Wendi Mae Davidson v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00717-CR
NO. 03-06-00720-CR
NO. 03-06-00721-CR

Wendi Mae Davidson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NOS. A-05-0544-S, A-05-0545-S & A-05-0546-S
HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING

OPINION

Appellant Wendi Mae Davidson was indicted for the murder of her husband

Michael Severance and for two counts of tampering with or fabricating physical evidence with intent

to impair. See Tex. Penal Code Ann. §§ 19.02(b)(1), 37.09 (West 2003). Appellant filed a motion

to suppress evidence alleging that the placement and monitoring of a tracking device on her vehicle

constituted an unlawful search and therefore violated state statutory requirements and her

constitutional rights. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann.

art. 18.21 (West Supp. 2007); Tex. Penal Code Ann. § 16.06 (West 2003). Appellant also asserted

that the involvement of Air Force agents in the investigation violated the Posse Comitatus Act. See

18 U.S.C. § 1385 (2000). The trial court denied the motion to suppress, and appellant pleaded no

contest to all counts. In one issue on appeal, appellant contends that the trial court erred in denying
her motion to suppress evidence obtained from the installation of an electronic tracking device on the

undercarriage of her vehicle. For the reasons that follow, we affirm the trial court’s order denying

appellant’s motion to suppress and the judgments of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The evidence at the hearing on appellant’s motion to suppress showed the following

facts. On January 16, 2005, appellant reported that Michael Severance, her husband and an airman

in the United States Air Force stationed at Dyess Air Force Base in Abilene, had been missing since

the day before. She advised the security forces section at the Air Force base that he may have

deserted his post, possibly fleeing to Canada because he was scheduled to be deployed. Investigators

with the Air Force Office of Special Investigations (AFOSI) began a missing persons/deserter

investigation. At the request of his superior officer, Officer Dennis McGuire of the San Angelo

Police Department began a parallel investigation into appellant’s missing persons report and a report

that there was a theft of money from appellant’s veterinary clinic located in San Angelo.

During the course of their investigation, AFOSI agents interviewed various family

members and other friends and acquaintances of appellant and her husband. Although appellant told

the agents Severance had talked about deserting or leaving the service, Severance’s family members

said that deserting would be uncharacteristic of him. The agents conducted a search of the vicinity

of appellant’s veterinary clinic. On January 24, the agents met with representatives of various law

enforcement offices to coordinate their efforts in the missing person investigation. They learned that

Terrell Sheen, a local businessman, owned the building where appellant’s veterinary clinic was

located and knew appellant and her family. AFOSI Special Agent Greg McCormick testified that,

2
early on in the investigation, the agents learned that appellant had “a horse on a ranch,” but they did

not know the location of the ranch. The agents began researching Sheen’s properties to determine

if Severance had access to them and might be found there. On January 28, Air Force personnel

conducted a ground search of a two-mile radius of the veterinary clinic “cover[ing] possible areas

that [Severance] could have walked off to.”

During the course of their investigation, AFOSI agents sought and received written

approval from the Regional Commander at Langley Air Force Base in Virginia to place a mobile

tracking device on appellant’s vehicle, which displayed an Air Force sticker allowing entry onto

the Air Force base. On February 26, 2005, shortly after midnight, agents placed a tracking device

on the exterior undercarriage of appellant’s vehicle as it was parked in the parking lot of her

veterinary clinic. The device tracked the whereabouts of appellant’s vehicle on February 26 and 27.

The data retrieved from the device showed that on February 27, appellant’s vehicle traveled to a

remote location, identified as ranch property owned by Terrell Sheen. The agents contacted Sheen

on March 1. Sheen told the agents that appellant and Severance had access to his ranch property and

that appellant kept a horse there. Sheen consented to the agents’ search of the property.

Based on this additional information and Sheen’s consent, on March 3, Sheen gave

the agents a tour of the entire ranch property. Sheen also told them that Severance had been to the

property and had access to it. Sheen allowed the agents access to all the buildings on the property

and showed them various ponds, including a large stock pond with a boat dock. The agents observed

that the ranch was gated and locked with a combination lock. There was a lengthy road leading to

a barn, mobile homes, fenced corrals, and ponds. Sheen allowed the agents to walk through the

mobile homes, barn, and outbuildings. Special Agent McCormick testified that the agents were

3
looking for a missing person: “We went to every place that someone could possibly hide without

going through the brush and looking under every rock.”

On March 5, 2005, Texas Ranger Shawn Palmer and San Angelo Police Sergeant

Jones interviewed appellant at the veterinary clinic. During the interview, the officers asked about

the Sheen property, the pond on the property, and about computer searches done on a computer at

the clinic, including internet searches on the subjects of polygraphs and “decomposition of a body

in water.”1 When the officers asked about the pond, appellant “became more abrupt in her answers

. . . [and] got kind of defensive,” responding that her parents also had a pond on their property and

that Sheen’s ranch had three ponds, not just one. After the interview, the officers met with AFOSI

agents and other officers in the vicinity. When Palmer noticed appellant’s vehicle was no longer

parked at the clinic, he asked the AFOSI agents and a police officer to set up surveillance in the

vicinity of Sheen’s ranch. Palmer testified:

After interviewing her and discussing this ranch and the pond, I became concerned
that there was in fact something in the pond, possibly this missing person, if not
evidence of some sort, but she definitely showed some interest in that pond.

When the officers arrived at the ranch, appellant was attempting to enter the gate. A police officer

instructed appellant that she could not enter the property because police were securing the premises

for a search. After she was denied access, appellant left.

1
The extent and source of information about computer searches conducted at the clinic is
not made clear in the record. Palmer testified: “Basically also we discussed there was some
computer inquiries done by her, we discussed that, in reference to a polygraph, and then
decomposition of a body in water, and then ultimately we discussed the ranch and then a pond
located on that ranch.”

4
 That same day, Marshall Davidson, appellant’s brother, contacted San Angelo police

officer McGuire, advising him of the possibility that Severance’s body could be found in one of

the ponds on the Sheen ranch. Davidson requested a meeting. San Angelo police officers, including

McGuire, met with Davidson. Appellant and her parents were also present at the meeting. McGuire

testified at the hearing that everyone was “pretty upset.” During the meeting, Marshall Davidson

informed the officers that they should search the pond on Sheen’s property. McGuire and Palmer

testified that, during the meeting, they heard appellant say to her parents: “I didn’t kill him, but

somebody did. I thought one of you did it, so I moved the body to protect you.” Upon searching

the pond on Sheen’s property pursuant to Sheen’s consent, authorities located Michael Severance’s

body.

Upon locating Severance’s body, AFOSI agents ceased their investigation. San

Angelo police and Texas Rangers obtained an arrest warrant for appellant and various search

warrants for her clinic, home, computer, and vehicle. Appellant was indicted for the murder of

Michael Severance and for two counts of tampering with or fabricating physical evidence with intent

to impair. See Tex. Penal Code Ann. §§ 19.02(b)(1), 37.09.

The Motion to Suppress

Appellant moved to suppress all evidence resulting from the installation and

monitoring of the tracking device on her vehicle. After a hearing that included the testimony of five

witnesses; the admission of an arrest warrant naming appellant, five search warrants and the

affidavits upon which they were based for appellant’s clinic, home, computer, and vehicle; and the

5
AFOSI authorization for the tracking device, the trial court denied the motion to suppress. Appellant

did not testify. The trial court made the following findings of fact and conclusions of law:

1. United States Air Force personnel were authorized to place the mobile
tracking device on the Defendant’s vehicle.

2. The mobile tracking device was placed on the Defendant’s vehicle in
accordance with United States Air Force rules and regulations.

3. There was no search by law enforcement officials in monitoring the tracking
device as there is no reasonable expectation of privacy in the observations of
Defendant’s movements on a public thoroughfare, and therefore no violation
of the United States Constitution or the Texas Constitution.

4. There was no violation of Article 18.21, Texas Code of Criminal Procedure,
as the placement of the mobile tracking device was authorized by proper
United States Air Force personnel.

5. Even assuming there was a search, there was adequate attenuation by the
statements made to law enforcement by the Defendant’s brother in stating
that they needed to look in the stock tank because the body was in the tank,
and further by Defendant’s statements to her parents that she had placed the
body in the stock tank.

After the denial of the motion to suppress, appellant pleaded no contest to all charges.

The trial court assessed punishment at twenty-five years’ imprisonment for the charge of murder

and ten years on both of the tampering counts, with the sentences to run concurrently. This appeal

followed.

ANALYSIS

Appellant contends that the trial court erred in overruling her motion to suppress

because her “constitutional rights against unreasonable search and seizure were violated when law

6
enforcement agents illegally installed and used a mobile tracking device on her vehicle on private

property and tracked her movement on private land to which she had a reasonable expectation of

privacy.” Specifically, appellant contends that because a state district judge did not authorize the use

of the tracking device, (i) its use was an unreasonable search in violation of the Fourth Amendment

of the United States Constitution and Article I, Section 9 of the Texas Constitution, (ii) AFOSI’s

installation and use of the tracking device to obtain evidence from a search of private land violates

section 18.21 of the Texas Code of Criminal Procedure and Texas Penal Code section 16.06, and

(iii) therefore, the evidence wrongfully obtained should be suppressed pursuant to article 38.23 of

the Texas Code of Criminal Procedure.2 See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).

Appellant seeks to suppress all evidence that was obtained from the tracking device or discovered

as a result of the use of the tracking device.

Standard of Review and Burden of Proof

When a defendant seeks to suppress evidence based on a violation of the Fourth

Amendment of the United States Constitution or Article I, Section 9 of the Texas Constitution, the

burden of proof initially is upon the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.

2
An issue that contains more than one specific ground of error is a multifarious issue,
and we may refuse to consider it. See, e.g., In re Guardianship of Moon, 216 S.W.3d 506,
508 (Tex. App.—Texarkana 2007, no pet.); Sparkman v. State, 55 S.W.3d 625, 630-31
(Tex. App.—San Antonio 2000, no pet.); Marcum v. State, 983 S.W.2d 762, 767 n.1
(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). We may consider multifarious issues if we can
determine, with reasonable certainty, the alleged error about which the complaint is made. McCain
v. State, 995 S.W.2d 229, 243 n.7 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Although
appellant’s issue is multifarious, we will review her arguments in the interest of justice as we are
able to determine the errors about which she complains.

7
1986); Carroll v. State, 911 S.W.2d 210, 215 (Tex. App.—Austin 1995, no writ). As the movant

in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption

of proper police conduct and shifts the burden to the prosecution. Russell, 717 S.W.2d at 9; Carroll,

911 S.W.2d at 215. A defendant meets his initial burden by establishing that the search and seizure

occurred without a warrant. Russell, 717 S.W.2d at 9; Carroll, 911 S.W.2d at 215. When the

validity of a search is challenged and the State produces a warrant, the defendant must go forward

to establish the warrant’s invalidity. Russell, 717 S.W.2d at 9; Rumsey v. State, 675 S.W.2d 517,

520 (Tex. Crim. App. 1984); Carroll v. State, 911 S.W.2d at 215.

We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review, giving almost total deference to a trial court’s determination of historical facts

and reviewing de novo the court’s application of the law. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)).

In reviewing the trial court’s ruling on a motion to suppress, we view the evidence in the light most

favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the

credibility of the witnesses and their testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim.

App. 1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). We uphold the trial

court’s ruling if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002). Absent an

abuse of discretion, we will not disturb the trial court’s ruling on appeal where the evidence supports

the ruling. Carroll, 911 S.W.2d at 223. We consider only whether the trial court improperly applied

8
the law to the facts. Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

Posse Comitatus Act

Appellant contends that the involvement of military personnel in this investigation

violates the Posse Comitatus Act. See 18 U.S.C. § 1385. Appellant asserts that the involvement of

AFOSI agents in the investigation of Severance’s disappearance “amounted to more than passively

coordinating a military investigation with a civilian criminal investigation” and therefore violates

the Act. She urges that this violation triggers the application of article 38.23 of the code of criminal

procedure, requiring exclusion of any evidence seized as a result of a violation of law. See

Tex. Code Crim. Proc. Ann. art. 38.23.

The purpose of the Posse Comitatus Act is to uphold the American tradition of

restricting military intrusions into civilian affairs, except where Congress has recognized a specific

need for military assistance in law enforcement. See, e.g., United States v. Johnson, 410 F.3d 137,

146-47 (4th Cir.), cert. denied, 546 U.S. 952 (2005); United States v. Hartley, 796 F.2d 112, 114

(5th Cir. 1986); United States v. Walden, 490 F.2d 372, 375 (4th Cir. 1974). The Act states in full:

Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as a posse comitatus or otherwise to execute the laws shall be fined under this title
or imprisoned not more than two years, or both.

18 U.S.C. § 1385. While the Posse Comitatus Act attempts to maintain the traditional separation

between military and civilian law enforcement, it does not prohibit all manner of cooperation

or interaction between civilians and the military. See Johnson, 410 F.3d at 147 (citing H.R. Rep.

9
No. 97-71, pt. 2, at 3 (1981), as reprinted in 1981 U.S.C.C.A.N. 1785, 1792 (discussing Congress’

adoption of the Military Support for Civilian Law Enforcement Agencies Act and Congress’ intent

to “maximize the degree of cooperation between military and civilian law enforcement”)).

Appellant’s claimed violation of the Posse Comitatus Act lacks merit for several

reasons. First, the use of military resources is authorized if there is an independent military purpose

for their involvement. See, e.g., Applewhite v. United States Air Force, 995 F.2d 997, 1001

(10th Cir. 1993) (“Since there was an independent military purpose of OSI’s conduct, there

was necessarily no willful use of any part of the Air Force as a posse to execute civilian laws.”);

United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000) (“Here, however, the NCIS agents’

activities were permissible because there was an independent military purpose for their

investigation—the protection of military equipment.”). When the military merely coordinates its

ongoing investigation with civil law enforcement officers, the Posse Comitatus Act is not violated.

See, e.g., United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987).

In this case, appellant reported her husband, a military airman, missing and possibly

a deserter from his military duties. She made the report to the military. The independent military

purpose is to locate a service member who had deserted, a crime under article 85 of the Uniform

Code of Military Justice. See 10 U.S.C. § 885 (1998).3 Article 8 of the Uniform Code of Military

3
Article 85 of the Uniform Code of Military Justice provides for punishment for the offense
of desertion:

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit, organization,
or place of duty with intent to remain away therefrom permanently;

10
Justice grants civilian authorities the power to apprehend deserters. See 10 U.S.C. § 808 (2007);

United States v. Khamsouk, 57 M.J. 282, 288 (U.S.C.A.A.F. 2002). Thus, there is express

authorization for military authorities to investigate deserters as well as to coordinate their activities

with civilian authorities. See 10 U.S.C. § 808 (providing that any civil officer may summarily

apprehend a deserter). At most, appellant’s case involved a military/civilian cooperative effort.

Second, the record does not support appellant’s contention that the actions of the

AFOSI agents amounted to more than passively coordinating a military investigation with a civilian

criminal investigation. Testimony of the AFOSI agents amply supports the existence and pursuit of

an independent military purpose for the investigation. Commander Archibald Harner testified that

appellant reported her husband missing to military authorities on January 16.4 Appellant told the

agents that her husband may have deserted, that he did not like being in the military, and that he

intended to leave the service to avoid an upcoming deployment. She told them that Severance

had “mentioned how easy it would be to disappear to Canada.” The agents searched for him as a

(2) quits his unit, organization, or place of duty with intent to avoid
hazardous duty or to shirk important service . . .

is guilty of desertion.

***

(c) Any person found guilty of desertion or attempt to desert shall be punished
. . . as a court martial shall direct.

10 U.S.C. § 885 (1998).
4
There is also evidence that appellant reported her husband missing to the San Angelo
Police Department, also alleging that there was some money stolen from appellant’s veterinary
clinic.

11
missing person and possible deserter until Severance’s body was recovered and their investigative

involvement then ceased. Special Agent McCormick testified that the military and law enforcement

authorities searched the premises of the Sheen ranch looking for a missing person, possibly someone

who had gone AWOL or deserted. The Request for Authorization for Use of Non-Consensual

Tracking Device submitted to the Commander of the AFOSI of the Department of the Air Force on

February 18 specified the purpose of the device was to ascertain the location where the “incidental”

“may be harboring, concealing, protecting, or assisting subject in his desertion from service.” That

the investigation evolved into a criminal investigation does not mean that it did not have an original

military purpose or that it was a subterfuge for a civilian investigation. In any event, because

appellant set the military’s investigation in motion, appellant is estopped from complaining that there

was one. See Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003).

Moreover, no violation of the Posse Comitatus Act occurred here. The trial court

found that the military authorities were authorized to place the tracking device on appellant’s vehicle

and that it was placed on the vehicle in accordance with Air Force rules and regulations. The

military investigators obtained permission to use the tracking device after briefing their staff judge

advocate, who consulted with the United States Attorney, and applying for approval with their

Regional Commander. The evidence showed that the installation of the tracking device was

authorized by a Regional Commander of the United States AFOSI pursuant to its procedures. The

Commander reviewed the information contained within the four corners of the request for

authorization and granted the request. Agent Harner testified that appellant’s red Camaro vehicle

displayed a Dyess Air Force Base sticker on its windshield, allowing her access to the base and its

services and subjecting appellant to its regulations. The Request iterates that approval authority

12
under military rules “only requires a Region commander’s approval” and that “no search warrant or

search authorization is required as long as the installation and monitoring of the device is conducted

in a public area.” The trial court expressly found that the agents fully complied with Air Force rules

and regulations. Appellant does not contend that the military violated any specific procedure or rule

in obtaining approval for and installing the tracking device. She claims only that military personnel

were required to comply with the warrant requirements of the Texas Code of Criminal Procedure.5

As commander of AFOSI at Dyess Air Force Base, Commander Harner made a proper request for

the approval and installation of the tracking device, which was approved by the regional commander,

Colonel Edward Hagerty. Given the grant of legislative authority, the AFOSI investigation

constituted an independent military purpose conducted in accordance with military procedures and

regulations and was, therefore, not in violation of the Posse Comitatus Act.

Finally, as the movant in the motion to suppress evidence, appellant was required to

produce evidence defeating the presumption of proper police conduct. Russell, 717 S.W.2d at 9.

When the State produced evidence of the request for authorization of the installation of the device

by Commander Harner and its approval by USAF Colonel Hagerty, the burden was on appellant to

show evidence of its invalidity. Id. This appellant failed to do.6 Appellant does not direct our

5
To the extent appellant now challenges the rules or regulations pursuant to which the
agents sought approval, this issue is waived as it was not presented in the court below. In addition,
appellant does not challenge the authority of the AFOSI agents to install the device on appellant’s
vehicle except to the extent they failed to seek the approval of a state district court.
6
Although appellant argued at the hearing that Colonel Hagerty does not have the authority
of a base commander who does have “magistrate status,” she adduced no evidence to that effect. It
would follow from this argument that appellant acknowledges that some military authority has the
authority to grant the request.

13
attention to any violation of military law, and the trial court found that the authorization was properly

obtained and that there was no violation of military law.

Even if we were to find a violation of the Posse Comitatus Act, there is no remedy

available to appellant in this context. As a general matter, a violation of the Posse Comitatus Act

does not trigger the application of the exclusionary rule. Johnson, 410 F.3d at 149 (exclusionary rule

not a remedy for violations of the Act); United States v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995);

Griley, 814 F.2d at 976; United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979) (holding that

application of an exclusionary rule in regards to a violation of the Act was not an appropriate

remedy, but that future widespread and repeated violations could require creating an exclusionary

rule). To the extent appellant contends exclusion was required under article 38.23, appellant cites

no authority for this proposition, and we have found none.7 This result comports with the Supreme

Court’s command to restrict application of the exclusionary rule to “those areas where its remedial

objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348

(1974). We conclude that the trial court did not abuse its discretion in finding that the authorization

of the military personnel was valid and in denying the motion to suppress.

Article 18.21

Appellant nevertheless contends that, because they “piggy-backed” on the military

7
Instead, section 16.06 of the Texas Penal Code provides the available remedy by allowing
prosecution when a “person knowingly installs an electronic or mechanical tracking device on a
motor vehicle owned or leased by another person.” Tex. Penal Code Ann. § 16.06 (West 2003). It
also specifies affirmative defenses, including a defense for a peace officer who installed the device
in the course of his law enforcement duties. Id. § 16.06(d).

14
personnel’s application and installation of the tracking device, the civil law enforcement authorities

“in collusion with” the AFOSI agents bypassed the requirement of a judicial order. See Tex. Code

Crim. Proc. Ann. art. 18.21. Appellant asserts that AFOSI’s failure to seek a judicial order from a

state district court violated the express provisions of article 18.21. Appellant’s reliance on article

18.21 is misplaced.

Article 18.21 establishes procedures for acquiring judicial orders for, inter alia, the

use of pen registers, trap and trace devices, and for the installation and use of mobile tracking

devices. See id. Section 14 of article 18.21 limits the power to order the placement of mobile

tracking devices to state district judges and only upon the request of an authorized peace officer. Id.

art. 18.21, § 14. “Authorized peace officer” is defined in section 1(2)(A) of article 18.21 to include

a list of peace officers that are exclusively state officers. Id. art. 18.21, § 1(2)(A). Through

this limitation to state officers, article 18.21 does not purport to govern orders to place tracking

devices by non-state actors, such as federal agents. See State v. Toone, 872 S.W.2d 750, 752

(Tex. Crim. App. 1994) (holding that article 18.01 does not govern federal search warrants).8 We

reject appellant’s argument and hold that the installation was not barred by article 18.21.

It is well established that evidence obtained by federal agents acting lawfully and

in conformity with federal authority is admissible in state criminal proceedings. State v. Toone,

823 S.W.2d 744, 748 (Tex. App.—Dallas 1992) (“protections afforded by the constitution of a

sovereign entity control the actions only of the agents of that sovereign entity”), aff’d on other

8
Because article 18.21 does not apply to the AFOSI agents in this case, we need not reach
whether failure to utilize the process provided by article 18.21, section 14 is itself a violation of
article 18.21. See Tex. Code Crim. Proc. Ann. art. 18.21, § 14 (West Supp. 2007).

15
grounds, 872 S.W.2d 750 (Tex. Crim. App. 1994). But appellant is correct when she argues that

federal agents may not act as agents of the state police to circumvent the requirements of state law.

See Toone, 823 S.W.2d at 748 (citing State v. Mollica, 554 A.2d 1315, 1329 (N.J. 1989)). If military

personnel are not acting pursuant to the special powers granted them under federal law to pursue

their independent military purpose and are instead acting as agents for the state police, they are

subject to the same statutes and constitutional standards as state officers. See id.; Lockett v. State,

879 S.W.2d 184, 190 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). Where an operation

involves actors from various jurisdictions then, as here, the relationship must be examined to

determine whether federal agents are acting so as to circumvent the requirements of state law. See

Lockett, 879 S.W.2d at 190; Toone, 823 S.W.2d at 748; Mollica, 554 A.2d at 1329. As stated by

the Toone court:

Evidence of antecedent mutual planning, joint operations, cooperative investigations,
or mutual assistance between federal and state officers may sufficiently establish
agency and serve to bring the conduct of the federal agents under the color of state
law. Conversely, mere contact, awareness of ongoing investigations, or the exchange
of information may not transform the relationship into one of agency.

Toone, 823 S.W.2d at 748.9

Not every joint operation between state and federal actors results in an agency

9
Likewise, commentators have observed: “If a showing were made that Texas law
enforcement officers solicited action by federal or other officers that would violate Texas ‘law’ if
taken by the Texas officers, the action of those other officers might well be regarded as that of the
soliciting Texas officers. Thus it would probably be tested under Texas law—including Chapter 18
of the Code—and if it is found to violate that law, the products would most likely be inadmissible
under article 38.23.” 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice
and Procedure § 4.68 n.7 (2d ed. 2001).

16
relationship so as to bring federal agents under the color of state law. Federal agents, including

military personnel, often work in conjunction with other law enforcement authorities to achieve

federal objectives, and such cooperation should not be discouraged. It is the attempt by state officers

to do indirectly what their statutes or constitution prohibits them from doing directly, by using

federal agents to circumvent these requirements, that is prohibited. See Shurman v. United States,

219 F.2d 282, 287-88 (5th Cir. 1955) (evidence admissible where there was not such cooperation

between federal agents and state police as to demonstrate an attempt by federal authorities to

circumvent Fourth Amendment); Mollica, 554 A.2d at 1328 (essential objective of state exclusionary

rule is to deter unlawful state police conduct and thus no deterrence value for state officials is

frustrated by admitting evidence seized by federal officers under authority of, and in conformity with,

federal law). Thus, state officers may not use military personnel to obtain evidence indirectly that

they could not obtain directly in a lawful manner.

Here, although the original military investigation evolved into a state criminal

investigation, it began as a report by appellant that her husband was missing and absent without

leave. Appellant told the AFOSI agents that her husband may have deserted, that he did not like

being in the military, and that he intended to leave the service to avoid an upcoming deployment.

She told them that Severance had “mentioned how easy it would be to disappear to Canada.” It was

appellant herself who set the military apparatus in motion. Given the independent military reason

for AFOSI’s investigation, the military was entitled to employ its investigative tools to accomplish

the limited purpose of locating a serviceman reported missing and characterized as a possible

deserter by his spouse.

17
 The trial court found that military personnel were authorized to place the tracking

device on appellant’s vehicle and followed their appropriate rules and regulations.10 A review of the

evidence, giving deference to the trial court’s factual findings and viewing the remaining facts in a

light most favorable to the trial court’s ruling, shows that the military personnel pursued its

independent investigative purpose and did not improperly serve as agents of the civilian law

enforcement authorities to circumvent appellant’s statutory or constitutional rights as prohibited

under Toone. Further, appellant did not adduce evidence or demonstrate in any manner that the law

enforcement officers did indirectly through the AFOSI agents what they were prohibited from doing

directly in order to circumvent state statutory requirements. See Shurman, 219 F.2d at 288.

The trial court correctly found that article 18.21 does not apply to the AFOSI agents

and that the placement of the tracking device on appellant’s vehicle was not a violation of that

statute. No Texas statute governs the use of tracking devices by federal agents and, apart from what

the constitution may require, the conduct of the agents in attaching and monitoring the device was

not contrary to article 18.21. But the trial court also found that the tracking device was placed on

appellant’s vehicle in accordance with Air Force rules and regulations. Appellant did not challenge

below in what respect the military personnel failed to follow any of its procedures and may not raise

this challenge for the first time on appeal. See Tex. R. App. P. 33.1.11

10
Appellant does not distinguish between the monitoring of various tracking devices, such
as “beepers” and GPS devices, and we therefore need not address any similarities or differences
between them for the purposes of our discussion here.
11
In a single sentence of her brief, appellant argues that section 16.06 of the penal code
“makes it a Class A misdemeanor to unlawfully install such a device upon another’s vehicle.” To
the extent this sentence can be construed to argue that a violation of section 16.06 has occurred, we
consider this claim waived by appellant’s failure to properly brief it. See Tex. R. App. P. 38.1.

18
State and Federal Constitutional Provisions

The issue on which the lawfulness of the remaining conduct turns, then, is whether

the monitoring of the tracking device was violative of appellant’s rights under the Fourth

Amendment of the United States Constitution or Article I, Section 9 of the Texas Constitution.12

Although the evidence appellant sought to suppress is not entirely clear, in her brief on appeal, she

states that “[b]ased on information obtained through the use of the tracking device, Special Agent

Harner determined routine areas of travel for Ms. Davidson’s vehicle as well as one location he

described as ‘way outside that area to a remote location.’” From that information, Agent Harner

learned that the property to which the vehicle was driven was owned by Sheen. Sheen advised the

agents that appellant had access to the property and kept a horse there.

Appellant acknowledges that she cannot challenge the fact that the agents tracked her

car while it was on public streets.13 See, e.g., United States v. Knotts, 460 U.S. 276, 281-82 (1983);

Nored v. State, 875 S.W.2d 392, 395 (Tex. App.—Dallas 1994, pet. ref’d). Rather, appellant argues

that, by tracking her vehicle “onto private land, not visible from the public road, and to which she

12
Appellant does not argue that Article I, Section 9 of the Texas Constitution offers greater
protection to the individual than the Fourth Amendment of the United States Constitution. See, e.g.,
Westfall v. State, 10 S.W.3d 85, 88 (Tex. App.—Waco 1999, no pet.). We will therefore address
these claims together. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); Heitman
v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
13
She states, “Appellant acknowledges that the United States Supreme Court has held that
monitoring of mobile tracking devices does not implicate the Fourth Amendment when a citizen’s
movements are monitored in public places and on public roadways.” Because there is no expectation
of privacy when traveling in an automobile on public thoroughfares to the entrance of the Sheen
property, we hold that the trial court properly concluded that the tracking of appellant’s vehicle to
the location of the Sheen property did not violate state or federal constitutional provisions. See
United States v. Knotts, 460 U.S. 276, 281-82 (1983).

19
had a reasonable expectation of privacy,” the AFOSI agents violated her constitutional rights. She

claims that the agents monitored the tracking device as she drove through the Sheen property and

thereby identified a stock pond located on the ranch property where the law enforcement authorities

eventually found Severance’s body.

Relying on United States v. Karo, 468 U.S. 705 (1984), appellant argues that

the evidence obtained from the monitoring of the tracking device on private land is evidence

discovered as a result of an illegal search and that it should be excluded as “fruit of the poisonous

tree.” But appellant’s reliance on Karo is misplaced. In Karo, the Court limited its prior holding

in Knotts when it held that it was a violation of the Fourth Amendment for the government to

monitor a warrantless tracking device while it was inside a person’s private residence. 468 U.S. at

714-15. In contrast to the facts of Karo, AFOSI agents were not monitoring the movements of

appellant’s vehicle inside a private residence. Appellant has cited no authority—and we have found

none—that would extend the holding of Karo to the monitoring of a tracking device in the open

fields under the circumstances presented here.

The purpose of both the Fourth Amendment and Article I, Section 9 “is to safeguard

an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.”

Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993). An accused has standing, under

both constitutional provisions, to challenge the admission of evidence obtained by a governmental

intrusion only if he had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois,

439 U.S. 128, 143 (1978); Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992). The burden

of proving facts establishing a legitimate expectation of privacy rests with the accused. Calloway

20
v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988). The burden to establish standing rests on

the party seeking to exclude the evidence. Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App.

2004); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); State v. Klima, 934 S.W.2d

109, 110 (Tex. Crim. App. 1996). To carry this burden, a defendant must demonstrate (i) he had an

actual, subjective expectation of privacy, and (ii) the subjective expectation of privacy is one that

society is prepared to recognize as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740-41

(1979); Villarreal, 935 S.W.2d at 138.

To determine whether an accused’s subjective expectation was one that society was

prepared to recognize as objectively reasonable, a court may consider several factors, 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, before 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. Calloway, 743 S.W.2d at 651. Whether

a defendant has standing to contest a search and seizure is a question of law we review de novo.

Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). The question of whether appellant’s

subjective expectation of privacy was one that society was prepared to recognize as reasonable is

also a question of law. Villarreal, 935 S.W.2d at 128.

Viewing the record evidence and all reasonable inferences therefrom in the light most

favorable to the trial court’s ruling, we cannot say that the trial court abused its discretion in finding

that there was no reasonable expectation of privacy and that appellant failed to establish standing.

21
We will assume—as appellant has argued—that the property to which she claims an expectation of

privacy and was invaded by virtue of the tracking device is “land, in an area not visible from the

public road, to which the public did not have access that the officers ultimately recovered the body

of Michael Severance.” Appellant contends that she has a reasonable expectation of privacy because

(i) the property was behind a locked gate, (ii) appellant had access to the land with the express

consent of the owner of the land, (iii) “she and the owner had excluded members of the public from

that land with fencing and a locked gate,” and (iv) she kept a horse on the property.

But the evidence does not establish that appellant had a reasonable expectation of

privacy. The evidence showed only that appellant and Severance had access to property with a

locked gate owned by Terrell Sheen and that appellant maintained a horse on the property. There

is nothing in the record that showed where the horse was maintained or to what portion of the

property appellant had access and the terms of the access. Officer McCormick testified that Sheen

“told us that she kept a horse out on the property” and that she had access to the property. The

evidence demonstrated that appellant was no more than a casual visitor to the property.

As in Villarreal, there is nothing in the record here to show that appellant had a

property or possessory interest, unrestricted access, complete dominion and control, the right to

exclude others, or any other expectations of privacy in the property that were of the types that society

views as objectively reasonable. See id. Nor was there any evidence that appellant intended to or

had stayed overnight. See id. At best, appellant’s evidence addresses one of the six relevant factors

to be considered—that she had legitimate presence in the place searched. See id. Appellant’s mere

assertion in her brief that she and Sheen excluded the public from the land with fencing and a locked

22
gate does not satisfy her burden to prove a legitimate expectation of privacy in Sheen’s ranch. As

in Villarreal, appellant presented no evidence that she was anything other than a guest with

indeterminate access to the property. See id. The evidence did not establish that appellant’s

subjective expectation of privacy was one that society was prepared to recognize as objectively

reasonable under the circumstances.

In any event, the government’s intrusion upon the open fields is not one of those

“unreasonable searches” proscribed by the Fourth Amendment or Article I, Section 9. The Fourth

Amendment and Article I, Section 9 accord special protection to people in their persons, houses,

papers, and effects, but that protection does not extend to “open fields.”14 Oliver v. United States,

466 U.S. 170, 178-79 (1984); Hester v. United States, 265 U.S. 57, 59 (1924); Westfall v. State,

10 S.W.3d 85, 89 (Tex. App.—Waco 1999, no pet.); Carroll, 911 S.W.2d at 217; White v. State,

890 S.W.2d 131, 134 (Tex. App.—Texarkana 1994, no pet.). The “open fields” doctrine allows a

law enforcement officer to enter and search an area of land without a warrant. Carroll, 911 S.W.2d

at 217; Rosalez v. State, 875 S.W.2d 705, 713 (Tex. App.—Dallas 1993, pet. ref’d). An “open field”

need not be “open” or a “field” as those terms are commonly used; the term “open field” may

be defined as any unoccupied or undeveloped area outside the curtilage of a dwelling. Westfall,

10 S.W.3d at 89; Rosalez, 875 S.W.2d at 714 (citing Oliver, 466 U.S. at 180 n.11). An individual

may not legitimately demand privacy for activities conducted out of doors in fields, except in the

14
Texas courts have upheld the application of the “open fields” doctrine. See Carroll
v. State, 911 S.W.2d 210, 217 (Tex. App.—Austin 1995, no pet.); Beasley v. State, 683 S.W.2d 132,
133 (Tex. App.—Eastland 1984, pet. ref’d); see also Leal v. State, 736 S.W.2d 907, 909
(Tex. App.—Corpus Christi 1987), pet. dism’d, 773 S.W.2d 296 (Tex. Crim. App. 1989).

23
area immediately surrounding the home, i.e., the curtilage. Oliver, 466 U.S. at 178.15 As Justice

Holmes explained in Hester v. United States, “[T]he special protection accorded by the Fourth

Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open

fields. The distinction between the latter and the house is as old as the common law.” 265 U.S. at

59. In contrast to the “sanctity of the home,” the Supreme Court recognized in Oliver that the “open

fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended

to shelter from government interference or surveillance.” Oliver, 466 U.S. at 179. The Court

reasoned:

There is no societal interest in protecting the privacy of those activities, such as the
cultivation of crops, that occur in open fields. Moreover, as a practical matter these
lands usually are accessible to the public and the police in ways that a home, an
office, or commercial structure would not be. It is not generally true that fences or
‘No Trespassing’ signs effectively bar the public from viewing open fields in rural
areas. And both [parties] concede that the public and police lawfully may survey
lands from the air. For these reasons, the asserted expectation of privacy in open
fields is not an expectation that ‘society recognizes as reasonable.’

Id. The Court distinguished the “open fields” of “the vast expanse of some western ranches” or

woods from the “curtilage,” the land immediately surrounding and associated with the home. Id.;

see also Rosalez, 875 S.W.2d at 714. The Court concluded that “from the text of the Fourth

Amendment and from the historical and contemporary understanding of its purposes, that an

individual has no legitimate expectation that open fields will remain free from warrantless intrusion

by government officers.” Id. at 225-26.

15
The Fourth Amendment does protect the curtilage of a home. See United States v. Dunn,
480 U.S. 294, 300 (1987).

24
 Appellant failed to present any evidence during the suppression hearing to

demonstrate that the monitoring of her vehicle implicated a reasonable expectation of privacy. The

evidence at the hearing showed that the rural ranch property in question falls squarely within the

definition of “open fields” in which appellant is not entitled to an expectation of privacy. That the

property was fenced and gated does not create an expectation of privacy that society recognizes as

legitimate and reasonable. See Oliver, 466 U.S. at 178; Westfall, 10 S.W.3d at 90; Carroll,

911 S.W.2d at 218; Rosalez, 875 S.W.2d at 719.

The trial court’s ruling on appellant’s motion to suppress is supported by the record

and is correct on a theory of law applicable to the case. Accordingly, finding no misapplication of

the law to the facts by the trial court, we hold that the trial court did not abuse its discretion in

denying appellant’s motion to suppress.16

CONCLUSION

Because the AFOSI agents had an independent military purpose for their

investigation, they did not violate the Posse Comitatus Act and were authorized to and did comply

with their rules and regulations to install and monitor the tracking device. The record does not show

that the trial court abused its discretion in determining that the police did not violate appellant’s

reasonable expectation of privacy by monitoring the tracking device on Sheen’s property and the

16
The State argued alternatively at the suppression hearing, and the trial court found, that
even if the installation and monitoring of appellant’s vehicle violated appellant’s rights, there was
adequate attenuation to preclude the exclusion of evidence. Because we have concluded there was
no violation of appellant’s constitutional or statutory rights, we need not reach the question of
attenuation.

25
evidence obtained through use of the device was properly admitted. Having overruled appellant’s

sole issue, we affirm the trial court’s order denying appellant’s motion to suppress and the judgments

of conviction.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: March 13, 2008

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