Opinion
No. 05-10-00697-CR
Opinion Filed February 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 6, Collin County, Texas, Trial Court Cause No. 002-84117-09.
Before Justices MORRIS, FRANCIS, and MURPHY.
OPINION
This is a State's appeal from the trial court's order granting appellee John Naylor Anderson Jr.'s motion to suppress evidence seized from a residence without a warrant. The State contends the trial court erred because Anderson failed to establish standing to challenge the search. Anderson argues the State conceded standing below and has forfeited its complaint. After reviewing the record, we conclude the State has not waived its issue. Further, because the record does not establish Naylor's standing to contest the search, we reverse the trial court's order and remand for further proceedings consistent with this opinion. Anderson and co-defendant Andrew Reece were charged with misdemeanor possession of marijuana after Frisco police entered Reece's duplex without a warrant or permission and found marijuana. Anderson and Reece filed motions to suppress the evidence, and the trial court held a joint hearing on the motions. When the defense attempted to call the first witness, the prosecutor interjected: "The burden shifts to the State. I will stipulate that it was a warrantless search. But it is my burden of proof, so I have the ball." The trial court said to "[g]o ahead," and the State presented the testimony of the two police officers involved in the search. The defense then called one witness, a third man who was in the house at the time of the search. The evidence focused entirely on the officers' actions in entering the home. The trial court found the officers' testimony not credible, concluded they unlawfully entered the house, and suppressed the drugs. Although the State did not raise any issue relative to Anderson's status, the trial court also concluded Anderson was an "overnight guest" with a legitimate expectation of privacy in the residence. In its sole issue, the State argues the trial court erred in granting the motion to suppress because Anderson failed to establish his standing to challenge the search. The State asserts Anderson failed to adduce any evidence that he was "anything more than a late-night transitory visitor at his friend's duplex with no expectation of privacy." In his responsive brief, Anderson acknowledges he did not produce any evidence of standing at the hearing. But, he contends the State conceded standing when it insisted it had the burden of proof at the beginning of the suppression hearing and has therefore forfeited its complaint. Proof of "a reasonable expectation of privacy" is at the forefront of all Fourth Amendment claims. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Any defendant seeking to suppress evidence obtained in violation of the Fourth Amendment has the burden to first show he personally had a reasonable expectation of privacy that the government invaded. Id. He must prove he was a "victim" of the unlawful search or seizure. Id. He has no standing to complain about the invasion of someone else's personal rights. Id. Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation. Id. Because standing is an element of a Fourth Amendment claim, the State may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court. Id. The State may, however, forfeit standing issues through its assertions, concessions and acquiescence in the course of litigation. State v. Klima, 934 S.W.2d 109, 110 fn.1 (Tex. Crim. App. 1996). To support his waiver argument, Anderson likens the facts of this case to those in Velez v. State, 240 S.W.3d 261 (Tex. App.-Houston 2007, pet. ref'd). Velez was charged with felony possession of cocaine. At a suppression hearing, the State expressly stipulated "that the defendant does have standing. . . ." Velez, 240 S.W.3d at at 264. On appeal, however, the State argued Velez lacked standing and asserted it should not be bound by the stipulation made in the trial court. The court concluded the State was bound by its stipulation and held Velez had standing. Unlike Velez, the only express stipulation made by the prosecutor in this case was that the search was without a warrant; nothing was said about standing. Anderson had the opportunity at that point to alert the trial court to the issue of standing or at least clarify whether the State was conceding standing. He did neither. Given the express stipulation made by the prosecutor, and Anderson's silence in the face of that stipulation, we cannot conclude the State conceded standing, explicitly or implicitly. Having so concluded, we next address the State's complaint that Anderson failed to establish standing. The trial court made findings of fact and conclusions of law. Relevant to the issue of standing, the trial court found:
26. The Court did not hear any credible evidence that showed John Anderson did not reside 6757 Cortona Lane [sic].
27. No evidence at the hearing indicated that John Anderson was not an overnight guest at the residence on or around May 2, 2009.The trial court then concluded that Anderson "was an overnight guest and he had a reasonable expectation of privacy in the residence." An overnight guest has a legitimate expectation of privacy in the place where he spends the night. Luna v. State, 268 S.W.3d 594, 603 (Tex. Crim. App. 2008) (citing Minnesota v. Olson, 495 U.S. 91, 99 (1990)). The legitimate privacy expectation of an overnight guest, however, does not extend to a casual visitor or guest who is merely present with the consent of the homeowner. Minnesota v. Carter, 525 U.S. 83, 90 (1998); see Black v. State, 776 S.W.2d 700, 701 (Tex. App.-Dallas 1989, pet. ref'd) (holding individual with no possessory or proprietary interest in premises, who has no clothes in house or other belongings, has no legitimate privacy interest in premises); Villarreal v. State, 893 S.W.2d 559, 561 (Tex. App.-Houston [1st Dist.] 1994) (refusing to impute expectation of privacy for standing purposes to invited guest who was not overnight guest), aff'd, 935 S.W.2d 134 (Tex. Crim. App. 1996). Mere presence at night does not establish "overnight guest" status. See Taylor v. State, 995 S.W.2d 279, 282 (Tex. App.-Texarkana 1999) (concluding appellant was not overnight guest "[a]lthough he was indisputedly there at night"), pet. dism'd as improvidently granted, 55 S.W.3d 584 (Tex. Crim. App. 2001). The trial court's findings of what evidence was not produced with respect to Anderson's status does not weigh in Anderson's favor, since it was Anderson's burden to produce such evidence. As stated previously, Anderson acknowledges that he produced no evidence of standing. Moreover, we have reviewed the evidence at the suppression hearing, and the only evidence we can glean that could be pertinent to the standing inquiry is the fact that police responded to the call at 12:30 a.m., Anderson was present, and the duplex belonged to Reese. From this evidence, the most that could be inferred is that Anderson was a visitor or guest at night, and that evidence does not establish Anderson's status as an overnight guest with a legitimate expectation of privacy in the premises. Because Anderson did not establish he had standing to contest the legality of the search of the duplex, the trial court erred in granting the motion to suppress. We sustain the State's sole issue. We reverse the trial court's order suppressing the evidence and remand this cause to the trial court for proceedings consistent with this opinion.