Affirm and Opinion Filed December 4, 2019




                                                                     In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                          No. 05-18-01362-CR

                                           THE STATE OF TEXAS, Appellant
                                                       V.
                                          JOSHUA PATRICK SMITH, Appellee

                                 On Appeal from the 422nd Judicial District Court
                                            Kaufman County, Texas
                                     Trial Court Cause No. 18-30063-422-F

                                            MEMORANDUM OPINION
                                   Before Justices Pedersen, III, Reichek, and Carlyle
                                            Opinion by Justice Pedersen, III
           The State appeals from the trial court’s order granting appellee Joshua Patrick Smith’s

motion to suppress (a) contraband seized from a vehicle—in which he was a passenger—following

a traffic stop and (b) his arrest following the seizure, and (c) his statements to police in connection

with this case. Methamphetamine was located in the vehicle by a police dog brought to the scene.

The State contends that appellee lacks standing to challenge the search of the vehicle and that the

trial court abused its discretion by ruling that the dog’s presence inside appellee’s vehicle exceeded

the scope of a lawful search.1 We affirm.




     1
        The State urges four other issues “in an abundance of caution to preserve error for review.” Our resolution of the State’s first two issues is
dispositive and does not depend on resolution of any of those remaining issues. Accordingly, we need not address them.
                                                               Background

          Kaufman County police officer Nicole Firebaugh pulled the vehicle at issue over because

of an unlit tail light and brake light. Appellee’s co-defendant, Elyse Rivera, was driving the

vehicle; he was a passenger. Rivera’s proof of insurance had expired, but Officer Firebaugh

allowed her to contact her insurance agent by phone. While Rivera was attempting to establish

insurance coverage, Officer Firebaugh requested a canine unit; the handler and dog arrived

approximately ten minutes later.

          A video that included the dog’s open-air sniff was admitted as evidence at the hearing on

the motion to suppress. The handler walked the dog around the car, but the camera’s view was

partially blocked. Ultimately, the video shows the dog inside the car. Based on the dog’s signaling,

police ultimately located methamphetamine in a syringe and in a baggie found in a pair of jeans in

the back seat. Appellee and Rivera were arrested.2

          Appellee’s motion to suppress argued that the actions of the Kaufman Police Department—

including the seizure of tangible evidence, his arrest, and obtaining any statements or photographs

in connection with the traffic stop at issue—violated his constitutional and statutory rights under

the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I,

Section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure.

Following the hearing on his motion and the motion filed by Rivera, the trial court ruled in a letter

to the parties that “the [dog’s] search inside the vehicle exceeded the scope of a lawful search.”

The judge signed an order granting the motion to suppress, and the State appeals.




   2
       Rivera also moved to suppress the results of the police search. The State has appealed the trial court’s granting of her motion as well.
                                Standing to Challenge the Search

       In its first issue, the State argues that appellee lacked standing to challenge the search of

Rivera’s vehicle. A passenger in another person’s vehicle generally has no standing to contest the

search of that vehicle. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). This is

because rights secured by the Fourth Amendment are personal in nature. Rakas v. Ill., 439 U.S.

128, 138–39 (1978). However, the passenger retains the right to show that he personally had a

reasonable expectation of privacy that the government invaded. Kothe v. State, 152 S.W.3d 54, 59

(Tex. Crim. App. 2004). “He must prove that he was a ‘victim’ of the unlawful search or seizure.”

Id. We review the issue of standing de novo. Id.

       Appellee argues that the State is not entitled to challenge his standing on appeal because

standing was not contested or raised during the hearing on the motion to suppress. We agree that

the issue of standing in this context relates to appellee’s Fourth Amendment rights rather than to

our jurisdiction; as such, the State can forfeit its challenge by procedural default. See Coleman v.

State, 246 S.W.3d 76, 84 (Tex. Crim. App. 2008). We conclude the State did forfeit this argument

by failing to raise it during the motion-to-suppress proceedings below.

       Moreover, we conclude that appellee did meet his burden to prove that he had a legitimate

expectation of privacy in the jeans in which the methamphetamine was found. The State asserts

that he did not establish any evidence of a “possessory interest” in the jeans found beneath his seat.

See Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985) (passenger in vehicle lacks

legitimate expectation of privacy where there is no possessory interest in vehicle or property

seized). We conclude the evidence sufficiently establishes that appellee had a legitimate

expectation of privacy in the jeans. Officer Firebaugh testified that based on her training,

education, and life experience, the jeans were “male [jeans].” Appellee was the only male person

in the car. The officer also explained that the jeans were located “directly behind the front right
passenger seat on the floorboard.” Appellee was riding in the right front passenger seat when the

car was pulled over.

       The video evidence supports our conclusion. Although much of the recorded conversation

among the officers and accused is indecipherable, one can make out comments by Rivera to Officer

Firebaugh referring to “his clothes” and “back seat.” One series of statements in this regard is

clear: the dog’s handler asserts that Rivera will be responsible for anything in the vehicle, she

responds, and then Officer Firebaugh tells her that “You admitted that they were his clothes; if I

find it in the clothes it’s on him, not you, ok?” As appellee points out in his brief, the video shows

an officer removing a laundry basket of clothes from the right side of the back seat during the

search. The jeans, however, were not in that basket; they were separate and were found, the State

says, “directly beneath [appellee’s] seat.” This placement suggests an expectation of privacy. See,

e.g., Chapa, 729 S.W.2d at 728 (“In view of the fact that appellant sat in the front passenger side

of the taxicab, it was reasonable for him to expect he could stow his personal effects underneath

the front seat without fear of government intrusion.”).

       We conclude that the State forfeited its right to complain of appellee’s standing in this case.

Nevertheless, we conclude that appellee had a reasonable expectation of privacy in the jeans that

were found and searched by the police. Accordingly, he had standing to challenge the search that

led them to the jeans.

                                      The Motion to Suppress

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

using a bifurcated standard. 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, and we review its

application of the law of search and seizure to the facts de novo. Id. We will sustain the trial court’s
ruling if it is reasonably supported by the record and is correct on any theory of law applicable to

the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

       In its second issue, the State contends that the trial court abused its discretion by implicitly

finding that the dog did not alert on appellee’s vehicle before entering the front seat because that

finding “is contrary to indisputable visual evidence and ignores the collective knowledge

doctrine.” The State relies here on the well established rule that “a positive alert on a vehicle by a

trained drug-detection dog, standing alone, may provide officers with probable cause to search the

vehicle without a warrant.” Branch v. State, 335 S.W.3d 893, 901 (Tex. App.—Austin 2011, pet.

ref’d). Because the trial court ruled that the dog’s presence inside the car represented an unlawful

search, the State infers that the trial court did not believe the dog alerted on appellee’s vehicle

before it was permitted to enter the car.

       The State argues first that “indisputable video evidence” establishes that the dog did alert

on appellee’s car. Our review of the video confirms the State’s assertion that the dog stood on its

back legs and stuck its face in the partially open rear window of the vehicle. But the State presented

no evidence of how this dog was trained to alert to the presence of contraband. Cases suggest that

dogs alert to the presence of contraband in different ways. See, e.g., Jones v. State, 511 S.W.3d

202, 205 (Tex. App.—Corpus Christi 2015, no pet.) (dog alerted by biting, scratching, and

attempting to jump); Anderson v. State, No. 05-13-01355-CR, 2015 WL 1255969, at *2 (Tex.

App.—Dallas Mar. 17, 2015, no pet.) (dog alerted by biting, barking, or scratching at the source

of the odor); $8,300.00 in U.S. Currency v. State, No. 05-11-00901-CV, 2012 WL 5359229, at *2

(Tex. App.—Dallas Nov. 1, 2012, no pet.) (dog alerted by scratching on cabinet where money was

hidden); Porter v. State, No. 14-01-00687-CR, 2002 WL 1488983, at *3 (Tex. App.—Houston

[14th Dist.] July 11, 2002, pet. ref’d) (dog alerted by very aggressive scratching and barking). The
video in this case cannot be indisputable proof of an alert without evidence of the manner in which

this dog alerted to contraband.

       The State not only failed to offer evidence concerning how the dog alerted, it also failed to

offer any evidence concerning the dog’s training or reliability. Officer Firebaugh was the State’s

only witness at the hearing on the motion to suppress. She candidly admitted that she was not a

canine handler and had no particular training in that area. She testified that she could not tell when

the dog alerted; she relied on the handler’s representation that the dog had done so. But the handler

did not testify, and the State did not offer any records of the dog’s training or certification. The

United States Supreme Court has instructed that when the State relies on a drug dog’s alert for

probable cause to search, it must offer some evidence, preferably from “controlled settings,” that

the dog performs reliably in detecting drugs. Florida v. Harris, 568 U.S. 237, 248 (2013). The

State offered no evidence that could establish that the dog alert, if it occurred, was sufficiently

reliable to support probable cause to search the vehicle.

       The State argues that we can employ the “common knowledge” of Officer Firebaugh and

the handler to find probable cause. It relies on State v. Martinez, in which the Court of Criminal

Appeals stated that “when several officers are cooperating, their cumulative information may be

considered in assessing reasonable suspicion or probable cause.” 569 S.W.3d 621, 626 (Tex. Crim.

App. 2019). In Martinez, the defendant was arrested for public intoxication in the presence of three

police officers. Two of the officers testified at the hearing on his motion to suppress; the third

officer, who had actually arrested the defendant, did not. Id. at 624. The defendant challenged his

warrantless arrest, and the State relied upon the exception for offenses committed in the presence

of the police. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (“A peace officer may arrest

an offender without a warrant for any offense committed in his presence or within his view.”)).

The State argued that “the sum total of the knowledge of all three officers would add up to probable
cause,” and the arrest should be upheld. Id. at 626. The court concluded that the testimony of the

two officers present at the scene “clearly established” probable cause, and because the arresting

officer was cooperating with them, the exception to the warrant requirement was satisfied. Id. at

630.

           Here Officer Firebaugh could not provide probable cause based upon her personal

knowledge as the two officers could in Martinez. She testified that she did not know when the dog

alerted. Indeed, she stated that she could not offer any opinion or testimony as to how drug dogs

are trained, what they are specifically looking for, or how they alert. And to the extent that the

State relies on what the handler told Officer Firebaugh, the only specific statement in the record—

“That’s the first time he’s [unintelligible] jumped through the window before”—fails to provide

any information concerning the dog’s training or reliability.3 We conclude the witness lacked any

relevant “common knowledge” that could substitute for testimony from the dog’s handler.

           Finally, the common knowledge doctrine does not eradicate the requirement that a

defendant have an opportunity to challenge a search. Harris, 568 U.S. at 247 (defendant must have

opportunity to challenge evidence of dog’s reliability). The only witness who was available for

cross-examination in this case testified that she did not know anything about the dog’s training.

           We are required to find probable cause for a search, even for an arrest based on a trained

canine’s alert. Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.—Houston [1st Dist.] 1987, no

pet.). Officer Firebaugh testified that she did not have probable cause to search the vehicle before

she called for the canine team. In the absence of any testimony concerning the dog’s training,

reliability, and method of alerting, the canine search could not provide probable cause to search

Rivera’s vehicle or its contents. Accordingly, we conclude that the search was unlawful.



     3
       The statement could suggest that the dog’s looking through the partially open back window was an alert. It could also mean that the dog
jumped into the car through an open front window, which was out of the camera’s view. In either case, the handler reports that the dog acted in an
unusual manner, which is contrary to any premise of reliability.
       The trial court did not abuse its discretion in granting appellee’s motion to suppress. We

overrule the State’s second issue.

                                          Conclusion

       We affirm the trial court’s order granting appellee’s motion to suppress.




                                                 /Bill Pedersen, III//
                                                 BILL PEDERSEN, III
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47


191362f.u05
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                     On Appeal from the 422nd Judicial District
                                                   Court, Kaufman County, Texas
 No. 05-18-01362-CR        V.                      Trial Court Cause No. 18-30063-422-F.
                                                   Opinion delivered by Justice Pedersen, III.
 JOSHUA PATRICK SMITH, Appellee                    Justices Reichek and Carlyle participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of December, 2019.
