)Rakas v. Illinois, 439 U.S. 128 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”)Rawlings v. Kentucky, 448 U.S. 98 (1980) (A defendant, who placed drugs in someone else’s purse, lacked standing to challenge the search of that purse.)Steagald v. United States, 451 U.S. 204 (1981) (The government cannot challenge a defendant’s lack of standing on appeal when it has “made contrary assertions in the courts below, … acquiesced in contrary findings by those courts, or … failed to raise such questions in a timely fashion during the litigation.”)State v. Klima, 934 S.W.2d 109 (Tex.Cr.App.1996) (When the state raises standing for the first time on appeal, it is not “rais[ing] a new issue. Rather it challenged the trial court’s holding that [defendant] met her burden of establishing that the government violated her reasonable expectation of privacy.”)Herring v. United States, 555 U.S. 155 (2009) (To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.)
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.
Thus, the court held that neither the trial court nor the court of appeals erred in its decisions.P.J. Keller, joined by J. Price, dissenting:Presiding Judge Keller stated that the State’s failure to raise the open field doctrine did not dispose of the issue because the Court had previously held that a State-appellant may raise an issue of standing for the first time on appeal. State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998); State v. Klima, 934 S.W.2d 109 (Tex. Crim. App. 1996). Further, Keller stated that the open field doctrine did not apply because the record did not indicate that the Appellee had any possessory interest over the field.