Defendant was found to be a trespasser, a squatter who changed the locks, in the home of another who was in jail. Defendant attempted to show standing in the trial court, but the state did not raise lack of standing until appeal, which the court of appeals permits. Relying on defendant’s record, the court analyzes standing under two theories: reasonable-expectation-of-privacy theory and intrusion-upon-property theory from Jones. Under these facts, they come out the same: defendant has no standing [whereas Jones did]. Williams v. State, 2016 Tex. App. LEXIS 8854 (Tex. App. – Houston (14th Dist.) Aug. 16, 2016):
A. Does appellant have standing to challenge the lawfulness of the search of the house under a reasonable-expectation-of-privacy theory of search?
What constitutes a “search” for Fourth Amendment purposes — and therefore, what may serve to confer Fourth Amendment “standing”— may be predicated, as the Supreme Court of the United States has emphasized, on either an intrusion-upon-property theory of search or a reasonable-expectation-of-privacy theory of search. See Florida v. Jardines, __ U.S. __, __, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013); United States v. Jones, __ U.S. __, __, 132 S.Ct. 945, 949-51, 181 L.Ed.2d 911 (2012); State v. Huse, __ S.W.3d __, __, 2016 WL 1449627, at *5 (Tex. Crim. App. Apr. 13, 2016). Appellant has preserved error as to each of these search concepts.
The State argues for the first time on appeal that appellant lacks standing to challenge the lawfulness of the search of the house. The State may raise this standing issue for the first time on appeal. See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004); State v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996). We first address whether appellant has standing to challenge the search under a reasonable-expectation-of-privacy theory and then we address this issue as to the intrusion-upon-property theory.
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Under a reasonable-expectation-of-privacy theory, a person has “standing” to contend that a search or seizure was unreasonable if (1) the person has a subjective expectation of privacy in the place or object searched, and (2) society is prepared to recognize that expectation as “reasonable” or “legitimate.” State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). The “standing” doctrine ensures that an accused may claim only that the accused’s own rights have been violated; the accused cannot assert that he is entitled to benefit because the rights of another have been violated. Id. A person’s constitutional right to be free from unreasonable searches is a personal right that cannot be asserted vicariously. Id.
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Because appellant did not have a reasonable expectation of privacy in the house, appellant lacks standing to challenge the officer’s search under a reasonable-expectation-of-privacy theory. See Matthews, 431 S.W.3d at 606-07; Ex parte Moore, 395 S.W.3d at 161; Davis v. State, 119 S.W.3d at 368.
B. Does appellant have standing to challenge the lawfulness of the search of the house under an intrusion-upon-property theory of search?
The parties have not cited and research has not revealed any case addressing the legal standard to be applied in determining whether a person has “standing” to contend that a search or seizure was unreasonable under the Fourth Amendment to the United States Constitution under an intrusion-upon-property theory of search. The Court of Criminal Appeals has not yet addressed this issue. See Jones, __ U.S. at __, 132 S.Ct. at 949 n.2 (noting that the vehicle in question was registered to Jones’s wife rather than to Jones but stating that Jones was the exclusive driver and that the issue of Jones’s ability to challenge the search was not before the high court); Huse, 2016 WL 1449627, at *5 (acknowledging that there are two theories of search, but analyzing standing only under the reasonable-expectation-of-privacy theory because the defendant had not raised the intrusion-upon-property theory of search).
If appellant’s standing to challenge the search of the home under an intrusion-upon-property theory of search is analyzed under the same legal standard as that applicable to the reasonable-expectation-of-privacy theory, appellant lacks standing to challenge the officer’s search under the analysis in the previous section. See Matthews, 431 S.W.3d at 606-07; Ex parte Moore, 395 S.W.3d at 161; Davis v. State, 119 S.W.3d at 368. If appellant’s standing to challenge the search of the home under an intrusion-upon-property theory of search is analyzed under a different standard, we conclude that the standard would be whether the person had a sufficient proprietary or possessory interest in the place or object searched. See Jones, __ U.S. at __, 132 S.Ct. at 949-51 & n.2. As discussed in the previous section, the trial court reasonably could have found that appellant did not have a proprietary or possessory interest in the house. See Padilla, 462 S.W.3d at 123. Under either analysis, appellant lacks standing to challenge Officer Robinson’s search. See Jones, __ U.S. at __, 132 S.Ct. at 949-51 & n.2; Matthews, 431 S.W.3d at 606-07; Ex parte Moore, 395 S.W.3d at 161; Davis v. State, 119 S.W.3d at 368.
Having concluded that appellant lacks standing to challenge the search of the home under either a reasonable-expectation-of-privacy theory or an intrusion-upon-property theory, we overrule appellant’s second issue.
