Pennywell, Brian Keith v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-01226-CR

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BRIAN KEITH PENNYWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 826044

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  CONCURRING OPINION ON REMAND FROM

THE COURT OF CRIMINAL APPEALS

          The Court of Criminal Appeals remanded the cause with instructions for this Court to consider appellant’s challenge to the propriety of his detention. The majority opinion, that I authored, follows the instructions and considers the merits of appellant’s challenge. I write this concurring opinion, however, to explain why I believe that, as a preliminary matter, appellant has no standing to contest the lawfulness of his detention. Because of the difficulty of finding authority on point, I address, as an issue of first impression, the threshold matter of whether a person carrying recently stolen property in plain view in public has a reasonable expectation that he will not be detained as an issue of first impression.

Standing to Contest the Detention

          When approaching this issue, it is important at the outset to recognize that, in Texas,

[a]ny person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground [sic] to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.

Tex. Code Crim. Proc. Ann. art. 18.16 (Vernon Supp. 2003).

          As we stated in our September 24, 2002 opinion, to have a reasonable expectation of privacy, or standing, a defendant must show (1) that he had an actual, subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question, and (2) that that subjective expectation of privacy is one that society is prepared to recognize as reasonable. Pennywell v. State, 84 S.W.3d 841, 844 (Tex. App.—Houston [1st Dist.] 2002), remanded on other grounds, No. 1182-02, slip op. at 2 (Tex. Crim. App. Apr. 23, 2003).

A.      Subjective Expectation

          Here, appellant was walking in the common area of the apartment complex while carrying a brown bag that he had just stolen during the burglary of an apartment. Inside the brown bag were other items stolen during the same burglary. As to the other items inside the brown bag, one might argue that appellant had taken measures to protect the privacy of those items. As to the brown bag itself, however, appellant was walking in open view in the common area of an apartment complex, carrying a stolen brown bag. Under these conditions, appellant had not taken sufficient measures to have even an actual, subjective expectation that he would not be detained to investigate whether he had stolen the brown bag.

B.      Objective Expectation

          As for the brown bag, having failed to show even an actual, subjective expectation of privacy, appellant cannot expect that society is prepared to recognize as reasonable any expectation of privacy in the brown bag. Because appellant’s open possession of the stolen, brown bag was alone sufficient to justify a detention to investigate whether he had stolen it, it is unnecessary to decide whether appellant enjoyed an objective expectation of privacy in the contents of the brown bag.

C.      Standing

          Because appellant has shown neither an actual, subjective expectation, nor an objective expectation, that he would not be detained while carrying stolen property in open view in a common area, appellant has failed to establish standing to complain of his detention.

          Conclusion

          Under the circumstances of this case, and had we not been instructed otherwise, I would have held that appellant had no reasonable expectation of privacy so as to have standing to complain of his detention. I would thus have overruled appellant’s first point of error for this threshold reason and would not have reached whether the officer had reasonable suspicion to justify appellant’s detention.

     Tim Taft

     Justice

Panel consists of Justices Taft, Jennings, and Hanks.

Justice Taft, concurring.

Publish. Tex. R. App. P. 47.4.