Steven L. Richey v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00104-CR

______________________________

STEVEN L. RICHEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 28976-A

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

Steven L. Richey was charged by indictment with possession of a controlled substance, in an amount greater than four grams but less than 200 grams, with intent to deliver. Before trial, Richey moved to suppress the evidence seized during the search of Ronnie Sloan's residence, claiming the warrant was not based on probable cause. The trial court denied this motion. Richey then stipulated to the evidence, pled guilty, and was sentenced to serve thirty years in prison. He now appeals the trial court's adverse ruling on the motion to suppress. We affirm the judgment.

Factual History

On October 16, 2001, a search warrant was issued for Sloan's residence, located at 3109 Steele Road, Kilgore, Gregg County, Texas. The affidavit was based on sworn statements of Floyd Wingo, a veteran task force officer, and Celeste Peoples, Sloan's girlfriend, who was named in the affidavit. The affidavit names Sloan and Richey as being present at the residence. The search based on this warrant yielded more than fifty grams of methamphetamine, various items for the manufacture of methamphetamine, and currency in the amount of $634.00.

At the conclusion of the hearing on Richey's motion to suppress, the trial court expressly concluded Richey did not have standing to challenge the validity of the warrant for the search of Sloan's house. Richey challenges the adequacy of the search warrant affidavit to establish probable cause. Specifically, he contends that the allegations of the informant's reliability and credibility are insufficient.

Standard of Review

An appellate court analyzing the denial of a motion to suppress should afford almost total deference to the trial court's determination of the historical facts supported by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Green v. State, 971 S.W.2d 639, 642 (Tex. App. Houston [14th Dist.] 1998, pet. ref'd). The same amount of deference should be afforded the trial court's rulings on application of law to fact questions, referred to as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. However, mixed questions of law and fact may be reviewed de novo where the resolution of those ultimate questions is not restricted to an evaluation of credibility and demeanor. See id. Therefore, we will review de novo the trial court's determination of standing. See Villarreal v. State, 935 S.W.2d 134, 138-39 (Tex. Crim. App. 1996).

Standing to Challenge Search Warrant

An accused may challenge the admission of evidence obtained by illegal government intrusion only if he or she had a legitimate expectation of privacy in the place invaded. See Rakas v. Ill., 439 U.S. 128, 143 (1978); Villarreal, 935 S.W.2d at 138. It is the burden of the accused to prove facts establishing a legitimate expectation of privacy. See Villarreal, 935 S.W.2d at 138.

To carry the burden of proof, an accused must normally prove that, by his or her conduct, he or she exhibited an intention to preserve something as private, and that circumstances existed under which society is prepared to recognize his or her subjective expectation as being objectively reasonable. Id.; Taylor v. State, 995 S.W.2d 279, 281 (Tex. App. Texarkana 1999), pet. dism'd, improvidently granted, 55 S.W.3d 584 (Tex. Crim. App. 2001), cert. denied, 534 U.S. 1154 (2002). Factors relevant to this determination include the following:

(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.

Green, 971 S.W.2d at 642.

Courts have traditionally permitted overnight guests to assert a legitimate expectation of privacy in the homes of their hosts. See Minn. v. Olson, 495 U.S. 91, 97 98 (1990). In Olson, the facts that the accused had stayed several days at the house and had a change of clothes were factors in determining he was an overnight guest with an expectation of privacy while within the home. Id. at 98 n.6. That is not to say, however, that anyone who is a visitor in the nighttime hours enjoys this expectation of privacy. See Taylor, 995 S.W.2d at 282. In Taylor, the accused arrived at his friend's house at night, showered, and visited. Id. The record did not suggest Taylor slept at the house or "otherwise behaved as an 'overnight guest.'" Id. Taylor, therefore, could not assert Fourth Amendment protection to challenge the validity of the search of the house. Id.

Richey contends he proved facts to support his assertion of standing. First, he argues that his statement the residence was a private home demonstrates he had a legitimate expectation of privacy in Sloan's house. Further, he argues he had arrived at the house at night and had been there for somewhere between eight and twelve hours when he opened the door for the officers.

Assuming Richey did, as he stated, have a subjective expectation of privacy, he does not satisfy the test employed to establish that his expectation is one which society is prepared to recognize as reasonable. See Villarreal, 935 S.W.2d at 138. Richey had no property or possessory interest in Sloan's residence. Richey testified, in fact, that he lived elsewhere, not at 3109 Steele Road. The record fails to demonstrate Richey had any right to exclude others, although the fact he answered the door when the officers knocked may serve as an indication he exercised some control within the residence. We find no evidence Richey had taken any precautions for his privacy while at Sloan's house.

Richey did not prove facts essential to establish he was an overnight guest who is afforded an expectation of privacy under Olson. There is no evidence Richey had slept, bathed, or eaten at the house. The record also fails to indicate he had any personal effects at the home. Similar to the appellant in Taylor, Richey appears to have been a visitor at night, but that does not necessarily lead us to the conclusion he was an overnight guest as contemplated by the Olson rationale and analysis.

Based on the record of the hearing on Richey's motion to suppress the evidence obtained in the execution of the search warrant for Sloan's residence, we conclude Richey did not have a legitimate expectation of privacy in that residence and, therefore, lacked standing to challenge the legality of the search based on the warrant.

Sufficiency of the Affidavit

Even if Richey had a legitimate expectation of privacy which would permit him to challenge the warrant, his challenge would still fail. In the warrant, the informant is named, a fact which distinguishes this warrant from those in the cases on which Richey relies.

A search warrant may be issued only if it is supported by a sworn affidavit setting forth facts sufficient to establish that the property or item to be searched for or seized is located at or on the particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2004). The issuing magistrate is called on to make a practical, common-sense determination whether, given the totality of the circumstances set forth in the affidavit, there is a fair probability contraband or evidence of a crime will be found at the place described. Ill. v. Gates, 462 U.S. 213, 238 (1983); Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. [Panel Op.] 1983). A court reviewing this determination must decide whether, from the information contained within the four corners of the affidavit, substantial evidence in the record supports the magistrate's decision to issue the warrant. Mass. v. Upton, 466 U.S. 727, 728 (1984). The reviewing court should afford great deference to the magistrate's determination. Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996). Similarly, we review the trial court's decision to overrule a motion to suppress evidence challenging the sufficiency of the warrant for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

When an affidavit contains information from a named informant, the affidavit will be sufficient if the information given is sufficiently detailed so as to suggest direct knowledge on the informant's part. Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Wilkerson v. State, 726 S.W.2d 542, 545 (Tex. Crim. App. 1986); Mejia v. State, 761 S.W.2d 35, 38 (Tex. App. Houston [14th Dist.] 1988, pet. ref'd). There are, however, varying degrees of credibility with respect to informants. For instance, where a named informant is a private citizen, whose only contact with the police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the information are inherent. Esco v. State, 668 S.W.2d 358, 360 61 (Tex. Crim. App. [Panel Op.] 1982). Information supplied by an average citizen is "much less likely to produce false or untrustworthy information" than information supplied by a suspect under arrest. State v. Wester, 109 S.W.3d 824, 826 27 (Tex. App. Dallas 2003, no pet.).

Both Peoples' status as a named informant and the nature of her statements indicate Peoples is sufficiently credible and reliable. The fact Peoples allowed her name to be used in the affidavit "goes a long way toward establishing her credibility." See Woods v. State, 533 S.W.2d 16, 19 (Tex. Crim. App. 1976); Wester, 109 S.W.3d at 826 27. Peoples did not supply the information as a result of police investigation of her. Rather, the record indicates she initiated the contact with police.

As further support of her reliability, the affidavit also states she had been living in the house and was familiar with the appearance of methamphetamine. Additionally, or alternatively, this statement could be treated as a statement against her penal interest in that she appeared to implicate herself by stating she had been living at the residence and was familiar with the manufacturing process. See United States v. Harris, 403 U.S. 573, 583 (1971); Hennessy, 660 S.W.2d at 91; Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App. Austin 1996, pet. ref'd, untimely filed).

Giving proper deference to the magistrate's determination, and viewing the totality of the circumstances in a light most favorable to the trial court's ruling, we conclude the trial court did not abuse its discretion in overruling Richey's motion to suppress.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: December 16, 2003

Date Decided: December 17, 2003

Do Not Publish