Wendi Mae Davidson v. State

Citation: Not availableDocket: 03-06-00721-CR

Court: Court of Appeals of Texas; March 13, 2008; Texas; State Appellate Court

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Wendi Mae Davidson was indicted for the murder of her husband, Michael Severance, and for two counts of tampering with or fabricating physical evidence. Davidson filed a motion to suppress evidence, arguing that the installation and monitoring of a tracking device on her vehicle constituted an unlawful search, violating her constitutional rights and state laws. She also claimed that the involvement of Air Force agents in the investigation breached the Posse Comitatus Act. The trial court denied her motion, and she subsequently pleaded no contest to all charges. On appeal, Davidson contended that the trial court erred in denying her motion to suppress the evidence obtained from the tracking device.

The factual background revealed that Davidson reported her husband missing on January 16, 2005, suggesting he may have deserted his military post. Investigations were initiated by both the Air Force Office of Special Investigations (AFOSI) and local police. Despite Davidson's claims about her husband's possible desertion, family members indicated it was uncharacteristic of him. AFOSI agents conducted a search around her veterinary clinic and coordinated with law enforcement agencies. They received authorization to place a tracking device on Davidson's vehicle, which was necessary for their investigation efforts into Severance’s disappearance. The court ultimately affirmed the trial court’s denial of the motion to suppress and upheld the convictions.

On February 26, 2005, agents placed a tracking device on the appellant's vehicle at her veterinary clinic, allowing them to monitor its location on February 26 and 27. Data revealed the vehicle traveled to a remote ranch owned by Terrell Sheen, who confirmed that the appellant and a person named Severance had access to his property and that the appellant kept a horse there. Sheen consented to a search of the ranch, which included access to several structures and ponds. During the investigation, agents were looking for a missing person and noted the property was secured and expansive.

On March 5, 2005, Texas Ranger Shawn Palmer and San Angelo Police Sergeant Jones interviewed the appellant at her clinic, questioning her about the Sheen property and internet searches related to polygraphs and body decomposition. The appellant became defensive when discussing the ranch's ponds. After the interview, Palmer, concerned about possible evidence in the pond, requested surveillance of the ranch. When the officers arrived, they found the appellant attempting to enter the property but were forced to deny her access.

Later that day, the appellant's brother, Marshall Davidson, suggested to the police that Severance's body might be in one of the ranch's ponds. During a meeting attended by the appellant and her parents, Davidson urged a search of the pond, while the appellant made a statement implying knowledge of the body’s location and potential involvement in a crime. Following the search, authorities discovered Michael Severance's body in the pond. Consequently, the San Angelo police and Texas Rangers obtained an arrest warrant for the appellant and search warrants for her clinic, home, computer, and vehicle. The appellant was subsequently indicted for Severance's murder and for two counts of tampering with or fabricating evidence.

The appellant filed a motion to suppress evidence obtained from a tracking device installed on her vehicle. Following a hearing with five witness testimonies and the admission of an arrest warrant, five search warrants, and related affidavits, the trial court denied the motion. Key findings included: (1) United States Air Force personnel were authorized to install the device; (2) the installation complied with Air Force regulations; (3) there was no reasonable expectation of privacy regarding the appellant's movements on public roads, thus no constitutional violation occurred; (4) the placement of the device was lawful under Texas law; (5) even if a search occurred, sufficient attenuation was established through statements made by the appellant's brother and the appellant herself regarding the location of a body.

After the motion's denial, the appellant pleaded no contest to murder and tampering charges, receiving concurrent sentences of twenty-five years and ten years, respectively. On appeal, the appellant argued that the trial court erred in denying her motion to suppress, claiming her constitutional rights were violated due to the tracking device's unauthorized use by law enforcement on private property. She specifically asserted that the absence of a state district judge's authorization rendered the installation an unreasonable search under the Fourth Amendment and Texas law, and sought to suppress all evidence obtained from the tracking device.

The standard of review places the initial burden on the defendant to produce evidence challenging the presumption of proper police conduct in seeking suppression based on constitutional violations.

A defendant establishes a preliminary burden by showing that a search and seizure occurred without a warrant. If the State presents a warrant, the defendant must then prove the warrant's invalidity. The trial court's ruling on a motion to suppress is reviewed using a bifurcated standard: historical facts are given deference, while legal applications are reviewed de novo. Evidence is viewed favorably towards the trial court’s ruling, which is the sole judge of witness credibility. The ruling is upheld if reasonably supported by the record and correct under any applicable legal theory. An appeal will not disturb the ruling without evidence of an abuse of discretion, focusing only on legal application to the facts.

The appellant argues that military involvement in the investigation violates the Posse Comitatus Act, claiming that the involvement of AFOSI agents exceeded mere coordination with civilian authorities and thus breached the Act. The Posse Comitatus Act restricts military participation in civilian law enforcement unless explicitly authorized. While the Act aims to maintain a separation between military and civilian law enforcement, it does not prohibit all cooperation. The appellant's claim of violation lacks merit for several reasons.

Military resources can be utilized if there is a legitimate military purpose, as established in case law. In this instance, the involvement of NCIS agents was justified due to the independent military objective of protecting military equipment and locating a potentially deserting service member. The Posse Comitatus Act is not violated when military investigations coordinate with civilian law enforcement, particularly in cases involving deserters, as outlined in the Uniform Code of Military Justice (UCMJ).

The appellant reported her husband, a military airman, missing and suspected of desertion, prompting a military investigation. The investigation aimed to locate a deserter, consistent with UCMJ provisions that authorize both military and civilian authorities to apprehend deserters. The case involved cooperation between military and civilian agencies, which did not exceed passive coordination.

Testimony from AFOSI agents confirmed the military purpose behind the investigation. The appellant's report initiated the inquiry, and therefore she could not object to the military's actions. The trial court found no violation of the Posse Comitatus Act, determining that military authorities properly authorized the placement of a tracking device on the appellant's vehicle in accordance with Air Force regulations. The required permissions were obtained from the appropriate military and legal authorities prior to the installation of the device.

Agent Harner testified that the appellant's red Camaro, displaying a Dyess Air Force Base sticker, was subject to military regulations. The military rules state that only a Region commander's approval is necessary for installation of tracking devices in public areas, without a need for a search warrant. The trial court found that agents complied with Air Force regulations, and the appellant did not argue any specific procedural violations by the military in installing the tracking device. Commander Harner's request for installation was properly approved by Colonel Edward Hagerty, affirming that the AFOSI investigation served an independent military purpose and adhered to military protocols, thereby not violating the Posse Comitatus Act. The appellant, as the movant for suppression, had the burden to demonstrate the invalidity of the military authorization but failed to do so. The trial court found no military law violations and noted that even if a Posse Comitatus Act violation occurred, it would not warrant the exclusion of evidence. The appellant’s argument that civil law enforcement authorities colluded with military personnel to bypass judicial orders under article 18.21 was rejected as misplaced, since this article pertains to acquiring judicial orders for certain surveillance methods, which did not apply to the military's actions in this case. The trial court's ruling on the validity of military authorization and denial of the suppression motion was upheld.

"Authorized peace officer," as defined in article 18.21, section 1(2)(A), includes only state officers, thereby excluding federal agents from its governance regarding tracking device orders. The court rejects the appellant's argument that the installation of tracking devices was prohibited under article 18.21, affirming that evidence obtained by federal agents acting lawfully is admissible in state criminal trials. However, federal agents cannot act as state police to bypass state law requirements. If military personnel are not operating under federal authority for independent military purposes but instead as state agents, they must adhere to state statutes and constitutional standards. The relationship between federal and state actors needs scrutiny to determine if any circumvention of state law is occurring. Evidence of mutual planning or joint operations could establish an agency relationship, but mere awareness or information exchange does not suffice. Cooperation between federal agents and state authorities is generally encouraged, as long as it does not involve illicit circumvention of state law. In this case, the military's investigation originated from a report about a missing serviceman, initiated by the appellant, who expressed concerns about her husband's potential desertion. The military was justified in using its investigative resources to locate the serviceman based on independent military interests.

The trial court determined that military personnel acted within their authority when placing a tracking device on the appellant's vehicle, adhering to proper rules and regulations. The court found that they pursued an independent investigative purpose and did not act as agents of civilian law enforcement to bypass the appellant’s statutory or constitutional rights. The appellant failed to provide evidence showing that law enforcement circumvented legal restrictions through AFOSI agents. The court concluded that Texas's article 18.21 did not apply to AFOSI agents, and their actions in attaching the device were not prohibited by any Texas statute. The tracking device was installed following Air Force rules, and the appellant could not raise any procedural challenges on appeal that were not previously brought before the trial court.

The central issue regarding the legality of monitoring the tracking device involved potential violations of the Fourth Amendment and Article I, Section 9 of the Texas Constitution. Although the appellant did not dispute the legality of tracking her vehicle on public roads, she contended that tracking onto private property, where she had a reasonable expectation of privacy, constituted a constitutional violation. She claimed the monitoring led to finding evidence related to a body on the property. However, her reliance on United States v. Karo was deemed misplaced, as that case addressed monitoring within a private residence, whereas the current situation involved tracking in open fields. The court found no authority suggesting Karo's ruling applied to monitoring outside the confines of a residence.

The Fourth Amendment and Article I, Section 9 aim to protect an individual's legitimate expectation of privacy from unreasonable government intrusions. An accused may challenge the admission of evidence obtained through such intrusions only if they demonstrate a legitimate expectation of privacy in the invaded area. The burden of proof lies with the accused to establish this expectation, requiring both a subjective expectation of privacy and a recognition of that expectation as objectively reasonable by society. Courts evaluate this using several factors, including the accused's property interest, legitimacy of presence, control over the area, precautions for privacy, private use of the space, and consistency with historical privacy notions.

The standing to contest a search is a legal question subject to de novo review, as is the determination of whether a subjective expectation of privacy is objectively reasonable. In this case, despite the appellant's claims regarding her access to a property where a tracking device was used, the evidence did not support a reasonable expectation of privacy. The appellant's access to the property was limited and did not establish exclusive control or privacy. Testimony indicated that she was merely a casual visitor without clear evidence of where she maintained her horse or the nature of her access, leading the court to conclude there was no reasonable expectation of privacy and that the trial court did not abuse its discretion in this finding.

Appellant failed to demonstrate a property or possessory interest, unrestricted access, or any reasonable expectation of privacy in the property in question, akin to the precedent set in Villarreal. The evidence only indicated that appellant had a legitimate presence on the property but did not support claims of overnight stays or exclusive control. The assertion that fencing and a locked gate excluded the public did not meet the burden of proof for a legitimate expectation of privacy in Sheen's ranch, as appellant was merely a guest with uncertain access. The evidence did not establish that appellant's subjective expectation of privacy was recognized as objectively reasonable. The government's entry into open fields did not constitute an unreasonable search under the Fourth Amendment or Article I, Section 9, which specifically protect individuals in their homes and immediate surroundings, not open fields. The "open fields" doctrine permits warrantless searches of land outside the curtilage of a dwelling, with the term "open field" encompassing any unoccupied or undeveloped area. Privacy in outdoor activities conducted in fields is not recognized as legitimate, especially when these areas are generally accessible to the public and law enforcement. The Supreme Court has affirmed that there is no societal interest in protecting privacy for activities in open fields, which are distinct from the privacy afforded to the curtilage surrounding a home.

The Court determined that the Fourth Amendment does not grant individuals a legitimate expectation of privacy in open fields, concluding that the appellant failed to provide evidence supporting such an expectation regarding the monitoring of her vehicle. The property in question, categorized as "open fields," does not warrant a recognized expectation of privacy, even though it was fenced and gated. The trial court's decision to deny the appellant's motion to suppress was affirmed, as it was consistent with applicable legal standards, and there was no abuse of discretion. Additionally, the Court found that the AFOSI agents acted within their authority under the Posse Comitatus Act and adhered to their regulations when they installed and monitored the tracking device. Consequently, the evidence obtained was deemed admissible, leading to the affirmation of the trial court's order and the convictions.