Kothe v. State

• Decision Date: 20 October 2004
• Docket Number: No. 1738-03.,1738-03.
• Citation: 152 S.W.3d 54
• Parties: Craig Allen KOTHE, Appellee, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

152 S.W.3d 54

Craig Allen KOTHE, Appellee, v. The STATE of Texas.

No. 1738-03.

Court of Criminal Appeals of Texas.

October 20, 2004.

David A. Schulman, Austin, for Appellant.

E. Bruce Curry, District Attorney, Kerrville, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

Deputy Forslund detained Craig Kothe for suspected DWI. In conjunction with a field sobriety test, the deputy requested a computer search for outstanding warrants on Mr. Kothe. Deputy Forslund determined that Mr. Kothe was not intoxicated, but during or immediately after the warrant check, he received a dispatch stating that Mr. Kothe might be in possession of missing property. With Mr. Kothe's consent, the deputy searched the car and found drug paraphernalia. The deputy then spoke with the passenger, Ms. Brantley, who informed him that she was carrying heroin at Mr. Kothe's request.

Two issues are presented in this case.¹ First, does Mr. Kothe have standing to challenge the deputy's search of the passenger? We hold that, because Mr. Kothe had a reasonable expectation of privacy in not being subjected to an unduly prolonged detention, he has standing to challenge the seizure of evidence obtained by exploiting that detention. Second, is the continued detention of a driver for an additional three to twelve minutes while waiting for the results of a routine computer driver's license check "reasonable" if the officer's original articulable suspicion had already been resolved? We hold that, viewed in the totality of the circumstances, the additional short detention period was not a violation of the Fourth Amendment. We reverse the judgment of the court of appeals which held that Kothe's continued detention was constitutionally unreasonable.²

I.

A. Factual Background

During the evening of July 24, 2001, Kendall County Deputy Forslund was on routine patrol when he received a radio dispatch about a possibly intoxicated driver. The dispatcher said that someone driving a red Jeep behind the car had called in the report. Shortly thereafter, Deputy Forslund spotted the described car pulling into a highway rest stop. The deputy pulled up behind the car, radioed in the license plate number, approached the driver, Mr. Craig Kothe, and asked for his driver's license.

Deputy Forslund conducted a field sobriety test of Mr. Kothe, in conjunction with running a driver's license and warrant check. The deputy concluded that Mr. Kothe was not intoxicated and returned to his patrol car to wait for the results on the warrant check. The check showed no outstanding warrants. Just as Deputy Forslund prepared to release Mr. Kothe, he received a second dispatch which described Mr. Kothe and his car. The dispatcher stated that the sheriff's office had received a teletype earlier in the day that Mr. Kothe might be in possession of a blue bank bag containing old silver coins taken from someone's household safe. The Fredericksburg police teletype requested that officers retrieve the bank bag and coins, but not arrest Mr. Kothe.

At this point, Deputy Forslund approached Mr. Kothe's car and asked him about the bag and coins. Mr. Kothe said that there was no blue bag in his car. Deputy Forslund asked: "Do you mind if I search? Do you mind if I look?" Mr. Kothe said, "No," and filled out a written consent to search form. Deputy Forslund then looked in the front console of the car and found drug paraphernalia, but no blue bank bag. After finding the paraphernalia, the deputy questioned the passenger, Mr. Kothe's girlfriend, Jennifer Brantley. She was acting very nervous and said that she had two baggies of heroin, which Mr. Kothe had asked her to hold, in her bra. She handed over the baggies, and Officer Forslund arrested Mr. Kothe and Ms. Brantley for possession of heroin and drug paraphernalia.

After Mr. Kothe was indicted for possession of a controlled substance, he filed a motion to suppress the heroin, claiming that Deputy Forslund's continued detention of him after the deputy had determined that Mr. Kothe was not intoxicated was constitutionally unreasonable and illegal. The motion focused on the estimated three to twelve minute period between the moment that Deputy Forslund determined Mr. Kothe was not intoxicated and the time he re-approached Mr. Kothe to ask about the blue bank bag.³ After hearing the evidence, the trial court orally granted the suppression motion and later filed written Findings of Fact and Conclusions of Law.⁴ The State appealed.

B. The Court of Appeals' Opinion

Initially, the San Antonio Court of Appeals reversed the trial court's ruling, but, on rehearing, it withdrew its prior opinion and substituted one affirming the trial court's suppression order.

As for the standing issue, the court of appeals agreed with the State that Mr. Kothe would normally lack standing to complain about the search of Ms. Brantley. The court held that, in this case however, the search issue was "transcended by the illegal detention."⁵ However, the court of appeals concluded that, because of Mr. Kothe's prolonged detention, all of the evidence seized thereafter was tainted by that initial illegality.

In assessing whether Mr. Kothe's Fourth Amendment rights were violated by his continued detention, the court of appeals deferred to the trial court's determination of facts and rulings on mixed questions of law and fact. The court applied an abuse of discretion standard of review to the trial court's legal, as well as his factual, findings. Stating that "[t]hese are findings we cannot disturb on appeal," the court held that Deputy Forslund's conduct was unreasonable under the circumstances and violated the Fourth Amendment.⁶

II.

Before addressing whether Mr. Kothe's Fourth Amendment rights were violated by the continued detention, we must first assess whether Mr. Kothe has standing to complain about the seizure of the heroin. Mr. Kothe has standing to contest the search only if he had a reasonable personal expectation of privacy that he claims was violated.

A. Standing

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.⁷ He must prove that he was a "victim" of the unlawful search or seizure.⁸ He has no standing to complain about the invasion of someone else's personal rights.⁹ Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation.¹⁰ 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.¹¹

In this case, the State failed to challenge Mr. Kothe's standing to complain about the present search or seizure in the trial court. Mr. Kothe argues that the State cannot raise the issue on appeal in the context of a warrantless search when the State was the losing party in the trial court. We disagree. This Court has previously stated that, because standing is an element of a Fourth Amendment claim, 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.¹² The appellate court may raise the issue of standing on its own;¹³ it may analyze that issue as a part of the Fourth Amendment claim presented;¹⁴ or it may conclude that the State has forfeited that argument because it failed to raise it in the trial court.¹⁵ In this case, the court of appeals did address the State's complaint concerning Mr. Kothe's standing and concluded:

Although we agree Kothe has no standing to complain about any search and seizure conducted against Brantley, that issue is transcended by the illegal detention that was found to have occurred earlier. The trial court ruled that all of the evidence seized, including the two baggies of heroin taken from Brantley, was tainted because it was obtained during the illegal detention.¹⁶

The court of appeals is correct in its conclusion on standing.

In addressing standing, "it is critical that the precise police conduct being objected to be properly identified, for this may itself turn out to be determinative on the standing issue."¹⁷ In this case, the State argues that Mr. Kothe had no reasonable expectation of privacy in the two balloons of heroin secreted in Ms. Brantley's bra. True enough. Mr. Kothe cannot complain about a search of Ms. Brantley. But that is not the basis of his complaint.

Rather, Mr. Kothe's Fourth Amendment claim is based upon a purportedly prolonged detention of himself as the driver of his car. He argues that, although Deputy Forslund initially had articulable suspicion to detain him, once the deputy determined that Mr. Kothe was not intoxicated, any further detention, without articulable suspicion of some other crime, violated the Fourth Amendment. He claims that the later search of Ms. Brantley was made by exploiting that initial illegality, and it is "fruit of the poisonous tree" of the violation of Mr. Kothe's personal Fourth Amendment right to be free from unreasonable seizures.¹⁸

The testimony in this case establishes that both Mr. Kothe and Ms. Brantley had a reasonable expectation of privacy in the right to be free from an illegal detention. "The intrusion a vehicle stop causes is personal to those in the car when it occurs."¹⁹ As explained by Professor LaFave:

If either the stopping of the car or the passenger's removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit. (Quite obviously, a driver nonowner likewise has standing regarding the stopping of the vehicle or his...