           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1341-13



                        CORNELIOUS L. MATTHEWS, Appellant

                                             v.

                                THE STATE OF TEXAS



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE EIGHTH COURT OF APPEALS
                         TARRANT COUNTY



       C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, P RICE, W OMACK, J OHNSON, H ERVEY and A LCALA, JJ., joined. K EASLER,
J., concurred.

                                       OPINION

       Appellant was charged with possession with intent to deliver cocaine. He filed a pre-

trial motion to suppress the crack cocaine that officers found during a warrantless search of

a van that appellant had borrowed. After hearing the evidence, the trial judge ruled that

appellant’s original detention was reasonable and that he lacked standing to challenge the
                                                                            Matthews     Page 2

search of the van. A jury then found appellant guilty and sentenced him to twenty-two years

in prison. The court of appeals affirmed, agreeing that appellant lacked standing to challenge

the van’s search and upholding appellant’s detention, even though it was based largely on

information from an anonymous tip.1

       We granted review to determine (1) whether a person who legitimately borrows a

vehicle has standing to challenge its search, and (2) if appellant’s initial and continued

detention was supported by reasonable suspicion.2 We conclude that, although appellant

originally had standing to challenge the search of the borrowed van, he abandoned any

expectation of privacy (and hence his standing) when he fled from the officers and the van.

Second, the officers had reasonable suspicion to detain appellant that was not based solely

on the anonymous tip, and appellant’s act of fleeing increased their suspicion and further

justified his continued detention to await the arrival of a drug dog.

                                       I. Background

       On July 23, 2009, at 11:11 p.m., Officer Zimpelman was dispatched to a food store

on Hattie Street in Fort Worth to respond to an “anonymous” 911 call. Although the tipster

did not leave her name, Officer Zimpelman’s “call screen” displayed the tipster’s phone


       1
         Matthews v. State, No. 08-11-00157-CR, 2013 WL 4517280, *3 (Tex. App–El Paso Aug.
23, 2013) (not designated for publication).
       2
        Appellant’s two grounds for review are:
1.     Does a person have standing to contest an unlawful search where they are in possession of
       a vehicle with consent and permission of the vehicle’s owner?
2.     Can the police detain a person to conduct a warrantless search based on an anonymous tip
       when the initial investigation provides zero evidence to show any law violation?
                                                                              Matthews     Page 3

number and address. According to the caller, a black male named Neil Matthews, wearing

a white muscle shirt and dark pants, was selling “crack” out of a white van parked in front

of the store. This was a high-crime area, known for drug and weapons arrests.

       When Officer Zimpelman pulled up to the food store, he saw a white van in front of

it. He stopped behind the van, got out of his patrol car, and walked up to the passenger side

window of the van, while his partner, Officer Smith, approached the driver’s side. Appellant

was in the driver’s seat of the van, wearing a white muscle shirt and dark pants. He was just

sitting there with the keys in the ignition and the engine off.

       When Officer Zimpelman looked in the passenger window, he could see appellant’s

right hand, but appellant’s left hand was hidden from view. Concerned that appellant was

hiding a weapon “because that area is known for pretty much a high crime rate area,” Officer

Zimpelman told appellant to show his other hand, but appellant ignored him.3 When Officer

Zimpelman repeated his request, appellant said that he was showing his hands, even though

his left hand remained hidden by the driver’s side door. Because it was close to midnight,

difficult to see, and a high crime area, Officer Smith told appellant to get out of the van after

he had repeatedly refused to show both his hands. Officer Smith led appellant to the back

of the van and frisked him. Appellant was unarmed. When Officer Zimpelman asked

appellant for his name, he said, “Cornelious Matthews.”



       3
         Officer Zimpelman testified: “I told him to show me his hands. He glanced over at me,
looked straight forward or straight ahead from where he was sitting toward the store, glanced back
over at me.”
                                                                              Matthews     Page 4

       Based on the details from the anonymous tip, the fact that appellant’s name was very

similar to “Neil Matthews” (the name provided by the tipster), and appellant’s gestures,

Officer Zimpelman asked for consent to search the van. Appellant refused, stating that the

van was not his, so he could not allow the search.4 Officer Zimpelman explained to appellant

that “he was sitting in the driver’s seat, so therefore he’s in the care, custody, and control of

the vehicle, that he can provide . . . permission.” Appellant responded “I don’t even have the

keys.” Officer Zimpelman reminded him that the keys were in the ignition, but appellant still

did not consent to the search.

       Officer Zimpelman called dispatch and requested a K-9 unit. When appellant heard

that request, “[h]is body became more tense. His eyes got larger” and his breathing became

“more rapid, kind of the fight or flight response.” Officer Zimpelman told a third officer to

put appellant in the back of the squad car for further investigation. But as the officers walked

to the squad car, appellant took off running. Officer Zimpelman pursued appellant on foot

for several blocks, finally caught him, and brought him back to the squad car. When they

returned, the anonymous tipster was at the scene and identified herself as the caller. When

officers discovered that she had outstanding warrants, they arrested her as well.

       K-9 Officer Macy arrived with his dog, Hutch, and conducted an “open-air sniff”

around the van. Hutch alerted, so the officers searched the van and found a package of



       4
         At some point, Officer Zimpelman checked the vehicle registration and discovered that the
van belonged to “Joaquin Cardona.” After appellant was in custody, a Hispanic man approached the
officers and said that he owned the van.
                                                                                  Matthews        Page 5

marijuana in the driver’s-side door pocket and crack cocaine in a small compartment behind

the driver’s seat.5 The officers arrested appellant on drug charges.

       Appellant filed a motion to suppress, but after hearing the testimony of Officer

Zimpelman, Officer Macy, and appellant, the trial judge denied the motion. The judge stated

that appellant did not own or have any possessory interest in the van, and thus he did not

have standing to challenge the search.6 A year later, right before the trial began, appellant


       5
          Appellant testified at the first suppression hearing, and his version of events differed
significantly from Officer Zimpelman’s. Appellant said that he was waiting in the van for his
“Auntie” to meet him, when two officers approached the van and told him to show his hands. Then,
according to appellant,
        I showed him my hands. He asked for my ID, I gave him my ID. He told the other
        officer to keep an eye on me. And then he told me to step out [of] the car. So he ran
        to go check my name. And I didn’t have no warrants. And then the other officer
        searched me and they didn’t find nothing. And then I told him why was they messing
        with me. And my auntie came around the corner and she asked them why was they
        messing with me because she was about to take me home.
Appellant said that he refused to consent to the search of the van because it did not belong to him.
But appellant claimed that he did not run away until a drug dog arrived and failed to alert. He said
that the officers continued to harass him, so he ran away. Appellant stated that, after Officer
Zimpelman caught him and brought him back to the van, a second drug dog circled the van and also
failed to alert.
        When reviewing the ruling on a motion to suppress, we view the evidence in the light most
favorable to the trial judge’s ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013).
“The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn from it.” Id. at 666-67. Thus, to the extent that they conflict, we accept
Officer Zimpelman’s version of the events, not appellant’s.
       6
         The trial judge explained:
               This is a situation where [appellant] from the very beginning denied
       ownership or an ownership interest in the vehicle involved. His reason for denying
       the officers the consent to search the vehicle was based upon the fact that it was not
       his vehicle, that he did not know what was in it, his assertion that he had no
       possession or ownership of the vehicle is apparent.
               It’s also a situation where the vehicle is actually registered to another person
       who–and that person apparently appeared upon the scene and claimed ownership of
       the vehicle. So the Court is addressing the issue of standing [and] is going to
                                                                                  Matthews        Page 6

filed another motion to suppress that challenged his original detention while also rearguing

the standing issue. After hearing testimony from the same witnesses, the trial judge ruled

that appellant had standing to challenge the detention and search of his person, but that the

detention and search were reasonable under the circumstances.7 He again concluded that

appellant lacked standing to challenge the search of the van.

       The court of appeals agreed that appellant did not have standing to challenge the

search of the van.8 Because appellant did not have complete dominion and control over the

van and because the “owner’s grant of permission to Appellant to be in the vehicle does not

rise to a claim of privacy consistent with historical notions of privacy[,]” he did not have a

reasonable expectation of privacy in the van.9



       determine from the facts this is a situation where [appellant] has no standing to
       complain about the search of the vehicle based on the circumstances in this case.
       7
         In ruling that appellant’s detention was reasonable, the trial judge found:
       [T]he encounter with [appellant] was legitimate and reasonable under these
       circumstances. While initially the anonymous . . . caller . . . probably did not realize
       that her phone number or address was being revealed as she made the call,
       potentially. Although she might not have realized that, that’s certainly not a surprise
       with modern technology.
                And the fact that she later showed up indicates a willingness to be helpful and
       available for follow-up investigation. So I do think it’s important that she did show
       up and indicate her willingness to participate further in this matter. But the Court is
       going to find that the encounter was legitimate, that immediately the officers were
       able to confirm the details of the call. The Court is also going to find that under the
       circumstances, the Terry frisk of the defendant was reasonable under all the
       circumstances. The Court will also find that a brief period of detention following that
       is reasonable under the circumstances.
       8
           Matthews, 2013 WL 4517280 at *3.
       9
           Id.
                                                                          Matthews    Page 7

       The court of appeals also held that appellant’s detention was supported by reasonable

suspicion.10 When the officers arrived at the food store, they were able to corroborate some

of the tipster’s story–a man wearing the described clothing was sitting in the described

vehicle.11 In addition, the officers knew that the location was a “high-crime, high-drug

area.”12 After they approached the windows of the van, appellant refused to comply with

instructions to show both of his hands.13 Although a Terry frisk did not uncover any drugs

or weapons, “the other facts known to the officers by personal observation increased the

indicia of reliability of the anonymous tip.”14 The court of appeals held that the entire

investigative detention was lawful.15 We granted review of both of those holdings.

                   II. Reasonable Suspicion for the Investigative Detention

       In his second ground for review, appellant argues that his continued detention after

the Terry frisk was unlawful because it was not supported by reasonable suspicion; it was

supported only by the 911 call of an anonymous tipster. Appellant now purports to concede

that the officers’ original approach, request for him to get out of the van, and the pat-down

search were permissible. He argues that “the Constitutional line was crossed” when officers


       10
            Id. at *4.
       11
            Id. at *6.
       12
            Id.
       13
            Id.
       14
            Id.
       15
            Id.
                                                                                 Matthews     Page 8

wanted him to sit in the patrol car and wait for approximately fifteen to twenty-five minutes

for a drug dog to arrive, rather than release him when they did not find anything illegal

during the Terry frisk or initial investigation.16 Appellant nevertheless continues, within his

brief, to challenge the propriety of the initial detention.            We therefore address the

constitutionality of the detention from its inception.

A.     Legal Principles

       Under the Fourth Amendment, a brief investigatory detention must be justified by

reasonable suspicion.17 “A police officer has reasonable suspicion to detain if he has

specific, articulable facts that, combined with rational inferences from those facts, would lead

him reasonably to conclude that the person detained is, has been, or soon will be engaged in

criminal activity.”18 In determining whether an officer has reasonable suspicion to detain,

we look at the totality of the circumstances through an objective lens, disregarding the

officer’s subjective intent.19 Although some circumstances may seem innocent in isolation,

they will support an investigatory detention if their combination leads to a reasonable




       16
            Appellant’s Brief at 9.
       17
         United States v. Sokolow, 490 U.S. 1, 7 (1989); Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011); Bobo v. State, 843 S.W.2d 572, 574 (Tex. Crim. App. 1992)
(“Circumstances short of probable cause for an arrest may justify a temporary investigation or
detention because investigation is a lesser intrusion on personal security than an arrest.”) (internal
quotation marks omitted).
       18
            Derichsweiler, 348 S.W.3d at 914 (citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)).
       19
            Id.
                                                                                  Matthews     Page 9

conclusion that criminal activity is afoot.20

       An anonymous tip alone is seldom sufficient to establish reasonable suspicion.21

Reasonable suspicion is dependant not only on the content of the information possessed by

law enforcement, but also on its reliability.22 To support reasonable suspicion, an anonymous

tip requires some indicia that the caller is credible or that his information is reliable.23

       Reasonable suspicion is not a carte blanche for a prolonged detention and

investigation. The investigatory detention must be “reasonably related in scope to the

circumstances which justified the interference in the first place.”24 An officer must act to

confirm or dispel his suspicions quickly.25 But the temporary detention may continue for a

reasonable period of time until the officers have confirmed or dispelled their original

suspicion of criminal activity.26 One reasonable method of confirming or dispelling the


       20
            Id.
       21
          Alabama v. White, 496 U.S. 325, 329 (1990); Florida v. J.L., 529 U.S. 266, 270 (2000);
but see Navarette v. California, 572 U.S. __, 134 S.Ct. 1683 (2014) (concluding that an anonymous
911 tip was sufficiently reliable to support reasonable suspicion to make a DWI traffic stop).
       22
            White, 496 U.S. at 330.
       23
          White, 496 U.S. at 329; Illinois v. Gates, 462 U.S. 213, 230 (1983) (“[A]n informant’s
‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of
his report.”).
       24
            Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).
       25
            Parker v. State, 297 S.W.3d 803, 810 (Tex. App.–Eastland 2009, pet. ref’d).
       26
          Davis, 947 S.W.2d at 245 (“The propriety of the stop’s duration is judged by assessing
whether the police diligently pursued a means of investigation that was likely to dispel or confirm
their suspicions quickly.”) (internal quotation marks omitted); see United States v. Sharpe, 470 U.S.
675, 686-88 (1985) (police officer’s temporary detention of motorist for 20 minutes was lawful in
                                                                                 Matthews      Page 10

reasonable suspicion that a vehicle contains drugs is to have a trained drug dog perform an

“open air” search by walking around the car. If the dog alerts, the presence of drugs is

confirmed, and police may make a warrantless search.27 If the drug dog does not alert, the

officer’s suspicions will normally be dispelled, and the citizen may go on his way.28

B.     Appellant’s Detention Was Reasonable

        Appellant was seized, and the investigatory detention began, when he was ordered

to get out of the van and was frisked for weapons. However, contrary to appellant’s claims,

his detention was not based solely on the word of an unreliable anonymous tipster. Rather,

the totality of the circumstances established reasonable suspicion to support the scope and

duration of the officers’ investigatory detention.

        Officer Zimpelman responded to an “anonymous” tip alleging that appellant was

selling crack from a white van outside the food store. In addition to the description and

location of the van, the tip not only contained a detailed description of appellant, but also



its scope and duration because he pursued his investigation in a diligent and reasonable manner).
       27
          See, e.g., United States v. Cervine, 347 F.3d 865, 872-73 (10th Cir. 2003) (officers who
legitimately made traffic stop could detain driver for 30 to 50 minutes for arrival of drug dog based
on reasonable suspicion that driver was transporting illegal narcotics); United States v. Burton, 288
F.3d 91, 101-02 (3d Cir. 2002) (officers who had reasonable suspicion to detain defendant did not
exceed the time and scope of the detention when they called and waited for 30-45 minutes for a
trained drug dog to conduct a drug sniff of the car); see generally, Florida v. Harris, 568 U.S. __,
133 S.Ct. 1050 (2013) (discussing procedure for “free air” drug-dog sniffs outside of a car).
       28
          Of course, if officers otherwise have probable cause to search, a drug-dog’s failure to alert
on a car does not destroy that probable cause. See United States v. Jodoin, 672 F.2d 232, 236 (1st
Cir. 1982) (“The dog’s failure to react does not . . . destroy the ‘probable cause’ that would otherwise
exist.”).
                                                                                 Matthews      Page 11

identified him by name. While the specificity of this tip contains indicia of reliability,29 we

need not decide whether this tip alone supported reasonable suspicion because Officer

Zimpelman had additional facts before making his investigatory detention.

        After Officer Zimpelman received the dispatch call at 11:11 p.m., he confirmed that

the described van contained the described man at the described location, a high-crime area

known for drug and weapons violations. When he approached the passenger-side window

of the van, he saw appellant concealing his left hand near the driver’s side door.30 Fearing

that appellant was holding a weapon, Officer Zimpelman asked appellant to show both of his

hands. Appellant did not comply; rather, he glanced at Officer Zimpelman but ignored his

request. When Officer Zimpelman repeated his request to see appellant’s left hand, appellant

responded that “he was showing . . . his hands.” Officer Smith, standing near the driver’s

side door of the van, told appellant to exit the van. Appellant complied and followed Officer


       29
           Recently, in Navarette v. California, the Supreme Court held that an anonymous tip
contained adequate indicia of reliability to support reasonable suspicion because the content of the
tip indicated that it was based on eyewitness knowledge, was contemporaneously made, and was
made to the 911 emergency system, which “has some features that allow for identifying and tracing
callers, and thus provide some safeguards against making false reports with immunity.” 572 U.S.
___, 134 S. Ct. 1683, 1691-92 (2014).
         Similarly, in this case the tipster called 911, and Officer Zimpelman’s “call sheet” displayed
the phone number and address associated with the call. However, the call sheet does not indicate
who made the 911 call from that address or whether the caller knew that her number could be traced.
Nor does access to such “call sheet” information necessarily increase the likelihood that a tip is
reliable. See Navarette, 134 S. Ct. at 1694 (Scalia, J., dissenting) (“But assuming the Court is right
about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the
anonymous caller was aware of that fact. ‘It is the tipster’s belief in anonymity, not its reality, that
will control his behavior.’ There is no reason to believe that your average anonymous 911 tipster is
aware that 911 callers are readily identifiable.”) (citation omitted).
       30
            The driver’s side door pocket was where the bag of marijuana was later found.
                                                                                Matthews     Page 12

Smith to the back of the van, where Officer Smith made a Terry frisk.

       This investigatory detention was not based solely on the anonymous 911 call.31 In

addition to the tip,

       •       Officers discovered appellant in a high-crime area, known for drug and
               weapons offenses, late at night;

       •       He was dressed as the 911 caller had described and was named as the 911
               caller had said;

       •       He was sitting in the driver’s seat of the van that the 911 caller had described
               with the key in the ignition, but the engine off. He was just sitting there;32

       •       Appellant refused to comply with the officers’ request to show both of his
               hands, and he did so in a suspicious manner.

       When coupled with the specific anonymous tip that appellant was selling “crack” from

that van, the totality of circumstances established reasonable suspicion to briefly detain and

investigate the officers’ suspicions.33 With their suspicions aroused, officers requested that

appellant exit the vehicle, and they performed a pat-down search. The pat-down did not


       31
          Compare Florida v. J.L., 529 U.S. 266 (2000) (no reasonable suspicion when officer’s
suspicion was not raised by his own observations, but only by an anonymous tip that a young black
male wearing a plaid shirt was carrying a gun), with Navarette v. California, 572 U.S. __, 134 S.Ct.
1683, 1688-89 (2014) (distinguishing J.L. and concluding that anonymous 911 caller in this case
must have had personal knowledge of reckless driving and that the caller included predictions of
future behavior, thereby pedigreeing reliability of tip).
       32
         Although this behavior is certainly consistent with legal conduct, it is also consistent with
a drug dealer selling crack cocaine out of his vehicle.
       33
         Cf. Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) (no reasonable suspicion based
on nervousness and refusal to cooperate during consensual encounter with law enforcement). In the
present case, there were additional suspicious factors that were not present in Wade: Officers
received an anonymous tip describing specific criminal activity by a specifically named and dressed
person in a high-crime area late at night.
                                                                                Matthews     Page 13

reveal any contraband or weapons. Appellant argues, “It was at this point where the

Constitutional line was crossed,” because instead of being released, Officer Zimpelman

radioed for a K-9 unit and asked Officer Rodriguez to take appellant to the patrol car.34 As

appellant notes, “The testimony presented at the hearing established that [the wait for the K-9

unit] was expected to take between fifteen to twenty-five minutes.” 35

       The post-frisk detention was not unreasonable, nor was it unnecessarily prolonged.

Although the officers did not find any weapons or contraband during that frisk, the fact that

appellant was not carrying a knife or a firearm did not address their suspicion that he was

selling drugs from the van or that more drugs were in the van. To quickly confirm or dispel

that suspicion, Officer Zimpelman called for a K-9 unit to make a walk-around search of the

van. Although the wait for the K-9 unit was only expected to take 15 to 25 minutes,36

appellant did not wait at all. He took off running. This two-block flight only increased the

officers’ suspicion that appellant was engaged in illegal activity.37            Furthermore, this


       34
            Appellant’s Brief at 9.
       35
            Id.
       36
           See Parker v. State, 297 S.W.3d 803, 812 (Tex. App.–Eastland 2009, pet. ref’d) (officers
acted diligently to confirm or dispel reasonable suspicion though the drug dog took 40 minutes to
arrive after being requested); Strauss v. State, 121 S.W.3d 486, 492 (Tex. App.–Amarillo 2003, pet.
ref'd) (A seventy-five-minute detention from the traffic stop until the drug dog arrived was not
unreasonable.); Josey v. State, 981 S.W.2d 831, 840–41 (Tex. App.–Houston [14th Dist.] 1998, pet.
ref’d) (A ninety-minute detention from the stop until a drug-dog alerted and the officers searched the
car was not unreasonable.).
       37
           See Wade, 422 S.W.3d at 674-5 n. 61 (noting that “a defendant’s unprovoked flight from
officers in an area of heavy narcotics trafficking supported reasonable suspicion that the defendant
was involved in criminal activity and justified a stop in Illinois v. Wardlow, 528 U.S. 119 (2000)”);
                                                                               Matthews   Page 14

attempted flight constituted its own offense, evading arrest or detention.38

       Officer Zimpelman caught appellant and returned him to the patrol car. By this time,

the K-9 unit had arrived, and a dog alerted to the van. The officers searched the van and

found marijuana and crack cocaine. At no point was appellant unlawfully detained.

                      III. Standing to Challenge the Search of the Van

       In appellant’s first ground for review, he argues that the court of appeals erred in

holding that he lacked standing to challenge the search of the van. The rights protected by

the Fourth Amendment to the U.S. Constitution and Article I, Section 9, of the Texas

Constitution are personal.39 As such, an accused must show that the search violated his,

rather than a third party’s, legitimate expectation of privacy.40 He must show (1) that he

exhibited an actual subjective expectation of privacy in the place invaded (“i.e., a genuine

intention to preserve something as private”)41 and (2) that “society is prepared to recognize



State v. Kerwick, 393 S.W.3d 270, 276 (Tex. Crim. App. 2013) (“‘[Flight] is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such’ and may be considered among the
totality of the circumstances in a reasonable-suspicion analysis.”) (citation omitted).
       38
            TEX . PENAL CODE § 38.04.
       39
        Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); State v. Betts, 397 S.W.3d 198, 203 (Tex.
Crim. App. 2013).
       40
          Rakas, 439 U.S. at 134; Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (“Proof
of ‘a reasonable expectation of privacy’ is at the forefront of all Fourth Amendment claims. Any
defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must first
show that he personally had a reasonable expectation of privacy that the government invaded. He
must prove that he was a ‘victim’ of the unlawful search or seizure. He has no standing to complain
about the invasion of someone else’s personal rights.”) (citations omitted).
       41
            Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
                                                                               Matthews     Page 15

that expectation of privacy as objectively reasonable.” 42

       To determine whether a person’s expectation of privacy is reasonable, we examine the

totality of circumstances surrounding the search,43 guided by a non-exhaustive list of factors:

       •         whether the accused had a property or possessory interest in the place invaded;

       •         whether he was legitimately in the place invaded;

       •         whether he had complete dominion or control and the right to exclude others;

       •         whether, before the intrusion, he took normal precautions customarily taken
                 by those seeking privacy;

       •         whether he put the place to some private use; and

       •         whether his claim of privacy is consistent with historical notions of privacy.44

Although we defer to the trial judge’s factual findings, we review the legal issue of standing

de novo.45

A.     Generally, a person driving a borrowed car has a subjective and reasonable
       expectation of privacy in that vehicle.

       Normally, all six of the above factors indicate that a person who borrows a car with

the owner’s permission has a reasonable expectation of privacy in that car. Although a


       42
         State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013) (citing Smith v. Maryland, 442
U.S. 735, 740 (1979)); Villarreal, 935 S.W.2d at 138. “[T]he Court has consistently held that the
defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises
searched.” Wilson v. State, 692 S.W.2d 661, 667 (Tex. Crim. App. 1985) (op. on reh’g).
       43
            Betts, 397 S.W.3d at 203.
       44
         Id. at 203-04. See also Villarreal, 935 S.W.2d at 138; Calloway v. State, 743 S.W.2d 645,
651 (Tex. Crim. App. 1988).
       45
            Betts, 397 S.W.3d at 204.
                                                                                 Matthews      Page 16

borrower may not have the full panoply of ownership, he has some property or possessory

rights.46 And if his use of the car is authorized, it follows that his presence in the car is

authorized. Because he holds the keys to the car, he may control who enters it and who

drives it, thus his dominion or control is superior to all others.47 Unless he flings open the

doors or hands the keys to a mere passer-by, the borrower likely uses the normal precautions

customarily taken by those seeking privacy in their cars. And unless the borrower abandons

the vehicle or converts it into a public bus, he likely puts the vehicle to private use. Finally,

privacy in a borrowed car is consistent with the historical notions of a bailee’s privacy.48

        This recognition of a reasonable expectation of privacy in a borrowed car is hardly

novel. Back in 1978, Professor LaFave wrote: “If the owner of a vehicle has turned it over

to another person for some period of time, then surely this latter person has standing vis-a-vis

the car during the duration of bailment.”49 Relying on this language, we held that a defendant

had standing to challenge the search of a parked car that he had borrowed.50 Several federal


       46
          See United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 949 n.2 (2012) (“If Jones was not
the owner he had at least the property rights of a bailee.”); 8A AM . JUR. 2D , Bailments §§ 1-5, 8, pp.
520-25, 527-29 (2009) (definitions and types of bailments); Id. at § 51, p. 574 (“The bailee acquires
only a possessory interest in the property, which carries with it such a legal interest in the subject
matter as is consonant with the purposes of the bailment.”).
       47
           8A AM . JUR. 2D , Bailments § 52, p. 575 (2009) (“In the absence of any contrary provision
in the bailment agreement, the bailee has such control and dominion over the property as will allow
the bailee to exclude all others from possession . . . .”).
        48
             See infra, notes 49-52
       49
             3 WAYNE LA FAVE , SEARCH AND SEIZURE, § 11.3 at 576-77 (1978).
       50
             Wilson v. State, 692 S.W.2d 661, 670-71 (Tex. Crim. App. 1985) (op. on reh’g).
                                                                                  Matthews      Page 17

circuits recognized this privacy interest decades ago.51 And many Texas courts of appeals

have also properly found a reasonable expectation of privacy in these circumstances.52

        51
          United States v. Martinez, 808 F.2d 1050, 1056 (5th Cir. 1987); United States v. Rose, 731
F.2d 1337, 1343 (8th Cir. 1984); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980);
United States v. Miller, 821 F.2d 546, 548-49 (11th Cir. 1987). In Portillo and Miller, the federal
circuit courts noted that the borrowed-car scenario fits between two bookend cases on standing:
Rakas v. Illinois, 439 U.S. 128 (1978) and Jones v. United States, 362 U.S. 257 (1960).
        In Jones, the Supreme Court held that a defendant had standing to challenge the search of his
friend’s apartment, one in which he was staying, kept his clothes, and to which he had a key. Jones,
362 U.S. at 259-67.
         In Rakas, the Supreme Court held that a car passenger lacked a reasonable expectation of
privacy in the car in which he was riding. Rakas, 439 U.S. at 148. Although the passenger was in the
car with the driver’s permission, the passenger “asserted neither a property nor a possessory interest
in the automobile, nor an interest in the property seized.” Id. The items seized were found in the
glove compartment and trunk, areas in which a passenger would not normally have a legitimate
expectation of privacy. Id. at 148-49. The Court distinguished Rakas from Jones, noting that the
defendant in Jones “not only had permission to use the apartment of his friend, but had a key to the
apartment with which he admitted himself[,] . . . [he] kept possessions in the apartment[,] . . . Jones
had complete dominion and control over the apartment and could exclude others from it.” Id. at 149.
        The Ninth Circuit in Portillo and the Eleventh Circuit in Miller held that a situation in which
a defendant has both permission to use an automobile and the keys to the car is more similar to the
scenario in Jones than that in Rakas. See Portillo, 633 F.2d at 1317; Miller, 821 F.2d at 548.
        52
           Matthews v. State, 165 S.W.3d 104, 112 (Tex. App.–Fort Worth 2005, no pet.) (“A
defendant . . . has standing to challenge the search of a car he does not own if he shows that he
gained possession of the car from the owner with the owner’s consent or from someone authorized
to give permission to drive it.”); Rovnak v. State, 990 S.W.2d 863, 867 (Tex. App.–Texarkana 1999,
pet. ref’d) (“It is established in this state that a defendant has standing to challenge the search of an
automobile he does not own if he shows he gained possession of the borrowed car from the owner
or one authorized to give permission to drive it.”); Reyes v. State, 910 S.W.2d 585, 589 (Tex.
App.–Amarillo 1995, pet. ref’d) (same); Stine v. State, 787 S.W.2d 82, 85 (Tex. App.–Waco 1990,
pet. ref’d) (defendant had standing to challenge search of a station wagon belonging to a customer
of the repair shop at which defendant worked; the owner had authorized employees of the repair shop
to test-drive the vehicle after it was repaired); State v. Bassano, 827 S.W.2d 557, 559-60 (Tex.
App.–Corpus Christi, pet. ref’d) (defendant had standing to challenge search of wife’s car; under
Texas community-property laws, defendant had the right to possess and control the vehicle). Cf. Nite
v. State, 882 S.W.2d 587, 591 (Tex. App.–Houston [1st Dist.] 1994, no pet.) (defendant lacked
reasonable expectation of privacy because his name was not listed on the rental agreement and thus
he lacked permission to drive the car); Sutton v. State, 711 S.W.2d 136, 138 (Tex. App.–Houston
[14th Dist.] 1986, no pet.) (defendant failed to satisfy his burden to demonstrate standing because
he did not put on any evidence indicating that he had the owner’s consent to possess the car).
                                                                              Matthews    Page 18

Officer Zimpelman said it best at the motion-to-suppress hearing: “Just like if you rent a car

from Enterprise, if you rent it, you’re not the owner, you’re leasing it. But you can let people

in your car or not let people in your car.”

B.     A borrower who abandons a car no longer has an expectation of privacy in it.

       No person can reasonably expect privacy in property he abandons. Thus, “when a

defendant voluntarily abandons property, he lacks standing to contest the reasonableness of

the search of the abandoned property.”53 But merely discarding property is not synonymous

with abandonment. In order to abandon property, the decision to abandon must be voluntary,

and a defendant must intend to abandon the property.54

       Abandonment is not voluntary if it is the product of police misconduct.55 It cannot be

“‘coerced by unlawful police action such as approaching a suspect with the intention to arrest

without probable cause [or by] the initiation of an illegal investigatory stop or search.’” 56

       Intent to abandon “may be inferred from words, acts, and other objective facts–the

question being whether the actor has voluntarily discarded or relinquished his interest in the



       53
            Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003).
       54
            Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988) (op. on reh’g).
       55
            See e.g. id.
       56
           Id. at 658 (quoting 1 WILLIAM E. RINGEL, SEARCHES & SEIZURES ; ARRESTS AND
CONFESSIONS § 8.04(a) (1985)). In Comer v. State, this Court held that a defendant did not abandon
a heroin-filled syringe when he got out of a car, dropped the syringe on the ground, and kicked it
under the vehicle. Id. at 659. Because the police were unlawfully pursuing the vehicle in which the
defendant was riding, we concluded that “the decision to abandon the property was a direct result
of the police misconduct.” Id.
                                                                               Matthews     Page 19

property in question.”57 The issue is not whether he intended to discard the property

permanently, but rather whether he abandoned the property in such a way “that he could no

longer retain a reasonable expectation of privacy with regard to it at the time of the search.” 58

       Determining when a car is abandoned presents a unique challenge because cars differ

from other types of personal property. They are somewhat like mobile locked suitcases.

       [A] car and an overcoat are different; one can hardly expect privacy in an
       overcoat left on the street, but cars are regularly parked on the street for brief
       periods of time without an expectation that they will thereby be subject to
       entry.59

But despite this inherent difference, when the circumstances indicate that a person intended

to abandon a car, he also abandons any reasonable expectation of privacy in it. Thus,

“[c]ourts have . . . found cars to be abandoned when it appeared that the operator of a vehicle

left the car behind in an effort to avoid apprehension by the police.” 60


       57
          United States v. Scrivner, 680 F.2d 1099, 1100 (5th Cir. 1982). See also McDuff v. State,
939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (“[A]bandonment is primarily a question of intent to
be inferred from words spoken, acts done, and other objective facts and relevant circumstances”).
       58
            McDuff, 939 S.W.2d at 616.
       59
            1 WAYNE R. LA FAVE , SEARCH AND SEIZURE § 2.5(a), at 649 (4th ed. 2004).
       60
          Id. “Sometimes the car had actually been pursued by the police for some distance, after
which the driver jumped from the car and fled on foot. On other occasions the vehicle was parked
when the occupant, upon seeing the police approach, exited the vehicle and took flight.” Id. See also
United States v. Edwards, 441 F.2d 749, 749-53 (5th Cir. 1971) (“Defendant’s right to Fourth
Amendment protection came to an end when he abandoned his car to the police, on a public
highway, with engine running, keys in the ignition, lights on, and fled on foot.”); United States v.
Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (suspect who fled unlocked vehicle parked on public road
abandoned expectation of privacy); Rodriguez v. State, 773 S.W.2d 821, 823 (Ark. 1989) (suspect
who, after a high speed chase ending at air strip, exited the car, and fled by foot had no reasonable
expectation of privacy; he had left the car running and the door open); People v. Hampton, 603 P.2d
                                                                              Matthews     Page 20

C.     Appellant Lost His Standing to Challenge the Search of the Borrowed Van When
       He Took Flight and Abandoned It.

       Before appellant fled, he had both a subjective and reasonable expectation of privacy

in the white van. Appellant exercised a subjective expectation of privacy when he refused

to consent to the search of the vehicle. The fact that his refusal was based on his argument

that the van did not belong to him is not dispositive. Appellant did not claim that he had not

been using the car, or that he had no connection to the car; he stated that the car did not

belong to him, which was true, but that does not alone extinguish a right to privacy.

Furthermore, appellant’s expectation of privacy was reasonable. The evidence at the motion

to suppress showed that appellant had permission to use the vehicle, which belonged to

Joaquin Cardona. Appellant was in the driver’s seat, the doors were closed, and the keys

were in the ignition. There was no evidence that the van’s owner had revoked his consent or

limited its scope.

       However, appellant abandoned his reasonable expectation of privacy in the van when

he fled. As explained above, the investigative detention of appellant was lawful. Officer

Zimpelman got on his radio and requested a K-9 unit to perform a walk-around. When




133, 135 (Colo. 1979) (suspect who fled from borrowed car and left keys in the ignition lacked
standing to challenge the search); People v. Washington, 413 N.E.2d 170, 177 (Ill. App. Ct. 1980)
(defendant has no legitimate interest in borrowed car from which he fled; the car was unlocked and
the ignition key was left in it); Henderson v. State, 695 P.2d 879, 882 (Okla. Crim. App. 1985)
(driver’s flight constitutes abandonment of vehicle); State v. Green, 605 P.2d 746, 749 (Ore. 1980)
(“Where two suspected thieves have been pursued from the scene of an apparent burglary and finally
leap from their car and flee, they have abandoned any expectation of privacy with respect to the car
in the same way that a fleeing robber who drops a bag of loot has abandoned the loot.”).
                                                                                 Matthews      Page 21

Officer Rodriguez began walking appellant to the patrol car to await the K-9 unit, appellant

“took off running,” leaving the keys in the ignition of the vehicle. Appellant ran for two

blocks and entered a vacant field. He stopped only when Officer Zimpelman activated his

taser and pointed it at appellant. These circumstances show that appellant intended to

abandon any expectation of privacy in the van he left behind.61

                                          IV. Conclusion

       In sum, appellant’s detention was supported by reasonable suspicion. The officers

did not rely solely on the content of an anonymous tip; other circumstances including the

location, the time of night, and appellant’s suspicious behavior, combined with the officers’

corroboration of innocent details of that tip, contributed to their suspicion. Thus the initial

investigatory detention of appellant was lawful, and the officers were diligent in calling for

a K-9 dog to confirm or dispel that original suspicion.

       We also agree with the court of appeals that appellant lacked standing to challenge the

search of the van, but for somewhat different reasons that those relied upon by the trial or

appellate courts. Although a person generally has an expectation of privacy in a borrowed

vehicle, appellant abandoned this expectation of privacy by fleeing from the van.




       61
          See McDuff v. State, 939 S.W.2d at 616 (defendant lacked standing to challenge search of
car when he pushed it into a motel parking lot and left it for several days); Gonzales v. State, 190
S.W.3d 125, 135 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d) (defendant abandoned his standing
to challenge search of his car when he left it in a parking lot in a different city, improperly parked,
with one door open, and items scattered near car, and bought a bus ticket to a different city); see also
note 60 supra.
                                                                   Matthews   Page 22

      Therefore, we affirm the judgment of the court of appeals.

Delivered: June 11, 2014
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