Affirmed and Memorandum Opinion filed February 20, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-01116-CR
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CHRISTOPHER PATRICK COTTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Cause No. 1292299
M E M O R A N D U M O P I N I O N
Challenging his conviction for the misdemeanor offense of driving while intoxicated, appellant contends, in one issue, that the trial court erred in denying his motion to suppress.
I. Factual and Procedural Background
On March 19, 2005, around 3:30 a.m., Officer Brodie Riner III of the University of Texas Police Department was on patrol when he saw a 2002 Cadillac Deville run a red light at the intersection of Cambridge and Old Spanish Trail, in Houston, Texas. The driver of the vehicle, later identified as appellant, veered to the right, and drove up over the curb, onto the grass and sidewalk. Officer Riner immediately pulled in behind appellant, and activated his emergency lights. Appellant drove over the median to make an illegal u-turn. Officer Riner observed appellant=s head hanging out the driver side window. Officer Riner continued to follow appellant westbound down Old Spanish Trail, where appellant again drove over the median to make another illegal u-turn. Officer Riner commanded appellant to stop his vehicle. Appellant refused and continued eastbound on Old Spanish Trail, ran another red light, and turned southbound onto Cambridge. Officer Riner continued to issue appellant commands to stop while appellant fled down Cambridge to the first turnaround, and then came back up Cambridge to proceed northbound.
Appellant stopped at the Fountainbleau Apartments at 7575 Cambridge, pulled up to the gate, and went inside the gated area. Officer Riner, directly behind appellant with his vehicle=s lights and sirens activated, continued to command appellant to pull over. Appellant initially refused, but eventually pulled off to the right and stopped when he entered the gated apartment area. Officer Riner turned off his siren, and approached appellant=s car. As he approached, Officer Riner detected a strong odor of alcohol emanating from the vehicle. He noticed that appellant=s eyes were red and watery. Appellant, who apparently had been eating while driving, was covered with food. Appellant had a blank stare as Officer Riner questioned him and asked for his driver=s license and proof of insurance. After fumbling through his wallet, appellant finally produced this information. Officer Riner asked appellant to exit the car,and to perform certain field sobriety tests. When appellant refused to comply, Officer Riner placed him under arrest. On the way to the police station, appellant became uncooperative and agitated. At the police station, appellant refused to blow into the breathalyzer.
Appellant was charged by information for the misdemeanor offense of driving while intoxicated. The trial court denied appellant=s pretrial motion to suppress. Thereafter, appellant waived his right to a trial by jury, and pleaded guilty to the charged offense. The trial court found appellant guilty as charged, and sentenced him to ten days= confinement in the Harris County Jail. Appellant now challenges the trial court=s ruling on his motion to suppress.
II. Standard of Review
We review the trial court=s ruling on a motion to suppress under an abuse‑of‑discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
III. Issue and Analysis
In a single issue, appellant contends that the trial court erred in denying his motion to suppress. More specifically, appellant contends that Officer Riner had no authority to stop and arrest him because it was outside Officer Riner=s jurisdiction. Appellant also contends Officer Riner had no authority to stop him in the apartment complex parking lot, which he contends was Aprivate property.@[1]
A. Was Officer Riner in his primary jurisdiction when he stopped and arrested appellant?
The State contends Officer Riner acted within the scope of his jurisdiction as defined by section 51.203 of the Education Code. Tex. Educ. Code Ann. ' 51.203 (Vernon Supp. 2005). That statute reads, in relevant part:
(a) The governing boards of each state institution of higher education and public technical institute may employ and commission peace officers for the purpose of carrying out the provisions of this subchapter. The primary jurisdiction of a peace officer commissioned under this section includes all counties in which property is owned, leased, rented, or otherwise under the control of the institution of higher education or public technical institute that employs the peace officer.
(b) Within a peace officer=s primary jurisdiction, a peace officer commissioned under this section:
(1) is vested with all the powers, privileges, and immunities of peace officers;
(2) may, in accordance with Chapter 14, Code of Criminal Procedure, arrest without a warrant any person who violates a law of the state; and
(3) may enforce all traffic laws on streets and highways.
Id. ' 51.203(a), (b) (emphasis added). Under this section, Officer Riner had the authority to stop and arrest appellant. The evidence shows that The University of Texas owns property on several Houston streetsCCambridge, Fannin, Holcombe, Braeswood, and Bellaire. Officer Riner testified that, in connection with his duties as a patrol officer for The University of Texas, he patrols Old Spanish Trail and Cambridge, between Highway 288, Highway 610, and Highway 59. Officer Riner further testified that his jurisdiction includes Harris County, Galveston County, Travis County, and various other counties. Officer Riner was in the 1900 block of Old Spanish Trail near Cambridge when he first observed appellant=s erratic driving. It is undisputed that Officer Riner was commissioned as a peace officer by The University of Texas and that the university owns property in Harris County. The evidence shows that the offenses for which the officer stopped and arrested appellant took place in Harris County, specifically at 7575 Cambridge, a location within Houston, Texas. See Watts v. State, 99 S.W.3d 604, 610 (Tex. Crim. App. 2003) (concluding that a trial court or appellate court can take judicial notice that a city is within a county). Under section 51.203, Officer Riner was authorized to stop appellant for the observed traffic violations and to arrest appellant for driving while intoxicated. See State v. Backus, 881 S.W.591, 593 (Tex. App.CAustin 1994, pet. ref=d) (holding that a university campus police officer is authorized by section 51.203 to enforce traffic laws, make warrantless arrests for offenses committed in his presence, and otherwise carry out the duties of a peace officer anywhere in the county or counties in which the commissioning institution owns or controls property).
B. Did Officer Riner have authority to stop and arrest appellant on the apartment complex parking lot?
Appellant contends that Officer Riner did not have the authority to stop and arrest him while he was in the apartment complex parking lot. Appellant argues that the apartment complex parking lot is a Aprotected area.@ [2]
The touchstone of this Fourth Amendment analysis is whether a person has a Aconstitutionally protected reasonable expectation of privacy.@ California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Consistent with this analysis, we will address (1) whether the parking lot of appellant=s apartment complex was part of the curtilage of his apartment, and, if not, (2) whether appellant had a reasonable expectation of privacy in the apartment complex parking lot. See United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326, (1987); Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).
The United States Supreme Court has recognized that the Fourth Amendment protects the curtilage of a house, and has identified curtilage as Athe area [that] harbors the >intimate activity associated with the >sanctity of a man=s home and the privacies of life.= @ See Dunn, 480 U.S. at 300, 107 S. Ct. at 1139 (citations omitted). In Cuero v. State, the First Court of Appeals addressed whether a parking area in a fenced condominium complex qualified as curtilage of one of the residents, stating:
[the officer] crossed over one exterior fence of a condominium complex to observe suspected illegal activity in the parking area of the complex. Even if we were to assume that [appellant] lived in one of the condominiums, a common area parking lot available to owners and guests cannot be considered an >area which harbors the intimate activity associated with the sanctity of a man=s home and the privacies of life.=
845 S.W.2d 387, 391 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). Likewise, the common areas on which appellant relies for his argument were not the curtilage of his apartment. See Evans v. State, 995 S.W.2d 284, 285B86 (Tex. App.CHouston [14 Dist.] 1999, pet. ref=d) (concluding that fenced‑in common area of apartment complex, open to other residents and guests, was not part of curtilage of defendant=s apartment protected by Fourth Amendment).
Despite the fact that the parking lot is not the curtliage of his apartment, appellant is nevertheless protected by the Fourth Amendment if he possessed a reasonable expectation of privacy in that area. See Dunn, 480 U.S. at 303, 107 S. Ct. at 1140. The general premise, however, is that the common areas of an apartment complex that include the parking lots and sidewalks are public areas in which the residents have no reasonable expectation of privacy. See Bower v. State, 769 S.W.2d 887, 897‑98 (Tex. Crim. App.1989); see also Tex. Pen. Code Ann. ' 1.07(a)(40) (Vernon 1994) (defining a Apublic place@ as any place where a substantial group of the public has access, including, but not limited to, the common areas of apartment houses). Moreover, erection of a security fence or gate alone does not create a constitutionally protected expectation of privacy. See Dunn, 480 U.S. at 301 n. 4, 107 S. Ct. at 1139 n. 4.
Even if appellant had an actual expectation of privacy in the common areas of his apartment complex, that expectation of privacy must be one that society is prepared to recognize as reasonable. See Oliver, 466 U.S. at 177, 104 S. Ct. at 1741. It is clear from the record that the area of the apartment complex in question, although fenced, was open to any resident or guest as a common means of ingress and egress. Given the nature and use of the area, we cannot say that appellant=s actual expectation of privacy is one that society is prepared to recognize as reasonable. See Evans, 995 S.W.2d at 287. Therefore, we hold the stop and arrest did not violate either the United States or Texas Constitutions, because appellant had no reasonable expectation of privacy in the parking lot of his apartment complex.
The trial court did not abuse its discretion in denying appellant=s motion to suppress. We overrule appellant=s only issue on appeal, and we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed February 20, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not contend that Officer Riner lacked reasonable suspicion or probable cause to make the stop and arrest, but only that Officer Riner did not have the authority or jurisdiction to stop appellant, or to arrest him in a private place. Therefore, we do not reach the issue of whether reasonable suspicion or probable cause to arrest existed.
[2] At the motion-to-suppress hearing, appellant testified that he lived in apartment 10033 at the Fontainebleau Apartments.