Texas Apartment Association, Inc. v. The Waterloo Condominiums Council of Co-Owners, Inc.--Appeal from 200th District Court of Travis County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-05-00541-CV

Case Date: 11/22/2005

Plaintiff: RENZENBERGER, INC., THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, AND SAMUEL GRANT EVERSON

Defendant: CORNELIOUS O'BRYANT, JR.--Appeal from 239th District Court of Brazoria County

Preview:State of Texas v. Virgil Lee McCaffrey--Appeal from
216th Judicial District Court of Gillespie County
No. 04-01-00181-CR
The STATE of Texas,
Appellant
v.
Virgal Lee MCCAFFREY,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 3968
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Alma L. L pez, Justice
Catherine Stone, Justice
Karen Angelini, Justice
Delivered and Filed: October 17, 2001
AFFIRMED
Virgal Lee McCaffrey ("McCaffrey") was indicted for possessing more than four ounces but less than five pounds of
marijuana. The trial court granted McCaffrey's motion to suppress. The State appeals alleging that: (1) McCaffrey
lacked standing to challenge the manner in which the State's evidence was obtained; (2) there was no evidence that the
marijuana was obtained in violation of the laws or Constitution of the State of Texas or the laws or Constitution of the
United States; (3) Jan Bartlett Rex ("Mr. Rex") did not act as an agent of the State when he searched McCaffrey's
residence, and (4) even if Mr. Rex is considered an agent of the State, a warrantless search of the residence was proper
under the circumstances. We disagree and affirm the trial court's order.
BACKGROUND
In October 1999, Mr. Rex approached Gillespie County Sheriff's Deputy Don Itry ("Deputy Itry") to obtain advice
regarding Mary Elaine Rex's ("Mrs. Rex") possession of marijuana. (1) Deputy Itry informed Mr. Rex that he would
need additional information to obtain a search warrant for the residence in question. In particular, Deputy Itry
"suggested" that the information he needed for a warrant could be obtained by "someone" going inside the residence.
Following the guidance of Deputy Itry, Mr. Rex entered the residence of McCaffrey and Mrs. Rex, whom were
cohabiting, with the consent of the Rexs's 15 year-old son. Upon entering the residence, Mr. Rex smelled the odor of
marijuana and proceeded to search for it. Mr. Rex discovered the marijuana where one of his sons had told him to
look-- in his ex-wife's bedroom, under a coat, inside several bags.
After conducting his search, Mr. Rex gave a sworn statement to Deputy Itry and a search warrant was issued for the
residence. Mrs. Rex and McCaffrey were subsequently indicted for possessing more than four ounces but less than five
pounds of marijuana. Both Mrs. Rex and McCaffrey moved to suppress the evidence confiscated by the State. The trial
court conducted an evidentiary hearing and ordered the evidence suppressed. The trial court determined, among other
things, that Deputy Itry's "suggestions" reasonably led Mr. Rex to believe that he needed to enter the residence of his
ex-wife and McCaffrey to obtain the information necessary for the issuance of a warrant. Furthermore, because Mr.
Rex acted upon this advice, he became an agent of the State for Fourth Amendment purposes. It is from this ruling that
the State now appeals.
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DISCUSSION
Standard of Review
Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000). The court gives "almost total deference to a trial court's determination of historical facts supported
by the record especially when the trial court's findings are based on an evaluation of credibility and demeanor."
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same amount of deference will be afforded to the
trial court's rulings on "mixed questions of law and fact" if the resolution of those questions turns upon the credibility
and demeanor of the witnesses. Id. The court, however, reviews any of the trial court's other applications of the law de
novo. Id.; Carmouche, 10 S.W.3d at 327.
Standing
As a preliminary matter, the State argues that McCaffrey lacks standing to challenge the manner in which the State
obtained its evidence in this case. (2) The United States Supreme Court has held that the "capacity to claim the
protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment
has a legitimate expectation of privacy in
the invaded place." Minnesota v. Olsen, 495 U.S. 91, 95 (1990). A person's subjective expectation of privacy is
legitimate if it is "one that society is prepared to recognize as reasonable." Id. at 95-96. Here, the record indicates that
Mrs. Rex's name is the only name on the lease agreement for the residence that was searched. Regardless of this fact,
the trial court still found that McCaffrey had an expectation of privacy in the residence because of the nature of his
relationship with Mrs. Rex. At the time of the search, McCaffrey and Mrs. Rex were living together in Mrs. Rex's
residence. It is our opinion that co-habitants, like McCaffrey and Mrs. Rex, are justified in having an expectation of
privacy in their shared residence because their expectations are of the type that society has recognized as reasonable.
See generally Olsen, 495 U.S. at 96-97 (holding that society has recognized that it is reasonable for overnight guests to
have an expectation of privacy in their host's home). We therefore overrule this point of error.
The Search
Article 38.23 of the Texas Code of Criminal Procedure provides that:
[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the
State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2001). Therefore, if we find that Mr. Rex's conduct violated
any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States, we are
to uphold the trial court's decision.
The Fourth Amendment to the United States Constitution guarantees individuals the right to be "secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This Fourth
Amendment protection, however, proscribes only governmental action. United States v. Jacobsen, 466 U.S. 109, 113-
14 (1984). Its protections are "inapplicable to any search and seizure, even wrongful and unreasonable ones, effected
by a private citizen or individual not acting as an agent or instrument of the government or with the participation or
knowledge of any governmental official." Id. The two factors that determine whether a person is acting as an agent or
instrument of the government are: "(1) whether the State or its officials knew of and acquiesced in the intrusive
conduct and (2) whether the party performing the search intended to assist law enforcement efforts or to further his
own ends." United States v. Bazan, 807 F.2d 1200, 1202-03 (5th Cir. 1986). Both of these factors lead us to conclude
that the trial court did not err when it determined that Mr. Rex acted as an agent or instrument of the State, in turn,
violating the Fourth Amendment rights of McCaffrey.
Here, the trial court heard live testimony from both Mr. Rex and Deputy Itry regarding the content of their
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conversation during October 1999. As the sole trier of fact and judge of the credibility of the witnesses, the trial court
could accept or reject any of the witnesses' testimony and was free to resolve all conflicts in the evidence presented.
State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); State v. Fecci, 9 S.W.3d 212, 221 (Tex. App.--San
Antonio 1999, no pet.). Based on this testimony the trial court determined that Deputy Itry made "suggestions" that
reasonably led Mr. Rex to believe that he needed to go inside the residence of Mrs. Rex and McCaffrey to obtain the
information necessary for a search warrant. Furthermore, because Mr. Rex was following Deputy Itry's "suggestions"
when he searched the residence for evidence, Mr. Rex was acting in the capacity of an agent or instrument of the State,
therefore creating a Fourth Amendment violation. We agree.
Both prongs of the analysis for determining whether a private citizen acted as an agent or instrument of the State for
Fourth Amendment purposes are satisfied in this case. First, the State knew of, and acquiesced in, Mr. Rex's intrusive
conduct. According to the trial court, Deputy Itry personally informed Mr. Rex that the information needed to issue a
search warrant could be obtained by "someone" going inside the residence of Mrs. Rex and McCaffrey. Based on his
conversation with Mr. Rex, Deputy Itry knew or should have known that Mr. Rex was going to follow this
"suggestion," yet he did nothing to deter him from doing so. Second, the record indicates that Mr. Rex intended to
assist law enforcement efforts when he conducted his search. It is apparent from the record that one of the primary
reasons for Mr. Rex entering the residence was to assist Deputy Itry in establishing probable cause for the issuance of
a search warrant.
It is the State's contention that even if we find that Mr. Rex acted as an agent or instrument of the State, a warrantless
search of the residence was permissible under the circumstances. We disagree.
The State argues that had an officer entered the residence with consent and smelled the odor of marijuana, a
warrantless search could have occurred. (3) Therefore, because Mr. Rex was acting as an agent or instrument of the
State, he too could conduct a warrantless search of the residence if he smelled marijuana there. This may have been the
proper analysis had Mr. Rex not been subject to both a probation order and divorce decree prohibiting him from
having any contact with Mrs. Rex and her property. For this reason, we find that the State's argument is inapplicable to
these facts. Section 30.05 of the Texas Penal Code states, in relevant part, that a person commits the offense of
criminal trespass if he enters the property of another without effective consent and he had notice that entry was
forbidden. Tex. Penal Code Ann. 30.05(a) (Vernon Supp. 2001). Mr. Rex was on felony probation for committing
aggravated assault on his ex-wife at the time of his search. A term of Mr. Rex's probation instructed him not to have
any contact with Mrs. Rex, either in person, by telephone, or other means of communication, directly or indirectly. In
addition, Mr. Rex was subject to a divorce decree that prohibited him from coming within 300 feet of, entering, or
remaining on the premises of the residence of his ex-wife. From the contents of his probation orders and divorce
decree, Mr. Rex was on notice that any entry into her residence was strictly forbidden.
Moreover, because the relevant sections of the probation order and divorce decree were so explicit in their language,
Mr. Rex should have known that his son's consent would not excuse a violation of these orders at any time. Only a
court could set aside Mr. Rex's obligations under these orders.
Because his son's permission to enter the residence does not constitute "effective consent" for purposes of the criminal
trespass statute, any subsequent search of the residence would be considered unlawful. See id.; State v. Hobbs, 824
S.W.2d 317, 318 (Tex. App.--San Antonio 1992, pet. ref'd) (evidence obtained by law enforcement officials by virtue
of their criminal trespass was subject to suppression under Article 38.23 of the Texas Code of Criminal Procedure).
CONCLUSION
Finding that the trial court did not err in suppressing the evidence, we affirm the trial court's order.
Catherine Stone, Justice
DO NOT PUBLISH
1. Mr. Rex was on felony probation for committing aggravated assault on his ex-wife at the time of his search. A term
of Mr. Rex's probation instructed him not to have any contact with Mrs. Rex, either in person, by telephone or other
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means of communication, directly or indirectly. In addition, Mr. Rex was subject to a divorce decree that prohibited
him from coming within 300 feet of, entering, or remaining on the premises of the residence of his ex-wife.
2. The State contested McCaffrey's standing for the first time on appeal. Although standing was not raised before the
trial court, we address the State's argument because a challenge to standing may occur for the first time on appeal. See
State v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996).
3. The State cites the following cases in support of this proposition: Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim.
App. 1979); Joseph v. State, 3 S.W.3d 627, 635 (Tex. App.--Houston [14th Dist.] 1999, no pet.); DeJesus v. State, 917
S.W.2d 458 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); Pope v. State, 635 S.W.2d 815 (Tex. App.--Dallas
1982); Saenz v. State, 632 S.W.2d 793, 795 (Tex. App.--Houston [14th Dist.] 1982, pet. ref'd).
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