State v. Patrick Knesek ( 2017 )

NUMBER 13-16-00657-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
PATRICK KNESEK, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellee Patrick Knesek was indicted for possession of methamphetamine with
intent to deliver.1 Appellee moved to suppress the evidence that was seized from the
1 Because the amount of methamphetamine was, by aggregate weight, four grams or more but
less than 200 grams, the charged offense was a felony of the first degree. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.102(6), 481.112(a), (d) (West, Westlaw through Ch. 49, 2017 R.S.).
hotel room where he was arrested. The trial court granted the motion, and the State filed
this interlocutory appeal.2 By one issue, the State argues that the trial court abused its
discretion in granting the motion to suppress. We affirm.
I. BACKGROUND
Six witnesses testified at the suppression hearing: Mike Mendez, a security guard
at the Sun Suites hotel in Corpus Christi, who placed a call to 911 concerning suspicious
activity in hotel room 127; appellee, who was found in room 127 and arrested on suspicion
of possession of methamphetamine; and four police officers who investigated the call and
arrested appellee: Robert Cabello, Allen Miller, Matthew Razzo, and Krystal Rodriguez.
Following the hearing, the trial court entered findings of fact and conclusions of
law. As we explain, the findings are thorough and supported by the record. From these
findings, we distill the following facts:
At 3:18 a.m. on October 26, 2014, Mendez called 911 to report possible drug
activity in room 127. Mendez testified that for several days, he had been watching the
occupants of the room with suspicion as they came and went. The occupants were later
identified as appellee and his friend Brandon Tedder, a co-defendant in the case. On
the night in question, Mendez found the door of room 127 open and the room vacant.
He saw through the open door what appeared to be a bong sitting on a table. The trial
court found Mendez’s testimony credible.
Officers Razzo and Rodriguez arrived at the hotel at 3:26 a.m. The officers spoke
with Mendez and then proceeded to room 127. They found the door ajar, but not so far
2 See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through Ch. 49, 2017 R.S.).
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open that they could observe anything within the room. Officer Razzo knocked on the
door hard enough that it swung open, revealing a bong on a table. The trial court found
that Officer Razzo did not simply intend to knock on the door to announce his presence;
instead, based on acknowledgements made by Officers Razzo and Rodriguez that were
captured on a body-microphone recording, the trial court found that Officer Razzo
intended to open the door through the pretense of knocking.
The officers entered the room and found no one present. They inspected the
bong, and Officer Razzo testified that he did not think that the bong contained any drug
residue. Officer Razzo also inspected an auto insurance card he located among various
papers on the bed. He obtained a name from the card—Brandon Tedder—and radioed
the name in to dispatch at 3:34 a.m., whereupon he learned that Tedder had an extensive
criminal history. The officers also saw several items on the floor, including luggage,
duffel bags, power tools, and equipment. The trial court found that the officers did not
seize any contraband or evidence, and they “made no attempt to secure the premises or
obtain a search warrant before they closed the door to the room.”
The officers met with Mendez and instructed him to call them when the two
occupants returned so that the police could resume their investigation. Mendez had an
ongoing working relationship with Officer Razzo, and he had Officer Razzo’s personal cell
phone number. The officers left at 3:46 a.m.
Approximately thirty minutes later, Mendez contacted Officer Razzo on his cell
phone and also called 911 to report that the two individuals had returned to their room.
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According to Mendez, the two individuals had double parked their car behind another
vehicle directly in front of room 127.
The trial court found that room 127 was rented in Tedder’s name, although both
he and appellee “had been using the room for at least several days.” According to the
findings, both men “had numerous personal items in the room, both left the room together
at approximately noon on October 25, 2014” to drive to Houston, and “both had returned
to the room together shortly after 4:00 a.m. on October 26, 2014.” Appellee testified that
he made a lengthy use of the restroom upon their return.
At 4:24 a.m., three officers responded to Mendez’s second call: Officers Cabello,
Miller, and Rodriguez. Each of the officers testified that they observed nothing unlawful
as they approached hotel room 127. The trial court found that the only knowledge that
the officers had concerning any drug activity related back to the earlier entry by Officers
Razzo and Rodriguez.
When the officers knocked, Tedder answered by opening the door “6–10 inches,”
according to the findings. The officers inquired about the double parked vehicle and then
asked Tedder to step outside. Tedder squeezed out the hotel room door, “intentionally
not opening it more than necessary to exit.” As Tedder exited the room, officers asked
if there was anyone else present. Tedder responded that there was. Officers instructed
him to tell appellee to come out as well, and Tedder did so.
Tedder attempted to close the door as he exited the room, but an officer stuck out
his foot to block the door from closing. Tedder was immediately patted down for
weapons and handcuffed. As appellee neared the door, the door was pushed open, and
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Officer Miller entered the room. No drug paraphernalia was visible to any of the officers
until Officer Miller entered the room.
Officer Miller saw the bong over appellee’s shoulder and moved to secure it. As
Officer Miller entered, appellee was removed from the room, patted down, and
handcuffed. When Officer Miller approached the table where the bong lay, he also
noticed baggies containing what later was confirmed to be methamphetamine.
Tedder and appellee were placed in separate patrol units. Officer Cabello’s
dashboard camera was then activated, and the microphone worn by Officer Cabello
began to record the officers’ conversation. Shortly afterward, Officer Razzo arrived at
the hotel. The officers discussed the previous entry into room 127 earlier that morning.
They also discussed their suspicion that Tedder and appellee had committed burglaries
and that there was stolen property in the room—in particular, the bags of power tools.
The officers continued to discuss the incident and inspect the room for at least thirty
minutes after Tedder and appellee were placed in the units.
Though Officer Razzo was present during both the first and second calls out to
Sun Suites, he did not make a report of either incident. Similarly, Officer Rodriguez was
present at both entries into room 127. However, in her report concerning the second
entry into the room, Officer Rodriguez did not mention the first entry.
Officer Cabello called Agent Robert Larock and dictated various facts to be
included in Larock’s affidavit in support of a search warrant, which was obtained some
hours later. Larock was not informed of the first entry into room 127, that suspected
contraband was left in place in the room, or that the security guard was instructed to, and
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did, call the officers back to the room a second time. This information was omitted from
his affidavit.
The trial court found that none of the officers’ testimony was credible. According
to the trial court’s findings, the officers “contradicted one another, claimed to not
remember important details, and were impeached by glaring omissions in their
testimony . . . .”
Based on these facts, the trial court concluded that multiple aspects of the officers’
investigation, arrest, and seizure were unlawful, and the trial court entered other
supporting conclusions. The court granted appellee’s motion to suppress, and this
interlocutory appeal followed.
II. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion under a bifurcated standard. Lopez v. State, 512 S.W.3d 416, 419 (Tex.
App.—Corpus Christi 2016, no pet.). When the trial court makes express findings of fact
in a suppression hearing, we afford almost total deference to those findings as long as
they are supported by the record. State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim.
App. 2014). We apply the same standard when reviewing the trial judge’s application of
law to questions of fact when resolution of those questions depends on an assessment
of credibility and demeanor. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.
2013). We apply a de novo standard of review to pure questions of law and to mixed
questions of law and fact that do not depend on the evaluation of credibility and
demeanor. Id. Whether the facts of the case, once determined, give rise to a
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reasonable expectation of privacy is a question of law to be reviewed de novo. State v.
Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (en banc).
III. DISCUSSION
A. Standing
On appeal, the State first challenges the trial court’s conclusion that appellee had
standing to challenge the legality of the searches of room 127. The State contends the
hotel room was Tedder’s alone, and appellee did not carry his burden to demonstrate that
he had a reasonable expectation of privacy in Tedder’s hotel room—a prerequisite for
challenging the legality of the searches.
1. Applicable Law
An accused has standing to challenge the admission of evidence obtained by an
unlawful search or seizure only if he had a legitimate expectation of privacy in the place
invaded. Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). To
demonstrate standing, the accused bears the burden of establishing that he had a
subjective expectation of privacy in the place searched that society is prepared to
recognize as reasonable. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App.
2002).
A registered guest in a hotel room is entitled to constitutional protection against
unreasonable searches and seizures. Stoner v. California, 376 U.S. 483, 490 (1964).
Depending on the circumstances, visitors of the registered guest may also have standing.
See Moore, 395 S.W.3d at 160. If the visitor is an overnight guest, the visitor has
standing because the visitor shares the registered guest’s reasonable expectation of
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privacy in the room. Id. However, if the visitor is a casual guest who does not stay
overnight, the visitor’s standing will depend on the totality of the circumstances, including:
(1) whether the accused had a property or possessory interest in the
place invaded;
(2) whether he was legitimately in the place invaded;
(3) whether he had complete dominion or control and the right to exclude
others;
(4) whether, prior to the intrusion, he took normal precautions
customarily taken by those seeking privacy;
(5) whether he put the place to some private use; and
(6) whether his claim of privacy is consistent with historical notions of
privacy.
Id. at 159. This list of factors is not exhaustive, and no one factor is dispositive. Id.
2. Analysis
The State submits that appellee failed to present any evidence to show that his
status rose to the level of an overnight guest or that he otherwise had a legitimate privacy
interest in the room.
In response, appellee asserts that his privacy interest was made manifest by his
long term use of the hotel room, his placement of his personal effects in the room, and
his intent to sleep in the room that night.3 We agree with appellee. As the trial court
found,
Room 127 had been rented by Brandon Tedder although both he and
defendant [appellee] had been using the room for at least several days.
Both had numerous personal items in the room, both left the room together
3 In the alternative, appellee contends that he has standing under article 14.05 of the Texas Code
of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 14.05 (West, Westlaw through Ch. 49, 2017 R.S.).
Because we find appellee’s first argument dispositive, we need not address his alternative argument. See
TEX. R. APP. P. 47.1
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at approximately noon on October 25, 2014, and both had returned to the
room together shortly after 4:00 a.m. on October 26, 2014.
The trial court ultimately concluded that both appellee and Tedder “had reasonable
expectations to privacy in the hotel room they shared usage of, and, therefore, have
standing to challenge the legality of the searches[.]”
First, the record supports the trial court’s ruling that Tedder enjoyed a reasonable
expectation of privacy in the hotel room. It is undisputed that Tedder had been a
registered guest of the hotel for weeks. See Stoner, 376 U.S. at 490. The record also
reveals other “objective indicia” of rightful privacy, such as the fact that Tedder had many
“personal belongings” in the room, see Moberg v. State, 810 S.W.2d 190, 194 (Tex. Crim.
App. 1991) (en banc), and that the curtains were drawn as officers approached the room.
See Smith v. State, 176 S.W.3d 907, 914 (Tex. App.—Dallas 2005, pet. ref’d). Appellee
testified that when Tedder opened the door, he was careful to avoid exposing the contents
of the room to the police, opening the door only six to eight inches, blocking the officer’s
view with his body, and then sliding outside. In doing so, Tedder avoided compromising
his privacy to the plain view of the officers. See, e.g., Bouyer v. State, 264 S.W.3d 265,
267 & 270 (Tex. App.—San Antonio 2008, no pet.).
Second, the record adequately supports the trial court’s ruling that appellee was
an overnight visitor who shared in Tedder’s expectation of privacy. See Moore, 395
S.W.3d at 160. Appellee testified that he had regularly used the hotel room in the weeks
prior to the arrest. Mendez and Officer Cabello testified that appellee had been
intermittently staying with Tedder for weeks, such that Mendez and Officer Cabello
viewed it not just as Tedder’s room, but as “their room”—i.e., both Tedder and appellee’s
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room. See Rakas v. Illinois, 439 U.S. 128, 141 (1978) (interpreting Jones v. United
States, 362 U.S. 257, 259 (1960) and citing Jones’s routine prior use of his host’s
apartment as support for Jones’s expectation of privacy).
The record also supports the view that appellee “intended to stay overnight” on the
date of his arrest.4 See Moore, 395 S.W.3d at 161. Before the two men left for Houston,
appellee put a duffel bag with his personal effects in the room, including his laptop and a
change of clothes. See Minnesota v. Olson, 495 U.S. 91, 97 n.6 (1990) (noting, with
importance, the fact that appellant kept a change of clothes in the place invaded); Moore,
395 S.W.3d at 161 (emphasizing “personal belongings”). Upon his return, appellee
made an undoubtedly private use of the hotel bathroom. See Moore, 395 S.W.3d at
159–60; see also Giles v. State, No. 08-01-00080-CR, 2003 WL 68178, at *3 (Tex. App.—
El Paso Jan. 9, 2003, no pet.) (not designated for publication) (listing unrestricted access
to host’s bathroom among the circumstances that indicated overnight-guest status).
Appellee testified that at the moment the police arrived, going to sleep for the night was
an immediate possibility, and the timing of their arrival—around 4:30 a.m.—lends
credence to that testimony. See Moore, 395 S.W.3d at 161; cf. Weaver v. State, 265
S.W.3d 523, 534 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (finding that appellant’s
nap in apartment at 5:00 p.m. did not establish status as overnight guest); Johnson v.
State, No. 14-14-00358-CR, 2016 WL 836767, at *5 (Tex. App.—Houston [14th Dist.]
4 Because there is evidence that appellee also intended to stay overnight on the date of his arrest—
which the trial court found credible—we find this case distinguishable from the authority cited by the State:
Gouldsby v. State, 202 S.W.3d 329, 335 (Tex. App.—Texarkana 2006, pet. ref’d) (rejecting a claim of
standing where appellant relied solely upon testimony that he had intermittently stayed overnight in the
past, and the trial court found much of this testimony unconvincing).
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A.K. Marsh. 3, 2016, no pet.) (not designated for publication) (“The officers searched [the hotel
room where appellant was found] at approximately 12:30 in the afternoon, and that timing
does not favor a suggestion that appellant had stayed overnight or that he intended to
stay overnight.”).
Based on the above, the record adequately supports the trial court’s conclusions
that appellee was Tedder’s overnight guest, that appellee shared his host’s reasonable
expectation of privacy, and that appellee therefore had standing to challenge the
warrantless search of his room. See Moore, 395 S.W.3d at 160; Granados, 85 S.W.3d
at 223.
B. Legality of the Searches and Seizure
The State next argues that even if appellee had standing, the officers’ search and
seizure of contraband was lawful. Under the Fourth and Fourteenth Amendments, a
search conducted without a warrant based on probable cause is per se unreasonable,
subject only to a few specifically established and well-delineated exceptions. Meekins
v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).
The State argues that most of the officers’ actions were justified by various
exceptions to the warrant requirement and other rules of search and seizure—among
them, rules relating to reliable citizen informants, “knock-and-talk” encounters, community
caretaking functions, probable cause, independent sources and the attenuation of taint,
the plain view exception, protective sweeps, searches incident to arrest, and the
acceptable forms of information in search warrants.
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However, the State does not argue that any exception or justification applies to a
critical sequence of events which occurred during the officers’ second visit to the Sun
Suites hotel: the trial court found that after Tedder answered the door, he slid out from
the narrow opening in the doorway and then tried to close the door behind him; however,
“an officer impeded the door from closing,” “the door was pushed open,” and “Officer
Miller entered the room”; Officer Miller then saw a bong on a table. “No drug
paraphernalia was visible to any of the officers until Officer Miller entered the room.”
While the State offers myriad justifications relating to other aspects of the investigation,
the State does not advance any justification for this sequence of events.
Instead, the State argues that these findings are ambiguous. According to the
State, the quoted findings do not specifically say who pushed the door open wide enough
for the police to see into the room: Officer Miller or appellee. The State urges us to
resolve this ambiguity by remanding the matter to the trial court for further findings of fact
to clarify who pushed open the door.
The finding in question is not ambiguous, and no remand is necessary. This
finding reads: “As [appellee] neared the hotel door and/or began to exit, the door was
pushed open and Officer Miller entered the room.” (Emphasis added). If, as the State
contends, the trial court meant that appellee opened the door, the operative verb would
have been “pulled,” given the layout of the room.
Moreover, the State neglects to mention two conclusions of law, which further
clarify the sequence of events:
10. By pushing open the hotel room door, the officers are precluded from
claiming they saw the bong pipe (or any contraband) in plain view.
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11. Officer Miller unlawfully entered the hotel room.
If the disputed finding is at all unclear about who pushed the door open, these conclusions
make the trial court’s view clear beyond doubt.
The State further argues that there was conflicting testimony on who opened the
door. However, the trial court unambiguously found that none of the officers’ testimony
was credible, including their testimony that appellee voluntarily swung the door open wide
enough to give the officers a plain view of the contraband. Instead, it is evident that the
trial court believed appellee’s testimony that officers prevented Tedder from closing the
door, forced their way into the room, and immediately seized appellee and the
contraband. The record adequately supports this credibility determination, and we defer
to it on appeal. See Granville, 423 S.W.3d at 404.
Based on these facts, we determine that for purposes of the Fourth Amendment,
a search was conducted when Officer Miller entered room 127. See Valtierra v. State,
310 S.W.3d 442, 448 (Tex. Crim. App. 2010); see also Buschardt v. State, No. 05-11-
00504-CR, 2012 WL 6035341, at *2 (Tex. App.—Dallas Dec. 5, 2012, pet. ref’d) (not
designated for publication) (holding that “entry into a hotel room is a search for purposes
of the Fourth Amendment,” citing Valtierra). This warrantless search led to the discovery
and seizure of the methamphetamine. The State does not advance any justification for
these actions. Without a warrant or any exception that would otherwise validate these
steps, the search and seizure were per se unlawful, and suppression of the contraband
was required. See Meekins, 340 S.W.3d at 458.
C. Disposition
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Accordingly, the trial court did not abuse its discretion in granting suppression.
See Lopez, 512 S.W.3d at 419. We overrule the State’s sole issue on appeal.
IV. CONCLUSION
We affirm the ruling of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
3rd day of August, 2017.
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