In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00317-CR
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ANDREAS MARCOPOULOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1440970
CONCURRING OPINION
When the legality of a search is in issue, the defendant bears the burden of
proving that his privacy rights were violated. Rakas v. Illinois, 439 U.S. 128, 130
n. 1, 99 S. Ct. 421, 423 n. 1 (1978) (stating proponent of motion to suppress has
burden of establishing his Fourth Amendment rights were violated); Wilson v.
State, 692 S.W.2d 661, 669 (Tex. Crim. App. 1984) (opinion on rehearing) (stating
defendant’s privacy interest in area searched is substantive element of Fourth
Amendment claim on which he bears burden). To challenge a search, a defendant
must have a legally protected right to the expectation of privacy. This is
accomplished by showing an ownership or possessory interest in the area searched.
See Rakas, 439 U.S. at 148, 99 S. Ct. at 433.
I concur in the judgment only because I do not believe that merely driving a
vehicle, without more, is sufficient to show a legitimate expectation of privacy in
it. Here, there is no evidence that appellant either owned the car, or that he
legitimately possessed it. I do not believe that silence on this issue is sufficient to
carry appellant’s burden of showing a reasonable expectation of privacy in the
vehicle searched. See Aragon v. State, 229 S.W.3d 716, 721 (Tex. App.—San
Antonio 2007, no pet.); see also Rodriguez v. State, No. 01-04-00723-CR, 2005
WL 2850234, at *3 (Tex. App.—Houston [1st Dist.] Oct. 25, 2005, no pet.) (mem.
op., not designated for publication) (“[A]lthough appellant had the keys to the
Acura and was the sole occupant at the time of the stop, no evidence was admitted
that he had permission to possess the vehicle or that he had an actual, reasonable,
subjective expectation of privacy in the searched premises.”).
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Because I do not believe that appellant carried his burden to show a
legitimate expectation of privacy in the car searched, I would not reach the issue of
whether the search was valid. Accordingly, I concur in the judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Keyes.
Chief Justice Radack concurring.
Justice Keyes dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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