State v. Klima

• Decision Date: 02 October 1996
• Docket Number: No. 934-95,934-95
• Citation: 934 S.W.2d 109
• Parties: The STATE of Texas, Appellant, v. Sharon KLIMA, Appellee. ,.
• Court: Texas Court of Criminal Appeals

Page 109

934 S.W.2d 109

The STATE of Texas, Appellant, v. Sharon KLIMA, Appellee.

No. 934-95,.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1996.

Ron Butler, Marlin, for appellee.

Thomas B. Sehon, District Attorney, Marlin, Matthew W. Paul, Asst. State's Attorney, Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellee was charged with possession of marihuana. Prior to trial, the trial court granted appellee's motion to suppress all of the State's evidence, including 180 mature marihuana plants seized from a farm occupied by appellee's co-defendant. The State appealed. The Court of Appeals affirmed, holding that the State was procedurally barred from raising the issue of standing for the first time on appeal. State v. Klima, 910 S.W.2d 15 (Tex.App.--Waco 1995). We granted the State Prosecuting Attorney's petition for discretionary review to consider this holding.

On September 7, 1992, the Falls County Sheriff's Department received a tip that marihuana was growing at a nearby residence. Deputy Sheriff Ben Kirk learned that the residence was a farm belonging to Paul Wilson, appellee's co-defendant. Kirk sought and obtained a search warrant of the Wilson farm based upon the anonymous tip. Kirk then flew over Wilson's farm in a helicopter, observed the marihuana and landed the helicopter on the Wilson farm and read the search warrant to Wilson. Deputy Kirk and other officers then searched the house, barn, and surrounding farm land, and confiscated growing and dried marihuana plants. Wilson was arrested for possession of marihuana. Appellee, who was not at the farm when the warrant was executed, surrendered to police several days later.

Appellee moved to suppress all evidence seized from the Wilson farm, claiming the search warrant was invalid under the Fourth and Fourteenth Amendments to the United States Constitution in that it was based upon uncorroborated information from an anonymous informant. The trial court agreed and granted appellee's motion to suppress as to all items seized from Wilson's farm. The State appealed the suppression order.

On appeal the State claimed that appellee did not have standing to challenge the validity of the search warrant or the underlying affidavit. The State, citing Flores v. State, 871 S.W.2d 714 (Tex.Cr.App.1993), and Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1985) (opinion on rehearing), argued that the failure to contest appellee's standing before the trial court did not prevent the Court of Appeals from considering that issue on appeal. The Court of Appeals rejected this argument, holding that the rule announced in Wilson, which allows the State to raise the issue of standing for the first time on appeal, applies only in those cases in which the trial court denied the motion to suppress. Klima, 910 S.W.2d at 18-19. The Court of Appeals concluded that Flores and Wilson were not controlling in this case because the State, not the appellee, brought the appeal. The Court of Appeals therefore refused to consider the merits of the State's point of error.

In Wilson, we held that standing could first be asserted by the State on appeal, and that the lack of such a challenge before the trial court would not be viewed as a " 'failure' of the government." ¹ Wilson, 692 S.W.2d at 669. This Court noted that the United States Supreme Court declared that the application of Fourth Amendment rights are personal in nature and are invariably intertwined with the concept of standing. Id. at 667, citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

"Rakas makes it plain that the question of a defendant's reasonable expectation of privacy is an issue going to the merits of his Fourth Amendment claim. Moreover, the Court has consistently held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)." Wilson, 692 S.W.2d at 667.

We further stated that Rakas put defendants on notice that the privacy interest in the premises searched is an element of their Fourth Amendment claim, which they bear the burden of establishing. Id. at 669; see also, Flores, 871 S.W.2d at 719-20 (following Wilson, holding that State may raise standing for first time on appeal in a case in which defendant's suppression motion was not granted). Failure to meet that burden and to establish standing may result in the denial of the motion to suppress. That decision will not be disturbed on appeal even in cases in which the record does not reflect that the issue was ever considered by the parties or the trial court. Wilson, 692 S.W.2d at 671.

As appellee points out, Wilson was a case in which the defendant appealed after the trial court denied his motion to suppress, and did not involve a State's appeal. Wilson, 692 S.W.2d at 668 (noting at the time Wilson was decided that the State did not have the right to appeal the granting of a motion to suppress); Flores, 871 S.W.2d at 720. Although distinguishable in this respect, the reasoning of Wilson is still applicable to the instant case and the observations made in Wilson remain true regardless of which party originally initiates the appellate process. Cf. Wilson, 692 S.W.2d at 668 (recognizing though not relying upon the line of cases which hold the government may raise the issue of standing for the first time on appeal regardless of whether the motion to suppress was granted or denied); State v. Brady, 763 S.W.2d 38, 42 (Tex.App.--Corpus Christi 1988, no pet.) (considering the standing issue sua sponte despite fact that State did not contest the issue before the trial court or on appeal in a case where defendant's suppression motion was granted); see also, United States v. Caicedo-Llanos, 960 F.2d 158, 162-63 (D.C.Cir.1992) (declaring the personal nature of Fourth Amendment rights obligates the party asserting them to prove his rights were violated and may allow appellate consideration of questions of law, such as standing, which were neither pressed nor passed upon by the court below); United States v. Morales, 737 F.2d 761, 764 (8th Cir.1984) (finding government lost right to challenge standing issue by making inconsistent arguments at the suppression hearing and on appeal); United States v. Hultgren, 713 F.2d 79, 83 n. 6 (5th Cir.1983) (noting that standing is no longer considered a separate and distinct issue from a Fourth Amendment claim and that the issue might not be waived by the government for failure to assert it before the trial court); United States v. Hansen, 652 F.2d 1374 (10th Cir.1981) (allowing government to challenge standing issue for first time on appeal after defendant's motion to suppress was granted).

In the instant case appellee, by bringing the motion to suppress, bore the burden of establishing all of the elements of her Fourth Amendment claim. Rawlings v. Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561, 65 L.Ed.2d at 642. Part of that proof included establishing her own privacy interest in the premises searched. Wilson, 692 S.W.2d at 666-67; Rakas v. Illinois, 439 U.S. at 149-50, 99 S.Ct. at 433, 58 L.Ed.2d at 404-05. The record also reveals that the State challenged the motion, although not on the issue of appellee's standing to contest the search. Article 44.01(a)(5), V.A.C.C.P., conferred upon the State the right to appeal the granting of the suppression order. ² The State properly appealed pursuant to Article 44.01(a)(5), V.A.C.C.P., challenging the trial court's determination that appellee's Fourth Amendment rights were violated. By raising the issue of standing for the first time on appeal, the State did not raise a new issue. Rather it challenged the trial court's holding that appellee met her burden of establishing that the government violated her reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. at 149-50, 99 S.Ct. at 433, 58 L.Ed.2d at 405; United States v. Caicedo-Llanos, 960 F.2d at 162 (holding courts "are powerless to rule on Fourth Amendment rights which do not belong to the parties before [them]" and that a defendant cannot convincingly argue surprise in such circumstances because he carries the burden of proving the extent of his Fourth Amendment rights from the outset). Appellee was on notice that it was her obligation to allege and prove standing, as standing was an element of her Fourth Amendment claim. Wilson, 692 S.W.2d at 669. The State's appeal properly placed the validity of the trial court's holding, hence appellee's standing, before the Court of Appeals and the Court of Appeals erred in refusing to consider the same.

Accordingly the judgment of the Court of Appeals determining that the issue of standing was not properly before it on appeal and declining to reach the merits of the State's claim is reversed. This cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.

MANSFIELD, J., concurring.

I join the opinion of the Court. It is clear to me that because the issue of standing was not litigated in the trial court, and because there was no reason or opportunity for it to be litigated at that stage by the nonprevailing party, i.e. the State, the State was entitled to raise it for the first time on appeal. However, as pointed out by Judge Clinton in his concurring opinion, fundamental fairness requires that, where a motion to suppress is denied, a non-State appellant is equally entitled to raise for the first time, on appeal, an issue not addressed by the trial court on which the State has the burden of proof.

CLINTON, Judge, concurring.

When this Court decided Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1985) (Opinion on State's...