Abraham CHAPA, Appellant, v. The STATE of Texas, Appellee.
No. 914-85.
Court of Criminal Appeals of Texas, En Banc.
April 8, 1987.
729 S.W.2d 723
CLINTON, Judge.
“... and further waive my [the defendant‘s] right for dismissal or discharge if the State is not ready for trial within 120 days of the commencement of this case....”
This Court stated:
“The waiver clearly applies to the case, not the transaction. The issue, therefore, reduces itself to whether the indictments constitute prosecutions for a single case or for separate cases arising out of the same transaction.”
Thus Rosebury dealt with a problem dealing with the meaning of the word “case” on a written waiver. The Speedy Trial Act, in contrast, concerns itself with offenses and criminal actions, not “cases“. Moreover, the issue here is whether the State‘s readiness or preparedness for trial carries over from one indictment to another and this must be decided in context of the Act. We therefore find Rosebury, supra, inapplicable to the facts or issues before us.
With regard to the facts of the case at bar, the first indictment alleged the capital murder of the victim by suffocation with chloroform and the second indictment alleged murder by “manner and means unknown.” The defendant was, however, arrested and charged with killing the victim. The subsequent indictment changed only the manner by which the victim was killed and eliminated the aggravating feature. Although these two offenses differ in that the first required greater proof than the second, these offenses clearly arose out of the same transaction, viz: the killing of the victim. They were, just as in Whaley and Sharp, supra, the same offense for purposes of the Speedy Trial Act. Thus, we find that the State‘s announcement of ready on the second indictment carried forward to the second and final indictment. Appellant‘s ground for review is overruled.
The judgments of the trial court and the Court of Appeals are affirmed.
CLINTON, Judge.
At issue in this cause is whether a “passenger qua passenger” in a taxicab has “standing” to challenge a search of the interior of the cab under the Fourth Amendment to the United States Constitution, in light of the Supreme Court‘s opinion in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
Following his plea of nolo contendere and judicial confession to the offense of possession of heroin, appellant was convicted and sentenced to 16 years confinement in the Texas Department of Corrections. Prior to the entry of his plea appellant had filed a motion to suppress the heroin on the basis that it had been obtained as a result of “an illegal detention, illegal arrest and illegal search and seizure.” After a brief hearing the trial court denied this motion upon the State‘s argument that appellant had failed to establish standing to contest admission of the heroin. In a single ground of error on appeal appellant contended the trial court erred in denying him standing to contest the search of the taxicab. The Fourteenth Court of Appeals somewhat summarily overruled his ground of error. Chapa v. State, 694 S.W.2d 202 (Tex.App.-Houston [14th] 1985). We granted appellant‘s petition for discretionary review under what is now
I.
At the outset of the hearing on the motion to suppress the State moved that before reaching the merits of his Fourth Amendment claims, appellant be “required to show that [he] had an expectation of privacy in the place that was supposedly searched and that [he] had possession of the drug, to show standing to object to the search.”1 Though appellant‘s mo-
Geraldo Acosta, Houston (Brian W. Wice, of counsel), for appellant.
John B. Holmes, Jr., Dist. Atty. and Timothy G. Taft and Lyn McClellan, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for State.
Accordingly, appellant testified that on the day of his arrest, after waiting for a late city bus, he and his wife stepped into a lounge to call a taxicab. There they waited for about a half an hour, and were joined by a friend who wanted to stay with them at their hotel. When the cab arrived they all got in, appellant in the front seat next to the driver, and his wife and friend in the back. The driver was instructed to take them to their hotel. As the cab began to pull out of the driveway of the lounge, however, it was stopped by two Houston police officers. Appellant was removed from the cab and his person searched. When this search yielded nothing, one of the officers began to search the area under and around the front seat, including some books belonging to the cab driver. After what “could have been three, four minutes” of searching, the officer discovered an aluminum foil packet under the front seat, containing what he suspected to be heroin, and appellant was arrested.
Appellant‘s motion to suppress was denied. In the court of appeals he maintained he had established a legitimate
“We fail to see how the fact that appellant hired the cab gave him any greater rights than an ordinary passenger. A taxi cab is still a highly mobile motor vehicle subject to the same, if not more, licensing and registration regulations as other vehicles. These are the factors that justify the motor vehicle exception. See California v. Carney, [471] U.S. [386], 105 S.Ct. 2066, 85 [L.Ed.2d] 406 (1985).”
Id. If we correctly interpret this passage to be an invocation of Supreme Court cases establishing an exception to the warrant requirement to support the proposition that appellant has no legitimate expectation of privacy in the taxi, simply because it is a motor vehicle, then the analysis of the court of appeals is off the mark. While it is true that “the pervasive schemes of regulation” of motor vehicles “necessarily lead to reduced expectations of privacy,” California v. Carney, 471 U.S. at 392, 105 S.Ct. [at] 2070, 85 L.Ed.2d [at] 414, that regulation does not dispel such expectations altogether. “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, 580 (1971). Probable cause is still required to justify the search of an automobile, even if a warrant is not. California v. Carney, supra, and its progenitors are inapposite to resolution of the issue at hand.
II.
In Rakas v. Illinois, supra, the substantive question of what constitutes a “search” for purposes of the Fourth Amendment was effectively merged with what had been a procedural question of “standing” to challenge such a search. It became a matter, not only of whether some “reasonable,” “justifiable” or “legitimate expectation of privacy” in a particular place exists, which has been breached by governmental action, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979), but also of who reasonably, justifiably or legitimately harbored that expectation. The litmus for determining 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.‘” Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226-27.
Appellant testified at the hearing that upon entering the taxicab he did indeed have an expectation of privacy therein. So long as that expectation is one society is prepared to recognize, we are satisfied that merely getting into the cab, closing the door and setting out, was conduct sufficient to manifest a subjective expectation,2 and thus we proceed to the objective inquiry.
In Rakas v. Illinois, supra, the Supreme Court observed:
“Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.”
It is true that, as with the passengers in Rakas, appellant “asserted neither a property nor a possessory interest in the automobile” he was riding in. But this fact is not alone determinative, for appellant nevertheless exercised a significant degree of control over the taxicab. As a presumptively paying fare he could determine its destination for the duration of his presence therein. Moreover, though lacking ownership or possessory interest in the cab, appellant and his companions could nevertheless exclude others from it during their ride. Houston, Tex., Code § 46-29 (1985), provides:
“Any passenger who engages the services of a taxicab shall have the exclusive right to the passenger compartment of the taxicab and it shall be unlawful for a taxicab driver or permittee to carry additional passengers unless specific permission is obtained from the passenger who engaged the taxicab originally.”
Comparable provisions may be found in the municipal codes of Austin, San Antonio,3 and, no doubt, other cities in Texas, and in other states. See, e.g., Bates v. State, 64 Md.App. 279, 494 A.2d 976, 979 (1985); People v. Castro, 125 Misc.2d 15, 479 N.Y.S.2d 414, 420 n. 10 (Sup.Ct.N.Y.Co.1984). A clearer indicium of society‘s preparedness to accept as reasonable an expectation of privacy in the passenger compartment of a taxicab could hardly be imagined.
The State argues that whatever expectation of privacy appellant could claim in the interior of the taxi would not extend to the area under the front seat, which the State maintains was a personal repository for the cab driver, whom appellant “did not know from Adam.”4 We agree that for Fourth Amendment purposes appellant could not have legitimately expected privacy in any area or receptacle within the exclusive control of the cab driver. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Any area of the taxicab that appellant could legitimately occupy, however, would not be a “repository” personal to the cab driver alone, at least for the period of appellant‘s occupancy. 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. As Judge Moylan of the Court of Special Appeals of Maryland observed in Bates v. State, supra, 494 A.2d at 979-980:
“Involved is not the expectation of the passenger vis-a-vis the driver but vis-a-vis the rest of the world.... The taxicab driver in this case did not invite the police into the taxicab. We are not arbi-
trating the rights, powers, authority, or obligations of the taxicab driver or the passenger vis-a-vis each other. Although the Fourth Amendment expectations of the passenger might (we do not decide) have been defeasible at the hands of the taxicab driver, they were not compromised vis-a-vis the police.”
That the driver of the cab, though a perfect stranger, may have shared a degree of privacy in the area beneath the front seat (as opposed to receptacles kept there, belonging exclusively to him) does not defeat appellant‘s reasonable claim to freedom from government intrusion there.
We hold that appellant qua fare in a taxicab had a legitimate expectation of privacy in, and hence standing to challenge the search of, the area under the front seat of the taxicab.
Consequently, the judgment of the court of appeals is reversed and the cause remanded for new trial, in which appellant shall be allowed the opportunity to litigate the merits of his Fourth Amendment claim.5
CAMPBELL and WHITE, JJ., concur in result.
ONION, Presiding Judge, dissenting.
If you‘ll pardon an expression I use “Color me amazed one more time.” The majority holds that the appellant, a fare in a taxicab, had a legitimate expectation of privacy in, and hence standing, to challenge the search of the area of the front seat of the taxicab, even though he disclaimed ownership of the heroin found there.
Prior to trial appellant filed a motion to suppress evidence claiming his arrest was without warrant or probable cause and the evidence seized was obtained illegally. At the hearing on said motion the State asked that the appellant first establish his “stand-
On cross-examination appellant stated he did not put the tin foil and its contents under the seat of the cab, had no idea how it got there, and that the tin foil and its contents were not his. On re-direct examination appellant stated he had never seen the taxi driver before and “did not know him from Adam.”
At the conclusion of appellant‘s testimony1 the prosecutor urged that appellant had denied the “property” was his and that he had no reasonable expectation of privacy in the location where the property was
Thereafter on the same day appellant entered his plea of nolo contendere in a bench trial after the State moved to dismiss the allegations of two prior felony convictions alleged for enhancement of punishment. The appellant‘s sworn judicial confession admitted the allegations of the indictment as to possession of heroin were true and correct. As a result of a plea bargain the court assessed punishment at sixteen years’ imprisonment.
Despite his plea of guilty and his judicial confession, appellant was still able to appeal the ruling on the pre-trial motion to suppress.
Citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Court of Appeals held under the circumstances appellant had no legitimate expectation of privacy and had not established “standing” to assert that his Fourth Amendment rights had been violated. The court found that the trial court did not err in overruling the pre-trial motion to suppress.
To invoke the exclusionary rule, a defendant must establish his own Fourth Amendment rights were violated by an unlawful search and seizure. Attempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected. See, e.g., United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct. 2547, 2550, 65 L.Ed.2d 169 (1980); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). See also United States v. Vicknair, 610 F.2d 372, 377 (5th Cir.1980), cert. den. 449 U.S. 823, 101 S.Ct. 83, 66 L.Ed.2d 25 (1981); United States v. Byers, 600 F.2d 1130, 1132 (5th Cir.1979).
In Rakas v. Illinois, supra, the United States Supreme Court held that individuals, who assert neither a property nor a possessory interest in the automobile searched nor an interest in the property seized, and who fail to show that they had a legitimate expectation of privacy in the glove compartment or the area under the seat of the vehicle in which they were merely passengers, were not entitled to challenge the search of those areas.
The Court wrote:
“Judged by the foregoing analysis, petitioners’ claims must fail. They asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were ‘legitimately on [the] premises’ in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. It is unnecessary for us to decide here whether the same expectations of privacy are warranted in a car as would be justified in a dwelling place in analogous circumstances. We have on numerous occasions pointed out that cars are not to be treated identically with houses or Apartments for Fourth Amendment purposes. See United States v. Chadwick, 433 U.S., at 12, 97 S.Ct., at 2484; United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion). But here petitioners’ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy. Supra, [99 S.Ct.] at 430.” (Footnote omitted.) (Emphasis supplied.)
”Rakas shifted the focus of the standing question from whether an individual was an object of a search or seizure to whether the individual‘s right to privacy
As Rakas noted, the question of whether a defendant‘s Fourth Amendment rights have been violated by an illegal search pivots on the defendant‘s “legitimate expectation of privacy” in the area search. 439 U.S. at 143, 99 S.Ct. at 430. “While an ownership or possessory interest is not necessarily required, the mere legitimate presence on the searched premises by invitation or otherwise is insufficient in itself to create a protectable expectation.” United States v. Meyer, 656 F.2d 979, 981 (5th Cir.1981).
In Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the Court held that Rawlings’ admission at the suppression hearing that he did not believe that a purse belonging to a female acquaintance would be free from governmental intrusion supported the conclusion that Rawlings did not meet his burden to prove that he had a legitimate expectation of privacy in the purse in which certain drugs were found by the officers. The court also held that the mere fact that Rawlings claimed ownership of the drugs found in the purse did not entitle him to challenge the search of the purse.
In Curren v. State, 656 S.W.2d 124 (Tex.App.-San Antonio 1983), the court found that the defendant had no legitimate expectation of privacy in the contents of a purse of a woman passenger found on the dashboard of a car “parked suspiciously alongside a median in the street” with the appellant outside the car near an area where heavy equipment was stored. At the suppression hearing appellant offered no evidence establishing a proprietary interest in the purse containing the contraband.
There the court, speaking through Justice Cantu, wrote:
“Under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a defendant who seeks to suppress evidence of crime must show that some personal Fourth Amendment right of his was implicated in the police actions leading to seizure of the evidence. He must show that he himself had some ‘legitimate expectation of privacy’ that was improperly intruded upon by agents of the government. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). This now applies with equal force to possessory offenses. The ‘automatic standing’ rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was expressly abandoned in Salvucci and was not available to appellant at his hearing held on November 9, 1981, after the effective date of the Salvucci ruling.”
“In the absence of some showing that appellant entertained a legitimate expectation of privacy in the purse and its contents, appellant is without standing to challenge the legality of the search. Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App.1982); Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981).”
In the instant case a taxicab was involved. A taxicab is still a highly mobile motor vehicle subject to the same, if not more, licensing and registration regulations as other vehicles and “necessarily lead to reduced expectations of privacy.” California v. Carney, supra, 471 U.S. at 392, 105 S.Ct. at 2070, 85 L.Ed.2d at 414 (1985).
In the instant case appellant claimed no possessory interest in the taxicab and specially denied ownership of or interest in the contraband, asserting that it was not his and he had no idea how the item got under the front passenger seat. Appellant made no claim that he had used or attempted to use or expect privacy in the area under the seat even to deposit his chewing gum, an area in which the majority acknowledges that the cab driver, a perfect stranger, may also have had a degree of privacy. Appellant made no showing and did not establish
Believe it or not, the majority reverses the trial court and the Court of Appeals, under the facts here presented, holding appellant had a legitimate expectation of privacy in the area under the front seat of the cab2 and had standing to challenge the search of that area which revealed contraband he claimed under oath he did not own. Hogwash. The trial court did not err in overruling the motion to suppress. The judgment of the Court of Appeals was correct.
I dissent.
W.C. DAVIS, J., joins this dissent.