Wilson v. State

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

A jury found appellant guilty of burglary of a habitation and assessed forty years. The Second court of Appeals (Fort Worth) affirmed in an unpublished opinion, holding, among other things, that appellant had no reasonable expectation of privacy in an automobile which the police searched, and thus had no standing to litigate the lawfulness of the search. Wilson v. State, No. 2-83-275-CR, delivered August 31, 1983. We granted appellant’s petition for discretionary review to examine that holding.

Our opinion on original submission reexamined Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1978) (opinion on State’s motion for rehearing), which held that the State may raise the issue of a defendant’s standing to challenge a search for the first time on appeal. We concluded that, in light of its premises, Sullivan is to be applied only to those situations where the evidence shows that the defendant had no standing to litigate the search. This conclusion effectively reinstated the rule of Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975), that the State may not raise the issue of standing for the first time on appeal.

In its motion for rehearing, the State contends that our opinion misconstrues Steagald v. United States, 451 U.S. 204 , 101 S.Ct. 1642 , 68 L.Ed.2d 38 (1981) and United States v. Sanchez, 689 F.2d 508 (5th Cir.1982), and that our holding shifts the burden of proof on the issue of standing from the defendant to the State.

In Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), the Supreme Court wrote:

“Had we accepted petitioners’ request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones’ [Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960) ] use of standing in Fourth Amendment analysis. Under petitioners’ target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle that the ‘rights assured by the Fourth Amendment are personal rights, [which] * * * may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,’ Simmons v. United States, 390 U.S. [377] at 389, 88 S.Ct. [967] at 974 [ 19 L.Ed.2d 1247 (1968)], the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases from this Court that would have come out differently had we concluded, as we do now, that the type of standing re *667 quirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. * * *

“It should be emphasized that nothing we say here casts the least doubt on cases which recognize that, as a general proposition, the issue of standing involves two inquiries: first, whether the proponent of a particular legal right has alleged ‘injury in fact,’ and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties. But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.

“Analyzed in these terms, the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. We are under no illusion that by dispensing with the rubric of standing used in Jones we have rendered any simpler the determination of whether the proponent of a motion to suppress is entitled to contest the legality of a search and seizure. But by frankly recognizing that this aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine than under the heading of standing, we think the decision of this issue will rest on sounder logical footing.” [emphasis supplied].

Rakas makes it plain that the question of a defendant’s reasonable expectation of privacy is an issue going to the merits of his Fourth Amendment claim. Moreover, the Court has consistently held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Rawlings v. Kentucky, 448 U.S. 98 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980); Rakas v. Illinois, supra; Simmons v. United States, 390 U.S 377, 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960).

In Maldonado v. State, supra, the State claimed, for the first time on appeal, that defendant lacked standing to challenge the search of a truck. This Court wrote:

“[Defendant’s] standing was never contested in the proceedings below. The State raises the issue for the first time in its brief upon appeal. The State should not be heard to complain of an incomplete record when its failure to dispute appellant’s standing is responsible for the deficiency.”

Our opinion on original submission in the instant case states that “the holding in Maldonado, supra, has been ... the holding in cases from no less than the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit.” We were referring to Steagald v. United States, supra, and to United States v. Sanchez, supra.

In Sanchez , the trial court granted defendant’s pretrial motion to suppress, and the government appealed. In a footnote, the Fifth Circuit stated:

“On appeal, the government seeks to question defendant’s ‘standing’ to complain of the stop and search. As the *668 government never raised any issue of standing below, we decline to consider its contentions in this regard and accordingly assume, as all parties did in the trial court, that defendant has sufficient standing.” [citing Steagald v. United States, supra],

Sanchez, supra, at 509 n. 1.

Sanchez represents the rule sometimes followed in jurisdictions where the prosecution has the right of appeal from the trial court’s rulings.

Where the prosecution loses on the motion to suppress and appeals from the trial court’s ruling, some courts in such jurisdictions bar the prosecution from raising the issue of standing for the first time on appeal. See, e.g., State v. Grundy, 25 Wash. App. 411 , 607 P.2d 1235 (1980); see also 3 W. LaFave, Search and Seizure, 1985 supp. Sec. 11.7 at 350 et seq.

LaFave offers a rationale for the rule. He states that when a prosecutor loses on the merits at the suppression hearing, he should be expected to put before the judge at that time any other basis upon which he was entitled to prevail. Hence the rule against the prosecution’s raising the issue for the first time on appeal when it lost on the merits below. On the other hand, when the prosecution wins on the motion to suppress, the government “cannot be faulted for not insisting upon an inquiry into yet another basis upon which it might defeat the suppression motion.” 3 W. LaFave, Ibid.

Thus the rationale of the Sanchez rule does not fit the procedure in our jurisdiction, where the State may not appeal the granting of defendant’s suppression motion.

Moreover, the Sanchez rule is not followed by some courts in jurisdictions where its rationale does fit. For example, the Tenth Circuit, relying on Rakas v. Illinois, supra, has held that the government, having lost on the motion to suppress, nevertheless may raise the issue of standing for the first time on appeal. United States v. Hansen, 652 F.2d 1374 (10th Cir.1981).

In Steagald, supra, the government also won on the motion to suppress. The government did not raise standing in the district court or the Court of Appeals. Instead, the government had consistently asserted the facts to be such as would confer standing, even as late as its brief opposing the granting of certiorari. After the Court granted certiorari, the government raised standing for the first time in its brief on the merits, suggesting remand as the appropriate disposition. The Court declined to follow the suggested disposition, and wrote:

“When petitioner sought review in this Court, the Government could have filed a cross-petition for certiorari suggesting, as it does now, that the case be remanded to the District Court for further proceedings. Instead, the Government argued that further review was unnecessary. Finally, the Government in its opposition to certiorari expressly represented that the searched home was petitioner’s residence.

“Thus, during the course of these proceedings the Government has directly sought to connect petitioner with the house, has acquiesced in statements by the courts below characterizing the search as one of petitioner’s residence, and has made similar concessions of its own.”

The Court concluded that the government “through its assertions, concessions, and acquiescence,” had lost the right to challenge petitioner’s claim that he possessed a legitimate expectation of privacy in the searched home.

Steagald does not stand for the proposition that the prosecution may not raise standing for the first time on appeal. Steagald shows, rather, that the prosecution may forfeit review of the issue “through its assertions, concessions, and acquiescence” in the course of the litigation.

In summary, Steagald and Sanchez do not form the basis for a general rule prohibiting the State from raising the issue of standing for the first time on appeal. The holding in Maldonado is not the holding in Steagald or Sanchez .

The analog nearest the instant case is Combs v. United States, 408 U.S. 224 , 92 *669 S.Ct. 2284 , 33 L.Ed.2d 308 (1972) (per curiam). At issue in Combs was the validity of a search warrant. Defendant moved to suppress the fruits of a search made pursuant to the warrant. The district court denied the motion to suppress.

On defendant’s appeal form his conviction, the government argued for the first time that defendant lacked standing to challenge the warrant’s validity, because he had shown no privacy interest in the premises searched pursuant to the warrant. The Sixth Circuit accepted the government’s argument and affirmed. 446 F.2d 515 (6th Cir.1971) (per curiam).

The Supreme Court wrote:

“In concluding that petitioner lacked such standing, the Court of Appeals noted, inter alia, that he had ‘asserted no possessory or proprietary claim to the searched premises’ during the course of the trial. * * * Clearly, however, petitioner’s failure to make any such assertion, either at the trial or at the pretrial suppression hearing, may well be explained by the related failure of the Government to make nay challenge in the District court to petitioner’s standing to raise his Fourth Amendment claim. In any event, the record now before us is virtually barren of the facts necessary to determine whether petitioner had [standing], * * *

“Since there has not yet been any factual determination of whether petitioner had an interest in the searched premises that was protectible * * *, we vacate the judgment of the Court of Appeals and remand with directions that the case be sent back to the District Court for further proceedings consistent with this opinion.”

As in the instant case, the prosecution won on the motion to suppress and raised standing on defendant’s direct appeal. When defendant lost his appeal he sought further review in the Supreme Court. Instead of ruling that the government could not raise standing for the first time on appeal, the Court remanded for further factual development to allow a proper resolution of the issue.

We see no reason to deviate from the Supreme Court’s treatment of the issue in Combs. The Court’s subsequent decision in Rakas v. Illinois, supra, emphasizes that a defendant’s privacy interest in the premises searched is a substantive element of his Fourth Amendment claim, which it is his burden to establish. Rawl-ings v. Kentucky, supra. The language of Rakas suggests that the Court would no longer view the absence of a challenge to a defendant’s standing as a “failure” of the government’s.

Rakas v. Illinois, supra, put defendants on notice that the privacy interest in the premises searched is an element of their Fourth Amendment claim, which they bear the burden of establishing. Sullivan v. State, supra, put defendants on notice that the State would be allowed to raise the issue of standing for the first time on appeal. Both these cases were decided in 1978. The suppression hearing in the instant ease was held in June of 1982. Accordingly, following Combs v. United States, supra, we turn to the record for the facts necessary to determine whether the appellant had standing.

The Court of Appeals states that “The record reflects that [appellant] was arrested in an automobile that did not belong to him.” This statement is incorrect. Appellant was apprehended at the back door of a house at about 10:45 a.m. The car that the police searched was parked on the street in front of the house. Appellant told the police “he had some ID in his vehicle.” A police officer obtained the keys to the vehicle from appellant. An officer used one of the keys to open the trunk of the car.

Appellant testified at the suppression hearing, but not at trial. Over objection by defense counsel, the prosecutor questioned appellant as follows:

“Q. Now, the person — whose car were you using?

“A. Michael Green.

*670 “Q. And Michael Green is the registered owner of that Monte Carlo; 1 is that correct?

“A. Yes, sir, it’s my understanding.

“Q. Okay. How did you come to be driving Michael Green’s Monte Carlo that morning?

[objection; overruled]

“Q. How did you come about the car? [objection; overruled]

“Q. How did you come about having Michael Green’s car?

“A. I borrowed it.

“Q. When did you borrow it from him? “A. When I did—

[objection; overruled]

“A. I borrowed it from him early that morning.

“Q. About what time?

[objection; overruled]

“A. If I remember, 8:30 or 9:00 o’clock that morning, somewhere around there.”

Michael Green did not testify at the suppression hearing. When the defense called him as a witness at trial, Green invoked his Fifth Amendment privilege not to incriminate himself and was excused by the trial court.

The Court of Appeals reasoned: “[Appellant] testified that Michael Green owned the automobile that was searched and that he had been in possession of it for only a couple of hours prior to his arrest. He has clearly failed to meet his burden of showing a reasonable expectation of privacy in the automobile and thus his standing to contest the search.”

LaFave comments, “If the owner of a vehicle has turned it over to another person for some period of time, then surely this latter person has standing vis-a-vis the car during the duration of the bailment.” 3 W. LaFave, Search and Seizure, Sec. 11.3 at 576-577 (1978). Elsewhere he states, “Thus, it is the current view that a person driving a car with the owner’s consent ... [has] standing to object to a search of that vehicle.” Id. at 571.

Maldonado v. State, supra, was a prosecution for possession of marihuana. Defendant was alone and driving a truck when he was stopped at a roadblock. Defendant was arrested for operatiing a motor vehicle without a valid driver’s license and failure to display vehicle registration receipts. Hours later, the police pried up plywood boards in the bed of the truck and discovered marihuana in a hidden compartment. On appeal, the State contended that defendant lacked standing to contest the legality of the search. This Court noted in dictum that “The record contains only hearsay testimony by several officers that appellant continually claimed that he had borrowed the truck from a friend. If true, this fact would suffice to give appellant a possessory interst in the truck and, thus, standing.”

In the instant case, appellant took the stand and testified that he had borrowed the car from its owner, Michael Green. The State did not controvert the truth of this claim with evidence, e.g., that the car had been reported stolen (see Hutchinson v. State, 509 S.W.2d 598 (Tex.Cr.App.1974)), or that the car was not registered to Michael Green. Although the State elicited from appellant his admission that he was convicted of a felony in 1977, the State did not argue that appellant’s testimony on the issue of his privacy interest in the automobile was unworthy of belief. 2 That appellant had borrowed the car from its owner was not a disputed issue. Rather, the State and defense joined issue on whether the appellant had consented to the search and, if he had, what the scope of *671 that consent was. The trial court did not state its reason for denying the motion to suppress.

The only evidence on the issue of standing supports appellant’s claim of a reasonable expectation of privacy in the premises searched. The prosecutor satisfied appellant’s burden of producing evidence on the issue when he cross-examined appellant.

Nevertheless, can the trial court’s denial of the motion to suppress be sustained on the ground that appellant failed to meet his burden of persuasion? As pointed out above, the parties joined issue on the question of appellant’s consent to the search, and did not argue the standing issue to the trial court. Cf. Sullivan v. State, supra (“defense counsel argued ... that [defendant’s] interest in the automobile was based on the fact that he had a key to the ignition on his key ring prior to the search”) (opinion on original submission). A defendant may fail even to produce evidence on the issue of standing, or the correct interpretation of the evidence produced may be that it fails to establish standing. See Lewis v. State, 664 S.W.2d 345 (Tex.Cr.App.1984). The reviewing court may properly sustain the trial court’s denial on the ground that the evidence failed to establish standing as a matter of law, even though the record does not reflect that the issue was ever considered by the parties or the trial court.

In the instant case, the evidence satisfies appellant’s burden of production on the issue of his reasonable expectation of privacy in the automobile. Nothing in the record warrants the conclusion that the trial court did not believe appellant’s testimony on that issue. In such circumstances, we will not sustain the denial of the motion to suppress on the ground that appellant failed to meet his burden of persuasion on the issue of standing.

We hold that appellant established his reasonable expectation of privacy in the premises searched. The State’s motion for rehearing is denied.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s claim of an unlawful search.

CLINTON, J., concurs in result for reasons stated in his concurring opinion on original submission.

TEAGUE and MILLER, JJ., concur in result for reasons stated in opinion on original submission.

WHITE, J., not participating.

. The officer who searched the vehicle testified at the suppression hearing that he believed the car was a Monte Carlo.

. The prosecution did argue: “We think that what [defense] counsel's argument boils down to is a question of whether the Court is going to lend a greater credit to the testimony of the officer or to [appellant]" on the disputed issue of consent.