 9th nor did she recall going into the house with the officers. In fact, she told Pippens that she lived on Northwest 10th and she could not give them permission to enter the residence because it was not her home and Appellant=s mother was out of town. Despite her refusal to give permission, one of the officers entered anyway. The officer later exited with some items of clothing and asked her if they belonged to Appellant. Amy replied that she was not sure because Appellant shared clothing with his brother.

Appellant testified that he lived with his mother in August of 1999 but he had left some of his belongings in the trailer on Northwest 11th Street where he had lived prior to his separation from Amy. Amy did not live in the residence on Northwest 9th and Appellant did not consent to the officers=s entry into his mother=s house.

Teresa Giles also testified on Appellant=s behalf at the pretrial suppression hearing. Appellant was living with her during his separation from Amy. Teresa=s husband, Jose Pena, also lived in the home. Teresa never locks her home, thus offering easy access to Appellant. At the time of Appellant=s arrest, he and Amy had been separated for approximately two weeks. Prior to that, Appellant and Amy had lived in a trailer on Southeast 8th Street. Although Amy had lived in Teresa=s house for short periods of time, she was not staying with Appellant in the house at the time of the arrest. Pena offered conflicting testimony, stating that although Appellant had lived with them previously, he did not live with them in August of 1999. He did often visit with them and used their shower.

At the conclusion of the hearing, the trial court determined that Appellant lacked standing to contest the search of his mother=s home. The court denied the motion to suppress but made no written findings of fact or conclusions of law.

WARRANTLESS SEARCH

In his sole point of error, Appellant challenges the trial court=s denial of his motion to suppress. Citing Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App. 1996), Appellant argues that he has a legitimate expectation of privacy in his mother=s home given that he stored clothes, slept, and bathed there. Although Appellant goes on to argue that the search was constitutionally impermissible, he does not address the position taken by the State in the trial court that this was a valid consensual search.

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal, 935 S.W.2d at 138; Gordon v. State, 4 S.W.3d 32, 35 (Tex.App. -El Paso 1999, no pet.). The reviewing court must give almost total deference to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Gordon, 4 S.W.3d at 35. The trial court=s conclusions of law and the application of those principles to the facts of the case are reviewed de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). Because the trial court made no explicit findings of historical facts, the evidence must be viewed in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). Moreover, the trial court=s ruling should be upheld if it is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855 56.

Standing

A defendant has standing 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); Villarreal, 935 S.W.2d at 138. Furthermore, the defendant, because he has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Villarreal, 935 S.W.2d at 138. To carry this burden, the defendant must prove that (1) by his conduct, he exhibited an actual subjective expectation of privacy, namely, a genuine intention to preserve something as private and (2) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979); Villarreal, 935 S.W.2d at 138. Several factors are relevant to determining whether a given claim of privacy is 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, prior to 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. Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002); Villarreal, 935 S.W.2d at 138. This list of factors is not exhaustive, however, and none is dispositive of a particular assertion of privacy; rather, we examine the circumstances surrounding the search in their totality. Granados, 85 S.W.3d at 223; Villarreal, 935 S.W.2d at 138-39.

The evidence presented to the trial court could not be more contradictory if it had been strategically and painstakingly planned with that goal in mind. Our task is made somewhat easier, however, because we are instructed to take the evidence in the light most favorable to the trial court=s ruling. It is undisputed that Appellant did not have a property or possessory interest in his mother=s house. He was apparently free to stay there in the same manner as an extended overnight guest, but he did not Alive there@ as that phrase is commonly understood. It is well accepted by our society that an overnight guest has a legitimate expectation of privacy in the premises. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85 (1990); Granados, 85 S.W.3d at 223. Therefore, it does not matter that Appellant actually lived elsewhere. See Rakas, 439 U.S. at 141-42, 99 S. Ct. at 429-30 (noting that the court had previously held that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion). Appellant was legitimately in the place invaded and he had unrestricted access to various portions of the home such as the place where he slept and kept his clothes, the bathroom, and the laundry room. He also had his mother=s permission to come and go from the premises as necessary. Even when taken in the light most favorable to the trial court=s ruling, the evidence does not support a conclusion that Appellant did not have a legitimate expectation of privacy in the premises. On these facts, we thus agree with Appellant=s classic characterization that Ahome is where we leave our dirty clothes and underwear.@ Because Appellant possessed standing to challenge the search, the denial of the motion to suppress cannot be upheld on this ground. This does not end our inquiry, however, because the State also argued in the trial court that the search was a valid consensual search.

Consensual Search

During the suppression hearing, the trial court and the parties focused almost exclusively on the standing issue and the trial court stated at the hearing=s conclusion that Appellant lacked standing to object to the search. The trial court=s reasoning is irrelevant, however, so long as any theory articulated by the State supports the legality of the search. Brimage v. State, 918 S.W.2d 466, 479 (Tex.Crim.App. 1996). The State plainly relied on Amy Giles= consent to justify the warrantless search.[2] Therefore, we will consider whether this theory supports the trial court=s denial of the motion to suppress.

Both the Fourth Amendment to the United States Constitution as well as Article I, Section 9 of the Texas Constitution forbid unreasonable searches and seizures. Brimage, 918 S.W.2d at 500. Warrantless searches are per se unreasonable unless they fall under one of a few exceptions. Brimage, 918 S.W.2d at 500. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973); Riordan v. State, 905 S.W.2d 765, 770 (Tex.App.--Austin 1995, no pet.). When relying upon consent to justify the lawfulness of a search, a prosecutor has the burden to prove by clear and convincing evidence that the consent was freely and voluntarily given. Riordan, 905 S.W.2d at 770, citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1791, 20 L. Ed. 2d 797 (1968). Appellant did not assert in the trial court that Amy=s consent was involuntary; instead, he offered evidence that she did not consent at all and that the officers simply entered the residence illegally without consent. Taken in the light most favorable to the ruling, the evidence showed that Amy voluntarily consented to a search of the residence.

In Texas, a person with common authority over property may consent to a search of the property. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249 50 (1974); Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S. Ct. 1323, 134 L. Ed. 2d 475 (1996). ACommon authority@ is the mutual use of the property by persons generally having joint access or control for most purposes. Patrick, 906 S.W.2d at 490, citing Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d 148, 156 (1990). It has been said that Aany of the co inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.@ Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7, 39 L. Ed. 2d at 250 n.7; see also Powers v. State, 459 S.W.2d 847, 849 (Tex.Crim.App. 1970)(where two persons have equal rights to the use or occupancy of the premises, either may consent to a search, and the evidence thus disclosed can be used against either). Amy told Sgt. Pippens that she lived in the residence with Appellant. Excluding the contrary evidence from our consideration, as we must, her statements support a conclusion that she had common authority over the property and the right to consent to a search. Therefore, the trial court=s denial of the motion to suppress is not an abuse of discretion.

The trial court=s ruling can be upheld on a second and related theory. Even if we take into consideration the evidence showing that Amy did not live in the residence with Appellant, and therefore did not have actual authority to consent, the search is reasonable under the Aapparent authority@ doctrine as articulated by the Supreme Court in Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801, 111 L. Ed. 2d 148 (1990). In Rodriguez, the Supreme Court held that a warrantless entry by law enforcement officers onto a person=s premises does not violate the proscription of unreasonable searches and seizures under the Fourth Amendment, when such entry is based upon the consent of a third party whom the officers, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not possess such authority. Rodriguez, 497 U.S. at 182-86, 110 S.Ct. at 2798-2800; Riordan, 905 S.W.2d at 771. If the officers reasonably believed that the third party had common authority over the place to be searched, then their good faith mistake will not invalidate the search. Rodriguez, 497 U.S. at 182-86, 110 S.Ct. at 2798-2800; Riordan, 905 S.W.2d at 771. This does not mean, however, that they may rely upon consent given in ambiguous circumstances or that clearly appears unreasonable. Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801; Riordan, 905 S.W.2d at 771.

Amy told the officers that she lived in the residence with Appellant and she agreed to allow them to look for the clothes used in the robberies. She led them into the residence and showed them the bed where she and Appellant slept and showed them their clothes. She showed them Appellant=s shoes and then assisted them in searching through the dirty laundry. All of this would lead a reasonable person to believe that she truly did live in the residence and had common authority over the place searched. Therefore, the trial court could have reasonably found that the officers relied in good faith on Amy=s apparent authority to consent to a search of the premises. For all of these reasons, we overrule Appellant=s sole point of error and affirm the judgment of the trial court.

January 9, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 5

McClure, Chew, JJ., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(sitting by assignment)

(Do Not Publish)

[1] Appellant and the other defense witnesses refer to the trailer in which Appellant lived as being located on 12th, 11th, and 8th Streets. It is not clear from the record which is the correct address. Therefore, we will simply recite the address as provided by the witness.

[2] The State expressly raised this argument in a letter brief filed with the trial court and it offered evidence at the suppression hearing in support of this theory.