                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00160-CR


WHITNEY ROGERS                                                    APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                    TRIAL COURT NO. 2014-0223M-CR

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      After the denial of her motion to suppress, Appellant Whitney Rogers

pleaded guilty to possession of a controlled substance in an amount less than

one gram pursuant to a plea-bargain agreement, but reserved her right to appeal

the denial of her motion to suppress. See Tex. Health & Safety Code Ann. §§


      1
      See Tex. R. App. P. 47.4.
481.102, 481.115(a)-(b) (West 2010). In accordance with Rogers’s plea bargain,

the trial court placed Rogers on deferred adjudication for a period of two years

and ordered her to pay a fine of $250, restitution of $180, court costs, and

attorney’s fees. In her sole issue, Rogers argues that the trial court erred in

denying her motion to suppress. We will affirm.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

      On June 25, 2014, Rogers was a passenger in a vehicle being driven by

Gary Messick.     Trooper Brandon Neff observed that the vehicle appeared to

have an illegal window tint. See Tex. Transp. Code Ann. § 547.613(a)(2) (West

2011). Trooper Neff stopped the vehicle and verified that the window tint was in

fact illegal. He also verified that Messick was the owner of the vehicle. Trooper

Neff testified that in situations when he stops a vehicle that has more than one

occupant, he likes to separate the occupants so that he can speak to them

individually. Thus, Trooper Neff asked Messick to exit the vehicle. Because they

were on the shoulder of a busy highway, Trooper Neff thought it would be best to

talk to Messick in his patrol car.

      Trooper Neff frisked Messick prior to allowing him to enter the patrol car.

During the frisk, Trooper Neff felt an object in Messick’s pocket that he could tell

was “plainly contraband.” Trooper Neff told Messick to remove the object—a




                                         2
glass pipe of the type used to smoke methamphetamine.2 Messick also removed

from his pockets a small pill bottle that contained a bag of methamphetamine.

Trooper Neff then handcuffed Messick and placed him in the patrol car.

      Next, Trooper Neff asked Rogers to exit Messick’s vehicle and he began

searching it.   The vehicle contained several items of luggage.      Trooper Neff

testified that he believed some of the luggage belonged to Messick and that

some of the “girly-looking” items belonged to Rogers.        One of the items of

luggage contained a makeup bag that had in it approximately thirty different pills,

including a controlled substance. Trooper Neff testified that after he found the

controlled substance, Rogers stated that the makeup bag belonged to her.

Rogers was then arrested and charged with possession of a controlled

substance.

      Rogers filed a motion to suppress, arguing that the controlled substance

seized by Trooper Neff from the makeup bag as well as her statement to him

regarding her ownership of the makeup bag should be suppressed. The trial

court denied Rogers’s motion to suppress, and she entered into the plea

agreement.




      2
       While Trooper Neff testified that he could tell the object was “plainly
contraband,” he also testified that he was unaware of what type of pipe it was
based “just on feel.”


                                        3
                                  III. STANDING

      Rogers challenges the search of Messick’s person, arguing that Trooper

Neff created a safety concern in order to frisk Messick and arguing that Trooper

Neff did not immediately identify the object in Messick’s pockets as contraband

sufficient to invoke the plain-feel doctrine.3 Rogers also challenges the search of

Messick’s vehicle and the search of her makeup bag found in Messick’s vehicle.

The State counters that Rogers lacks standing to challenge the search of

Messick’s person and also lacks standing to challenge the search of Messick’s

vehicle and her makeup bag.

                                   A. The Law

      The right to challenge the lawfulness of a search is limited to persons with

standing—that is, to those who have been aggrieved by a search and seizure.

Matthews v. State, 165 S.W.3d 104, 110 (Tex. App.—Fort Worth 2005, no pet.).

When a search is contested, the accused establishes standing by showing she

had a reasonable expectation of privacy in the area searched. Id. “A person

who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s premises or property

has not had any of [her] Fourth Amendment rights infringed.” Hughes v. State,



      3
        See Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009)
(stating that under the plain-feel doctrine an officer conducting a frisk may seize
an object whose contour or mass makes its identity immediately apparent as
contraband).


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24 S.W.3d 833, 838 (Tex. Crim. App.) (quoting Rakas v. Illinois, 439 U.S. 128,

134, 99 S. Ct. 421, 425 (1978)), cert. denied, 531 U.S. 980 (2000).

      A passenger generally has no standing to contest the search of a vehicle.

Tucker v. State, 183 S.W.3d 501, 507 (Tex. App.—Fort Worth 2005, no pet.).

However, “a mere passenger may challenge the search of a vehicle in which

[she] was riding if the search resulted from an infringement of [her] own Fourth

Amendment Rights.” Trinh v. State, 974 S.W.2d 872, 874 (Tex. App.—Houston

[14th Dist.] 1998, no pet.) (emphasis added) (citing Metoyer v. State, 860 S.W.2d

673, 677 (Tex. App.—Fort Worth 1993 pet. ref’d)).        In the absence of any

evidence showing that a passenger in a vehicle has a legitimate expectation of

privacy in the vehicle or a possessory interest in the property seized, the

passenger has no standing to contest the search of the vehicle. Flores v. State,

871 S.W.2d 714, 720 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 926 (1994);

Carroll v. State, 56 S.W.3d 644, 650 (Tex. App.—Waco 2001, pet. ref’d). We

review the issue of standing de novo. Kothe v. State, 152 S.W.3d 54, 59 (Tex.

Crim. App. 2004).

                                  B. Analysis

      Rogers lacks standing to challenge the search of Messick’s person as she

does not have a reasonable expectation of privacy in the search of a third

person. See Hughes, 24 S.W.3d at 838; Matthews, 165 S.W.3d at 110. While a

passenger normally lacks standing to challenge the search of a vehicle, Rogers

asserted a possessory interest in the makeup bag that contained the controlled


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substance. Rogers, therefore, possesses standing to challenge the search of

Messick’s vehicle to the extent it included her makeup bag. See Flores, 871

S.W.2d at 720; Trinh, 974 S.W.2d at 874.

                       IV. ROGERS’S MOTION TO SUPPRESS

      Rogers claims that the trial court erred in denying her motion to suppress

because the search of Messick’s vehicle and her makeup bag was made without

a warrant and does not fall within any of the exceptions to the warrant

requirement.    The State counters that the search of Messick’s vehicle and

Rogers’s makeup bag falls within the automobile exception to the warrant

requirement.4

                                   A. The Law

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact


      4
       The State mentions in its summary of the argument that the search of
Messick’s vehicle and Rogers’s makeup bag also falls within the search-incident-
to-arrest exception to the warrant requirement. Nowhere in its brief, however,
does the State give any substantive analysis as to how the search of Messick’s
vehicle and Rogers’s makeup bag falls within the search-incident-to-arrest
exception. The State’s analysis focuses solely on the automobile exception. We
consequently limit our analysis accordingly.


                                         6
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an

alleged Fourth Amendment violation, the defendant bears the initial burden of

producing evidence that rebuts the presumption of proper police conduct.

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.

Crim. App.), cert. denied, 558 U.S. 1093 (2009).       A defendant satisfies this

burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the

burden of proof shifts to the State, which is then required to establish that the

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      Whether a search is reasonable is a question of law that we review

de novo. Kothe, 152 S.W.3d at 62. Reasonableness is measured by examining

the totality of the circumstances. Id. at 63. It requires a balancing of the public

interest and the individual’s right to be free from arbitrary detentions and

intrusions. Id. A search conducted without a warrant is per se unreasonable

unless it falls within one of the “specifically defined and well-established”


                                        7
exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615

(Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best v. State, 118

S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.).

      The automobile exception to the warrant requirement permits police

officers to conduct a warrantless search of a vehicle if it is “readily mobile and

there is probable cause to believe that it contains contraband.” Keehn v. State,

279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Probable cause exists when there

is a “fair probability” of finding inculpatory evidence at the location being

searched. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert.

denied, 555 U.S. 1154 (2009).       If the automobile exception applies, police

officers may search “every part of the vehicle and its contents that may conceal

the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S. Ct.

2157, 2173 (1982); Neal, 256 S.W.3d at 282. Police officers with probable cause

to search a car “may inspect passengers’ belongings found in the car that are

capable of concealing the object of the search.” Wyoming v. Houghton, 526 U.S.

295, 307, 119 S. Ct. 1297, 1304 (1999). As explained by the Supreme Court,

      [w]hen there is probable cause to search for contraband in a car, it is
      reasonable for police officers—like customs officials in the founding
      era—to examine packages and containers without a showing of
      individualized probable cause for each one. A passenger’s personal
      belongings, just like the driver’s belongings or containers attached to
      the car like a glove compartment, are “in” the car, and the officer has
      probable cause to search for contraband in the car.

Id. at 302, 119 S. Ct. at 1301.




                                        8
                                   B. Analysis

      There is no question that Messick’s vehicle was readily mobile as it was

being driven by Messick immediately prior to the search.          See Keehn, 279

S.W.3d at 336 (van used days before its search was readily mobile); Liffick v.

State, 167 S.W.3d 518, 521 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(“Appellant’s truck was readily capable of being used on the highways because

the agents witnessed appellant driving the vehicle shorty before he was

arrested.”) Thus, we next turn to whether there was probable cause to believe

that Messick’s vehicle contained contraband. See Keehn, 279 S.W.3d at 335.

      Trooper Neff’s frisk of Messick revealed a glass pipe of the type used to

smoke methamphetamine and a bag containing methamphetamine.                  At the

suppression hearing, Trooper Neff testified that he had reason to believe that

Messick’s vehicle contained additional contraband.       Under the totality of the

circumstances, it was reasonable for Trooper Neff, after finding drugs and drug

paraphernalia on Messick’s person, to believe that Messick’s vehicle also

contained contraband. See Houghton, 526 U.S. at 297–98, 119 S. Ct. at 1299

(holding that hypodermic syringe found in driver’s pocket gave police officers

probable cause to search the driver’s vehicle for contraband); Daves v. State,

327 S.W.3d 289, 293 (Tex. App.—Eastland 2010, no pet.) (“In the case we are

reviewing, the arrest was for possession of narcotic paraphernalia. It would be

reasonable for the officer to believe that the vehicle contained evidence related to

that offense.”).


                                         9
       Because Trooper Neff had probable cause to search Messick’s vehicle for

contraband, he also had probable cause to search Rogers’s makeup bag that

was contained within the vehicle. See Houghton, 526 U.S. at 307, 119 S. Ct. at

1304 (holding that officers with probable cause to search a vehicle may inspect

passengers’ belongings found in the vehicle that are capable of concealing the

object of the search). As Messick’s vehicle was readily mobile and there was

probable cause to believe that it contained contraband, Trooper Neff’s search of

the vehicle and Rogers’s makeup bag contained within the vehicle falls within the

automobile exception to the warrant requirement. See Keehn, 279 S.W.3d at

335.   Because we hold that the search of Messick’s vehicle and Rogers’s

makeup bag contained within that vehicle falls within the automobile exception to

the warrant requirement, we overrule Rogers’s sole issue.

                                  V. CONCLUSION

       Having overruled Rogers’s sole issue, we affirm the trial court’s judgment.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

SUDDERTH, J., filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 14, 2016



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