Reverse and Remand; Opinion Filed June 26, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01176-CR

                              THE STATE OF TEXAS, Appellant
                                          V.
                                CHASE DUNCAN, Appellee

                      On Appeal from the County Criminal Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. MB12-15283

                              MEMORANDUM OPINION
                            Before Justices Fillmore, Evans, and Lewis
                                    Opinion by Justice Evans
       In this appeal, the State of Texas challenges the trial court’s granting of Chase Duncan’s

motion to suppress certain evidence. In three issues, the State argues the trial court erred in

granting the motion because (1) Duncan lacked standing to contest the search of the residence,

(2) the affidavit established probable cause for the search warrant even absent the positive alert

of a drug-detecting dog at the residence’s front door, and (3) the warrantless free-air, door-seam

dog sniff was in good faith. After reviewing the record, we conclude that Duncan failed to

establish he had a legitimate expectation of privacy in the residence searched and, thus, had no

standing to challenge the warrant. We therefore reverse the trial court’s order and remand the

cause to the trial court for further proceedings consistent with this opinion.
                                        BACKGROUND

       This cases arises from the execution of a search warrant for a residence in Coppell, Texas

at which the police suspected drug activity. The warrant was based in part on a warrantless

open-air sniff of a drug-detecting dog at the residence’s front door. Chase Duncan was at the

residence when the police executed the warrant.         He was detained during the search and

ultimately arrested for misdemeanor drug possession.

       Duncan filed a motion to suppress evidence and statements obtained during his detention

generally arguing that his arrest and the search of his person and the premises were without

probable cause. Duncan specifically argued that, in accordance with Florida v. Jardines, 133 S.

Ct. 1409 (2013), the police officers’ use of a drug-detecting dog at the front door of the residence

without a search warrant could not be used to support the search warrant. He further contended

his statements were not freely made.

       The only witness to testify at the hearing on Duncan’s motion to suppress was Coppell

Police Officer Kenneth Cochran. Officer Cochran was the canine handler who conducted a dog

sniff of the residence. He also assisted other Coppell police officers in executing the search

warrant that was subsequently obtained for the residence. Officer Cochran stated that Duncan

opened the front door to the residence after police knocked. The police officers removed Duncan

from the house by passing him to Officer Cochran who took him from the front walkway “off to

the left of the door towards the bushes and detained him until the residence could be secured.”

While Duncan was detained, he appeared nervous. When Officer Cochran asked him if he any

contraband, Duncan admitted he had a little bit of marijuana.

        After the hearing, the trial court granted Duncan’s motion concluding “the thing that

evidently sparked the issuance of the search warrant was the air sniff of the exceptional dog.

That’s what triggered the actual belief to the police department that they had enough to get a

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search warrant signed, but it came after the sniff.” The trial court further stated that it was

granting the motion to suppress “based on the defective warrant.” The State now appeals from

that ruling.

                                           ANALYSIS

        In its first issue, the State contends the trial court erred in granting Duncan’s motion to

suppress because appellee failed to establish he had standing to challenge the sufficiency of the

search warrant for the premises.

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

review where we afford almost total deference to the trial court’s findings of historical fact while

applying a de novo review to the trial court’s application of the law of search and seizure to the

facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We view the evidence in

the light most favorable to the trial court’s ruling, so long as its express or implied findings are

supported by the record. Id. The trial court ruling will be upheld so long as it is “reasonably

supported by the record and is correct on any theory of law applicable to the case.” Id. (quoting

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

        Duncan, as the movant to suppress evidence, must show he has standing to contest the

search and seizure, that is, he had a reasonable expectation of privacy in the premises searched.

See Granados v. State, 85 S.W.3d 217, 222–23 (Tex. Crim. App. 2002). The movant may satisfy

this burden by showing he had a subjective expectation of privacy in the place searched that

society is prepared to recognize as reasonable. Id. at 223. Among the non-exclusive factors

relevant to this determination are (1) whether he had a property or possessory interest in the

searched premises, (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, before the intrusion,

he took normal precautions customarily taken by those seeking privacy, (5) whether he put the

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place to some private use, and (6) whether his claim of privacy is consistent with historical

notions of privacy. See id.

          In the record before us, there is no evidence of any of the above factors. Duncan’s only

demonstrated connection to the premises was that he opened the door for the officers when they

appeared at the door to execute the search warrant. Duncan was not listed among the individuals

named in the affidavit as residents or owners of the premises. According to Officer Cochran,

Duncan never indicated that he was living at the premises. While a person may have a legitimate

expectation of privacy in a place that person does not own or reside, the record is devoid of any

evidence of Duncan’s relationship to the searched premises. Duncan did not testify at the

suppression hearing or present any evidence that would satisfy his burden of establishing his

legitimate expectation of privacy in the residence. Accordingly, he had no standing to challenge

the search of the premises. See Granados, 85 S.W.3d 222–23. Because Duncan lacked standing

to challenge the search of the premises, the trial court erred in granting his motion to suppress

based on a defective search warrant for the premises. We resolve the State’s first issue in its

favor.

          For the first time on appeal, Duncan asserts that the trial court’s ruling granting his

motion to suppress is supportable on the alternative theory that Duncan’s admission to

possessing marijuana was the result of an unlawful detention. 1 Duncan acknowledges that

Michigan v. Summers, 452 U.S. 692 (1981) permits the detention of occupants on the premises

during the execution of a search warrant. Nevertheless, citing Lippert v. State, 664 S.W.2d 712

(Tex. Crim. App. 1984) and other cases, he argues his detention incident to the search was not




     1
       Duncan presented this contention in a letter brief filed almost three months after his appellee’s brief and less than a week before
submission of this cause.



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permissible because he was not directly associated with the premises or named in the warrant

and merely happened to be on the premises at the time warrant was executed.

       Duncan’s written motion to suppress specifically raised issues relating to the warrantless

dog sniff. The motion generally raised issues of probable cause for his arrest and the searches of

his person and the residence and the voluntariness of his statements to police. Nowhere did it

purport to request suppression of evidence based on his unlawful detention. Moreover, our

review of the reporter’s record confirms that, during the suppression hearing, Duncan limited his

challenges to the validity of the search warrant for the residence.

       At the hearing, Officer Cochran was asked “how that warrant came to be.” Defense

counsel objected stating, “The only question is whether or not, within the four corners of the

affidavit, the magistrate who signed the search warrant had sufficient information to believe

there was probable cause to go in. We’re just looking at the search warrant. That’s all we’re

doing.” The judge allowed the question. Officer Cochran then detailed how he conducted the

dog drug sniff of the residence and discussed the additional grounds outlined in the affidavit

supporting the search warrant. When Officer Cochran began recounting his encounter with

Duncan after he opened the door to the premises, the trial judge interrupted, “Excuse me for

stopping this right now, . . . but we’re really going beyond the four corners of the search warrant

here, so you don’t need to go into any further questioning on that subject.” The trial judge then

added, “We’re just talking about the content of the warrant.”           Defense counsel’s cross-

examination and closing argument focused exclusively on the unlawful dog sniff. He argued that

absent the dog sniff, there was no probable cause to sustain the search warrant. The State

responded that Duncan lacked standing to question the warrant.

       Clearly the legality of Duncan’s detention incident to the search was not an issue that

either party or the trial court addressed below. In fact, Duncan never presented any evidence

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with respect to his detention, search, or arrest. When an appellee proffers an alternative legal

theory for the first time on appeal as a basis to affirm an otherwise erroneous order that turns

upon the production of predicate facts by the appellant that it was never fairly called upon to

adduce during the course of the proceedings below, the alternative theory should not be

considered “law applicable to the case” and available to justify an otherwise erroneous ruling.

See State v. Esparza, 413 S.W.3d 81, 89–90 (Tex. Crim. App. 2013). Here, the State was never

called upon to show that Duncan’s detention was lawful because appellee limited his challenge

to the issue of whether there was probable cause for the search warrant of the premises. For this

reason, we do not consider Duncan’s alternative legal theory as a ground for upholding the trial

court’s ruling. Having concluded that the trial court erred in granting the motion to suppress on a

defective warrant because Duncan lacked standing to challenge the warrant in question, we need

not address the State’s remaining issues.

       We reverse the trial court’s order and remand the cause for further proceedings consistent

with this opinion.




                                                     /David Lewis/
                                                     DAVID EVANS
                                                     JUSTICE

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

131176F.U05




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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the County Criminal Court
                                                      No. 4, Dallas County, Texas
No. 05-13-01176-CR         V.                         Trial Court Cause No. MB12-15283.
                                                      Opinion delivered by Justice Evans,
CHASE DUNCAN, Appellee                                Justices Fillmore and Lewis participating.

       Based on the Court’s opinion of this date, the order of the trial court is REVERSED and
the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 26th day of June, 2014.




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