                            NUMBER 13-16-00657-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                Appellant,

                                                v.

PATRICK KNESEK,                                                                    Appellee.


                     On appeal from the 117th District Court
                           of Nueces County, Texas.


                             MEMORANDUM OPINION

           Before Justices Rodriguez, Contreras, and Benavides
               Memorandum Opinion by Justice Rodriguez
       Appellee Patrick Knesek was indicted for possession of methamphetamine with

intent to deliver.1 Appellee moved to suppress the evidence that was seized from the


       1  Because the amount of methamphetamine was, by aggregate weight, four grams or more but
less than 200 grams, the charged offense was a felony of the first degree. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.102(6), 481.112(a), (d) (West, Westlaw through Ch. 49, 2017 R.S.).
hotel room where he was arrested. The trial court granted the motion, and the State filed

this interlocutory appeal.2 By one issue, the State argues that the trial court abused its

discretion in granting the motion to suppress. We affirm.

                                        I.      BACKGROUND

       Six witnesses testified at the suppression hearing: Mike Mendez, a security guard

at the Sun Suites hotel in Corpus Christi, who placed a call to 911 concerning suspicious

activity in hotel room 127; appellee, who was found in room 127 and arrested on suspicion

of possession of methamphetamine; and four police officers who investigated the call and

arrested appellee: Robert Cabello, Allen Miller, Matthew Razzo, and Krystal Rodriguez.

       Following the hearing, the trial court entered findings of fact and conclusions of

law. As we explain, the findings are thorough and supported by the record. From these

findings, we distill the following facts:

       At 3:18 a.m. on October 26, 2014, Mendez called 911 to report possible drug

activity in room 127. Mendez testified that for several days, he had been watching the

occupants of the room with suspicion as they came and went. The occupants were later

identified as appellee and his friend Brandon Tedder, a co-defendant in the case. On

the night in question, Mendez found the door of room 127 open and the room vacant.

He saw through the open door what appeared to be a bong sitting on a table. The trial

court found Mendez’s testimony credible.

       Officers Razzo and Rodriguez arrived at the hotel at 3:26 a.m. The officers spoke

with Mendez and then proceeded to room 127. They found the door ajar, but not so far



       2   See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through Ch. 49, 2017 R.S.).
                                                   2
open that they could observe anything within the room. Officer Razzo knocked on the

door hard enough that it swung open, revealing a bong on a table. The trial court found

that Officer Razzo did not simply intend to knock on the door to announce his presence;

instead, based on acknowledgements made by Officers Razzo and Rodriguez that were

captured on a body-microphone recording, the trial court found that Officer Razzo

intended to open the door through the pretense of knocking.

      The officers entered the room and found no one present. They inspected the

bong, and Officer Razzo testified that he did not think that the bong contained any drug

residue. Officer Razzo also inspected an auto insurance card he located among various

papers on the bed. He obtained a name from the card—Brandon Tedder—and radioed

the name in to dispatch at 3:34 a.m., whereupon he learned that Tedder had an extensive

criminal history. The officers also saw several items on the floor, including luggage,

duffel bags, power tools, and equipment. The trial court found that the officers did not

seize any contraband or evidence, and they “made no attempt to secure the premises or

obtain a search warrant before they closed the door to the room.”

      The officers met with Mendez and instructed him to call them when the two

occupants returned so that the police could resume their investigation. Mendez had an

ongoing working relationship with Officer Razzo, and he had Officer Razzo’s personal cell

phone number. The officers left at 3:46 a.m.

      Approximately thirty minutes later, Mendez contacted Officer Razzo on his cell

phone and also called 911 to report that the two individuals had returned to their room.




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According to Mendez, the two individuals had double parked their car behind another

vehicle directly in front of room 127.

       The trial court found that room 127 was rented in Tedder’s name, although both

he and appellee “had been using the room for at least several days.” According to the

findings, both men “had numerous personal items in the room, both left the room together

at approximately noon on October 25, 2014” to drive to Houston, and “both had returned

to the room together shortly after 4:00 a.m. on October 26, 2014.” Appellee testified that

he made a lengthy use of the restroom upon their return.

       At 4:24 a.m., three officers responded to Mendez’s second call: Officers Cabello,

Miller, and Rodriguez. Each of the officers testified that they observed nothing unlawful

as they approached hotel room 127. The trial court found that the only knowledge that

the officers had concerning any drug activity related back to the earlier entry by Officers

Razzo and Rodriguez.

       When the officers knocked, Tedder answered by opening the door “6–10 inches,”

according to the findings. The officers inquired about the double parked vehicle and then

asked Tedder to step outside. Tedder squeezed out the hotel room door, “intentionally

not opening it more than necessary to exit.” As Tedder exited the room, officers asked

if there was anyone else present. Tedder responded that there was. Officers instructed

him to tell appellee to come out as well, and Tedder did so.

       Tedder attempted to close the door as he exited the room, but an officer stuck out

his foot to block the door from closing.     Tedder was immediately patted down for

weapons and handcuffed. As appellee neared the door, the door was pushed open, and


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Officer Miller entered the room. No drug paraphernalia was visible to any of the officers

until Officer Miller entered the room.

       Officer Miller saw the bong over appellee’s shoulder and moved to secure it. As

Officer Miller entered, appellee was removed from the room, patted down, and

handcuffed. When Officer Miller approached the table where the bong lay, he also

noticed baggies containing what later was confirmed to be methamphetamine.

       Tedder and appellee were placed in separate patrol units.          Officer Cabello’s

dashboard camera was then activated, and the microphone worn by Officer Cabello

began to record the officers’ conversation. Shortly afterward, Officer Razzo arrived at

the hotel. The officers discussed the previous entry into room 127 earlier that morning.

They also discussed their suspicion that Tedder and appellee had committed burglaries

and that there was stolen property in the room—in particular, the bags of power tools.

The officers continued to discuss the incident and inspect the room for at least thirty

minutes after Tedder and appellee were placed in the units.

       Though Officer Razzo was present during both the first and second calls out to

Sun Suites, he did not make a report of either incident. Similarly, Officer Rodriguez was

present at both entries into room 127. However, in her report concerning the second

entry into the room, Officer Rodriguez did not mention the first entry.

       Officer Cabello called Agent Robert Larock and dictated various facts to be

included in Larock’s affidavit in support of a search warrant, which was obtained some

hours later. Larock was not informed of the first entry into room 127, that suspected

contraband was left in place in the room, or that the security guard was instructed to, and


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did, call the officers back to the room a second time. This information was omitted from

his affidavit.

       The trial court found that none of the officers’ testimony was credible. According

to the trial court’s findings, the officers “contradicted one another, claimed to not

remember important details, and were impeached by glaring omissions in their

testimony . . . .”

       Based on these facts, the trial court concluded that multiple aspects of the officers’

investigation, arrest, and seizure were unlawful, and the trial court entered other

supporting conclusions.      The court granted appellee’s motion to suppress, and this

interlocutory appeal followed.

                                 II.   STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion under a bifurcated standard.     Lopez v. State, 512 S.W.3d 416, 419 (Tex.

App.—Corpus Christi 2016, no pet.). When the trial court makes express findings of fact

in a suppression hearing, we afford almost total deference to those findings as long as

they are supported by the record. State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim.

App. 2014). We apply the same standard when reviewing the trial judge’s application of

law to questions of fact when resolution of those questions depends on an assessment

of credibility and demeanor. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.

2013). We apply a de novo standard of review to pure questions of law and to mixed

questions of law and fact that do not depend on the evaluation of credibility and

demeanor.        Id.   Whether the facts of the case, once determined, give rise to a


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reasonable expectation of privacy is a question of law to be reviewed de novo. State v.

Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (en banc).

                                      III.   DISCUSSION

A.       Standing

         On appeal, the State first challenges the trial court’s conclusion that appellee had

standing to challenge the legality of the searches of room 127. The State contends the

hotel room was Tedder’s alone, and appellee did not carry his burden to demonstrate that

he had a reasonable expectation of privacy in Tedder’s hotel room—a prerequisite for

challenging the legality of the searches.

         1.     Applicable Law

         An accused has standing to challenge the admission of evidence obtained by an

unlawful search or seizure only if he had a legitimate expectation of privacy in the place

invaded.      Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013).                 To

demonstrate standing, the accused bears the burden of establishing that he had a

subjective expectation of privacy in the place searched that society is prepared to

recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App.

2002).

         A registered guest in a hotel room is entitled to constitutional protection against

unreasonable searches and seizures. Stoner v. California, 376 U.S. 483, 490 (1964).

Depending on the circumstances, visitors of the registered guest may also have standing.

See Moore, 395 S.W.3d at 160. If the visitor is an overnight guest, the visitor has

standing because the visitor shares the registered guest’s reasonable expectation of


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privacy in the room. Id. However, if the visitor is a casual guest who does not stay

overnight, the visitor’s standing will depend on the totality of the circumstances, including:

         (1)    whether the accused had a property or possessory interest in the
                place invaded;

         (2)    whether he was legitimately in the place invaded;

         (3)    whether he had complete dominion or control and the right to exclude
                others;

         (4)    whether, prior to the intrusion, he took normal precautions
                customarily taken by those seeking privacy;

         (5)    whether he put the place to some private use; and

         (6)    whether his claim of privacy is consistent with historical notions of
                privacy.

Id. at 159. This list of factors is not exhaustive, and no one factor is dispositive. Id.

         2.     Analysis

         The State submits that appellee failed to present any evidence to show that his

status rose to the level of an overnight guest or that he otherwise had a legitimate privacy

interest in the room.

         In response, appellee asserts that his privacy interest was made manifest by his

long term use of the hotel room, his placement of his personal effects in the room, and

his intent to sleep in the room that night.3 We agree with appellee. As the trial court

found,

         Room 127 had been rented by Brandon Tedder although both he and
         defendant [appellee] had been using the room for at least several days.
         Both had numerous personal items in the room, both left the room together

        3 In the alternative, appellee contends that he has standing under article 14.05 of the Texas Code

of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 14.05 (West, Westlaw through Ch. 49, 2017 R.S.).
Because we find appellee’s first argument dispositive, we need not address his alternative argument. See
TEX. R. APP. P. 47.1
                                                    8
       at approximately noon on October 25, 2014, and both had returned to the
       room together shortly after 4:00 a.m. on October 26, 2014.

The trial court ultimately concluded that both appellee and Tedder “had reasonable

expectations to privacy in the hotel room they shared usage of, and, therefore, have

standing to challenge the legality of the searches[.]”

       First, the record supports the trial court’s ruling that Tedder enjoyed a reasonable

expectation of privacy in the hotel room.        It is undisputed that Tedder had been a

registered guest of the hotel for weeks. See Stoner, 376 U.S. at 490. The record also

reveals other “objective indicia” of rightful privacy, such as the fact that Tedder had many

“personal belongings” in the room, see Moberg v. State, 810 S.W.2d 190, 194 (Tex. Crim.

App. 1991) (en banc), and that the curtains were drawn as officers approached the room.

See Smith v. State, 176 S.W.3d 907, 914 (Tex. App.—Dallas 2005, pet. ref’d). Appellee

testified that when Tedder opened the door, he was careful to avoid exposing the contents

of the room to the police, opening the door only six to eight inches, blocking the officer’s

view with his body, and then sliding outside. In doing so, Tedder avoided compromising

his privacy to the plain view of the officers. See, e.g., Bouyer v. State, 264 S.W.3d 265,

267 & 270 (Tex. App.—San Antonio 2008, no pet.).

       Second, the record adequately supports the trial court’s ruling that appellee was

an overnight visitor who shared in Tedder’s expectation of privacy. See Moore, 395

S.W.3d at 160. Appellee testified that he had regularly used the hotel room in the weeks

prior to the arrest.   Mendez and Officer Cabello testified that appellee had been

intermittently staying with Tedder for weeks, such that Mendez and Officer Cabello

viewed it not just as Tedder’s room, but as “their room”—i.e., both Tedder and appellee’s

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room. See Rakas v. Illinois, 439 U.S. 128, 141 (1978) (interpreting Jones v. United

States, 362 U.S. 257, 259 (1960) and citing Jones’s routine prior use of his host’s

apartment as support for Jones’s expectation of privacy).

        The record also supports the view that appellee “intended to stay overnight” on the

date of his arrest.4 See Moore, 395 S.W.3d at 161. Before the two men left for Houston,

appellee put a duffel bag with his personal effects in the room, including his laptop and a

change of clothes. See Minnesota v. Olson, 495 U.S. 91, 97 n.6 (1990) (noting, with

importance, the fact that appellant kept a change of clothes in the place invaded); Moore,

395 S.W.3d at 161 (emphasizing “personal belongings”).                      Upon his return, appellee

made an undoubtedly private use of the hotel bathroom. See Moore, 395 S.W.3d at

159–60; see also Giles v. State, No. 08-01-00080-CR, 2003 WL 68178, at *3 (Tex. App.—

El Paso Jan. 9, 2003, no pet.) (not designated for publication) (listing unrestricted access

to host’s bathroom among the circumstances that indicated overnight-guest status).

Appellee testified that at the moment the police arrived, going to sleep for the night was

an immediate possibility, and the timing of their arrival—around 4:30 a.m.—lends

credence to that testimony. See Moore, 395 S.W.3d at 161; cf. Weaver v. State, 265

S.W.3d 523, 534 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (finding that appellant’s

nap in apartment at 5:00 p.m. did not establish status as overnight guest); Johnson v.

State, No. 14-14-00358-CR, 2016 WL 836767, at *5 (Tex. App.—Houston [14th Dist.]




        4 Because there is evidence that appellee also intended to stay overnight on the date of his arrest—

which the trial court found credible—we find this case distinguishable from the authority cited by the State:
Gouldsby v. State, 202 S.W.3d 329, 335 (Tex. App.—Texarkana 2006, pet. ref’d) (rejecting a claim of
standing where appellant relied solely upon testimony that he had intermittently stayed overnight in the
past, and the trial court found much of this testimony unconvincing).
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Mar. 3, 2016, no pet.) (not designated for publication) (“The officers searched [the hotel

room where appellant was found] at approximately 12:30 in the afternoon, and that timing

does not favor a suggestion that appellant had stayed overnight or that he intended to

stay overnight.”).

       Based on the above, the record adequately supports the trial court’s conclusions

that appellee was Tedder’s overnight guest, that appellee shared his host’s reasonable

expectation of privacy, and that appellee therefore had standing to challenge the

warrantless search of his room. See Moore, 395 S.W.3d at 160; Granados, 85 S.W.3d

at 223.

B.     Legality of the Searches and Seizure

       The State next argues that even if appellee had standing, the officers’ search and

seizure of contraband was lawful. Under the Fourth and Fourteenth Amendments, a

search conducted without a warrant based on probable cause is per se unreasonable,

subject only to a few specifically established and well-delineated exceptions. Meekins

v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).

       The State argues that most of the officers’ actions were justified by various

exceptions to the warrant requirement and other rules of search and seizure—among

them, rules relating to reliable citizen informants, “knock-and-talk” encounters, community

caretaking functions, probable cause, independent sources and the attenuation of taint,

the plain view exception, protective sweeps, searches incident to arrest, and the

acceptable forms of information in search warrants.




                                            11
       However, the State does not argue that any exception or justification applies to a

critical sequence of events which occurred during the officers’ second visit to the Sun

Suites hotel: the trial court found that after Tedder answered the door, he slid out from

the narrow opening in the doorway and then tried to close the door behind him; however,

“an officer impeded the door from closing,” “the door was pushed open,” and “Officer

Miller entered the room”; Officer Miller then saw a bong on a table.               “No drug

paraphernalia was visible to any of the officers until Officer Miller entered the room.”

While the State offers myriad justifications relating to other aspects of the investigation,

the State does not advance any justification for this sequence of events.

       Instead, the State argues that these findings are ambiguous. According to the

State, the quoted findings do not specifically say who pushed the door open wide enough

for the police to see into the room: Officer Miller or appellee. The State urges us to

resolve this ambiguity by remanding the matter to the trial court for further findings of fact

to clarify who pushed open the door.

       The finding in question is not ambiguous, and no remand is necessary. This

finding reads: “As [appellee] neared the hotel door and/or began to exit, the door was

pushed open and Officer Miller entered the room.” (Emphasis added). If, as the State

contends, the trial court meant that appellee opened the door, the operative verb would

have been “pulled,” given the layout of the room.

       Moreover, the State neglects to mention two conclusions of law, which further

clarify the sequence of events:

       10.    By pushing open the hotel room door, the officers are precluded from
              claiming they saw the bong pipe (or any contraband) in plain view.

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       11.    Officer Miller unlawfully entered the hotel room.

If the disputed finding is at all unclear about who pushed the door open, these conclusions

make the trial court’s view clear beyond doubt.

       The State further argues that there was conflicting testimony on who opened the

door. However, the trial court unambiguously found that none of the officers’ testimony

was credible, including their testimony that appellee voluntarily swung the door open wide

enough to give the officers a plain view of the contraband. Instead, it is evident that the

trial court believed appellee’s testimony that officers prevented Tedder from closing the

door, forced their way into the room, and immediately seized appellee and the

contraband. The record adequately supports this credibility determination, and we defer

to it on appeal. See Granville, 423 S.W.3d at 404.

       Based on these facts, we determine that for purposes of the Fourth Amendment,

a search was conducted when Officer Miller entered room 127. See Valtierra v. State,

310 S.W.3d 442, 448 (Tex. Crim. App. 2010); see also Buschardt v. State, No. 05-11-

00504-CR, 2012 WL 6035341, at *2 (Tex. App.—Dallas Dec. 5, 2012, pet. ref’d) (not

designated for publication) (holding that “entry into a hotel room is a search for purposes

of the Fourth Amendment,” citing Valtierra). This warrantless search led to the discovery

and seizure of the methamphetamine. The State does not advance any justification for

these actions. Without a warrant or any exception that would otherwise validate these

steps, the search and seizure were per se unlawful, and suppression of the contraband

was required. See Meekins, 340 S.W.3d at 458.

C.     Disposition


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       Accordingly, the trial court did not abuse its discretion in granting suppression.

See Lopez, 512 S.W.3d at 419. We overrule the State’s sole issue on appeal.

                                     IV.    CONCLUSION

       We affirm the ruling of the trial court.



                                                             NELDA V. RODRIGUEZ
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of August, 2017.




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