                            NUMBER 13-09-00445-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

TIMOTHY DIXON,                                                                Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
            Memorandum Opinion by Chief Justice Valdez

       Appellant, the State of Texas, appeals a trial court’s granting of a motion to

suppress filed by appellee, Timothy Dixon.       See TEX . CODE CRIM . PROC . ANN . art.

44.01(a)(5) (Vernon Supp. 2009) (providing that the State is entitled to appeal an order of

a court in a criminal case if the order grants a motion to suppress evidence). By two

issues, the State contends that the trial court erred in suppressing videos obtained from
a cell phone because Dixon failed to: (1) prove by competent evidence that he owned the

phone; and (2) demonstrate that he did not abandon the cell phone. We affirm.

                                            I. BACKGROUND

        This dispute centers on the propriety of searches of a cell phone, found in a

department store, that yielded incriminating videos. David Herrera, a former employee of

the Christus Spohn Health Systems, was shopping at the Corpus Christi Wholesale Mart

with his sister when he noticed a black cell phone that resembled an Apple iPod laying on

a pair of pants. Thinking it was an Apple iPod, Herrera took the cell phone and gave it to

his sister, who put the cell phone in her pants pocket. Herrera and his sister then left the

store to go home. Neither attempted to locate the owner of the cell phone, nor did they

alert a store employee that someone had lost the cell phone.

        When he arrived home, Herrera turned on the cell phone and attempted to see what

music may be stored inside the phone. However, the battery in the cell phone was dead,

so Herrera removed the SIM card and placed it in another cell phone. Herrera admitted

at the hearing on Dixon’s motion to suppress that when he took the cell phone from the

store, he intended to deprive the owner of the property, he believed that the cell phone was

an Apple iPod that contained music files in its memory, and he did not obtain consent from

the cell phone’s owner to use or search the cell phone.1 Upon inserting the SIM card into

another cell phone, Herrera noticed that several “different videos started popping up, just

different videos on the little card.” Herrera recalled that the videos depicted “individuals

being beaten up” while in a hospital setting. Greg Shipley, a police officer with the Corpus

Christi Police Department and a part-time security guard at the Christus Spohn Memorial

Hospital, stated at the suppression hearing that there were three videos on the SIM card

        1
           Herrera later acknowledged at the hearing on Dixon’s m otion to suppress that Dixon was the owner
of the cell phone.
                                                     2
and described them as follows:

•       Video 1: “In the first video[,] I saw what I believed at that point to be a hospital-type
        setting. I thought it was a maintenance-type worker or a janitor assaulting what was
        obviously a handicapped patient.”

•       Video 2: “The second video, I could hear people laughing in the background and
        an unknown person was taking what I believe to be shampoo or some sort of a
        liquid and dumping it on the heads of patients as they were sleeping.”

•       Video 3: Officer Shipley could not recall the contents of the third video.

        After viewing the videos, Herrera showed the videos to his sister and his girlfriend,

Linda Franco. Herrera’s sister and Franco both wanted to turn the cell phone in to the local

news station “because they wanted something to be done about it.” Herrera first tried to

take the cell phone to the local Channel 10 News Station, but they did not answer the door

when Herrera arrived. Herrera then took the cell phone to David Frazier at the local

Channel 6 News Station. Frazier kept the cell phone for “about two weeks,” but asserted

that he could not do anything with the cell phone “because the phone wasn’t charged and

they couldn’t see the videos that were in there.” Subsequently, Franco, an emergency

room technician at the Christus Spohn Memorial Hospital, informed Officer Shipley, the

security guard at the hospital, about the cell phone. While at the hospital several days

later, Franco showed Officer Shipley the contents of the cell phone, including the three

videos. Officer Shipley testified at the suppression hearing that Franco operated the phone

while showing him the videos and that once she showed him the videos, he determined

that a crime had been committed and confiscated the cell phone to preserve it as evidence.

Officer Shipley further opined that the cell phone did not have any indentations or markings

showing who really owned the cell phone.2



        2
         Officer Shipley adm itted on cross-exam ination that no warrant was obtained to search the cell phone
and that Dixon did not consent to the search.

                                                      3
        After reviewing the contents of the cell phone, police charged Dixon with four counts

of injury to a disabled individual. See TEX . PENAL CODE ANN . § 22.04 (Vernon Supp. 2009).

On June 29, 2009, Dixon filed a motion to suppress the evidence obtained from the cell

phone as a product of an unlawful search. See TEX . CODE CRIM . PROC . ANN . art. 38.23

(Vernon 2005). Dixon argued in his motion that he is the owner of the cell phone and that

law enforcement “did not have a legally justifiable reason to search the cell phone because

it was not abandoned property.”

        On July 6, 2009, the trial court conducted a hearing on Dixon’s motion to suppress,

and after hearing evidence and the arguments of both parties, the trial court granted

Dixon’s motion.3 Thereafter, the trial court issued several findings of fact and conclusions

of law. Specifically, the trial court, in its findings of fact, noted that:

                During the subsequent investigation, the cell phone account was
        determined to belong to one Alma De La Paz, mother of Elvira De La Paz,
        the common[-]law wife of Timothy Dixon . . . . Defendant Timothy Dixon and
        his voice were subsequently identified on the images from the cell phone.
        David Herrera confirmed that the cell phone everyone was talking about was
        later identified as belonging to Timothy Dixon. . . . It is without controversy
        that the cell phone belonged to Timothy Dixon even if the cell phone account
        was in the name of his common law mother-in-law.

                 ....

               There was no evidence of abandonment presented during the Pretrial
        Hearing of July 6, 2009. David Herrera was never asked if he thought the
        cell phone had been abandoned.

Further, the trial court concluded that “Herrera, a private individual, illegally obtained

evidence by the theft of Dixon’s cell phone” and that article 38.23 of the code of criminal

procedure mandated the exclusion of any evidence obtained from the cell phone at Dixon’s

trial. See id. The trial court also stated that Herrera admitted at the suppression hearing
        3
           On July 24, 2009, the State m oved the trial court to take judicial notice of evidence presented at a
March 20, 2009 hearing that was conducted on a m otion to reduce bond filed by Dixon in conjunction with his
m otion to suppress. The trial court, in its findings of fact and conclusions of law, repeatedly referenced
evidence adduced at the March 20, 2009 hearing; thus, the trial court presum ably granted the State’s m otion.
                                                       4
that “he intended to deprive Timothy Dixon of the property and had no intent to return the

property or turn the property over to the police.” With respect to the issue of abandonment,

the trial court concluded that:

         Although property that has been abandoned cannot be the subject of theft,
         the Court of Criminal Appeals . . . held that abandonment depends on an
         intentional relinquishment[] by the abandoning party. Loss [sic] property is
         not the result of an intentional relinquishment. There was no evidence of
         abandonment presented at the Pretrial Hearing. David Herrera never stated
         that he thought he was taking property that had been abandoned. Instead,
         Herrera admitted to stealing the cell phone when he stated that he intended
         to deprive Timothy Dixon of the property and had no intent to return the
         property or turn the property over to the police.

The trial court certified the State’s right to appeal, and this appeal followed.

                                   II. STANDARD OF REVIEW

         We review the trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.

Crim. App. 1997). We give “almost total deference” to the trial court’s findings of historical

fact that are supported by the record and to mixed questions of law and fact that turn on

an evaluation of credibility and demeanor. Id. at 89. We review de novo the trial court’s

determination of the law and its application of law to facts that do not turn upon an

evaluation of credibility and demeanor. Id. When the trial court has not made a finding on

a relevant fact, we imply the finding that supports the trial court’s ruling, so long as it finds

some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.

2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold

the trial court’s ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006).

         When a trial judge makes explicit fact findings regarding a motion to suppress, an

                                               5
“appellate court [must first] determine whether the evidence (viewed in the light most

favorable to the trial court’s ruling) supports these fact findings.” Kelly, 204 S.W.3d at 818.

“The appellate court then reviews the trial court’s legal ruling[s] de novo unless the trial

court’s supported-by-the-record explicit fact findings are also dispositive of the legal ruling.”

Id.

                                     III. APPLICABLE LAW

       Both the Bill of Rights of the United States Constitution and the Texas Constitution

declare that people shall be secure in their persons and possessions from unreasonable

searches or seizures. See U.S. CONST . amend IV; TEX . CONST . art. 9, § 1; see also Flores

v. State, 824 S.W.2d 704, 705 (Tex. App.–Corpus Christi 1992, pet. ref’d). The Texas

exclusionary statute, article 38.23(a) of the code of criminal procedure, states that:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or law of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

TEX . CODE CRIM . PROC . ANN . art. 38.23(a); see Miles v. State, 241 S.W.3d 28, 32 (Tex.

Crim. App. 2007). The court of criminal appeals has stated that “[t]he Texas exclusionary

rule applies to illegal searches and seizures conducted by law enforcement officers or

‘other persons,’ even when those other persons are not acting in conjunction with, or at the

request of, government officials.” Miles, 241 S.W.3d at 36; see State v. Johnson, 939

S.W.2d 586, 587-88 (Tex. Crim. App. 1996) (en banc) (“[W]e must take it [article 38.23] to

mean only what it says: that evidence illegally obtained by an ‘officer or other person’

ought to be suppressed.”). Furthermore, “[o]nly those acts which violate privacy rights or

property interests are subject to the state . . . exclusionary rule.” Miles, 241 S.W.3d at 36

n.33 (citing Chavez v. State, 9 S.W.3d 817, 822-23 (Tex. Crim. App. 2000) (Price, J.,

concurring)).
                                               6
                                      IV. STANDING        AND   PRIVACY

        In its first issue, the State contends that the trial court abused its discretion in

granting Dixon’s motion to suppress because Dixon failed to establish that he was the

owner of the cell phone and that “proof of ownership was necessary both to show that

Dixon had standing to challenge the search and to prove a theft of the phone.” Dixon

asserts that the evidence adduced at trial demonstrated that he was the owner of the cell

phone, and thus, he had standing to challenge the search of the cell phone and to prove

that Herrera stole the cell phone. In its second issue, the State argues that the trial court

abused its discretion by granting Dixon’s motion to suppress because Dixon failed to inform

the police or put others on notice that he was the owner of the cell phone. Specifically, the

State alleges that the cell phone was abandoned and that Dixon does not have a privacy

interest in the cell phone. Dixon counters by arguing that the evidence does not indicate

that he intended to abandon the cell phone and, because Herrera unlawfully stole the cell

phone, the police were precluded from searching the cell phone.4

A.      Ownership of the Cell Phone

        “Although we defer to the trial court’s factual findings and view them in the light most

favorable to the prevailing party, we review the legal issue of standing de novo.” Kothe v.

State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). Moreover, “the State may raise the

issue of standing for the first time on appeal, even when the defendant is the prevailing

party in the trial court.” Id. at 60 (citing State v. Brady, 763 S.W.2d 38, 42 (Tex.

App.–Corpus Christi 1988, no pet.)).

        An individual has standing to complain about an illegal search and seizure if the

individual is a wronged or injured party. Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim.
        4
          Because both of the State’s issues center on whether Dixon had a property interest in the cell phone
and was therefore entitled to privacy from unreasonable searches and seizures, we address both issues
together.
                                                      7
App. 1992) (en banc). In Fuller, the court of criminal appeals concluded that, within the

context of article 38.23, only the wronged or injured party, not third parties, may challenge

an illegal search and seizure. Id. Recently, the court of criminal appeals held that “a

defendant seeking to suppress evidence obtained during a search always has the burden

of proving standing to complain of the search.” Handy v. State, 189 S.W.3d 299 n.2 (Tex.

Crim. App. 2006).

       Dixon argues that he has standing to challenge the search of the cell phone

because he “alleged [that] he was a victim of an illegal search or seizure and has a

property right in the cell phone in question” and the State did not dispute his claim of

standing. In making this argument, Dixon relies on the court of criminal appeals’ decision

in Russell v. State, wherein the court stated that “[a] mere allegation by a defendant that

he was a victim of an illegal search or seizure, if not disputed by the State, is sufficient to

establish standing to challenge a search or seizure.” 717 S.W.2d 7, 9 n.6 (Tex. Crim. App.

1986). However, the Handy court explicitly rejected the Russell court’s analysis of standing

as it applied to illegal searches and seizures. Handy, 189 S.W.3d at 299 n.2. Therefore,

a defendant challenging the legality of a search has the burden of proving that he

“personally had a reasonable expectation of privacy in the premises that were searched.”

Id. at 299 (citing Kothe, 152 S.W.3d at 59 (analyzing standing under the Fourth

Amendment of the United States Constitution); Richardson v. State, 865 S.W.2d 944, 948-

49 (Tex. Crim. App. 1993) (analyzing standing under article I, section 9 of the Texas

Constitution)); see Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (“An

accused has standing, under both constitutional provisions [the Fourth Amendment of the

United States Constitution and article 1, section 9 of the Texas Constitution], to challenge

the admission of evidence obtained by a governmental intrusion only if he had a legitimate

                                              8
expectation of privacy in the place invaded. Furthermore, the accused, because he has

greater access to the relevant evidence, has the burden of proving facts establishing a

legitimate expectation of privacy.” (citations omitted)). The court of criminal appeals has

also noted, within the context of the Fourth Amendment, that:

       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.
       Only after a defendant has established his standing to complain may a court
       consider whether he has suffered a substantive Fourth Amendment violation.

Kothe, 152 S.W.3d at 59.

       “The litmus for determining the existence of a legitimate expectation of privacy as

to a particular accused is twofold: first, did he exhibit by his conduct an actual (subjective)

expectation of privacy[;] and second, if he did, was that subjective expectation, one that

society is prepared to recognize as reasonable” Chapa v. State, 729 S.W.2d 723, 727

(Tex. Crim. App. 1987) (internal quotations omitted); see Smith v. Maryland, 442 U.S. 735,

740 (1979). In other words, the appropriate inquiry is whether Dixon expected that the

contents of his cell phone would be free from governmental intrusion, and if he did, is that

expectation one that society is prepared to recognize as reasonable. See Chapa, 729

S.W.2d at 727; see also Richardson, 865 S.W.2d at 948-49. Several factors are relevant

in determining whether a given claim of privacy is objectively reasonable, including: (1)

“whether the accused had a property or possessory interest in the place invaded”; (2)

“whether he was legitimately in the place invaded”; (3) “whether he had complete dominion

or control and the right to exclude others”; (4) “whether, prior to the intrusion, he took

normal precautions customarily taken by those seeking privacy”; (5) “whether he put the

place to some private use”; and (6) “whether his claim of privacy is consistent with historical
                                              9
notions of privacy.” Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002). “This

list of factors is not exhaustive, however, and none is dispositive of a particular assertion

of privacy; rather, we examine the circumstances surrounding the search in their totality.”

Id.

       Here, the State argues that Dixon did not prove that the cell phone that was

searched and seized was his. As noted above, the trial court, in its findings of fact,

explicitly stated that, “[i]t is without controversy that the cell phone belonged to Timothy

Dixon even if the cell phone account was in the name of his common law mother-in-law.”

Here, Dixon clearly stated in his motion to suppress that the cell phone was his and

asserted that the phone had been the subject of an unlawful search and seizure.

Moreover, Dixon directs us to Herrera’s testimony, wherein Herrera, on cross-examination,

admitted several times that the cell phone belonged to Dixon. Thus, the record contains

some evidence that Dixon was the owner of the cell phone and had the right to exclude

others and that Herrera was not the owner. See TEX . PENAL CODE ANN . § 1.07(a)(35)

(Vernon 2003) (defining “owner” as “a person who . . . has title to the property, possession

of the property, whether lawful or not, or a greater right to possession of the property than

the actor . . .”); see also Granados, 85 S.W.3d at 223.

       Additionally, in Chapa, the court of criminal appeals noted that:



       Whether a particular expectation of privacy is one society is willing to
       recognize [as reasonable] is in the nature of a legal rather than a factual
       inquiry. All that is necessary to be proven as a factual matter is the particular
       context in which [the defendant] harbored that expectation. It is then left to
       be resolved as a matter of law whether in the context shown society is willing
       to sanction that expectation as reasonable.

Chapa v. State, 729 S.W.2d 723, 728 n.3 (Tex. Crim. App. 1987); see Villarreal v. State,

935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (“Denominating the question [of a
                                              10
defendant’s expectation of privacy] as one of law is sensible, because an appellate court

is in a better position to decide it correctly than is a trial court.”). In his motion to suppress,

Dixon argued that the evidence obtained from the cell phone should be excluded from the

trial in this matter because Officer Shipley and Herrera searched the phone without Dixon’s

consent or a warrant and that there was no “legally justifiable reason to search the cell

phone because it was not abandoned property,” which suggests that Dixon harbored an

expectation that the contents of his cell phone would be free from intrusive searches

conducted by governmental officials or others. See Villarreal, 935 S.W.2d at 138; see also

Chapa, 729 S.W.2d at 728 n.3. We believe that Dixon’s expectation of privacy in the cell

phone is reasonable given the circumstances of this case. See Villarreal, 935 S.W.2d at

138; Chapa, 729 S.W.2d at 727, 728 n.3; see also Granados, 85 S.W.3d at 223; Lemons

v. State, 298 S.W.3d 658, 662 (Tex. App.–Tyler 2009, pet. ref’d) (“[A] person has a privacy

interest in information contained in a cellular phone.”) (citing United States v. Finley, 477

F.3d 250, 259-60 (5th Cir. 2007)).

B.     Abandonment

       In any event, the State asserts that even if Dixon had an ownership interest in the

cell phone, he forfeited this interest and, thus, did not have standing in this matter because

the cell phone was abandoned. Regarding abandonment, the court of criminal appeals

has stated that:

       Abandonment of property occurs if the defendant intended to abandon the
       property and his decision to abandon it was not due to police misconduct.
       When police take possession of property abandoned independent of police
       misconduct[,] there is no seizure under the Fourth Amendment. This Court
       has spoken approvingly of language, in U.S. v. Colbert, 474 F.2d 174 (5th
       Cir. 1973) (en banc), which discussed how abandonment is primarily a
       question of intent to be inferred from words spoken, acts done, and other
       objective facts and relevant circumstances, with the issue not being in the
       strict property-right sense, but rather whether the accused had voluntarily
       discarded, left behind, or otherwise relinquished his interest in the property
                                                11
       so that he could no longer retain a reasonable expectation of privacy with
       regard to it at the time of the search.

McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (en banc) (internal citations

omitted); see Franklin v. State, 913 S.W.2d 234, 240 (Tex. App.–Beaumont 1995, pet.

ref’d) (stating that “[f]or abandonment to occur, however, a defendant must (1) intend to

abandon the property, and (2) freely decide to abandon the property” and holding that “any

alleged abandonment after the search, whether appellant actually knew of the search or

not at the time of his disavowal [of ownership], does not validate the prior illegal search”);

see also Smith v. State, No. 11-06-00274-CR, 2008 Tex. App. LEXIS 3199, at *6 (Tex.

App.–Eastland May 1, 2008, no pet.) (mem. op., not designated for publication) (“When

a defendant abandons property intentionally, and not due to police misconduct, no Fourth

Amendment seizure occurs if police take possession of the property; and the defendant

lacks standing to contest the reasonableness of their search of the property.”). An intent

to abandon is clearly expressed when a defendant states that he neither owns an item nor

knows who the true owner is.         See State v. Grant, 832 S.W.2d 624, 627 (Tex.

App.–Houston [14th Dist.] 1992, pet. ref’d); see also Perlmutter v. State, No. 14-96-00780-

CR, 1998 Tex. App. LEXIS 4144, at **11-12 (Tex. App.–Houston [14th Dist.] July 9, 1998,

no pet.) (not designated for publication). Moreover, in such a case, a defendant has no

legitimate expectation of privacy in the disclaimed item. See Grant, 832 S.W.2d at 627;

see also Perlmutter, 1998 Tex. App. LEXIS 4144, at *12.

       In this case, however, we are presented with a set of facts involving the search of

the cell phone without the owner’s consent and without a clear expression of abandonment

that was preceded by an unlawful act—theft—of a third person, Herrera. In Miles, the court

of criminal appeals documented fact scenarios similar to the present case and stated that:

       [In Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002), the] Court held
                                             12
       that five knives that the defendant’s father took from the defendant’s
       apartment were not inadmissible under Article 38.23. The father was
       legitimately in the apartment at the request of the defendant’s live-in girlfriend
       to retrieve her car keys and he took the knives, not with the intent to steal
       them, but to give them to the police. The defendant’s father thought that the
       knives were connected to the capital murder investigation of his son. Thus,
       he did not take the knives with the “intent to deprive” the owner (his son and
       his son’s girlfriend) of them.

Miles, 241 S.W.3d at 38 (internal citations and footnotes omitted). The Miles Court further

stated that:

       Conversely, in State v. Johnson, [939 S.W.2d 586 (Tex. Crim. App. 1996)]
       this Court held that evidence seized by the decedent’s sons who purportedly
       “burglarized” the funeral home jointly operated by the defendant and the
       decedent was inadmissible under Article 38.23. Neither they nor police
       officers had permission to enter the funeral home. Thus, neither an officer
       nor the citizens were legitimately in the funeral home, and neither could
       make a warrantless seizure of those items. What the police could not do, the
       decedent’s sons could not do either. Similarly, in Jenschke v. State, [147
       S.W.3d 398 (Tex. Crim. App. 2004)] we held that the parents of a child (who
       had said that the defendant sexually assaulted her) acted illegally when they
       broke into the defendant’s truck and took a used condom from inside it
       without the intent to immediately turn it over to the police. An officer,
       standing in the parents’ shoes, could not have entered the defendant’s
       garage, found the key to the truck, unlocked it, and made a warrantless
       search of that truck without permission or other exigent circumstances.
       Thus, neither could the citizens.

Id. (internal citations and footnotes omitted). The Miles Court then held that “a private

person can do what a police officer standing in his shoes can legitimately do, but cannot

do what a police officer cannot do . . . ” and noted that the Texas exclusionary rule does

not authorize unlawful conduct by “another person.” Id.

       The trial court, in its findings of fact, stated that, “[t]here was no evidence of

abandonment presented during the Pretrial Hearing of July 6, 2009. David Herrera was

never asked if he thought the cell phone has been abandoned.” As noted earlier, Herrera

testified that the cell phone belonged to Dixon and that he took the cell phone from the

store with the intent to deprive Dixon of its use. Thus, Herrera’s actions constituted an

                                              13
unlawful theft of Dixon’s cell phone. See TEX . PENAL CODE ANN . § 31.03(a) (Vernon Supp.

2009) (providing that a person commits theft “if he unlawfully appropriates property with

intent to deprive the owner of property”). Herrera testified that he did not intend to give the

cell phone to police when he took it from the department store. But see Jenschke, 147

S.W.3d at 402 (holding that “when a person who is not an officer or an agent of an officer

takes property that is evidence of crime, without the effective consent of the owner and with

the intent to turn over the property to an officer, the conduct may be non-criminal even

though the person has intent to deprive the owner”). Further, as noted in the trial court’s

findings of fact and conclusions of law, Herrera failed to mention that the cell phone had

been abandoned. Essentially, the searches of Dixon’s cell phone by Herrera and police

flowed from Herrera’s unlawful theft of the cell phone from the department store.

       Moreover, it is noteworthy that the incriminating videos were only visible when

conducting an intrusive search of the cell phone, and there is no testimony that Herrera,

acting in the shoes of law enforcement, had probable cause to conduct a warrantless

search of the cell phone at the time the phone was found in the department store. See

Carroll v. United States, 267 U.S. 132, 156 (1925) (holding that law enforcement cannot

conduct warrantless searches of property unless probable cause is shown) (citing United

States v. Kaplan, 286 F. 963, 972 (S.D. Ga. 1923)); see also Katz v. United States, 389

U.S. 347, 357 (1967) (same). Because “a private person can do what a police officer

standing in his shoes can legitimately do but cannot do what a police officer cannot do,”

we hold that Herrera’s unlawful theft of Dixon’s cell phone would have constituted

misconduct if Herrera had been a police officer and, therefore, precludes a finding that

Dixon abandoned the cell phone. See Miles, 241 S.W.3d at 38; see also McDuff, 939




                                              14
S.W.2d at 616-17.5

         The State attempts to argue that the searches of the cell phone by Herrera and the

police were justified because Dixon made no attempt to reclaim the cell phone by speaking

with the police or contacting representatives of the store where the cell phone was taken

by Herrera, even though Dixon had not been in possession of the cell phone for more than

three weeks. However, as noted above, “any alleged abandonment after the search,

whether appellant actually knew of the search or not at the time of his disavowal [of

ownership], does not validate the prior illegal search.” Franklin, 913 S.W.2d at 240. In

other words, the fact that the record does not reveal that Dixon made efforts to reclaim his

cell phone cannot be used to validate the prior illegal searches conducted by Herrera and

the police. See id.

         Based on the foregoing, we conclude that Dixon had a privacy right in his cell phone

and, therefore, had standing to challenge the searches of his cell phone. See Handy, 189

S.W.3d at 299; Kothe, 152 S.W.3d at 59; Fuller, 829 S.W.2d at 202. We further conclude

that Herrera’s unlawful theft and subsequent search of the phone required that the

evidence obtained from the cell phone be suppressed in accordance with article 38.23 of

the code of criminal procedure. See TEX . CODE CRIM . PROC . ANN . art. 38.23; see also

Miles, 241 S.W.3d at 38; Jenschke, 147 S.W.3d at 403; Johnson, 939 S.W.2d at 587-88.

We therefore hold that the trial court did not abuse its discretion in granting Dixon’s motion

to suppress. See Dixon, 206 S.W.3d at 590; see also Guzman, 955 S.W.2d at 88-89.

         5
           The McDuff court, in addressing a situation involving an allegedly abandoned car, noted that “leaving
a car unattended . . . does not autom atically m ean ‘abandonm ent’ in term s of a Fourth Am endm ent privacy
interest. Each situation m ust be analyzed and evaluated on a case-by-case basis, with the particular facts
of each situation determ inative.” McDuff v. State, 939 S.W .2d 607, 617 (Tex. Crim . App. 1997). Here, we
cannot say that Dixon abandoned the cell phone prior to the theft because there is no evidence indicating an
intent to abandon. Moreover, the State’s abandonm ent argum ent depends upon the tim e that had elapsed
from Herrera’s theft of the cell phone to the police’s seizure the phone, and Dixon’s failure to inquire about
the whereabouts of the phone during this tim e period. See T EX . C OD E C R IM . P R O C . A N N . art. 38.23 (Vernon
2005); see also McDuff, 939 S.W .2d at 617.
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Accordingly, we overrule both of the State’s issues.

                                     V. CONCLUSION

      Having overruled both of the State’s issues, we affirm the judgment of the trial court.




                                                 ROGELIO VALDEZ
                                                 Chief Justice
Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
27th day of August, 2010.




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