      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00308-CR



                                       Jerry Meyer, Appellant

                                                   v.

                                    The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
              NO. 542,877, HONORABLE GISELA TRIANA, JUDGE PRESIDING




                The county court at law found appellant Jerry Meyer guilty of driving while

intoxicated. See Tex. Pen. Code Ann. § 49.04 (West Supp. 2002). The court assessed punishment

at incarceration for forty-five days and a $1500 fine, but suspended imposition of sentence and placed

appellant on community supervision. In three points of error, appellant contends the admission of

the audio portion of a videotape recording violated the Fourth Amendment of the United States

Constitution and both the state and federal wiretapping statutes. We affirm the conviction.

                Police officers stopped appellant’s vehicle for excessive speed. After appellant failed

field sobriety tests, he was arrested for driving while intoxicated. The officers placed appellant in the

back seat of a patrol car after reading him his rights and handcuffing him, then began to search his

car. As he sat alone in the patrol car with the doors closed and the windows shut, appellant made oral
statements that were recorded by the videotaping equipment in the patrol vehicle.1 Appellant

unsuccessfully moved to suppress these statements.

               Appellant first argues that the statements were obtained in violation of his rights under

the Fourth Amendment. U.S. Const. amend. IV. The Fourth Amendment serves to safeguard an

individual’s privacy from unreasonable governmental intrusions. Richardson v. State, 865 S.W.2d

944, 948 (Tex. Crim. App. 1993). A defendant may challenge the admission of evidence obtained

by governmental intrusion only if he had a legitimate expectation of privacy in the place invaded.

Rakas v. Illinois, 439 U.S. 128, 143 (1978). A two-pronged test is used to determine if a person had

a reasonable expectation of privacy: (1) whether the person’s conduct exhibited a subjective

expectation of privacy, and (2) whether the person’s subjective expectation of privacy is one that

society is willing to recognize as reasonable. Smith v. Maryland, 442 U.S.735, 740 (1979) (citing

Katz v. United States, 389 U.S. 347, 361 (1967)); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996).

               Appellant argues that because the officers left him alone in the back seat of the patrol

car with the doors shut and the windows closed, his orally expressed thoughts demonstrated his

subjective expectation of privacy. The trial court did not specifically find whether appellant had a

subjective expectation of privacy. Assuming that he did, we conclude that this expectation was not

objectively reasonable under the circumstances.




   1
     In its brief, the State characterizes appellant’s statements as “an acrimonious tirade” during
which he profanely blamed his wife and the two officers for his plight.

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               Whether a subjective expectation of privacy is one that society recognizes as being

reasonable is a question of law. Villarreal, 935 S.W.2d at 138 n.5; see also Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (questions of law reviewed de novo). Among the factors to

be considered in making this determination are whether the accused: (1) had a property or possessory

interest in the place invaded; (2) was legitimately in the place invaded; (3) had complete dominion or

control and the right to exclude others; (4) before the intrusion, took normal precautions customarily

taken by those seeking privacy; (5) put the place to some private use; and (6) has a claim of privacy

consistent with historical notions. Calloway v. State, 743 S.W.2d 645, 651 (Tex. Crim. App. 1988).

A consideration of appellant’s circumstances in light of these factors belies his claim that he had a

reasonable expectation of privacy in the back seat of the police car. Appellant had no property or

possessory interest in the patrol car, nor did he have the authority to exclude others from it. He took

no precautions to assure his privacy, blurting out his thoughts and opinions in a way inconsistent with

the notion that he wished to keep them private. Finally, appellant’s claim of privacy in the back seat

of a police car is not consistent with historical notions of privacy.

                Both parties cite a recent Texas case. See State v. Scheineman, 47 S.W.3d 754 (Tex.

App.—San Antonio 2001, pet. granted). In Scheineman, the trial court suppressed a conversation

between the defendant and his codefendant that had been secretly recorded as the two men sat in a

police station interview room. Id. at 756. The court of appeals stated that “under normal

circumstances society is not prepared to recognize as reasonable an arrestee’s subjective expectation

of privacy with regard to conversations that occur in the back of a police car or in a jail or prison.”

Id. Nevertheless, the court concluded that the defendant had a legitimate expectation of privacy in



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that case because a deputy “lull[ed] [him] into believing his conversation with another [would] be

confidential by allowing the defendant to speak privately with the other individual in a separate room

but secretly record[ing] the conversation.” Id. at 757. The court’s belief that the deputy had

deliberately deceived the defendant was central to its conclusion: “[S]ociety should not sanction the

use of deliberate misrepresentations to enable law enforcement authorities to gather possible

incriminating evidence.” Id. at 756.

               Appellant urges that, as in Scheineman, the officers in this cause gave him a sense of

privacy by placing him in the car after his arrest and by not informing him that a microphone recorded

sound in the car. He argues that his statements were not even part of a conversation, but were

instead “the outward expression of [his] private thoughts . . . when he was alone in a secluded

environment.” Appellant characterizes the police conduct as an “invasion of the fundamental freedom

of unfettered personal thought and private personal expression.”

               The State counters that appellant spoke to himself while fully aware that he was in

police custody. The officers advised appellant of his rights and appellant knew that any statements

he made could be used against him. As a constant reminder of his situation, appellant could hear

police radio transmissions from the front seat of the patrol car. The officers practiced no deliberate

deception to trap appellant into inculpatory statements, nor did they interrogate him.

               Several state and federal courts have held that there is no reasonable expectation of

privacy in the back seat of a police car. E.g., United States v. Clark, 22 F.3d 799, 801-02 (8th Cir.

1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir. 1993); State v. Ramirez, 535

N.W.2d 847, 850 (S.D. 1995); People v. Seaton, 194 Cal. Rptr.2d 33, 42 (Cal. Ct. App. 1983); State



                                                  4
v. McAdams, 559 So.2d 601, 602 (Fla. Dist. Ct. App. 1990); State v. Hussey, 469 So. 2d 346, 351

(La. Ct. App. 1985); People v. Marland, 355 N.W.2d 378, 384 (Mich. Ct. App. 1984); State v.

Lucero, 628 P.2d 696, 698 (N.M. Ct. App. 1981). As the Eighth Circuit reasoned, the general public

has no reason to frequent the back seat of a patrol car or to believe it is a sanctuary for private

discussion. United States v. Clark, 22 F.3d at 801-02. Appellant was in police custody, handcuffed

and confined in a police car. He could expect his movements and statements to be monitored. See

id. Whether appellant’s statements were made to another person or to oneself does not bear on the

privacy expectation. We hold that on this record, appellant did not have a reasonable expectation of

privacy as he sat talking to himself in the back seat of the patrol car. Point of error one is overruled.

                Appellant next contends that his statements were recorded in violation of the federal

and state wiretapping statutes. See 18 U.S.C. §§ 2510-22 (2000); Tex. Code Crim. Proc. Ann. art.

18.20 (West Supp. 2002). The statutes are substantially similar, and appellant makes a combined

argument applicable to both.         In essence, appellant urges that his statements were oral

communications that were unlawfully intercepted by the police, and as a consequence they were

inadmissible. See 18 U.S.C. § 2515; Tex. Code Crim. Proc. Ann. art. 18.20, § 2(a).

                “‘Oral communication’ means an oral communication uttered by a person exhibiting

an expectation that the communication is not subject to interception under circumstances justifying

that expectation.” Tex. Code Crim. Proc. Ann. art. 18.20, § 1(2). The federal definition is virtually

identical. See 18 U.S.C. 2510(2). In interpreting the Texas wiretapping statute, it is appropriate to

consider the interpretation of the federal statute on which it was modeled. Ex parte Graves, 853

S.W.2d 701, 705 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). The legislative history of the



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federal statute reveals that Congress’ intent was to protect persons engaged in oral communications

under circumstances justifying an expectation of privacy. See id. (citing United States v. McIntyre,

582 F.2d 1221, 1223 (9th Cir. 1978)). Because we conclude that appellant did not have a reasonable

expectation of privacy under the circumstances shown here, we hold that appellant was not

reasonably justified in the expectation that the statements he made while sitting in the patrol car

would not be intercepted. Points of error two and three are overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: March 14, 2002

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