Crosby v. State , 1985 Tex. App. LEXIS 7301 ( 1985 )

WHITHAM, Justice,

concurring.

I concur in the result. I differ with the majority’s disposition of this appeal. I write to express my views concerning appellant’s motion to suppress the cocaine. In my view, TEX.ALCO.BEV.CODE ANN. § 101.04 (Vernon 1978) must be considered in light of the “pervasively regulated business” exception to the warrant requirement found in Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1971). The majority fails to discuss these cases or the exception to the warrant requirement. Colonnade involved, as does the present case, laws regulating the alcohol beverage industry. Consequently, I cannot agree with the majority’s reasoning in overruling appellant’s first ground of error. In my view, the present case must be decided in light of the Supreme Court’s holding in Colonnade. I concur, therefore, that appellant’s first ground of error must be overruled, but for reasons much different from those relied upon by the majority.

Before setting forth these reasons, I comment upon an aspect of the majority’s opinion which concerns me. The majority’s broad language, particularly its reliance upon Clark v. State, 445 S.W.2d 516 (Tex.Crim.App.1969), troubles me. I cannot agree with the implication I read in the majority’s opinion that section 101.04 permits a licensee to waive fourth amendment rights of the licensee’s customers and employees. If a licensee’s customers and employees on the licensed premises can be searched without warrant, consent or probable cause for a purpose totally unrelated to enforcement of the Texas Alcoholic Beverage Code, then the majority’s opinion poses a serious threat to fourth amendment rights. See dissenting opinion by Judge Onion in Clark, 445 S.W.2d at 521. Furthermore, Colonnade follows Clark by one year and in my view renders Clark doubtful, if not meaningless, authority to support the majority’s holding in the present case.

That concern expressed, I return to Colonnade. To my mind, Colonnade cannot be ignored. Given the Supreme Court’s holding in Colonnade, section 101.04 cannot have the compelling effect on appellant’s fourth amendment rights attributed to this statute by the majority.

Section 101.04 provides:

By accepting a license or permit, the holder consents that the commission, an authorized representative, or a peace officer may enter the premises at any time to conduct an investigation or inspect the premises for the purpose of performing any duty imposed by this Code.

The licensee’s coerced “consent” in section 101.04 must be considered in light of the historical development of the regulation of the sale of liquor in the Anglo-American legal system. In Colonnade, the Supreme Court summarized the historical background, both in this country and in England, of strict governmental scrutiny of places that sell liquor to the public. As put by the Supreme Court:

The Government, emphasizing that the Fourth Amendment bans only “unreasonable searches and seizures,” relies heavily on the long history of the regulation of the liquor industry during pre-Fourth Amendment days, first in England and later in the American Colonies. It is pointed out, for example, that in 1660 the precursor of modern-day liquor legislation was enacted in England which allowed commissioners to enter, on demand, brewing houses at all times for inspection. Massachusetts had a similar law in 1692. And in 1791, the year in which the Fourth Amendment was ratified, Congress imposed an excise tax on imported distilled spirits and on liquor distilled here, under which law federal officers had broad powers to inspect distilling premises and the premises of the importer without a warrant.

Colonnade, 397 U.S. at 77, 90 S.Ct. at 777. Thus, the “consent” statutorily extracted from the licensee by section 101.04 is but a present day attempt to allow the State to enter “pervasively regulated business” premises at any time without a warrant. Put another way, section 101.04 is the Texas way of updating the English legislation of 1660 permitting “commissioners to enter, on demand, brewing houses at all times for inspection.” Therefore, this court must decide the present case in light of Colonnade.

In Colonnade, the Supreme Court agreed that legislative bodies, in that instance Congress, have broad power to design such powers of inspection under the liquor laws as deemed necessary to meet the evils at hand. Colonnade at 76, 90 S.Ct. at 776. The Supreme Court, however, placed a limitation on powers of inspection. That limitation is clear. The legislative body must make rules governing the procedure that inspectors must follow. In the absence of such rules, the Supreme Court was explicit. Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the fourth amendment and its various restrictive rules apply. Colonnade, 397 U.S. at 77, 90 S.Ct. at 777. Therefore, we must look to the Texas Alcoholic Beverage Code to find if the legislature made rules governing the procedure that inspectors must follow. If no rules exist, the fourth amendment and its various restrictive rules apply in the present case. I find no such rules in the Texas Alcoholic Beverage Code governing the inspection undertaken by Officer Rinebarger. Thus, we have a much different situation in the present case than in Biswell in which “[e]ach licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector’s authority. 18 U.S.C. § 921(a)(19). The dealer is not left to wonder about the purposes of the inspector or the limits of his task.” 406 U.S. at 316. Consequently, in my view, the fourth amendment and its various restrictive rules could apply in the present case. In order to determine if the fourth amendment and its various- restrictive rules do apply, we must first determine whether appellant had a reasonable expectation of privacy. To make that determination, we must consider Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and its progeny, particularly Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Consistently with Katz, the Supreme Court uniformly has held that the application of the fourth amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580. The inquiry normally embraces two distinct questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” i.e., the individual has shown that “he seeks to preserve [something] as private.” The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable’,” i.e., whether the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. 442 U.S. at 741, 99 S.Ct. at 2581.

The Searched Area

The fourth amendment protects people, not places. Katz, 389 U.S. at 351-52, 88 S.Ct. at 511. Addressing the inquiry, however, requires a more detailed description of the scene than made by the majority. Photographs and a diagram in evidence show a raised stage adjacent to the dance floor. The searched area is a small room offstage to a performer’s right as he faces the audience. A person on stage enters the room through a framed doorway wide enough to allow one person easy passage between stage and room. The doorway is the only means to enter or exit the room. There is no door in the doorway. Instead, a movable curtain of a single piece of fabric is suspended from a rod near the top of the doorway. When the curtain is positioned so as to cover the passageway, it appears possible for patrons in front of the stage to see under and around the curtain. When the curtain is pulled aside, an offstage view is presented. The room is the only “backstage” or “offstage” area of the nightclub. From the photographs, the only identifiable property in the room is a matching stuffed sofa and chair. The record is otherwise silent as to what other furniture, fixtures or conveniences were in the room. With that description, I return to the inquiry posed by Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580.

The First Part of the Inquiry

The question is whether appellant has shown that he seeks to preserve something as private. I invite the reader to consider what transpired during the course of the hearing on appellant’s motion to suppress. In his brief, appellant tells us that the searched area was “his enclosed, private dressing room” and that “the owner gave him exclusive use of the dressing room.” Appellant argues that, therefore, he had a reasonable expectation of privacy in his “dressing room” which was protected by the fourth amendment. As shown below, however, appellant by his own motion made during the suppression hearing caused to be stricken from the record all his testimony that would prove that the searched area was his “enclosed, private dressing room.”

Appellant testified at the hearing on his motion to suppress, but not at trial. During cross-examination, appellant invoked the fifth amendment. Appellant thereafter moved “the Court respectfully to allow us to withdraw [appellant] as a witness in these proceedings and have his testimony then not considered by the Court except for the limited purposes of establishing a reasonable expectation of privacy.” The trial court granted the motion to the extent “that [appellant] be allowed to stand down and not be subjected to any further questions.” The trial court, however, made the further ruling that:

[B]ut the Court is going to strike [appellant’s] testimony from the record and not consider it for any purpose in this hearing, that being his privilege as I see it. So, I will grant [appellant’s] motion in that regard.

Appellant made no objection to any part of the trial court’s ruling on his motion, including the ruling striking “his testimony from the record and not considering it for any purpose in this hearing.” Consequently, the record contains no testimony from appellant that would support a finding that the searched area was appellant’s “enclosed, private dressing room.”

Therefore, I look to see if testimony of other witnesses would support a finding that the searched area was appellant’s “enclosed, private dressing room.” The contract between Cardi’s and appellant is not in evidence. Cardi’s general manager and director of marketing and public relations testified that, as a part of the contractual relationship with appellant, Cardi’s was obligated to provide “a private dressing room away from the public.” (emphasis added). In my view, there is an important distinction, however, between a sanctuary provided to provide appellant an escape from nightclub patrons, i.e., the public, and a room constitutionally protected from intrusion by police officers without warrant, consent or probable cause. Indeed, Cardi’s local manager testified that it was not his understanding “that [appellant] was to be free from having peace officers going back and performing their appointed rounds there in the dressing room.”

Next, consider the other persons in the room where appellant was arrested and the man at the doorway who said to Officer Rinebarger “[y]ou can’t go in there.” There were five or six other persons in the room, in addition to appellant, when Officer Rinebarger entered. The record is silent as to who these persons were or by what right they were in the room. Thus, these persons could have been members of the appellant’s band, Cardi’s employees, Car-di’s customers, or other members of the public. Without appellant’s stricken testimony, the record does not tell us how appellant came to enjoy fourth amendment rights by being present in the searched area. Absent appellant’s stricken testimony, we have not a clue suggesting appellant had acquired some individual right of privacy to possess cocaine in a small room just offstage; crammed, as it must have been, with five or six unidentified and unexplained persons.

As to the man at the doorway, Cardi’s local manager testified that the man was employed by appellant and was at the doorway for purposes of “security.” Officer Rinebarger testified that the man first identified himself as appellant’s bodyguard and later as appellant’s bass player. Otherwise, the record is silent as to the man’s duties and instructions. We do know, however, from the testimony of Cardi’s local manager that it was not the manager’s understanding “that [appellant] was to be free from having peace officers going back and performing their appointed rounds there in the dressing room.” In my view, this testimony of Cardi’s local manager negates any implication from leading questions put to Cardi’s employees and to police officers that the room was a “private dressing room” in the sense that appellant enjoyed a fourth amendment right of privacy in the room. Therefore, the record tells us only that a security-bodyguard-bass player employed by appellant did not want officer Rinebarger to enter the room, and that appellant had no right in Cardi’s to be free from police intrusion into the room. Consequently, on this record, I conclude that the presence of the man at the doorway does not support appellant’s assertion of an individual right of privacy in the room.

Moreover, I conclude that there is yet another reason why appellant has failed to show that he seeks to preserve something as private. I reach this conclusion because the cocaine in appellant’s possession was exposed to the public and, therefore, without a privacy interest. I refer to the presence of the five or six unidentified and unexplained persons in the room when Officer Rinebarger entered. Importantly, appellant failed to establish that these persons were not members of the public. The fourth amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth amendment protection. Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). On this record, therefore, I can only conclude that appellant exposed his cocaine to the public.

Therefore, the first part of the inquiry identified in Smith v. Maryland, 422 U.S. at 740, 99 S.Ct. at 2580, must be answered in the negative for two reasons. First, appellant failed to prove that he exhibited an actual subjective expectation of privacy in the searched area. Second, by exposing his cocaine to the public, appellant failed to show that he seeks to preserve something as private.

The Second Part of the Inquiry

Next, I considered the second part of the inquiry posed in Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580. The question is whether appellant’s expectation, viewed objectively, is justifiable under the circumstances. Other than to indicate that appellant was publicly commencing the ingestion of cocaine, the record is silent as to what actual use appellant made of the room. From the testimony and the photographs, it is obvious that appellant exited the stage, sat down on the floor of the room just inside the doorway and opened his bag. Appellant sat on the floor with his back to the doorway. Thus, in my view, appellant was not found in possession of cocaine in his private dressing room. Rather, appellant was found in possession of cocaine while seated on the floor of the offstage area of the nightclub just past the stage exit. To my mind, the searched area was not a backstage individual dressing room with a star painted on the door as appellant would have us believe. Instead, the searched area on this record was no more than a part of the nightclub premises in which appellant and five or six unidentified and unexplained persons had gathered. Therefore, as I view the evidence, appellant was found in possession of cocaine by Officer Rinebarger in a public place; not a private place. Thus, even if appellant did harbor some subjective expectation that the room offstage would remain private, this expectation is not one that society is prepared to recognize as reasonable under the facts of the present case. Accordingly, the second part of the inquiry identified in Smith v. Maryland, 422 U.S. at 740, 99 S.Ct. at 2580, must be answered in the negative.

For the above reasons, appellant failed to meet his burden of showing a reasonable expectation of privacy in the searched area. Accordingly, the fourth amendment and its various restrictive rules do not apply. Colonnade, 397 U.S. at 77, 90 S.Ct. at 777. Therefore, the trial court did not err in denying appellant’s motion to suppress the cocaine on fourth amendment grounds.

Article 1, § 9 of the Constitution of the State of Texas

I now consider appellant’s challenge to the search under the Constitution of the State of Texas. Although the majority ignores appellant’s challenge to the search under article 1, section 9,1 would hold that the search did not violate appellant’s rights under this State’s constitution. I would do so because our court of criminal appeals in a reasonable expectation of privacy case has identified the fourth amendment and article 1, section 9, as identical safeguards. The basic purpose of the fourth amendment and article 1, section 9, is to safeguard the privacy of individuals from arbitrary invasions by governmental intrusions. Thus, the fourth amendment and article 1, section 9, protect people and not places. Green v. State, 566 S.W.2d 578, 582 (Tex. Crim.App.1978) (en banc). Consequently, in deciding appellant’s challenge under article 1, section 9, it must first be determined if appellant had a reasonable expectation of privacy. Since the basic purpose of both constitutions is to safeguard the privacy of individuals from arbitrary invasion by governmental intrusions and since the court of criminal appeals has identified the two constitutional provisions as identical safeguards in a reasonable expectation of privacy case, I conclude that in the present case that article 1, section 9, of the Constitution of Texas affords appellant no greater protection against searches than that provided by the fourth amendment. Therefore, having concluded that appellant had no reasonable expectation of privacy in determining whether the fourth amendment and its restrictive rules apply, I likewise conclude that appellant had no reasonable expectation of privacy in determining whether article 1, section 9, and its restrictive rules apply. Thus, I would hold that the Constitution of Texas affords appellant no protection in the present case. Accordingly, the trial court did not err in denying appellant’s motion to suppress the cocaine under article 1, section 9, of the Constitution of Texas.

For the above reasons I would overrule appellant’s first ground of error. Although I do not agree with the majority’s reasoning, I agree that appellant’s second ground of error, complaining of seizure of the weapon, should be overruled. Accordingly, I concur that the judgment of the trial court must be affirmed.

ALLEN, VANCE and McCLUNG, JJ., join in this concurring opinion.