Villarreal v. State

CLINTON, Judge,

concurring.

The Court has chosen this cause to broach a fundamental question of appellate review that has eluded our scrutiny for a long time. The question is: What is the proper standard of appellate review for any given application of law to fact (so-called “mixed questions of law and fact”), and how do we tell? As framed by the members of the Court, and by other courts and commentators as well, it boils down to whether some applications of law to fact should be measured on appeal for abuse of discretion, while others are re-determined de novo by the appellate court. My own view is that appellate courts should always review trial court applications of law to fact according to the deferential abuse-of-discretion standard, subject only to the occasional plenary review in particular cases in order to accomplish what Professor Mona-ghan, in an influential law review article, calls “constitutional norm elaboration.” See Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229 (1985). That is to say, appellate courts should defer to reasonable applications of law to fact at the trial court level unless one or both parties can satisfactorily demonstrate that appellate intervention will help to flesh out and clarify the law in the interest of providing uniformity of results in trial court applications of abstract legal principles to oft-recurring fact patterns. In this respect a court of appeals’ decision whether to conduct plenary review of a trial court’s application of law to fact is not unlike our own decision whether to examine a court of appeals’ opinion on discretionary review under Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992). I write separately in order to develop this thesis.

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A

There is no dispute here as to either the facts or the applicable law. We all agree that appellant must demonstrate not only a subjective expectation of privacy, but also that his expectation was one society recognizes as objectively reasonable. Chapa v. State, 729 S.W.2d 723, 727 (Tex.Cr.App.1987). We all agree that in making this assessment, the non-exclusive Calloway factors should be taken into account, viz: “(1) whether the alleged aggrieved person has a property or possessory interest in the thing seized or the place searched; (2) whether he was legitimately on the premises; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the search, he took normal precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; and (6) whether the claim of privacy is consistent with historical notions of privacy.” Calloway v. State, 743 S.W.2d 645, 651 (Tex.Cr.App.1988). The only dispute in this discretionary review regards which court has ultimate responsibility to apply these factors to the facts of this case, to resolve the *142 question whether this appellant has shown an expectation of privacy society will recognize as reasonable.

Does the trial court have both primary and ultimate responsibility to apply the law to the facts in this instance, subject only to a review for abuse of discretion in the appellate court? Or instead, should an appellate court always, or perhaps only sometimes, conduct its own plenary review of the question whether society accepts the reasonableness of appellant’s subjective expectation of privacy, deferring only to the trial court’s express or implied resolution of historical fact? It is true that the parties in this cause have not briefed this issue. Nevertheless, after the recent opinions of this Court in State v. Carter, 915 S.W.2d 501 (Tex.Cr.App.1996) and DuBose v. State, 915 S.W.2d 493 (Tex.Cr.App.1996), it should be apparent that the question of the proper standard of appellate review will arise as an unavoidable threshold matter in a wide variety of contexts, including the present one. We cannot ignore it merely because the parties themselves have not addressed it.

B.

Courts usually frame the issue in terms of whether particular mixed questions of law and fact ought to be reviewed de novo on appeal, categorically. For example, in United States v. McConney, 728 F.2d 1195 (C.A.9 1984), the Ninth Circuit Court of Appeals held that the issue of whether exigent circumstances would justify a warrantless entry under the Fourth Amendment should always be determined by the appellate court in a de novo review. Much more recently the United States Supreme Court has held that, at least for purposes of appellate review of federal prosecutions, all determinations of probable cause and reasonable suspicion should be reviewed de novo. Ornelas v. United States, 517 U.S. -, 116 S.Ct. 1657 , 184 L.Ed.2d 911 (1996). Probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which [they] are being assessed[,]” the Supreme Court reasoned. Id., — U.S. at-, 116 S.Ct. at 1661 , 134 L.Ed.2d at 918 . De novo appellate review is necessary, the Supreme Court concluded, to assure uniformity of application of these fluid concepts from case to case, and to set a firm standard for police conduct. We can achieve the same results, however, without categorically requiring de novo appellate review of every ease raising a question of probable cause or reasonable suspicion.

In Carter and DuBose we opted for a standard for review that was perhaps a little too categorical in the direction of deferential review. We stated broadly that review of a trial court’s ruling on a motion to suppress should be measured on appeal according to an abuse of discretion standard. Despite the holding of the Supreme Court in Ornelas v. United States, supra, 1 I continue to believe that our holdings in Carter and DuBose make sense, at least as an articulation of a general rule of appellate review, viz: that questions of probable cause and consent to search ought ordinarily to be resolved by the trial court, reviewable on appeal only for an abuse of discretion. Indeed, in my view, practically all applications of law to fact should be left to the trial court in the first instance, subject to a deferential standard of appellate review. Only on the relatively infrequent occasion when an already-articulated general principle of law proves inadequate to dictate a result with an acceptable degree of definiteness when applied to a novel-but-likely-to-recur fact pattern is it appropriate for the court of appeals to intervene by way of plenary review. In order to avoid ordinary deferential review on appeal, the losing party at the trial court level should identify in his appellate brief the jurisprudential ad *143 vantage of de novo review of Ms particular case. He should be prepared to argue how appellate application of the law to the facts of his case will facilitate a clearer understanding of the law that will foster greater uniformity of result thereafter at the trial court level. Absent such a showing, the presumptive appellate standard for review should be abuse of discretion. In tMs way appellate courts can supply any “constitutional norm elaboration” that is called for, Monaghan, ante, at 3, but defer to the trial court’s application of law to fact in the ordinary run of cases.

It occurs to me that the question of appropriate appellate standard of review is functionally identical to another threshold question that we confront on tMs Court every day, viz: whether tMs Court should exercise its discretionary review authority to examine a court of appeals opimon under our holding in Arcila v. State, 834 S.W.2d 357 (Tex.Cr. App.1992). When a given area of the law is defmite and well-settled, it makes sense to subject that application of law to facts to a deferential standard of review on direct appeal. After all, if the law requires no greater elaboration, then the trial court is in at least as good a position reliably to apply it to the facts as an appellate court would be, and there is no compelling reason to require, or even allow, plenary review at the appellate level. In the premises it is also unlikely that we could say that granting discretionary review of the court of appeals’ deferential review would contribute anything of lasting significance to the jurisprudence of the state. “Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications.” Arcila v. State, supra, at 360.

However, deferential appellate review is not appropriate for every application of law to fact. Some areas of the law are as-yet unsettled. Others are by nature not susceptible to precise or defmite abstract articulation. When a new fact pattern arises that tests the boundaries of legal generalization, it may be appropriate for an appellate court to step in and, in the interest of setting grnde-posts for the trial courts, to say how the law should apply to that fact pattern. Especially if the new fact pattern is likely to be a recurring one, the case is ripe for appellate application of law to fact. It is not coincidental that these are also the cases over wMch exercise of our discretionary review power is most efficacious. For only in such cases will discretionary review, like direct appellate review, yield clarification of the law, and hence, uniformity of result in the lower courts.

II.

The court of appeals m this cause essentially conducted a de novo review. After rehearsing the Mstorical facts of the case (in the light most favorable to the trial court’s presumed ruling that appellant had no standing), the court of appeals “found” appellant had no standing to challenge police entry into a residence in wMch he was a mere guest. The court of appeals did not inquire whether it had been rational for the trial court so to have “found.” Thus, although the court of appeals reached the same conclusion as the trial court, it accorded no particular deference to that court, instead applying the law to the facts in plenary fasMon.

Along the way the court of appeals distinguished Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990), in wMch the UMted States Supreme Court essentially conducted its own de novo review of whether, on the facts of that case, the defendant had shown a reasonable expectation of privacy. The critical question in Olson was whether an overmght guest in a home had standing to challenge the warrantless entry into Ms host’s home in order to arrest him by simple virtue of Ms status as overmght guest. The State had argued that a mere overmght guest, uMess he has exclusive control of the premises, cannot have a legitimate expectation of privacy. The Supreme Court rejected exclusive control as a determinative fact, observing that “[sjtaying overmght in another’s home is a longstanding social custom that serves functions recognized as valuable by society.” Id., 495 U.S. at 98 , 110 S.Ct. at 1689 , 109 L.Ed.2d at 94 . The Court emphasized that “[w]e are at our most vulnerable when we are asleep because we cannot mom-tor our own safety or the security of our belongings.” Id., 495 U.S. at 99 , 110 S.Ct. at *144 1689 , 109 L.Ed.2d at 94 . For this reason privacy in the place where we sleep is an interest society is willing to recognize, even if that privacy derives not from a place of one’s own, but rather from the grace of extended family or friends. Accordingly the Supreme Court held that Olson (and hence, via stare decisis, every similarly situated future litigant) had standing to “claim the protection of the Fourth Amendment.” Id., 495 U.S. at 100 , 110 S.Ct. at 1690 , 109 L.Ed.2d at 95 .

This Court has also conducted de novo review of the question whether, on a particular set of facts, a defendant can assert a legitimate expectation of privacy. In Chapa v. State, 729 S.W.2d 723 (Tex.Cr.App.1987), we addressed the question whether a passenger in a taxicab harbors a reasonable expectation of privacy in the cab’s interior. We conducted what amounts to a plenary review of that question, and held that the passenger “qua fare in a taxicab” did have a reasonable expectation of privacy. Id., at 729 . In a footnote, in response to criticism that we had improperly noticed several local ordinances regarding a passenger’s right to exclusive use of a taxicab, we stated: “Whether a particular expectation of privacy is one society is willing to recognize ... is in the nature of a legal rather than a factual inquiry.” Id., at 728, n. 3 . Because we regarded the question as more legal than factual, we were at liberty to judicially notice the ordinances as “legislative” facts, rather than “adjudicative” facts. They were relevant to our de novo determination whether the taxicab passenger’s subjective expectation, of privacy was accepted by society. It was more in the nature of a legal than a factual question precisely because we had determined (having granted discretionary review in the first instance) that the facts were novel enough, yet likely enough to recur, to justify plenary review of the question in the interest of constitutional norm elaboration. As in Olson , it was important to say how the law applied to the facts in order to supply a benchmark to help lower courts uniformly apply the more abstract, general rule of law.

Unlike Olson and Chapa , the instant case is not so factually distinctive, it seems to me, as to invoke plenary appellate review. Appellant was arrested in somebody’s home; but it was not his own home, and so Payton v. New York, 445 U.S. 573 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980), does not require a warrant as a matter of law. It is clear enough to me that the Supreme Court’s norm elaboration in Olson was limited to holding that a houseguest who actually plans to stay overnight has a legitimate expectation of privacy in his host’s home. After all, the Supreme Court took pains to emphasize the privacy aspect of the place where one is allowed to sleep. Olson does not stand for the proposition that a momentary visitor in the home who, the host maintains, could spend the night if he desired, has necessarily demonstrated a reasonable expectation of privacy. The facts of this case are not so unusual, or so likely to recur, as to call for an appellate articulation of how general principles of standing ought particularly to apply. In my view there was no need for de novo review.

The trial court could reasonably have concluded, applying the factors of Calloway , that appellant demonstrated no reasonable expectation of privacy in the home that was searched. That appellant momentarily entered the front door of a house he has not shown he will spend the night in does not unequivocally establish a legitimate expectation of privacy in the whole premises. The trial court did not abuse its discretion to conclude appellant had no standing to challenge the search of the house.

The court of appeals reached the same conclusion in its de novo application of the law to the facts. Now this Court, after correctly observing (in my view) that a non-overnight guest does not necessarily lack standing as a matter of law, essentially conducts its own plenary review, also concluding that under the circumstances of this case appellant has not demonstrated a reasonable expectation of privacy. Plurality opinion at 137, n. 4, & at 138-139, respectively. 2 A *145 fortiori, both appellate courts have thus concluded the trial court did not abuse its discretion. There is no need to remand the cause to the court of appeals to conduct a deferential review. 3

I therefore concur in the result.

. Ornelas involved appeal from a federal prosecution. The Supreme Court held that review of questions of probable cause and reasonable suspicion in the United States Circuit Courts of Appeals should be conducted de novo. This holding does not appear to be grounded upon the Fourth Amendment, however, or any other provision of the federal constitution applicable to the states through the Fourteenth Amendment. Nothing else in Ornelas leads me to believe the Supreme Court meant to mandate de novo review of these issues on direct appeal of state convictions in state appellate courts. I therefore presume that Carter , which held that courts of appeals in Texas should review issues of warrant-less probable cause according to an abuse of discretion standard, rather than de novo, remains the law.

. At least the plurality says it is conducting a de novo review. Plurality opinion at 138, n. 5. Other language in the plurality opinion, however, engenders doubt. For example, the plurality announces that an appellate court “must sustain the trial court's ruling if it is reasonably supported by the record ...,” and concludes that “the trial court's ruling ... is supported by the *145 record....” Plurality opinion at 138 & 139, respectively (emphasis supplied). This sounds like deference to me, not just to the trial court's historical factfinding, but to his application of law to fact as well. But regardless of whether the plurality's review is deferential or de novo, it amounts to an endorsement of the reasonableness of the trial court’s presumptive conclusion that appellant lacked standing.

. This is not to say that I either agree or disagree with the plurality’s de novo decision today that society is unwilling to accept appellant’s subjective expectation of privacy in this cause. Plurality opinion at 139. I do not think this Court need resolve that question to dispose of this cause. The question whether society is willing to accept a particular expectation of privacy as reasonable, vel non, will often be, as it was in Chapa , more a matter of resolving "legislative” than “adjudicative" facts. When that is so, it may often be the case that an appellate court wiE have at least as good a vantage, if not better, from which to resolve the question. In that event it is appropriate for a court of appeals to review the question as a plenary matter, subject then to this Court’s plenary review on petition for discretionary review. I am satisfied this is not such a case. I therefore do not join the plurality opinion. Given, however, that in conducting their respective de novo reviews, both this Court and the court of appeals have concluded that appeHant enjoyed no reasonable expectation of privacy, the court of appeals could not logicaEy hold on remand that the trial court abused its discretion to conclude the same. For this reason I too would affirm the court of appeals’ judgment, notwithstanding its application of an erroneous standard of review.