                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                               NO. 09-18-00057-CR
                               NO. 09-18-00058-CR
                               NO. 09-18-00059-CR
                               NO. 09-18-00060-CR
                              ________________

                   DAVID VINCENT AKINS JR., Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 359th District Court
                      Montgomery County, Texas
           Trial Cause Nos. 16-08-09484-CR, 16-08-09485-CR,
                  16-08-09483-CR and 18-01-00145-CR
__________________________________________________________________

                                    OPINION

      A jury convicted appellant David Vincent Akins Jr. of four charges of

aggravated sexual assault of a child, and the trial judge assessed punishment at

confinement for life in each case and ordered that the sentences would run

consecutively. In his sole appellate issue, Akins challenges the denial of his motion


                                         1
to suppress and the subsequent admission of evidence obtained from his laptop

computer, which he asserts was unlawfully obtained because it was the result of a

warrantless search of the laptop’s contents. We affirm the trial court’s judgments.

                          PERTINENT BACKGROUND

      Before trial, Akins filed a motion to suppress, in which he asserted that the

State violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments

of the United States Constitution, as well as Article I, section 9 of the Texas

Constitution and article 38.23 of the Texas Code of Criminal Procedure, and asked

the trial court to suppress, among other things, all physical evidence. See U.S. Const.

amends. IV, V, VI, XIV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art.

38.23 (West 2018). The trial court did not rule on the motion before trial began.

      At trial, David Barrow testified that he owned a trailer that he rented to

tenants. Barrow explained that in 2015, his best friend approached him about renting

the trailer to Akins and his family in March or April. According to Barrow, Akins

agreed to pay monthly rent. Barrow explained that in September or October 2015,

Akins and his family moved away from the trailer with their camper, but Barrow

initially did not believe they were leaving permanently. Barrow testified that when

the family left, Akins still owed rent for October.



                                          2
      In approximately November, Barrow saw water droplets on the window of the

trailer, and he entered the trailer and discovered that a water main had burst and

flooded the trailer. Barrow contacted Akins and told him of the damage, and Barrow

explained that he expected Akins to fix the damage in the trailer and to pay past-due

rent. Barrow explained that after that conversation, he was never able to reach Akins

by phone again. Barrow testified that in November 2015, he put a notice on the door

of the trailer and left it there for thirty days. Barrow explained that in January 2016,

he decided to clean out the trailer. According to Barrow, furniture, baby items, and

toys belonging to Akins and his family were still inside the trailer. Barrow explained

that his friend, Troy Finney, helped him turn the water off and clean out the trailer.

      According to Barrow, everything in the trailer was covered with mold, and he

and Finney threw away most of the trailer’s contents. Barrow explained that Finney

found an old laptop in the trailer while they were cleaning. Finney asked Barrow if

he could use it, and Barrow testified that he gave the laptop to Finney because he

did not think Akins and his family intended to return. Barrow testified that he never

saw Akins or Akins’s family again. Barrow explained, “I figured [Akins] abandoned

the place. We had a verbal agreement . . . that he would pay rent. And after four

months and he had [paid] no rent, . . . I thought he abandoned the place.”



                                           3
      Finney testified that he had communicated with Akins, and Akins informed

Finney that he was “working on” returning to Barrow’s trailer. Finney explained that

while he was helping Barrow clean out the trailer, he saw a laptop, and he took it to

use for his business. According to Finney, the laptop was locked, so he had it

unlocked by a technician who came to his home. Finney testified that once the

computer was unlocked and he turned it on, “[a]ll the folders, pictures, and stuff

started popping up on the screen.” Finney explained that multiple photos appeared

when he opened one of the folders. Finney explained that he kept the laptop for

approximately forty-eight hours before turning it over to the Tomball Police

Department.

      When the prosecutor asked Finney to describe the photographs, defense

counsel objected and asserted that the trial court needed to rule on Akins’s motion

to suppress before hearing testimony about the contents of the laptop. Defense

counsel explained that his motion concerned Fourth Amendment seizure issues.

When the prosecutor asserted that the main issue was the legal question of whether

Akins had abandoned the laptop, Akins’s argument pertained to “the wrongful

possession . . . of the laptop by private parties and also governmental intrusion.”

      At the hearing on the motion to suppress, the State took Detective Jason Smith

of the Tomball Police Department on voir dire, and Smith explained that he opened

                                          4
the laptop without a warrant or exigent circumstances after Finney brought it to the

Tomball Police Department. Smith stated that he was told that the password-

protected laptop was found at a trailer “that was previously occupied and that it was

abandoned[.]” According to Smith, he met Finney, and Smith denied that Finney is

a member of the Tomball Police Department or any other law enforcement agency.

Smith explained that Finney had reason to believe the laptop had belonged to Akins.

Smith stated that he clicked on a folder labeled “Keep Out” and discovered

“[n]umerous images of child pornography.” Smith indicated that after he saw the

images of child pornography, he took the computer to Harris County Digital

Forensic Lab to be processed and analyzed, and he subsequently wrote arrest

warrants for possession of child pornography. 1 At the conclusion of the hearing, the

trial judge found that Akins had abandoned the laptop and there was no search or

seizure of the property under the Fourth Amendment because Akins had no

legitimate expectation of privacy in property he had already abandoned, and the trial

judge denied the motion to suppress.




      1
        Subsequent testimony indicated that graphic images of Akins sexually
assaulting the victim were found on the laptop.
                                         5
                               AKINS’S SOLE ISSUE

      In his sole appellate issue, Akins asserts that the evidence from the laptop

should have been suppressed because it was unlawfully obtained. According to

Akins, the seizure of his password-protected laptop without a warrant and absent

exigent circumstances violated his constitutional rights. We review a trial court’s

ruling on a motion to suppress for abuse of discretion. Dyar v. State, 125 S.W.3d

460, 462 (Tex. Crim. App. 2003). We utilize a bifurcated standard of review.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost

total deference to the trial court’s determination of historical facts, but we review de

novo the trial court’s application of the law to the facts. State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000). Because the trial court has the advantage of

observing witnesses’ demeanor during the testimony on a motion to suppress, we

defer to the trial court’s determination of the “credibility of the witnesses and the

weight to be given their testimony.” Id. at 855. In reviewing the trial court’s decision,

we review the evidence in the light most favorable to the trial court’s ruling. State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We must uphold the trial

court’s ruling on a motion to suppress if the ruling was supported by the record and

was correct under any theory of law applicable to the case. Armendariz v. State, 123

S.W.3d 401, 404 (Tex. Crim. App. 2003). When, as here, a trial court makes findings

                                           6
of fact, we determine whether the evidence supports those fact findings. Kelly, 204

S.W.3d at 818.

      “The purpose of both the Fourth Amendment and Article I, section 9 of the

Texas Constitution is to safeguard an individual’s legitimate expectation of privacy

from unreasonable governmental intrusions.” Rogers v. State, 113 S.W.3d 452, 456-

57 (Tex. App.—San Antonio 2003, no pet). To prevail on an alleged violation of the

exclusionary rule, a defendant must demonstrate that he had a legitimate expectation

of privacy in the property. See Tex. Code Crim. Proc. Ann. art. 38.23; Villarreal v.

State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). “The Texas exclusionary rule

applies to illegal searches or 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 v. State, 241 S.W.3d 28, 36 (Tex.

Crim. App. 2007). The defendant must prove facts that establish a legitimate

expectation of privacy. Villarreal, 935 S.W.2d at 138. To meet this burden, the

accused generally must show “that by his conduct, he exhibited an actual subjective

expectation of privacy, i.e., a genuine intention to preserve something as private; and

. . . that circumstances existed under which society was prepared to recognize his

subjective expectation as objectively reasonable.” Id. (footnote omitted).



                                          7
      “Abandonment of property occurs if: (1) the defendant intended to abandon

the property, and (2) his decision to abandon the property was not due to police

misconduct.” Swearingen v. State, 101 S.W.3d 89, 101 (Tex. 2003). When property

has been abandoned before police take possession of it, there is no seizure under the

Fourth Amendment. Id. Abandonment is primarily a question of intent, and the

defendant’s intent may be inferred from words spoken, acts done, and other objective

facts, and the court should consider all relevant circumstances that existed when the

alleged abandonment occurred. Green v. State, 971 S.W.2d 639, 642 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d).

      “‘The issue is not abandonment in the strict property-right sense, but whether

the person prejudiced by the search had voluntarily . . . relinquished his interest in

the property [. . .] so that he could no longer retain a reasonable expectation of

privacy’” as to the property when the search occurred. Green, 971 S.W.2d at 642

(quoting Smith v. State, 530 S.W.2d 827, 833 (Tex. Crim. App. 1975) (citations

omitted)); see also Matthews v. State, 431 S.W.3d 596, 609 (Tex. Crim. App. 2014).

No person can reasonably expect privacy in property he has abandoned. Matthews,

431 S.W.3d at 608. “[W]hen a defendant voluntarily abandons property, he lacks

standing to contest the reasonableness of the search of the abandoned property.”

Swearingen, 101 S.W.3d at 101.

                                          8
      Citing Riley v. California, 573 U.S 373 (2014), Akins asserts that the U.S.

Supreme Court has required “that law enforcement, absent exigent circumstances,

must obtain a search warrant to seize information from locked, digital storage

devices, including cell phones[.]” In his brief, Akins contends that because his

personal computer was password protected and locked, “he had the highest

expectation of privacy that anyone in this [c]ountry can have[.]” Akins cites section

72.101 of the Texas Property Code and asserts that this provision controls when

personal property may be presumed to have been abandoned. See Tex. Prop. Code

Ann. § 72.101(a) (West Supp. 2018) (providing that personal property is presumed

to have been abandoned if, for more than three years, the owner’s existence and

location are unknown to the holder of the property, and no claim or act of ownership

has been exercised by the owner). Akins also cites section 92.0081(a) of the Texas

Property Code, which states that a landlord may not “remove furniture, fixtures, or

appliances furnished by the landlord from premises leased to a tenant unless the

landlord removes the item for a bona fide repair or replacement.” Id. § 92.0081(a)

(West 2014). Akins maintains that his intent regarding the laptop “must be framed

within the context of the civil laws concerning abandonment of personal property

and the protection of [a] tenant’s property from wrongful[] seizure by a landlord.”



                                         9
      Akins does not cite to any authorities applying sections 72.101 and 92.0081

of the Property Code to determining whether a defendant has abandoned property

for purposes of the Fourth Amendment, nor is this Court aware of any cases that do

so. The Court of Criminal Appeals has held that “‘it is unnecessary and ill-advised

to import into the law surrounding the constitutional right to be free from

unreasonable searches and seizures subtle distinctions . . . (in) the body of private

property law,’ and the [U.S.] Supreme Court has made it clear for a long time that

courts ‘ought not bow to them in the fair administration of the criminal law[.]’”

Spring v. State, 626 S.W.2d 37, 41 (Tex. Crim. App. [Panel Op.] 1981) (quoting

Jones v. United States, 362 U.S. 257, 266-67 (1960)). Rather, the ultimate criterion

“is whether there was a violation of the claimant’s legitimate or reasonable

expectation of privacy.” Salpas v. State, 642 S.W.2d 71, 73 (Tex. App.—El Paso

1982, no pet.). Property rights are relevant but not determinative because “the Fourth

Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351

(1967); Salpas, 642 S.W.2d at 73; see also McDuff v. State, 939 S.W.2d 607, 616-

17 (Tex. Crim. App. 1997) (declining to apply the Texas Abandoned Motor Vehicles

Act in determining whether the appellant had abandoned a car). For all these reasons,

we decline Akins’s invitation to apply the provisions of the Texas Property Code to



                                         10
our analysis of whether the trial court should have granted Akins’s motion to

suppress.

      As discussed above, Akins asserts that Riley globally required law

enforcement, absent exigent circumstances, to obtain a search warrant to seize

information from locked, digital storage devices. In Riley, the defendant was stopped

for a traffic violation, and he was eventually arrested for possession of firearms when

an inventory search of his vehicle revealed firearms. Riley, 134 S.Ct. at 2480. When

an officer searched Riley’s person incident to arrest, the officer seized a smartphone

from the pocket of Riley’s pants. Id. The smartphone eventually made its way to the

hands of a detective, who searched the phone for evidence regarding a shooting that

had taken place a few weeks previously, and Riley was ultimately charged in

connection with that shooting. Id. at 2480-81. Riley asserted that the warrantless

search of his cell phone in the absence of exigent circumstances violated the Fourth

Amendment. Id. at 2481. The Supreme Court explained that the case required it “to

decide how the search incident to arrest doctrine applies to modern cell phones,

which are now such a pervasive and insistent part of daily life that the proverbial

visitor from Mars might conclude they were an important feature of human

anatomy.” Id. at 2484. In its analysis, the Supreme Court noted that many cell phones

“are in fact minicomputers that also happen to have the capacity to be used as a

                                          11
telephone. They could just as easily be called cameras, video players, rolodexes,

calendars, tape recorders, libraries, diaries, albums, televisions, maps, or

newspapers.” Id. at 2489. The Riley court held that “officers must generally secure

a warrant” before searching a cell phone. Id. at 2485.

      We conclude that Riley is distinguishable from the facts presented here. Riley

did not involve the issue of whether the defendant had abandoned the device that

was searched, and nothing in Riley indicates that the Supreme Court intended to

always require that law enforcement officers, absent exigent circumstances, obtain

a search warrant to seize information from locked, digital storage devices. In

addition, we note that the Court of Criminal Appeals has held that a person loses a

reasonable expectation of privacy in a cell phone if he abandons the phone. State v.

Granville, 423 S.W.3d 399, 409 (Tex. Crim. App. 2014).

      The trial judge heard evidence that Barrow rented the trailer to Akins and his

family on a month-to-month basis beginning in March or April of 2015, and that in

September or October of 2015, Akins and his family left without paying the rent that

was currently due, and they never returned and never paid further rent. Moreover,

the trial judge heard evidence that Barrow entered the trailer in November after

seeing water droplets on the window, and he discovered that a water main had burst,

and he informed Akins of the damage. The trial judge also heard evidence that

                                         12
everything in the trailer was covered with mold, and Barrow discarded most of the

trailer’s contents. Barrow testified that he believed Akins had abandoned the trailer.

The trial judge heard Finney testify that Akins said he was “working on” returning

to the trailer, but Akins had not returned to the trailer when Finney helped Barrow

clean the trailer. Lastly, the trial judge heard evidence that Finney took the laptop to

the police after discovering the photographs. On this record, viewing the evidence

in the light most favorable to the trial court’s ruling, we conclude that the trial court

did not err by determining that Akins had abandoned the laptop and denying Akins’s

motion to suppress. See Kelly, 204 S.W.3d at 818. Akins did not demonstrate that he

had a legitimate expectation of privacy in the laptop. See Matthews, 431 S.W.3d at

608-09; Swearingen, 101 S.W.3d at 101; Villarreal, 935 S.W.2d at 138; Green, 971

S.W.2d at 642; see also Katz, 389 U.S. at 351 (1967); Salpas, 642 S.W.2d at 73; see

also McDuff, 939 S.W.2d at 616-17. Accordingly, we overrule Akins’s sole issue

and affirm the trial court’s judgments.

      AFFIRMED.



                                                ______________________________
                                                       STEVE McKEITHEN
                                                           Chief Justice



                                           13
Submitted on January 18, 2019
Opinion Delivered March 6, 2019
Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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