Appellant, the State of Texas, appeals from the trial court's order suppressing evidence. We hold appellee had no standing to challenge the evidence and set aside the order of the trial court granting appellee's motion to suppress.
The facts show that Houston Lighting Power Co. [hereinafter HL P], received a tip that electrical service meters were being tampered with by Klosik. HL P contacted the Houston Police Department and, in cooperation with the Police, unsuccessfully tried to set up a meeting with Klosik. Thereafter, Klosik was arrested on an unrelated drug charge and cooperated with the police in contacting appellee, whose meter he had tampered with in the past. Klosik met appellee and again tampered with the meter with the police and HL P officials in surveillance. Thereafter, HL P, at the request of the police,
*Page 489 went to appellee's home and removed the meter. Subsequent testing of the meter showed it had been tampered with and appellee was arrested and charged with malicious mischief.
Prior to trial, appellee filed a motion to suppress the electric service meter and the tests performed upon it, on the grounds that the meter was seized within the curtilage of his home without a warrant. At a hearing on the motion to suppress, an HL P supervisor testified that normal operating procedure would have required the company to remove and test the meter at the first sign of wrongdoing. Appellee contends that because HL P deviated from its normal procedures in waiting three weeks before removing the meter, and then removing it at the direction of the Houston Police Department, the seizure of the meter amounted to a police action and was improper without a warrant. Finding that HL P was acting as an agent for the police, the trial judge granted the motion to suppress the evidence.
On appeal, the State contends that because HL P owned the meter and had an easement over appellee's property to allow them access to the meter, appellee had no reasonable expectation of privacy in the meter. Therefore, according to the State, appellee had no standing to challenge the evidence. We agree.
The property interests protected by the state and federal constitutions do not include property in which a person has no reasonable expectation of privacy. Katz v. U.S.,389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The test for determining whether there is a protected interest is: 1) whether the claimant has an actual subjective expectation of privacy and, if so, 2) if the expectation is one which society will recognize as reasonable. Smith v. Maryland,442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
At the hearing, the State introduced evidence showing that the meter in question was the property of HL P, not appellee. In addition, the State introduced a copy of the appellee's deed which contains an easement allowing HL P to enter the property at any time to read or remove the meter. Because the record shows appellee did not own the meter and because the record shows his agreement with HL P clearly stated that HL P had a legal right to enter the premises to remove the device, we hold appellee had no reasonable expectation of privacy in the meter.
In addition, we find no state action in HL P's removal of the meter. The crux of appellee's agency argument concerns HL P's deviation from normal operating procedure by waiting three weeks to remove the meter from his property, when usual procedure would have required them to remove it immediately upon suspecting wrongdoing. Although there was a three week delay in HL P's action, they did nothing that they were not legally entitled to do three weeks earlier. Accordingly, we hold that the delay in removing the meter did not make HL P an agent of the police for constitutional purposes.
The standard of review to be applied in this case is whether the trial court abused its discretion. State v.Moore, 749 S.W.2d 601 (Tex.App. — Amarillo 1988, no pet.). We hold that the trial court, by improperly finding that HL P acted as an agent for the police in removing the electric service meter, failed to follow the guiding rules set forth in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) and, accordingly, abused its discretion.
The order by the trial judge suppressing the evidence is ordered set aside.