

 











 
 
 
 
 
 
                                   NUMBER
13-01-722-CR
 
                             COURT
OF APPEALS
 
                   THIRTEENTH
DISTRICT OF TEXAS
 
                                CORPUS
CHRISTI
___________________________________________________________________
 
LAWRENCE RAYMOND HEAD,                                               Appellant,
 
                                                   v.
 
THE STATE OF TEXAS,                                                          Appellee.
___________________________________________________________________
 
                       On
appeal from the Criminal District Court
                                of Jefferson County, Texas.
__________________________________________________________________
 
                                   O
P I N I O N
 
                  Before
Justices Dorsey, Hinojosa, and Rodriguez
                                Opinion
by Justice Rodriguez
 




Appellant, Lawrence Raymond Head, was indicted for the offense
of aggravated possession of a controlled substance.  The trial court denied his motion to suppress
the evidence obtained through an alleged unlawful search.  Head subsequently entered a plea of guilty
and was sentenced to forty years in the Institutional Division of the Texas
Department of Criminal Justice.  By two
points of error, Head contends the trial court erred in denying his motion to
suppress.  We affirm.
I.  FACTS
On August 10, 2000, narcotics officers in Cerritos, California,
found a suspicious package while monitoring a United Parcel Service (UPS)
shipping center.  A K-9
drug dog alerted on the package in question.  The package was addressed to Rico Brown in
Beaumont, Texas.  The officers did not
open the package, but instead informed the Beaumont  police of the incoming package.  The Beaumont police department made plans to
perfect a controlled delivery to the intended recipient, Rico Brown.  
When the package arrived, the officers brought in a K-9 drug
dog.  However, the dog did not alert on
the box.  Because the officers were under
time constraints as the package had a guaranteed delivery time, they opted to
open the box without first obtaining a search warrant.  The officers found the suspected narcotics
and resealed the package.
An officer dressed as a UPS delivery person proceeded to
deliver the package. Head accepted the package by signing the name Rico Brown.[1]  Shortly after the package was delivered, Head
left the house with the suspected narcotics. 
The police subsequently pursued Head and he was arrested.
 




                                          II.  STANDARD OF REVIEW
In a suppression hearing, the trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given
to their testimony.  See
State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).  We afford almost total deference to a trial court=s
findings of facts that the record supports, especially when the findings
are based on an evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997); Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.BHouston [1st
Dist.] 2000, pet. ref=d).  Usually, a trial court=s ruling on a
motion to suppress is reviewed by an abuse of discretion standard.  Oles v. State, 993
S.W.2d 103, 106 (Tex. Crim. App. 1999). 
However, because the issues in this case do not involve a disagreement
about facts or the credibility of a witness, but rather questions of law based
on undisputed facts, we review the trial court=s ruling de novo.  See State v. Ross,
32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Oles, 993 S.W.2d at 106;
Guzman, 955 S.W.2d at 89.
III. 
ANALYSIS
In his first point of error, Head contends the trial court
erred by ruling that he had no standing to complain about the warrantless
search and seizure of a package containing controlled substances.  Specifically, he argues recipients of mail are
afforded a right to privacy pertaining to their packages within the postal
system.  




Letters and sealed packages are in the general class of effects
in which the public has a legitimate expectation of privacy and, therefore,
unlawful search and seizures of mail are presumptively unreasonable under the
protection of the Fourth Amendment.  United States v. Jacobsen, 466 U.S. 109, 114 (1984).  However, Fourth Amendment rights are personal
rights that cannot be vicariously asserted by a third party.  Rakas v. Illinois,
439 U.S. 128, 133 (1978); Calloway v. State, 743 S.W.2d 645, 651 (Tex.
Crim. App. 1988).  Therefore, a
person who is injured by an unlawful search of another person=s property has
not had any of his Fourth Amendment rights infringed.  Rakas, 439 U.S. at 134.  In addition, for an accused to have standing
to complain about an unlawful search and seizure, a two-prong requirement must
be met.  First, the accused must show
that he had a legitimate expectation of privacy with respect to the object
searched.  Granados
v. State, No. 73,525, 2002 Tex. Crim. App. LEXIS 99, at *7 (May 8, 2002); Calloway,
743 S.W.2d at 651.  Second, there
are several factors a court may consider when determining if the legitimate
expectation of privacy is reasonable: 1) whether the aggrieved person has a
property or possessory interest in the thing searched; 2) whether he was
legitimately on the premises; 3) whether he had complete dominion or control
and the right to exclude others; 4) whether, prior to the search, he took
precautions customarily taken by those seeking privacy; 5) whether the property
was put to private use; and 6) whether the claim of privacy is consistent with
historical notions of privacy.  Granados, 2002 Tex. Crim. App. LEXIS 99, at *8; Calloway,
743 S.W.2d at 651. 




Head asserts that he has a legitimate expectation of privacy in
the parcel because he signed for the package when it was delivered and stated
that he was indeed Rico Brown when asked by the undercover officer.  When an item is sent in a sealed package
through a third party carrier it can be inferred from the standard set forth in
Jacobsen that the sender and the receiver legitimately expect they will
be afforded a right to privacy as to what is contained in the package.  See Jacobsen, 466 U.S. at 114.  
In this case, the parcel in question was boxed and sealed with
tape at the time that it was sent, which would give rise to a legitimate
expectation of privacy by the sender and receiver of the package.  See id.; Calloway, 743 S.W.2d at 651. 
However, the receiver of this parcel, as stated on the package, was Rico
Brown, not Head.  Therefore, Head is a
third party to the package in question.  See
Rakas, 439 U.S. at 133.  For Head to
have standing he would have to prove that he also had a legitimate expectation
of privacy concerning the parcel and its contents.  See id. at
133-34.  Aside from the fact that
Head accepted and signed for the package as Rico Brown, the record is void of
any evidence given by Head that he and Rico Brown are
the same person.  If anything, the record
suggests the opposite.  The record, for
example, shows that the destination address for the parcel was not Head=s residence.  Head has failed to carry his burden to prove
he had an actual legitimate expectation of privacy in this case.  See Calloway, 743
S.W.2d at 650. Because Head has failed to satisfy the first requirement
for standing, we find that the trial court did not err by denying his motion to
suppress.  Head=s first point
of error is overruled.




By his second point of error, Head alleges the trial court
erred by allowing the controlled substances into evidence because they were the
fruits of an unlawful search.  Because of
our disposition of Head=s first point
of error, we need not address this remaining point of error.  See Tex.
R. App. P. 47.1.  
Accordingly, we affirm the trial court=s judgment. 
 
NELDA V. RODRIGUEZ
Justice
 
Publish.
Tex. R. App. P. 47.3.
 
Opinion delivered and filed
this 3rd day of July,
2002.
 




[1]The
record shows that the location to which the package was addressed and Head=s
address were not the same.  There is no
evidence in the record indicating who lived at the address the package was sent
to, or why Head was there.


