Affirmed and Memorandum Opinion filed June 2, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00638-CR


                   JAIME ARTURO SANCHEZ, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1310752


                 MEMORANDUM OPINION
      Appellant, Jaime Arturo Sanchez, was indicted for possession of marijuana
in a usable quantity of more than fifty pounds and less than two thousand pounds.
The trial court denied his motion to suppress evidence seized during a warrantless
search. The parties then made a plea-bargain agreement, under which appellant
entered a guilty plea to a reduced charge in exchange for the State’s
recommendation that punishment be set at one year’s confinement in state jail. The
trial court rendered judgment on the parties’ agreement and certified appellant’s
right to appeal the denial of the motion to suppress. In three issues, appellant
contends admission of the evidence violated the United States and Texas
Constitutions and section 38.23 of the Texas Code of Criminal Procedure. Because
appellant lacks standing to challenge the validity of the search, we affirm.

                                   BACKGROUND
      A.     The search

      On the morning of June 22, 2011, the Harris County Sheriff’s Office
received a report of a suspicious, large, wooden crate at Land Air Express, a freight
forwarding company. Officers John O’Brien, Jonathon Sandel, and Patrick
McIntyre, members of the sheriff’s DEA Task Force, were assigned to investigate
the package. Officers O’Brien and McIntyre testified at the hearing on appellant’s
motion to suppress.

      The officers arrived at the scene and saw the crate. They called for a
narcotics dog, which alerted on the crate. The officers watched the crate until a
truck picked it up.

      Once the crate was loaded onto the truck, the officers followed the truck to
an industrial complex. Officer O’Brien said the complex housed three or four
warehouses, all of which appeared to be auto body shops. The truck entered one of
the warehouses, where a forklift removed the crate.

      Once marked law enforcement vehicles arrived, the officers entered the gate
leading into the complex. As they pulled into the parking lot, two men came out of
the partially raised warehouse door, which was approximately ten to fourteen feet
wide and fifteen to twenty feet tall. Through the open door, Officer O’Brien could
see people standing inside the warehouse and a partially disassembled wooden

                                          2
crate holding a red diesel tank. Uniformed police officers entered the open door
with weapons drawn, handcuffed those inside the warehouse, and conducted a pat-
down search for weapons. They brought those people to the parking lot outside the
warehouse.

      Officer McIntyre talked with appellant inside the warehouse. Appellant told
him he owned the business. When the officer asked him what was in the crate,
appellant responded, “Man, you already know. It’s weed.”

      Appellant gave written consent to a search of the crate. The form provides
consent to a search of the “Cruz Body Shop” located at 2765 Trenton. The place
actually searched, however, was a warehouse connected to the body shop. The
correct address of the warehouse is 10861 Shady Lane.

      Officer McIntyre also obtained oral consent from appellant to search the
warehouse and the diesel tank. At appellant’s direction, one of the workers in the
warehouse opened the metal container with a welding torch. The police recovered
bundles of marijuana from inside the diesel tank.

      B.     The motion to suppress

      Most of the suppression hearing concerned whether the police properly
entered the premises and the validity of appellant’s consent due to the discrepancy
between the address written and the address searched. The trial court found the
officers’ testimony credible, the police had probable cause to enter the premises,
the premises were open to the public, the address on the written consent could
describe the warehouse searched, appellant orally consented to a search of the
container, and appellant gave both consents voluntarily.




                                         3
      Appellant testified he and others were starting a business on the premises
selling barbecue pits. He said the “business” was not open to the public, though it
is not clear if he was referring to the body shop or the barbecue pit business.

      On cross-examination, appellant testified he did not own or lease the land or
the buildings. He said he did not own the body shop or the barbecue pit business,
and he had not put money into the barbecue pit business, elaborating that he had
“no lease, no bills, nothing to this property.” Appellant also said he did not keep
anything in the warehouse. Despite that testimony, appellant agreed on re-direct
examination that “on paper it’s not [him] on the lease, but that’s [his] space,” and
he had the right to exclude people from it.

      Following appellant’s testimony, which the trial court described as “partly
credible,” the court found he lacked standing to contest the validity of the search.
The trial court denied appellant’s motion to suppress.

      Appellant entered his guilty plea the next day. This appeal timely followed.

                                      ANALYSIS
I.    Standard of review
      Evidence obtained in violation of the law must be excluded from jury
consideration in criminal cases upon the defendant’s request. Tex. Code Crim.
Proc. Ann. art. 38.23; Donjuan v. State, 461 S.W.3d 611, 615 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). That request is made through a motion to
suppress. We review a trial court’s ruling on a motion to suppress under a
bifurcated standard of review:

      First, we afford almost total deference to a trial judge’s determination
      of historical facts. The trial judge is the sole trier of fact and judge of
      the credibility of the witnesses and the weight to be given their
      testimony. The judge is entitled to believe or disbelieve all or part of

                                          4
      the witness’s testimony—even if that testimony is uncontroverted—
      because he or she has the opportunity to observe the witness’s
      demeanor and appearance.

      If the trial judge makes express findings of fact, we view the evidence
      in the light most favorable to his ruling and determine whether the
      evidence supports these factual findings. When findings of fact are not
      entered, we “must view the evidence ‘in the light most favorable to
      the trial court’s ruling’ and ‘assume the trial court made implicit
      findings of fact that support its ruling as long as those findings are
      supported by the record.’”

      Second, we review a trial court’s application of the law of search and
      seizure to the facts de novo. 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.”
Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010) (citations
omitted).

II.   Search and seizure
      A.    General standards
      The Fourth Amendment to the United States Constitution guarantees the
right to be free from unreasonable searches and seizures by government officials.
U.S. Const. amend. IV. Among the actions that constitute a search is a
governmental intrusion into an area where a person has a reasonable expectation of
privacy. Richardson v. State, 865 S.W.2d 944, 948–49 (Tex. Crim. App. 1993); see
also State v. Granville, 423 S.W.3d 399, 407 n.22 (Tex. Crim. App. 2014).

      To comply with the Fourth Amendment, a search pursuant to a criminal
investigation generally (1) requires a search warrant or recognized exception to the
warrant requirement, and (2) must be reasonable under the totality of the
circumstances. State v. Villareal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2014). A
search conducted without a warrant is “per se unreasonable . . . subject only to a

                                         5
few specifically established and well-delineated exceptions.” Katz v. United States,
389 U.S. 347, 357 (1967). The State bears the burden to show that a warrantless
search falls within one of those exceptions. McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003).

      B.     Standing
      The concept of privacy includes the related concept of standing—that is,
whether a defendant has a recognizable privacy stake that supports a Fourth
Amendment right. “The ‘standing’ doctrine ensures that a person may claim only
that his own rights have been violated; he cannot assert that he is entitled to benefit
because the rights of another have been violated.” Granville, 423 S.W.3d at 405.
Any defendant seeking to suppress evidence obtained in violation of the Fourth
Amendment must first show he personally had a reasonable expectation of privacy
that the government invaded. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App.
2004); State v. Millard Mail Servs., Inc., 352 S.W.3d 251, 253 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (per curiam). To decide whether a defendant
had such an expectation, a court first determines whether he demonstrated an
actual, subjective expectation of privacy in the place or object searched. Pham v.
State, 324 S.W.3d 869, 874–75 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
If so, the court then decides whether the defendant’s subjective expectation of
privacy was one that society would regard as objectively reasonable or legitimate.
Id. Factors that courts use in deciding whether a person had a reasonable
expectation of privacy include:




                                          6
      (1)   whether the defendant had a proprietary or possessory interest
            in the place or object searched;

      (2)   whether the defendant’s presence in or on the place searched
            was legitimate;

      (3)   whether the defendant had a right to exclude others from the
            place or object;

      (4)   whether the defendant took normal precautions, prior to the
            search, which are customarily taken to protect privacy in the
            place or object;

      (5)   whether the place or object searched was put to a private use;

      (6)   whether the defendant’s claim of privacy is consistent with
            historical notion[s] of privacy.

Granville, 423 S.W.3d at 407–08.

      The expectation of privacy on commercial premises is less than the
expectation of privacy in a person’s home. New York v. Burger, 482 U.S. 691, 700,
107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). “Police, although motivated by an
investigative purpose, are as free as the general public to enter premises ‘open to
the public,’ when they are open to the public. Officers are then entitled to note
objects in plain view, or examine merchandise as a customer would. For ‘actions
not to constitute a Fourth Amendment search, the officer must remain in that
portion of the premises which is open to the public.’” State v. Weaver, 349 S.W.3d
521, 526–27 (Tex. Crim. App. 2011) (citations omitted).

      The only evidence of appellant’s subjective expectation of privacy is his
testimony that (1) the unspecified “business” was not open to the public, and
(2) although he did not officially own or lease the warehouse, it was “his space”
and he had the right to exclude people from it. Yet appellant also testified
unequivocally that he had no ownership or leasehold interest in the warehouse or

                                        7
the business and had no privacy interest in the warehouse. He testified another man
who was at the warehouse paid the bills for the space and was going to put up signs
for the business. They had a few pits ready to sell, and potential customers of the
barbeque pits could have walked in to buy one. The warehouse had a large open
door. Given the trial court’s characterization of appellant’s testimony as “partly
credible” and its role as sole judge of the credibility of witnesses, we hold the trial
court did not abuse its discretion in disregarding the self-serving portions of
appellant’s conflicting testimony.

      We conclude that the record supports the trial court’s conclusion that
appellant lacks standing to contest the validity of the search. Due to that
conclusion, we need not decide whether the search violated the Fourth
Amendment. We overrule each of appellant’s issues.

                                       CONCLUSION
      We affirm the judgment of the trial court.




                                 /s/     J. Brett Busby
                                         Justice



Panel consists of Justices Christopher, McCally, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                           8
