AFFIRM; and Opinion Filed February 24, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-00498-CR
                                      No. 05-12-01447-CR

                         DENNIS EDWARD WILLIAMS, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                       Trial Court Cause Nos. F08-35085 & F08-35087

                             MEMORANDUM OPINION
                           Before Justices O’Neill, Myers, and Evans
                                  Opinion by Justice O’Neill
       Appellant Dennis Edward Williams was indicted for possession of a controlled substance

with the intent to distribute. After the trial court denied his motion to suppress, he pleaded

guilty. The trial court deferred adjudication of guilt and placed him on community supervision

for four years. On appeal, appellant argues the trial court erred by concluding he lacked standing

to challenge the unlawful entry of the warehouse and by concluding the police had reasonable

suspicion to enter his bedroom inside the warehouse. We affirm.

       Investigators with the Irving police department received information from a reliable

informant regarding a suspected “chop shop” on a piece of property. The property consisted of

two buildings, with a shared parking lot, but two different addresses: 2516 East Shady Grove and

2524 East Shady Grove.
       The informant told detectives a stolen gray Chevy pickup truck would be dropped off at

2524 East Shady Grove on July 2, 2008. A detective went to the location and subsequently saw

a gray or silver Chevy truck in the parking lot. After checking the license plate number, the

detective confirmed the truck had been reported stolen.

       When the detective returned to the location a few minutes later, the truck was no longer

in the parking lot. He observed “five or six Hispanic males walk out of 2516 across [the]

common parking lot” and enter the building at 2524 East Shady Grove. Based on his experience,

the detective believed the truck had been moved inside one of the buildings, and the buildings

were in fact being used as a chop shop for stolen cars.

       A magistrate signed search warrants for both addresses on July 3, 2008. Investigators

Brian Schutt and Stephen Junker were part of the team that executed the search warrant at 2516

East Shady Grove. Junker testified at the suppression hearing that he entered the bottom of the

warehouse and then went upstairs towards some empty office space. Junker continued down the

hallway towards the workshop in the back.         He testified that as they moved through the

warehouse, he smelled the odor of ether, which is used in cooking methamphetamine. The smell

intensified as he moved down the hallway and got closer to an open door, which was later

determined to be appellant’s bedroom.          In plain view, investigators saw a baggie of

methamphetamine as well as small bowls they recognized as drug paraphernalia. When they

entered the room, the ether odor was even more pungent.

       Appellant was arrested and charged with possession with intent to deliver

methamphetamine. He filed a motion to suppress. The trial court conducted several hearings on

the motion. During the first hearing, appellant argued the search warrant for 2516 East Shady

Grove contained insufficient probable cause, and the police unlawfully entered the warehouse or,

at the very least, unlawfully entered the room he had lived in for the past twenty years. During a

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second hearing, the State raised the issue of whether appellant had standing to challenge the

search of the warehouse because while the State agreed appellant had an expectation of privacy

in his room, that expectation of privacy did not extend to the rest of the 4,000-square-foot

warehouse. A final hearing was held in which appellant argued officers used a crow bar to enter

his room; however, the court ultimately determined appellant’s testimony and evidence was not

credible.

       The trial court denied appellant’s motion to suppress and made the following findings of

fact and conclusions of law: (1) the search warrant affidavit for 2516 East Shady Grove did not

state sufficient probable cause to authorize issuance of a warrant; therefore, it was in violation of

the U.S. and Texas Constitutions and applicable statutes; (2) appellant did not have a reasonable

expectation of privacy in the premise at 2516 outside his room; (3) although the officers were on

the premises based on an invalid search warrant, appellant did not have standing to object to their

presence in the main building of 2516; (4) officers had a reasonable basis for pursuing the smell

of methamphetamine; therefore, their entry into appellant’s room was not illegal; and (5) no

good faith exception to the probable cause requirement existed. This appeal followed.

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The judge is the sole

trier of fact and judge of the credibility of witnesses and the weight to be given their testimony.

Id. He is entitled to believe or disbelieve all or part of the witness’s testimony, even if that

testimony is uncontroverted, because he had the opportunity to observe the witness’s demeanor

and appearance. Id.

       If the trial court makes express findings of fact, we view the evidence in the light most

favorable to the ruling and determine whether the evidence supports these factual findings. Id.

We review the trial court’s application of the law of search and seizure to the facts de novo. Id.

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We will sustain the trial court’s ruling if that ruling is “reasonably supported by the record and is

correct on any theory of law applicable to the case.” Id. (citing State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)).

       We first address appellant’s argument that the trial court erred in concluding he did not

have a reasonable expectation of privacy in the warehouse area outside of his room.               As

previously stated, the State does not contest appellant’s expectation of privacy in his room.

       In presenting state and federal constitutional claims based on unlawful search and

seizure, “Appellant must be within the purview of constitutional protection.” State v. Comeaux,

818 S.W.2d 46, 51 (Tex. Crim. App. 1991). Appellant, as the movant to suppress evidence, bore

the burden not only to establish the search and seizure of evidence were illegal, but also to show

he had standing to contest the search and seizure, that is, he had a reasonable expectation of

privacy in the premises searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978); Granados v. State,

85 S.W.3d 217, 222–23 (Tex. Crim. App. 2002).

       A defendant can demonstrate a legitimate expectation of privacy by showing he had a

subjective expectation of privacy in the place invaded that society is prepared to recognize as

reasonable. Granados, 85 S.W.3d at 223. Several factors are relevant to determining whether a

given privacy claim is objectionably reasonable: (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.; see also Myrick v. State, 412 S.W.3d 60, 65–66 (Tex.

App.—Texarkana 2013, no pet.). The list is not exhaustive and no one factor is dispositive of a




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particular assertion of privacy; rather, we examine the totality of the circumstances surrounding

the search. Granados, 85 S.W.3d at 223.

       While the Fourth Amendment’s prohibition on unreasonable searches and seizures

applies to property used for residential purposes, as well as to property put to commercial use,

“[p]roperty used for commercial purposes is treated differently for Fourth Amendment purposes

from residential property.” Minnesota v. Carter, 525 U.S. 83, 90 (1998). An expectation of

privacy in commercial premises is different from, and indeed less than, a similar expectation in

an individual’s home. Id. (citing New York v. Burger, 482 U.S. 691, 700 (1987)).

       Because the building in question was a 4,000 square-foot commercial warehouse,

appellant’s expectation of privacy is less; however, we shall consider whether he met his burden

to prove a reasonable expectation of privacy in the area outside of his room by considering the

relevant factors and the evidence in the record.

       The record shows appellant had lived in a 10x12 upstairs room in the warehouse located

at 2516 East Shady Grove for twenty years. He did not pay rent, but rather provided night

security for the warehouse. During the day, he worked at the warehouse as a production

manager for Houston Metal Fabrication & Stamping. The company was owned by Henry

Houston and employed about five other workers. Appellant testified that he, Henry, and another

employee had a key to the warehouse and could gain access after hours. He also testified

employees could stay after hours when the business closed.

       While appellant kept some personal items and toiletries locked in his room, he kept a

motorcycle and tools downstairs in the shop. He received personal and business mail at the

warehouse. He testified he believed he had a possessory right to be in the building and an

expectation of privacy.




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       Despite having a key to the warehouse, living there for years, keeping some personal

items in the common area, and providing night security to the warehouse, we agree with the trial

court that these facts do not establish that appellant had a possessory interest in the area outside

of his room or that he had complete dominion or control to exclude others.

       In Johnson v. State, 583 S.W.2d 399 (Tex. Crim. App. 1979), the defendant argued he

had standing to challenge evidence of an aggravated sexual assault discovered inside a

warehouse. At the time of the search, the building was leased by the defendant’s father. Id. at

404. However, officers discovered the incriminating evidence in an open, nearly empty room.

Id. The defendant argued he had a possessory interest in the building, but the trial court

disagreed. Id. The evidence showed the defendant, his father, the owner, and another employee

had keys providing access to the building. Id. The trial court concluded the defendant’s access,

as one of several people with such access, did not create a possessory interest. Id. Further, “the

number of individuals with access negates any argument that he had an expectation of privacy in

the entire building in general.” Id.; see also Martinez v. State, 880 S.W.2d 72, 77 (Tex. App.—

Texarkana 1994, no pet.) (concluding appellant did not have standing when evidence showed he

was one of several employees and had no ownership interest in the automobile dealership).

       Similar to Johnson, appellant cannot rely on the fact that he had a key and the ability to

exclude others from the warehouse. He was not the only person with a key. He testified the

owner and at least one other employee had a key. Appellant also acknowledged other employees

had access to the building after business hours. Moreover and also relevant to our analysis, is

that the court in Johnson considered the warehouse “inactive” because the business had mostly

been moved and at the time of the search, only some equipment remained inside. Johnson, 583

S.W.2d at 404. Yet, the court still concluded defendant did not have an expectation of privacy.

Here, the warehouse was active and operational; therefore, appellant could not have reasonably

                                                –6–
expected privacy in the entire building. While we acknowledge the Supreme Court has held

there can be expectations of privacy in one’s work place, the Court has also stated some offices

may be so open to fellow employees or the public that no expectation of privacy is reasonable.

See O’Connor v. Ortega, 480 U.S. 709,718 (1987); see also Mancusi v. DeForte, 392 U.S. 364,

369 (1968). Such is the case here. Thus, appellant did not have a possessory interest in the area

searched nor did he have complete control with the right to exclude others.

        As to the fourth factor–whether appellant took normal precautions customarily taken by

those seeking privacy–we agree with the State that he took such precautions as to his room but

did not do so with respect to the rest of the warehouse. Appellant locked his room when he left,

and he testified he left personal items in his room. However, officers testified his room was open

when they conducted the search.

        Appellant’s work-related items like tools and equipment were kept in the shop. While he

testified he secured the warehouse and checked its motion detectors, we are not persuaded that

these actions were in furtherance of any expectation of privacy he had in the warehouse. Rather,

these actions were likely expected in his role as a night watchman, a job he traded for rent.

        Moreover, it was logical for the trial court to reason that if appellant believed he had

private use of the entire warehouse, he would not have cooked methamphetamine in his small

10x12 room. This indicates appellant did not use the warehouse for his private affairs, which is

the fifth factor to consider.

        Lastly, appellant has failed to show his claim of privacy is consistent with historical

notions of privacy. As noted above, an employee’s privacy expectation does not automatically

cover the entire workplace. Rather, an employee’s expectation of privacy is addressed on a case-

by-case basis. O’Connor, 480 U.S. at 718. An expectation of privacy does not exist under these

facts. Further, similar to those cases holding that a tenant does not have a reasonable expectation

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of privacy in common areas like hallways of an apartment complex, we conclude that under

these facts renting a room inside a warehouse did not create an expectation of privacy in those

common areas outside appellant’s room. See,e.g., Morgan v. State, No. 05-12-01443-CR, 2012

WL 6327202, at *3 (Tex. App.—Dallas Dec. 4, 2013, no pet.) (mem. op., not designated for

publication) (citing Evans v. State, 995 S.W.2d 284, 285–86 (Tex. App.—Houston [14th Dist.]

1999, pet. ref’d)).

        Accordingly, the trial court did not abuse its discretion by determining appellant lacked

standing to contest the entry into 2516 East Shady Grove. Appellant’s first issue is overruled.

        In his second issue, appellant argues the trial court erroneously concluded the police had

a reasonable basis to enter his bedroom. The State responds the search was legal because after

entering the building, officers smelled the odor of ether which was emanating from the open door

of appellant’s bedroom, and this provided probable cause for them to enter his room upon which

they discovered the drugs in plain view.

        The rationale of the plain view doctrine is that if contraband is left in open view and is

observed from a lawful vantage point, there has been no invasion of a legitimate expectation of

privacy and thus no “search” within the meaning of the Fourth Amendment, or at least no search

independent of the initial intrusion that gave the officers their vantage point. Cain v. State, No.

05-12-00580-CR, 2013 WL 3463462, at *4 (Tex. App.—Dallas July 8, 2013, no pet.) (mem. op.,

not designated for publication). Officers may seize evidence without a warrant when (1) the

officer sees an item in plain view at a vantage point where he has a right to be; (2) it is

immediately apparent that the item seized constituted evidence; and (3) the law enforcement

officer has a lawful right of access. Id.

        As concluded above, appellant does not have standing to challenge the officers’ presence

in the building.      Thus, the officers were legitimately in a position to smell ether as they

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proceeded to walk through the building. Officer Junker testified he smelled the pungent odor

within a couple feet of the door to appellant’s room. Officer Schutt testified he could smell the

odor as they walked down the hallway and once they reached and entered appellant’s room, it

got stronger. Then from a vantage point Officer Schutt had a right to be, he testified “I saw

methamphetamine laying in plain view.” Officer Junker also testified he saw bowls and baggies

of methamphetamine in plain view. As such, the trial court properly concluded officers had a

reasonable basis for pursuing the smell, and entry into appellant’s room was not illegal under the

plain view doctrine.

       In reaching this conclusion, we are not persuaded by appellant’s arguments that his door

was closed and locked, and only after a SWAT team busted it open, could officers see inside.

The trial court heard testimony and evidence on this issue and determined defendant was not

credible. We defer to such credibility determinations. See Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002) (en banc) (“At a suppression hearing, the trial judge is the sole and

exclusive trier of fact and judge of the credibility of the witnesses and their testimony.”).

Appellant’s second issue is overruled.

       We affirm the trial court’s judgments.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O’NEILL
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

120498F.U05




                                                –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DENNIS EDWARD WILLIAMS, Appellant                    On Appeal from the Criminal District Court
                                                     No. 7, Dallas County, Texas
No. 05-12-00498-CR        V.                         Trial Court Cause No. F08-35087.
                                                     Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                         Justices Myers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 24th day of February, 2014.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




                                            –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DENNIS EDWARD WILLIAMS, Appellant                    On Appeal from the Criminal District Court
                                                     No. 7, Dallas County, Texas
No. 05-12-01447-CR        V.                         Trial Court Cause No. F08-35085-Y.
                                                     Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                         Justices Myers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 24th day of February, 2014.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




                                            –11–
