COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00160-CR

WHITNEY ROGERS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

TRIAL COURT NO. 2014-0223M-CR

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MEMORANDUM OPINION1

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I. INTRODUCTION

After the denial of her motion to suppress, Appellant Whitney Rogers 

pleaded guilty to possession of a controlled substance in an amount less than 

one gram pursuant to a plea-bargain agreement, but reserved her right to appeal 

the denial of her motion to suppress. See Tex. Health & Safety Code Ann. §§ 

 

1See Tex. R. App. P. 47.4.
2

481.102, 481.115(a)-(b) (West 2010). In accordance with Rogers’s plea bargain, 

the trial court placed Rogers on deferred adjudication for a period of two years 

and ordered her to pay a fine of $250, restitution of $180, court costs, and 

attorney’s fees. In her sole issue, Rogers argues that the trial court erred in 

denying her motion to suppress. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2014, Rogers was a passenger in a vehicle being driven by 

Gary Messick. Trooper Brandon Neff observed that the vehicle appeared to 

have an illegal window tint. See Tex. Transp. Code Ann. § 547.613(a)(2) (West 

2011). Trooper Neff stopped the vehicle and verified that the window tint was in 

fact illegal. He also verified that Messick was the owner of the vehicle. Trooper 

Neff testified that in situations when he stops a vehicle that has more than one 

occupant, he likes to separate the occupants so that he can speak to them

individually. Thus, Trooper Neff asked Messick to exit the vehicle. Because they 

were on the shoulder of a busy highway, Trooper Neff thought it would be best to 

talk to Messick in his patrol car. 

Trooper Neff frisked Messick prior to allowing him to enter the patrol car. 

During the frisk, Trooper Neff felt an object in Messick’s pocket that he could tell 

was “plainly contraband.” Trooper Neff told Messick to remove the object—a 
3

glass pipe of the type used to smoke methamphetamine.2 Messick also removed 

from his pockets a small pill bottle that contained a bag of methamphetamine. 

Trooper Neff then handcuffed Messick and placed him in the patrol car. 

Next, Trooper Neff asked Rogers to exit Messick’s vehicle and he began 

searching it. The vehicle contained several items of luggage. Trooper Neff 

testified that he believed some of the luggage belonged to Messick and that 

some of the “girly-looking” items belonged to Rogers. One of the items of 

luggage contained a makeup bag that had in it approximately thirty different pills, 

including a controlled substance. Trooper Neff testified that after he found the 

controlled substance, Rogers stated that the makeup bag belonged to her. 

Rogers was then arrested and charged with possession of a controlled 

substance. 

Rogers filed a motion to suppress, arguing that the controlled substance 

seized by Trooper Neff from the makeup bag as well as her statement to him 

regarding her ownership of the makeup bag should be suppressed. The trial 

court denied Rogers’s motion to suppress, and she entered into the plea 

agreement. 

 

2While Trooper Neff testified that he could tell the object was “plainly 

contraband,” he also testified that he was unaware of what type of pipe it was 

based “just on feel.” 
4

III. STANDING

Rogers challenges the search of Messick’s person, arguing that Trooper 

Neff created a safety concern in order to frisk Messick and arguing that Trooper 

Neff did not immediately identify the object in Messick’s pockets as contraband 

sufficient to invoke the plain-feel doctrine.3 Rogers also challenges the search of 

Messick’s vehicle and the search of her makeup bag found in Messick’s vehicle. 

The State counters that Rogers lacks standing to challenge the search of 

Messick’s person and also lacks standing to challenge the search of Messick’s 

vehicle and her makeup bag. 

A. The Law

The right to challenge the lawfulness of a search is limited to persons with 

standing—that is, to those who have been aggrieved by a search and seizure. 

Matthews v. State, 165 S.W.3d 104, 110 (Tex. App.—Fort Worth 2005, no pet.). 

When a search is contested, the accused establishes standing by showing she 

had a reasonable expectation of privacy in the area searched. Id. “A person 

who is aggrieved by an illegal search and seizure only through the introduction of 

damaging evidence secured by a search of a third person’s premises or property 

has not had any of [her] Fourth Amendment rights infringed.” Hughes v. State, 

 

3See Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) 

(stating that under the plain-feel doctrine an officer conducting a frisk may seize 

an object whose contour or mass makes its identity immediately apparent as 

contraband).
5

24 S.W.3d 833, 838 (Tex. Crim. App.) (quoting Rakas v. Illinois, 439 U.S. 128,

134, 99 S. Ct. 421, 425 (1978)), cert. denied, 531 U.S. 980 (2000). 

A passenger generally has no standing to contest the search of a vehicle. 

Tucker v. State, 183 S.W.3d 501, 507 (Tex. App.—Fort Worth 2005, no pet.). 

However, “a mere passenger may challenge the search of a vehicle in which 

[she] was riding if the search resulted from an infringement of [her] own Fourth 

Amendment Rights.” Trinh v. State, 974 S.W.2d 872, 874 (Tex. App.—Houston 

[14th Dist.] 1998, no pet.) (emphasis added) (citing Metoyer v. State, 860 S.W.2d 

673, 677 (Tex. App.—Fort Worth 1993 pet. ref’d)). In the absence of any 

evidence showing that a passenger in a vehicle has a legitimate expectation of 

privacy in the vehicle or a possessory interest in the property seized, the 

passenger has no standing to contest the search of the vehicle. Flores v. State, 

871 S.W.2d 714, 720 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 926 (1994);

Carroll v. State, 56 S.W.3d 644, 650 (Tex. App.—Waco 2001, pet. ref’d). We 

review the issue of standing de novo. Kothe v. State, 152 S.W.3d 54, 59 (Tex. 

Crim. App. 2004).

B. Analysis

Rogers lacks standing to challenge the search of Messick’s person as she 

does not have a reasonable expectation of privacy in the search of a third 

person. See Hughes, 24 S.W.3d at 838; Matthews, 165 S.W.3d at 110. While a 

passenger normally lacks standing to challenge the search of a vehicle, Rogers 

asserted a possessory interest in the makeup bag that contained the controlled 
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substance. Rogers, therefore, possesses standing to challenge the search of 

Messick’s vehicle to the extent it included her makeup bag. See Flores, 871 

S.W.2d at 720; Trinh, 974 S.W.2d at 874.

IV. ROGERS’S MOTION TO SUPPRESS

Rogers claims that the trial court erred in denying her motion to suppress 

because the search of Messick’s vehicle and her makeup bag was made without 

a warrant and does not fall within any of the exceptions to the warrant 

requirement. The State counters that the search of Messick’s vehicle and 

Rogers’s makeup bag falls within the automobile exception to the warrant 

requirement.4 

A. The Law

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. 

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 

We give almost total deference to a trial court’s rulings on questions of historical 

fact and application-of-law-to-fact questions that turn on an evaluation of 

credibility and demeanor, but we review de novo application-of-law-to-fact 

 

4

The State mentions in its summary of the argument that the search of 

Messick’s vehicle and Rogers’s makeup bag also falls within the search-incidentto-arrest exception to the warrant requirement. Nowhere in its brief, however, 

does the State give any substantive analysis as to how the search of Messick’s 

vehicle and Rogers’s makeup bag falls within the search-incident-to-arrest 

exception. The State’s analysis focuses solely on the automobile exception. We 

consequently limit our analysis accordingly.
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questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. 

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

The Fourth Amendment protects against unreasonable searches and 

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 

S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an 

alleged Fourth Amendment violation, the defendant bears the initial burden of 

producing evidence that rebuts the presumption of proper police conduct. 

Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. 

Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this 

burden by establishing that a search or seizure occurred without a warrant. 

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the 

burden of proof shifts to the State, which is then required to establish that the 

search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 

672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. 

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Whether a search is reasonable is a question of law that we review 

de novo. Kothe, 152 S.W.3d at 62. Reasonableness is measured by examining 

the totality of the circumstances. Id. at 63. It requires a balancing of the public 

interest and the individual’s right to be free from arbitrary detentions and 

intrusions. Id. A search conducted without a warrant is per se unreasonable 

unless it falls within one of the “specifically defined and well-established” 
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exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 

(Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best v. State, 118 

S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.).

The automobile exception to the warrant requirement permits police 

officers to conduct a warrantless search of a vehicle if it is “readily mobile and 

there is probable cause to believe that it contains contraband.” Keehn v. State, 

279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Probable cause exists when there 

is a “fair probability” of finding inculpatory evidence at the location being 

searched. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. 

denied, 555 U.S. 1154 (2009). If the automobile exception applies, police 

officers may search “every part of the vehicle and its contents that may conceal 

the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 

2157, 2173 (1982); Neal, 256 S.W.3d at 282. Police officers with probable cause 

to search a car “may inspect passengers’ belongings found in the car that are 

capable of concealing the object of the search.” Wyoming v. Houghton, 526 U.S. 

295, 307, 119 S. Ct. 1297, 1304 (1999). As explained by the Supreme Court,

[w]hen there is probable cause to search for contraband in a car, it is

reasonable for police officers—like customs officials in the founding 

era—to examine packages and containers without a showing of 

individualized probable cause for each one. A passenger’s personal 

belongings, just like the driver’s belongings or containers attached to 

the car like a glove compartment, are “in” the car, and the officer has 

probable cause to search for contraband in the car.

Id. at 302, 119 S. Ct. at 1301.
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B. Analysis

There is no question that Messick’s vehicle was readily mobile as it was 

being driven by Messick immediately prior to the search. See Keehn, 279 

S.W.3d at 336 (van used days before its search was readily mobile); Liffick v. 

State, 167 S.W.3d 518, 521 (Tex. App.—Houston [14th Dist.] 2005, no pet.) 

(“Appellant’s truck was readily capable of being used on the highways because 

the agents witnessed appellant driving the vehicle shorty before he was 

arrested.”) Thus, we next turn to whether there was probable cause to believe 

that Messick’s vehicle contained contraband. See Keehn, 279 S.W.3d at 335.

Trooper Neff’s frisk of Messick revealed a glass pipe of the type used to 

smoke methamphetamine and a bag containing methamphetamine. At the 

suppression hearing, Trooper Neff testified that he had reason to believe that 

Messick’s vehicle contained additional contraband. Under the totality of the 

circumstances, it was reasonable for Trooper Neff, after finding drugs and drug 

paraphernalia on Messick’s person, to believe that Messick’s vehicle also 

contained contraband. See Houghton, 526 U.S. at 297–98, 119 S. Ct. at 1299 

(holding that hypodermic syringe found in driver’s pocket gave police officers 

probable cause to search the driver’s vehicle for contraband); Daves v. State, 

327 S.W.3d 289, 293 (Tex. App.—Eastland 2010, no pet.) (“In the case we are 

reviewing, the arrest was for possession of narcotic paraphernalia. It would be 

reasonable for the officer to believe that the vehicle contained evidence related to 

that offense.”).
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Because Trooper Neff had probable cause to search Messick’s vehicle for 

contraband, he also had probable cause to search Rogers’s makeup bag that 

was contained within the vehicle. See Houghton, 526 U.S. at 307, 119 S. Ct. at 

1304 (holding that officers with probable cause to search a vehicle may inspect 

passengers’ belongings found in the vehicle that are capable of concealing the 

object of the search). As Messick’s vehicle was readily mobile and there was 

probable cause to believe that it contained contraband, Trooper Neff’s search of 

the vehicle and Rogers’s makeup bag contained within the vehicle falls within the 

automobile exception to the warrant requirement. See Keehn, 279 S.W.3d at 

335. Because we hold that the search of Messick’s vehicle and Rogers’s 

makeup bag contained within that vehicle falls within the automobile exception to 

the warrant requirement, we overrule Rogers’s sole issue.

V. CONCLUSION

Having overruled Rogers’s sole issue, we affirm the trial court’s judgment.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

SUDDERTH, J., filed a concurring opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: January 14, 2016