Kerr, Quincy v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed July 10, 2003

Affirmed and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00569-CR

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QUINCY KERR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 228th District Court

Harris County, Texas

Trial Court Cause No. 895,376

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M E M O R A N D U M O P I N I O N

Appellant, Quincy Kerr, was charged with possession with intent to deliver a controlled substance. After the trial court denied appellant s motion to suppress, appellant entered into a plea agreement and was sentenced to twenty-five years confinement in accordance with the State s recommendation. In four issues, appellant challenges the denial of his motion to suppress, contending: (1) he had standing to challenge the search; (2) a police dog s sniff was an illegal search; (3) a police officer s observation of a pyrex dish through appellant s window was an illegal search; and (4) his admissions were obtained in violation of his Miranda rights. We affirm.

 

I. Background

An officer from the Houston Police Department went to an apartment complex to serve appellant with an arrest warrant for a parole violation. Upon arriving at the complex, the officer watched appellant exit a car and enter an apartment. The officer approached the apartment and knocked on the front door. While standing there, the officer saw appellant jump from a second-floor balcony and run. The officer pursued and apprehended appellant and, thereafter, read him his Miranda rights.

The officer then asked appellant why he had fled. The officer stated in his affidavit that appellant responded that he had cookies of crack cocaine in the apartment and did not want to be caught in possession of them.

While appellant was detained, another police officer approached the front door of the apartment and through a window saw a pyrex dish that appeared to have white powder on it. Police then brought a trained narcotics dog to the complex. The dog alerted on the front door of the apartment. Using this information, the police then obtained a search warrant and found forty-eight grams of cocaine and ten grams of marijuana inside the apartment.

II. Right to Appeal

As a preliminary issue, the State argues that we should dismiss the appeal because appellant knowingly and intelligently waived his right to appeal as part of a plea agreement. A defendant in a noncapital case may waive any rights secured him by law, including the right to appeal. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2002). A valid waiver of appeal that is made knowingly and intelligently will prevent a defendant from appealing without the consent of the trial court. Ex Parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The record reflects that appellant knowingly and intelligently waived his right to appeal as part of the plea agreement; however, appellant subsequently sought permission from the trial court to appeal, and the trial court expressly granted appellant s motion. Because appellant obtained consent from the trial court, he is permitted to appeal despite his waiver. See Monreal, 99 S.W.3d at 617.

The State further contends appellant did not allege that his waiver was involuntary; therefore, the trial court s consent to appeal did not nullify the waiver and appellant should be held to his bargain. However, the trial court may excuse waiver even without the contention that it was involuntary. If the trial court gives consent, a defendant may appeal an issue despite voluntary waiver. Id. Because this appeal is properly before the court, we will address the merits of appellant s points of error. See Tex. Crim. Proc. Ann. art. 44.02 (Vernon 1979).

III. Motion to Suppress

In his sole issue, appellant argues the trial court erred in denying his motion to suppress the contraband seized during the search of the apartment. First, he contends he had standing to challenge the search. Second, he contends the State s assertion of probable cause to support the search warrant was based upon evidence that police obtained in violation of his constitutional rights. Specifically, he contends that the police dog s sniff was an illegal search, the police officer s observation of a pyrex dish through the apartment window was an illegal search, and his admission was obtained in violation of his Miranda rights.

Because this case involves mixed questions of fact and law that do not turn upon an evaluation of the demeanor and credibility of trial witnesses, we conduct a de novo review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court did not indicate the reasons for its denial of appellant s motion to suppress. Nevertheless, we must sustain the trial court s ruling if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

A. Standing

Appellant contends that he had a reasonable expectation of privacy in the apartment and thus had standing to challenge the search. He argues that the trial court erred in overruling his motion to suppress if it based its ruling upon a finding that he did not have standing.

A defendant has standing to challenge a search only if he has a reasonable expectation of privacy in the place invaded. Villareal v. State, 935 S.W.2d 134,138 (Tex. Crim. App. 1996). A defendant has the burden of proving facts establishing a legitimate expectation of privacy in the place invaded. Id. To meet this burden, a defendant normally must prove (1) that by his conduct, he exhibited an actual subjective expectation of privacy, and (2) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id. Relevant factors to the determination of whether a defendant s subjective expectation of privacy is one that society is prepared to recognize as objectively reasonable include the following: (1) whether defendant had a property or possessory interest in place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and right to exclude others; (4) whether, before 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. Id.

The evidence showed that appellant was not a lessee of the apartment. Nonetheless, other evidence supports a finding that he had a subjective expectation of privacy in the apartment. First, appellant demonstrated that he had unrestricted access to the apartment by freely entering it when no one else was home. Second, he kept clothes and other personal belongings in the apartment, which indicates that he stayed overnight at the apartment on at least some occasions. Cf.Villareal, 935 S.W.2d at 139 (holding that defendant did not have an objectively reasonable expectation of privacy in a home when there was no evidence to indicate that he intended to stay overnight). Third, in his affidavit in support of the search warrant, the police officer asserted that the apartment was in charge of and controlled by appellant. Finally, police officers indicated that they knew appellant lived at the apartment because they proceeded to the apartment in order to serve the arrest warrant. Accordingly, appellant has standing to challenge the search of the apartment.

B. The Evidence Used to Support the Search Warrant

Appellant next contends the State s assertion of probable cause to support the search warrant was based on evidence obtained in violation of appellant s constitutional right to be free from unreasonable searches and seizures. Specifically, appellant argues that the police dog s sniff outside the front door of the apartment was an illegal search.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. This protection includes a home and the curtilage of the home. Oliver v. United States, 466 U.S. 170, 180 (1984). However, a police officer is not prevented from approaching the front door of a residence unless he is expressly given orders not to do so by the person in possession of the property. Porter v. State, 93 S.W.3d 342, 345 (Tex. App. Houston [14 Dist.] 2002, pet. ref d). A search does not occur, for Fourth Amendment purposes, even when the explicitly protected area of a house is concerned, unless a reasonable expectation of privacy exists in the object of the challenged search. Porter, 93 S.W.3d at 346. There is no reasonable expectation of privacy in privately possessing illegal drugs. See United States v. Jacobson, 466 U.S. 109, 123 (1984).

In Porter, this court held that a police dog s sniff outside of a front door is not a search for purposes of the Fourth Amendment:

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For Fourth Amendment purposes, a search does not occur, even when the explicitly protected area of a house is concerned, unless a reasonable expectation of privacy exists in the object of the challenged search. An individual has no reasonable expectation of privacy in possessing illegal drugs. Therefore, a government investigative technique, such as a dog sniff or chemical test, that discloses only the presence or absence of narcotics, and does not expose noncontraband items, activity, or information that would otherwise remain hidden from public view, does not intrude on a legitimate expectation of privacy and is thus not a search for Fourth Amendment purposes.

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Porter, 93 S.W.3d at 346. The dog sniff in this case did not reveal any intimate details about the interior of the apartment other than the presence of illegal narcotics and, consequently, did not constitute an illegal search under the Fourth Amendment.

A search warrant may not be issued unless supported by an affidavit showing probable cause. U.S. Const. amend. IV. Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances. Ramos v. State, 31 S.W.3d 762, 764 65 (Tex. App. Houston [1st Dist.] 2000, no pet.). When a trained and certified narcotics dog alerts to contraband, probable cause exists to obtain a search warrant. See Harrison v. State, 7 S.W.3d 309, 311 (Tex. App. Houston [1st Dist.] 1999, pet. ref d) (stating that when a trained and certified narcotics dog alerts . . . to . . . contraband, probable cause exists to search a vehicle ). Accordingly, we hold that the police dog s sniff was not an illegal search. Moreover, the positive alert from the dog was sufficient to establish probable cause for issuance of the search warrant. Because our decision on the dog sniff issue is dispositive, we will not address appellant s remaining points challenging the propriety of other evidence used to support issuance of the search warrant.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).