Marquis Richardson v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00217-CR
______________________________
MARQUIS RICHARDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 21063
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Marquis Richardson appeals from his conviction for possession of marihuana, between four ounces and five pounds. After the trial court denied his pretrial hearing on a motion to suppress the evidence based on a claim that the search was improper, Richardson pled guilty. He was sentenced to twenty months' confinement.

Richardson contends the trial court erred by finding the search that resulted in discovery of the contraband was lawful because police made an unlawful warrantless entry into the apartment. He argues that he had standing to contest the search because he was an overnight guest in the apartment, and he also contends that there were no exigent circumstances to justify a warrantless search. (1) In the search, officers found a quantity of cocaine, a quantity of marihuana, a pistol and ammunition, a police band radio scanner (and a code sheet), plastic bags, the lease agreement and rent receipt, and a total of just under $2,000.00 in cash.

We first address standing. If he has no standing, Richardson cannot contest the search. Standing is an individual's right to complain about an allegedly illegal governmental search and thus exclude evidence. Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1992). A party may challenge a search and seizure where he or she proves "an actual subjective expectation of privacy" that "society is prepared to recognize as objectively reasonable." Dominguez v. State, 125 S.W.3d 755, 762 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd); see Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Holden v. State, 205 S.W.3d 587, 589 (Tex. App.--Waco 2006, no pet.).

An accused has standing to contest a search under the Fourth Amendment only if he or she has a legitimate and reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 144 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). A defendant seeking to suppress evidence always has the burden of proving standing to complain of the search. Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006). A defendant who bears the burden of demonstrating a legitimate expectation of privacy can do so by establishing he or she had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable. To carry this burden, the accused must normally prove: (a) that by his or her conduct, the accused 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 the accused's subjective expectation as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979); Villarreal, 935 S.W.2d at 138; Richardson, 865 S.W.2d at 948-49.

In determining whether that requirement has been met, courts often look at several factors that have been held relevant to determining whether a given claim of privacy is objectively reasonable (if the defendant has standing):

(1) whether the accused had a property or possessory interest in the place invaded;

 

(2) whether the accused was legitimately in the place invaded;

 

(3) whether the accused had complete dominion or control and the right to exclude others;

 

(4) whether, before the intrusion, the accused took normal precautions customarily taken by those seeking privacy;

 

(5) whether the accused put the place to some private use; and

 

(6) whether the accused's claim of privacy is consistent with historical notions of privacy.

This list of factors is not exhaustive, and none is dispositive of a particular assertion of privacy; rather, we examine the circumstances surrounding the search in their totality. See Villarreal, 935 S.W.2d at 138.

For example, the United States Supreme Court in Minnesota v. Olson, 495 U.S. 91, 98 (1990), recognized that an overnight guest has a legitimate expectation of privacy in his or her host's home.

Similarly, the Court recognized that a registered guest at a hotel has a reasonable expectation of privacy in the room that he or she has rented and, consequently, is entitled to constitutional protection against unreasonable searches and seizures there. See Stoner v. California, 376 U.S. 483, 490 (1964). The First Court of Appeals concluded in Wilson v. State, based on those cases, that an overnight guest of a registered hotel guest shares the registered guest's reasonable expectation of privacy in the room. 98 S.W.3d 265, 268-70 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd).

Although we defer to the trial court's factual findings and view them in the light most favorable to the prevailing party, we review de novo the legal issue of standing. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Tucker v. State, 183 S.W.3d 501, 507 (Tex. App.--Fort Worth 2005, no pet.).

In this case, the evidence consists of the testimony of the arresting officer and of Richardson. Richardson testified he lived in Dallas and had caught a ride with "Stanky" to Paris to visit the mother of his child. (2) He testified he was planning to stay overnight at the apartment before going to visit her the next day. Richardson had no ownership or possessory interest in the apartment and testified that he did not know the person whose apartment it was, but that "Stanky" knew "Tony"--who he thought was the lessee, and that he thought "Stanky" had permission for them to stay there. So far as furnishings were concerned, Richardson testified that there was a couch in the apartment. He also testified that he had been there perhaps three or four hours before the officer arrived. (3) Richardson also testified that he had brought a bag of clothes with him and that police did not take them, but that his girlfriend could not find them when she went to the apartment the next day.

Officer William Brown testified it was clear no one was living in the apartment. He testified there was only a couch, a television, a piece of furniture on which the television was sitting, and a PlayStation game, and there were no beds, and nothing else in the house except for the trash can. He testified that both Richardson and "Stanky" told him they did not live there. He also testified that there were no clothes in the closet and that he saw no other clothing except for a pair of jeans lying on the couch.

The officer testified he had sought consent to search from Richardson; Richardson testified he told the officer it was not his house and he had nothing to do with it.

Applying the factors set out above, it is apparent Richardson had no property or possessory interest in the apartment. The evidence indicates (at most) he may have been legitimately in the place invaded. Richardson admitted he had "no authority" regarding the apartment. He did not have a key to the apartment and did not know if his friend "Stanky" (Mann) did. There was no showing that Richardson had complete control of the apartment or the right to exclude others. It is apparent precautions had been taken to ensure privacy by pulling blinds and shutting the door--there is no evidence that Richardson either personally did this or that "Stanky" did it at his bidding. Richardson testified he planned to stay overnight at the location, and it is not unheard of for a person to sleep on the floor or on a couch, so the lack of a bed or bedding is not necessarily dispositive. We do recognize that staying in an enclosed and secured living space (regardless of its level of furnishing) is traditionally the concept underlying privacy in a residence.

The State argues alternatively that Richardson came to Paris to sell drugs, as reflected by the condition of the room itself and its contents, and that it was more of a business location than a residence in any event.

Richardson's position has a number of weaknesses. It is true he was in an apartment. It was not his, and he did not know to whom it belonged, or even if his "friend" had any right to be there, or if a key was used to get into the apartment, or if the door was open when they arrived. Thus, he was not given permission to stay there overnight. There is no evidence he did any of the things that would indicate he had control over the property, and he even denied such when questioned by the officer.

Although ownership is not required to establish a reasonable expectation of privacy, more than mere entry into the property and a nearly entirely unsupported belief that the person may be permitted to remain there is required. Further, there is no indication Richardson had any reason to believe that other individuals, from the actual owner or lessee to a complete stranger, might not come into the property. He had no right to exclude others. In this instance, there is no evidence to support an expectation either of actual privacy, or some form of alternative privacy rooted in the expectation of actual privacy that a third party might have. See Rovnak v. State, 990 S.W.2d 863, 871 (Tex. App.--Texarkana 1999, pet. ref'd) (The subjective expectation branch was one that society would recognize as objectively reasonable under the circumstances. However, the claim of privacy was not consistent with historical notions of privacy because there was no showing that Rovnak had a property or possessory interest in the vehicle. The driver of the rental car was not authorized to give Rovnak permission to use it, there was no showing Rovnak was legitimately in the place invaded, nor did Rovnak have the right to exclude others because the rental agency could have prevented him from using the vehicle.); see also Pruneda v. State, 104 S.W.3d 302, 306 (Tex. App.--Texarkana 2003, pet. ref'd).

Having found that Richardson had no standing to contest the search, we affirm the judgment of the trial court.

 

Jack Carter

Justice

 

Date Submitted: March 21, 2007

Date Decided: April 18, 2007

 

Do Not Publish

 

1. We note that the State's argument also focuses on whether there was probable cause to arrest Richardson. That is not the issue raised in this appeal.

2. According to Richardson, he did not even know that "Stanky's" real name is Keith Mann.

3. Copies of the rental agreement and rent receipt were introduced into evidence--both indicating Phillip Fields was the lessee and payor.