Nored v. State, 05-93-00208-CR

• Decision Date: 14 March 1994
• Docket Number: No. 05-93-00208-CR,05-93-00208-CR
• Citation: 875 S.W.2d 392
• Parties: Jerry Mack NORED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 392

875 S.W.2d 392

Jerry Mack NORED, Appellant, v. The STATE of Texas, Appellee.

No. 05-93-00208-CR.

Court of Appeals of Texas Dallas.

March 14, 1994.

Petitions for Discretionary Review

Refused July 20, 1994.

Jeanette L. Drescher, Dallas, for appellant.

Anne B. Wetherholt, Dallas, for appellee.

Before LAGARDE, CHAPMAN and MORRIS, JJ.

OPINION

LAGARDE, Justice.

Jerry Mack Nored appeals his conviction for burglary of a building. After the trial court overruled appellant's motion to suppress, appellant pleaded guilty. Pursuant to a plea bargain, the trial court sentenced appellant to twenty-five years' imprisonment. Appellant brings two points of error contending that: (1) the police violated appellant's Fourth Amendment rights by monitoring a mobile tracking device and by entering appellant's property without a warrant; and (2) the police failed to obtain a statutorily required court order before installing a mobile tracking device. We overrule the points and affirm the trial court's judgment.

FACTUAL BACKGROUND

Highland Park police officer Greg Brandstatter testified that due to a rash of burglaries in an area of Highland Park, the police set up a "sting" operation to attempt to catch a burglar. The police placed a bicycle equipped with a mobile tracking device (a beeper) in a residential garage leased for that purpose. Theft-detection dye was placed on the handle bars and other parts of the bicycle. When the beeper signaled that the bicycle was being moved, the officers hurried to the garage; the bicycle was gone. The officers traced the beeper's signal on receivers in their squad cars and followed the signal to an apartment complex in Dallas about one-half mile outside the Highland Park city limits and less than a mile from the garage where the police had placed the bicycle.

The apartment was located within a yard surrounded by a wooden "privacy" fence. As Officer Brandstatter walked next to the fence, he heard a noise. He looked through a knothole in the fence and saw a bicycle matching the description of the bicycle taken from the garage. After officers with hand-held receivers confirmed that the beeper was inside the fence, the officers entered the gate and approached the apartment.

Officer Brandstatter knocked on the door. He testified that the officers intended to investigate whether the bicycle was in fact the one taken from the garage. When a man came to the door, the officers asked him to step outside. Officer Brandstatter asked him whether anyone was still in the house, and the man said, "Yes, the guy who lives here is in there." Officer Brandstatter then "summoned him out." When this man, appellant, came to the door, Officer Brandstatter "gave him over to Officer Barrow." When Officer Barrow saw that appellant had the theft-detection dye on his hands, he arrested him. ¹ The police checked the serial number on the bicycle and confirmed that it was the bicycle taken from the garage. Thirteen minutes elapsed from the time the beeper indicated that the bicycle was being moved until the officers arrested appellant.

MOTION TO SUPPRESS

Burden of Proof

When a defendant seeks to suppress evidence on the basis of the right to be free of unreasonable search and seizure, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). In Russell, the court of criminal appeals further explained the burden of proof as follows:

As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.

Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the State is unable to produce evidence of a warrant, it must prove the reasonableness of the search or seizure.

Russell, 717 S.W.2d at 9-10 (citations and footnote omitted). However, the State is not required to prove the propriety of the search beyond a reasonable doubt. Lalande v. State, 676 S.W.2d 115, 117-18 (Tex.Crim.App.1984).

Standard of Review

At a suppression hearing, the trial judge is the sole judge of the witnesses' credibility and the weight given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial judge may accept or reject any or all of the witnesses' testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078, overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App.1991). We do not engage in our own factual review. We only consider whether the trial court improperly applied the law to the facts. See Romero, 800 S.W.2d at 543. Absent a showing of an abuse of discretion, we do not disturb the trial court's findings. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). We view the evidence in the light most favorable to the trial court's ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988). If the evidence supports the trial court's ruling, we do not disturb that ruling. Johnson, 803 S.W.2d at 287. We must uphold the trial court's ruling if it can be upheld on any valid theory, regardless of whether the State argued it in the trial court or on appeal. See Lewis v. State, 664 S.W.2d 345, 347 (Tex.Crim.App.1984) (disposing of motion to suppress on grounds of appellant's lack of standing despite fact that State did not argue lack of standing at trial or on appeal).

FOURTH AMENDMENT RIGHTS

In his first point of error, appellant contends that the trial court erred in overruling his motion to suppress because the police violated his Fourth Amendment rights (1) by monitoring the beeper after appellant brought it within an area in which he had a reasonable expectation of privacy and (2) by entering onto the property without a warrant. ²

Monitoring the Beeper

Appellant does not contend under this point of error that the beeper was illegally installed or that the police could not monitor the beeper while the bicycle was in a public place. Appellant argues that the monitoring of the beeper violated his Fourth Amendment rights after he brought the bicycle inside the privacy fence surrounding his apartment. To resolve this issue, we must determine whether the monitoring of the beeper infringed "an expectation of privacy that society is prepared to consider reasonable." United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 3302, 82 L.Ed.2d 530 (1984) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)).

In support of his argument, appellant relies on a series of federal cases concerning the monitoring of legally obtained chemicals that can be used in the process of manufacturing or refining illegal drugs. See Karo, 468 U.S. 705, 104 S.Ct. 3296; United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983); United States v. Cassity, 631 F.2d 461 (6th Cir.1980); United States v. Bailey, 628 F.2d 938 (6th Cir.1980). In each of these cases, law enforcement officers placed beepers inside containers of chemicals that were sold to the suspects. The officers monitored the beepers as the chemicals were transported and then were taken inside a private area. The courts held that the monitoring of the beepers did not violate the suspects' reasonable expectations of privacy as long as the chemicals were in public areas, such as during transportation on public highways. However, the courts held that the monitoring did violate the suspects' reasonable expectations of privacy when the chemicals were taken out of public areas, such as inside a private residence. From these cases, appellant concludes that the monitoring of the beeper in this case violated appellant's reasonable expectation of privacy after the bicycle left the public area and entered appellant's private area, namely, the yard surrounded by the privacy fence.

The Karo, Knotts, Cassity, and Bailey cases are all distinguishable, however, because they involved legally obtained chemicals. It is not unreasonable to assume that property legally obtained will be free of police monitoring.

The courts have not applied the same reasoning to contraband. See United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) ("[T]here is a clear line of demarcation between on the one hand, contraband and other items, such as stolen goods, whose possession is illegal, and on the other, goods, whatever their suspected use, whose possession is legal."), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). The courts have consistently held that police installation and monitoring of beepers placed inside contraband does not violate the Fourth Amendment. See, e.g., United States v. Most, 789 F.2d 1411, 1416 (9th Cir.1986) (installation in heroin); United States v. Sheikh, 654 F.2d 1057, 1071 (5th Cir. Unit A Sept. 1981) (installation and monitoring in heroin), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982), overruled on other grounds by United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th Cir.1992) (en banc); United States v. Botero, 589 F.2d 430, 432 (9th Cir.1978) (installation and monitoring in cocaine), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); United States v. Dubrofsky, 581 F.2d 208, 211-12 (9th Cir.1978) (installation and monitoring in heroin); United States v. Bishop, 530 F.2d 1156, 1157 (5th Cir.) (per curiam) (installation and monitoring in money stolen from bank), cert. denied, 429...