Affirmed and Opinion filed August 16, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00220-CR

                  VINCENT LAMON WILLIAMS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1420283

                                  OPINION
      Appellant Vincent Lamon Williams challenges the trial court’s denial of his
motion to suppress evidence seized from a house he claimed to have been
occupying under an oral lease. Appellant argues that the police officer’s actions in
removing him from the residence, and searching the residence, violated his rights
guaranteed by the Fourth Amendment to the United States Constitution and article
I, section 9 of the Texas Constitution. We affirm the trial court’s denial of
appellant’s motion to suppress.
                     FACTUAL AND PROCEDURAL BACKGROUND

      While incarcerated, Eugene Johnson, Jr. sent a letter to his sister’s children.
In the letter, Eugene described his concerns that unauthorized persons were living
in the home he and his sister owned. Eugene stated that he believed the occupants
of the house were engaged in illegal activities, specifically selling drugs. Eugene
believed the unauthorized persons had changed the locks and were preventing
entry to the individual Eugene asked to watch the home while he was incarcerated.
Eugene wrote that two individuals “Roland” and “Vincent” were in the house and
he did not know how they got into it. Eugene asked his sister to “[p]lease make
everyone get out.”

      Upon receipt of the letter, Eugene’s sister, Geraldine Johnson, went to a
police storefront and asked for help. Officer Cody Robinson responded. He and
Geraldine went to the home. Geraldine showed the officer a copy of Eugene’s
letter and their father’s will, under which their father had left the property to
Geraldine and Eugene in equal shares. The officer looked up the property on the
Harris County Appraisal District website and the website showed the Johnson
Trust as the property owner.

      The officer then knocked on the door of the home to investigate. Appellant
answered. As soon as appellant opened the door, the officer smelled a strong scent
of marijuana. As the officer began to handcuff appellant, appellant mentioned that
his girlfriend was in the home. The officer called the girlfriend’s name, but she did
not respond. The officer asked Geraldine for consent to enter the property, and
Geraldine consented.

      Upon entering, the officer found a woman asleep on a bed. On the dresser in
the room where the woman was sleeping, he saw in plain view a pistol and a
substance that appeared to be cocaine.
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      The officer arrested appellant. Charged with possession of a controlled
substance, namely cocaine, weighing more than one gram and less than four grams,
appellant pleaded, “not guilty.” Before trial by jury, appellant moved to suppress
evidence from the search, claiming it was illegal because the officer did not have a
warrant, consent, or exigent circumstances.       In the hearing on the motion to
suppress, appellant argued that he had an informal, oral lease agreement with
Eugene that made the property his residence. Appellant argued that the Officer’s
search violated his rights because the officer did not get a warrant and there was no
probable cause to search the property. The trial court denied appellant’s motion to
suppress.

      The jury found appellant guilty of possession of a controlled substance of
more than one gram and less than four grams and assessed punishment at twenty-
five years’ confinement. In this appeal, appellant raises two issues challenging the
pretrial suppression ruling.

                               STANDARD OF REVIEW

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
At a suppression hearing, the trial court is the sole finder of fact and is free to
believe or disbelieve any or all of the evidence presented. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to the
trial court’s determination of historical facts, especially when the trial court’s fact
findings are based on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89.     We afford the same amount of deference to the trial court’s
application of the law to facts if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. We review de novo the trial court’s
application of the law to facts if resolution of those ultimate questions does not

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turn on an evaluation of credibility and demeanor. Id.

                                      ANALYSIS

      In the trial court and on appeal, appellant has argued that his rights were
violated under both the Fourth Amendment to the United States Constitution and
article I, section 9 of the Texas Constitution. See U.S. Const. IV; Tex. Const. art. I,
§ 9. Appellant correctly points out that, for a violation of the Texas Constitution,
the State must prove voluntary consent by clear and convincing evidence; whereas,
for a violation of the Fourth Amendment, the State must prove voluntary consent
by a preponderance of the evidence. See State v. Weaver, 349 S.W.3d 521, 526
(Tex. Crim. App. 2011); State v. Ibarra, 953 S.W.2d 242, 243–45 (Tex. Crim.
App. 1997). Except on this point, appellant has not provided any argument or
authority that the Texas Constitution provides him greater protection than the
United States Constitution with regard to the issues raised in his motion to
suppress. Therefore, except on this point, we analyze this issues under Fourth-
Amendment jurisprudence. See Black v. State, 26 S.W.3d 895, 896 n.4 (Tex.
Crim. App. 2000); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

   A. Does appellant have standing to challenge the lawfulness of the search
      of the house under a reasonable-expectation-of-privacy theory of
      search?

      What constitutes a “search” for Fourth Amendment purposes — and
therefore, what may serve to confer Fourth Amendment “standing”— may be
predicated, as the Supreme Court of the United States has emphasized, on either an
intrusion-upon-property theory of search or a reasonable-expectation-of-privacy
theory of search. See Florida v. Jardines, — U.S. —,—, 133 S.Ct. 1409, 1414,
185 L.Ed.2d 495 (2013); United States v. Jones, — U.S. —, —, 132 S.Ct. 945,
949–51, 181 L.Ed.2d 911 (2012); State v. Huse, —S.W.3d.—,—, 2016 WL

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1449627, at *5 (Tex. Crim. App. Apr. 13, 2016). Appellant has preserved error as
to each of these search concepts.
      The State argues for the first time on appeal that appellant lacks standing to
challenge the lawfulness of the search of the house. The State may raise this
standing issue for the first time on appeal. See Kothe v. State, 152 S.W.3d 54, 60
(Tex. Crim. App. 2004); State v. Klima, 934 S.W.2d 109, 110–11 (Tex. Crim. App.
1996). We first address whether appellant has standing to challenge the search
under a reasonable-expectation-of-privacy theory and then we address this issue as
to the intrusion-upon-property theory.
      Under a reasonable-expectation-of-privacy theory, a person has “standing”
to contend that a search or seizure was unreasonable if (1) the person has a
subjective expectation of privacy in the place or object searched, and (2) society is
prepared to recognize that expectation as “reasonable” or “legitimate.” State v.
Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). The “standing” doctrine
ensures that an accused may claim only that the accused’s own rights have been
violated; the accused cannot assert that he is entitled to benefit because the rights
of another have been violated. Id. A person’s constitutional right to be free from
unreasonable searches is a personal right that cannot be asserted vicariously. Id.
      An accused normally has standing to challenge the search of places and
objects that the accused owns. Id. at 406. For example, a homeowner has standing
to challenge the search of a home that he owns. Id. at 406. A “legitimate”
expectation of privacy acknowledges the lawfulness of the person’s “subjective”
expectation of privacy.    Id. at 406. (stating that one who owns or lawfully
possesses or controls property in all likelihood will have a legitimate expectation
of privacy and indicating that those who do not own or lawfully possess or control
property likely will not have a legitimate expectation of privacy). The factors that
courts use in deciding whether a person has a reasonable expectation of privacy in
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the place or object searched include the following:
   (1) whether the person had a proprietary or possessory interest in the place or
   object searched;
   (2) whether the person’s presence in or on the place searched was legitimate;
   (3) whether the person had a right to exclude others from the place or object;
   (4) whether the person took normal precautions, before the search, which are
   customarily taken to protect privacy in the place or object;
   (5) whether the place or object searched was put to a private use;
   (6) whether the person’s claim of privacy is consistent with historical notion of
   privacy.
Id. at 407–08. Under a reasonable-expectation-of-privacy theory, ownership or
legal possession of the property searched is not the “be-all-end-all” in deciding
whether a person has a legitimate expectation of privacy in the property. Id. at
408. We review the legal issue of standing de novo although we defer to the trial
court’s factual findings and view them in the light most favorable to the trial
court’s ruling. Kothe, 152 S.W.3d at 59.
      The record contains (1) evidence that the Harris County Appraisal District
listed the house as belonging to the Johnson Trust, (2) a will from Eugene and
Geraldine’s father leaving property to them, (3) and a letter written by Eugene
stating that no individuals should be on the premises. In particular, Eugene wrote
in the letter that he didn’t know how “Vincent” and “Roland” came to be living
there and that they had changed the locks to prevent “Teddy,” the individual
appellant asked to look after the house, from entering. When the officer knocked
on the door of the residence, the officer told appellant that he was there to make
sure nobody was living in the home who was not supposed to be there. The officer
testified that appellant did not mention any lease agreement or provide any
evidence that appellant had permission or a right to be at the home.

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      Appellant presented the testimony of his cousin, Roland Gates.            Gates
testified that he had an informal oral lease agreement with Eugene to rent the
home. According to Gates, the oral agreement did not include a specific sum and
Gates did not have any documentary proof of the alleged agreement. According to
Gates, Gates put money on the books for Eugene to use in prison for a few months
and then began paying money to “Teddy.” Appellant provided similar testimony
about an oral lease. Appellant testified he put money on the books for Eugene for
a few months and then began paying “Teddy” and “Teddy’s sister.” Neither Gates
nor appellant produced any receipts, proof of payment, or other evidence to
establish the existence of a lease for the premises or other authority to occupy the
premises.

      Although Gates and appellant testified that they had an oral rental agreement
to lease the property, we presume that the trial court, as fact finder, did not credit
this testimony and instead credited evidence showing appellant had no authority to
occupy the premises. See Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.
2007). Gates and appellant had no documentary proof of any rental agreement or
possessory interest in the property. The record contained testimony from the
officer that Harris County Appraisal District records showed the Johnson Trust
owned the property. Appellant argues that there was no evidence that Eugene and
Geraldine owned the property rather than their mother, but if Eugene and
Geraldine’s mother owned the property, appellant had no evidence of any
agreement with her.

      The trial court reasonably could have found, based on the testimony
presented, that appellant did not have a proprietary or possessory interest in the
house and that the first factor weighed against appellant having standing. See
Padilla v. State, 462 S.W.3d 117, 123 (Tex. App.—Houston [1st Dist.] 2015, pet.

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ref’d) (noting that passenger had no possessory interest in vehicle). With respect to
the second and third factors, based on Eugene’s letter and Officer Robinson’s
testimony, the trial court reasonably could have found that appellant was not in the
residence legitimately and that he did not have the right to exclude others from the
house.   See Ex parte Moore, 395 S.W.3d 152, 161 (Tex. Crim. App. 2013)
(holding that temporary guest of registered motel guest did not have reasonable
expectation of privacy); Padilla, 462 S.W.3d at 123. Although the fourth and fifth
factors weigh in appellant’s favor because appellant took some actions to seek
privacy and used the residence for private purposes, the trial court reasonably
could have found that appellant was trespassing on the Johnson property, and this
conduct is inconsistent with historical notions of privacy under the sixth factor.
See Davis v. State, 119 S.W.3d 359, 368 (Tex. App.—Waco 2003, pet. ref’d)
(noting that trespassers do not have reasonable expectation of privacy). Based on
the totality of the circumstances, the evidence supports the trial court’s implied
finding that appellant did not have a reasonable expectation of privacy in the home
that was searched. See Matthews, 431 S.W.3d at 606–07; Ex parte Moore, 395
S.W.3d at 161; Davis v. State, 119 S.W.3d at 368.

      Because appellant did not have a reasonable expectation of privacy in the
house, appellant lacks standing to challenge the officer’s search under a
reasonable-expectation-of-privacy theory. See Matthews, 431 S.W.3d at 606–07;
Ex parte Moore, 395 S.W.3d at 161; Davis v. State, 119 S.W.3d at 368.

   B. Does appellant have standing to challenge the lawfulness of the search
      of the house under an intrusion-upon-property theory of search?
      The parties have not cited and research has not revealed any case addressing
the legal standard to be applied in determining whether a person has “standing” to
contend that a search or seizure was unreasonable under the Fourth Amendment to
the United States Constitution under an intrusion-upon-property theory of search.
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The Court of Criminal Appeals has not yet addressed this issue. See Jones, — U.S.
at —, 132 S.Ct. at 949 n.2 (noting that the vehicle in question was registered to
Jones’s wife rather than to Jones but stating that Jones was the exclusive driver and
that the issue of Jones’s ability to challenge the search was not before the high
court); Huse, 2016 WL 1449627, at *5 (acknowledging that there are two theories
of search, but analyzing standing only under the reasonable-expectation-of-privacy
theory because the defendant had not raised the intrusion-upon-property theory of
search).

      If appellant’s standing to challenge the search of the home under an
intrusion-upon-property theory of search is analyzed under the same legal standard
as that applicable to the reasonable-expectation-of-privacy theory, appellant lacks
standing to challenge the officer’s search under the analysis in the previous section.
See Matthews, 431 S.W.3d at 606–07; Ex parte Moore, 395 S.W.3d at 161; Davis
v. State, 119 S.W.3d at 368. If appellant’s standing to challenge the search of the
home under an intrusion-upon-property theory of search is analyzed under a
different standard, we conclude that the standard would be whether the person had
a sufficient proprietary or possessory interest in the place or object searched. See
Jones, — U.S. at —, 132 S.Ct. at 949–51 & n.2. As discussed in the previous
section, the trial court reasonably could have found that appellant did not have a
proprietary or possessory interest in the house. See Padilla, 462 S.W.3d at 123.
Under either analysis, appellant lacks standing to challenge Officer Robinson’s
search. See Jones, — U.S. at —, 132 S.Ct. at 949–51 & n.2; Matthews, 431
S.W.3d at 606–07; Ex parte Moore, 395 S.W.3d at 161; Davis v. State, 119 S.W.3d
at 368.

      Having concluded that appellant lacks standing to challenge the search of the
home under either a reasonable-expectation-of-privacy theory or an intrusion-

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upon-property theory, we overrule appellant’s second issue.1

    C. Did the police seize evidence as a result of the allegedly illegal arrest?
       In his first issue, appellant asserts that his seizure from the property
amounted to an illegal arrest within the home, unsupported by probable cause.
Appellant argues that the trial court abused its discretion in denying his motion to
suppress evidence because of this allegedly unlawful arrest. For purposes of
analysis, we presume, without deciding, that removing appellant from the house
constituted an illegal arrest.

       But, neither the Fourth Amendment exclusionary rule nor the statutory
exclusionary rule embodied in article 38.23(a) of the Code of Criminal Procedure
requires the suppression of evidence that was not “obtained” as a result of some
illegality. See Tex. Code Crim. Proc. Ann art. 38.23 (West, Westlaw through 2015
R.S.); State v. Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015). Moreover,
not every but-for product of police illegality will constitute evidence “obtained”
from that illegality for either federal or state exclusionary-rule purposes; evidence
is not subject to suppression simply because it would not have come to light but for
the illegal actions of the police. Jackson, 464 S.W.3d at 731. Instead, “‘the more
apt question is whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.’” Id. (quoting State v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim.
App. 2012).      Today’s case does not involve a confession, so in making this
determination, we consider the following factors: (1) the temporal proximity of the
arrest and seizure of evidence, (2) the presence of intervening circumstances, and

1
 We need not and do not address the State’s argument that Geraldine had actual or apparent
authority to consent to the search of the house and that she voluntarily consented to the search.

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(3) the purposefulness or flagrancy of the official misconduct. Id. If there are no
intervening circumstances, the temporal proximity is the paramount factor. Id. at
732. But, if there is an intervening circumstance, the importance of temporal
proximity decreases, and the purposefulness or flagrancy of the official misconduct
becomes of vital importance. Id.
      In today’s case, the officer seized evidence shortly after the allegedly illegal
arrest. But, the search of the house was based on Geraldine’s consent, which was
given after the alleged arrest; the search was not based on appellant’s arrest. We
conclude that Geraldine’s consent was an intervening circumstance, and that
therefore the third factor is of vital importance. Id.
      The trial court reasonably could have found that the officer removed
appellant from a house that appellant did not own, reasonably believing that the
house belonged to the Johnson family and that appellant had no authority to be
there. Shortly after the officer removed appellant, Geraldine gave her consent to
have the officer search the house. As discussed above, appellant lacks standing to
challenge the search of the home, and that search did not violate appellant’s Fourth
Amendment rights. See Matthews, 431 S.W.3d at 606–07; Ex parte Moore, 395
S.W.3d at 161; Davis v. State, 119 S.W.3d at 368. The seizure of the evidence
occurred as a result of Geraldine’s consent and the search of the house rather than
as a result of appellant’s allegedly illegal arrest. See id. at 731–34. Presuming that
the officer arrested appellant and that the arrest was illegal, we conclude that any
purposefulness or flagrancy of the officer’s conduct was not significant. See id.
Thus, even under these presumptions, the trial court did not abuse its discretion in
denying appellant’s motion to suppress because the seizure of the evidence did not
occur by the exploitation of the allegedly illegal arrest. See id.; Padilla v. State,
462 S.W.3d 117, 125 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). We
overrule appellant’s first issue.
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                                   CONCLUSION

      Appellant lacks standing to challenge the search of the house under either a
reasonable-expectation-of-privacy theory or an intrusion-upon-property theory of
search. Even presuming the officer arrested appellant illegally, the seizure of the
evidence did not occur by the exploitation of the allegedly illegal arrest. The trial
court did not abuse its discretion in denying appellant’s motion to suppress.

      We affirm the trial court’s judgment.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Publish — TEX. R. APP. P. 47.2(b).




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