Darwin Lendell Turner v. State

Opinion issued February 19, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00085-CR

____________

DARWIN LENDELL TURNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 1144377

O P I N I O N

After his motion to suppress evidence was denied, appellant, Darwin Lendell

Turner, pleaded guilty, without an agreed punishment recommendation, to possession

of a usable quantity of less than two ounces of marihuana. See Tex. Health &

Safety Code Ann . § 481.121(b)(1) (Vernon 2003). The trial court found appellant

guilty and assessed punishment at three days’ confinement and a $1,000 fine. We

determine (1) whether the trial court erred by implicitly finding that Transportation

Safety Administration (TSA) agents’ search of appellant was reasonable under the

Fourth Amendment to the United States Constitution and Article I, Section 9 of the

Texas Constitution; (2) whether the trial court erred by implicitly finding that a TSA

agent’s initial stop of appellant was lawful under the Fourth Amendment to the

United States Constitution and Article I, Section 9 of the Texas Constitution; (3)

whether the trial court erred in admitting the testimony of TSA agent Timothy Henry

as to the actions of an unidentified gate agent and TSA agent Victoria Jack; and (4)

whether Henry’s testimony as to the actions of the gate agent and Jack deprived

appellant of his right to confront witnesses. We affirm.

Facts

Appellant was attempting to board a Southwest Airlines aircraft at Houston

Hobby Airport on November 13, 2002. Appellant was one of the last passengers to

board the plane, and an unidentified “gate agent” randomly selected him to participate

in a secondary security screening. Henry, a federal security screener, was stationed

at the boarding gate at which appellant was selected for screening. Henry approached

appellant and asked him to remove all metal objects from his pocket and on his

person. Henry then began the security wanding process, which alerted him with an

alarm to appellant’s right front pocket. Henry explained to appellant that, because the

alarm went off, he was going to have to pat down the area to make sure that there

were no weapons or contraband on appellant’s person. Appellant told Henry that he

had a cigarette package in his right front pocket, and Henry asked appellant if he

could remove the package. Appellant removed the package and handed it directly to

Henry. Henry then handed the package to Jack, another federal security screener

standing next to Henry. Jack then asked appellant what was contained in the package.

When appellant did not respond, Jack opened the package, observed the bag of

marihuana, and notified her supervisor. The supervisor notified the Houston Police

Department (HPD). Jack gave the package to HPD Officer Loretta Pettitt, and Pettitt

took appellant into custody. Standing to Contest Detention and Search

In his first and second points of error, appellant asserts that the initial stop and

the subsequent search of him conducted when he attempted to board the aircraft

violated the Fourth Amendment of the United States Constitution and Article 1,

Section 9 of the Texas Constitution. See U.S. Const. amend . IV; Tex. Const. art.

I, § 9. The State contends that appellant has no standing to object to the airport

security screening because appellant did not have a reasonable expectation of privacy.

We note that airport security screening encompasses both a stop and a search, neither

of which is sought to be justified by probable cause or articulable suspicion. What

appellant is clearly challenging is random, suspicionless stops and searches of airline

passengers at airports prior to boarding.

The State is permitted to assert a defendant’s lack of standing to contest a

search for the first time on appeal. See State v. Klima , 934 S.W.2d 109, 111 (Tex.

Crim. App. 1996); State v. Allen , 53 S.W.3d 731, 734 (Tex. App.—Houston [1st

Dist.] 2001, no pet.). Standing is a question of law, which we review de novo. State

v. Johnson , 896 S.W.2d 277, 285 (Tex. App.—Houston [1st Dist.] 1995), aff’d , 939

S.W.2d 586 (Tex. Crim. App. 1996). An accused has standing to contest a search,

under the Texas and United States Constitutions, only if he had a legitimate

expectation of privacy in the place that government officials or agents invaded . See

Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002); Wilson v. State ,

98 S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2002, pet ref’d). To have

standing, a defendant must show (1) that by his conduct, he exhibited an actual,

subjective expectation of privacy, i.e. , a genuine intention to preserve something as

private, and (2) that society is prepared to recognize his subjective expectation as

objectively reasonable. Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App.

1996). Therefore, even if a defendant demonstrates a subjective expectation of

privacy, his expectation must be one that society will recognize as reasonable. See

id .

Screeners randomly selected appellant for a secondary security screening as he

attempted to board an aircraft. Although appellant, by concealing the marihuana in

a cigarette package in his pocket, took some measures to indicate that he had a

subjective expectation of privacy, he has not shown that that expectation is one that

society will recognize as objectively reasonable.

In determining whether society will recognize an accused’s subjective

expectation of privacy as reasonable, it is helpful to look at relevant legislation. See

Chapa v. State , 729 S.W.2d 723, 728 (Tex. Crim. App. 1987) (asserting that, in case

involving search of taxi-cab passenger compartment, municipal code provisions

pertaining to taxi-cab passenger rights provide clear indicium of society’s

preparedness to accept passenger’s subjective expectation of privacy in passenger

compartment). Congress passed legislation in the wake of the September 11, 2001

commercial aircraft attacks, creating the Transportation Security Administration to

oversee security at airports throughout the United States. See 49 U.S.C.A. § 114 (a)

(West Supp. 2004). The portion of that statute pertaining to passenger screening

states:

The Under Secretary of Transportation for Security shall provide for the

screening of all passengers and property, including . . . carry-on and

checked baggage, and other articles, that will be carried aboard a

passenger aircraft operated by an air carrier or foreign air carrier in air

transportation or intrastate air transportation.

Id . § 44901(a) (West Supp. 2004). This statute provides some indication that society

recognizes that all passengers boarding aircraft in the United States are subject to a

search of themselves and all property that they attempt to bring aboard the aircraft,

regardless of the location of the airport or the destination of the flight. Consequently,

any subjective expectation that appellant has that, in boarding a flight, he will not be

stopped at the gate or searched, is not one that society recognizes as objectively

reasonable. Cf. United States v. Pulido-Baquerizo , 800 F.2d 899, 902 (9th Cir. 1986)

(stating that “a visual inspection and limited hand search of luggage which is used for

the purpose of detecting weapons or explosives, and not in order to uncover other

types of contraband, is a privacy intrusion we believe free society is willing to

tolerate”). Moreover, long before September 11, 2001, one who attempted to board

a commercial aircraft at a public airport knew or should have known that he was

subject to being searched. See Clay v. United States , 638 F.2d 889, 892 (5th Cir.

1981); Wehrli v. United States , 637 F.2d 408, 409 (5th Cir. 1981); Skipwith v. United

States , 482 F.2d 1272, 1273 (5th Cir. 1973).

Appellant contends that the suspicionless search was unreasonable in violation

of the Fourth Amendment of the United States Constitution. See Brown v. Texas , 443

U.S. 47, 50-51 , 99 S. Ct. 2637, 2640 (1979) (setting out balancing test to determine

reasonableness of search under Fourth Amendment); State v. Sanchez , 856 S.W.2d

166, 170 (Tex. Crim. App. 1993) (holding that evidence of standardized procedures

in operating roadblock and evidence of effectiveness of roadblock were necessary to

show reasonableness). Because we have determined that appellant does not have

standing to challenge the secondary screening at the boarding gate, including the

wanding process and the search of the cigarette package that set off the alarm, we do

not reach the issue of the reasonableness of the procedure under the Fourth

Amendment. We also do not reach another issue raised by the State: whether

appellant gave implied consent to his stop and search.

Accordingly, we hold that appellant, while attempting to board a commercial

aircraft at a public airport, did not have an objectively reasonable expectation not to

be stopped or searched that society will recognize so as to have standing to complain

of the unlawfulness of his random detention and subsequent search.

We overrule appellant’s first and second points of error.

Hearsay

In his third and fourth points of error, appellant contends that the trial court

erred by allowing the testimony of Henry as to the statements of an unidentified gate

agent and Jack because Henry’s testimony constituted inadmissible hearsay and

because Henry’s testimony deprived appellant of his right to confront witnesses.

However, the rules of evidence “except with respect to privileges, do not apply

in the following situations: (A) the determination of questions of fact preliminary to

admissibility of evidence when the issue is to be determined by the court under Rule

104.” Tex. R. Evid. 101(d)(1). Rule 104 states that “preliminary questions

concerning . . . the admissibility of evidence shall be determined by the court . . . .

In making its determination the court is not bound by the rules of evidence except

those with respect to privileges.” Tex. R. Evid. 104(a). Because suppression

hearings involve the determination of preliminary questions concerning the

admissibility of evidence, the rules of evidence, with the exception of privileges, do

not apply to suppression hearings. See Granados , 85 S.W.3d at 227 (acknowledging

that former Texas Rule of Criminal Evidence 1101(d)(4) stated that rules of evidence

applied to suppression hearings, but that that rule was not incorporated in the current

rules of evidence, so that rules of evidence 101(d)(1)(A) and 104(a) controlled). The

trial court did not err in admitting Henry’s statements because the rules of evidence

did not apply to appellant’s hearing. See id .

We overrule appellant’s third and fourth points of error.

Conclusion We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Bland.

Publish. Tex. R. App. P. 47.2(b).