Price, J., delivered the opinion of the Court in which McCormick, P.J., Meyers, Mansfield, Keller, Holland, Womack and Keasler, J.J., joined. Keller and Johnson J.J., delivered concurring opinions.

Appellant was charged with the offense of murder. After a hearing, the trial court denied appellant’s pre-trial motion to suppress evidence. Appellant initially pled not guilty, but during trial changed his plea to guilty. The trial court accepted the plea and sentenced appellant to twenty years confinement. Appellant argued on appeal that the trial court erred in not granting his suppression motion. In a published opinion, the Court of Appeals affirmed the judgment of the trial court. Oles v. State, 965 S.W.2d 641 (Tex. App.--Houston [1^st Dist.] 1998). We granted appellant’s petition to determine whether law enforcement, without a search warrant, may test the clothing of a person lawfully arrested and in custody for one offense in order to investigate that person’s involvement in another (a second) offense, when there are no exigent circumstances to justify the warrantless testing, nor is there probable cause to test the clothing for the second offense.

We will affirm.

The facts are undisputed in this case. Appellant was initially detained at the police station as a potential witness to a murder. During this detention, the police discovered an open warrant issued for appellant’s arrest on a motion to revoke probation. The police arrested appellant on this outstanding warrant; they did not arrest him for the murder. The police inventoried and stored appellant’s clothing pursuant to this lawful arrest. There was no evidence on or within this clothing that was immediately apparent to the naked eye. Eight days later, with appellant still incarcerated pursuant to the revocation warrant, an investigator took appellant’s clothing to the medical examiner’s office to determine if it contained blood traces. A serologist discovered blood on appellant’s shoes that matched the blood of the murder victim. The police charged appellant with murder, from which he presently appeals.

In a published opinion, the Court of Appeals affirmed the trial court’s holding on the suppression of the evidence.¹ Oles v. State, 965 S.W.2d 641 (Tex. App.--Houston [1^st Dist.] 1998). The Court of Appeals held that the police had every right to search appellant’s clothing, take it from him, and keep it in official custody incident to legal arrest. See id. at 644. It determined the issue to be whether a person lawfully arrested for one crime continued to have a legitimate expectation of privacy in clothing that was rightfully under the control of the police, yet being tested for an unrelated crime. Id. In its analysis, the Court applied the test for proving a legitimate expectation of privacy, involving two queries: (1) whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy and (2) whether the individual’s subjective expectation of privacy is one that society is prepared to recognize (objectively) as reasonable. See id. (citing Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 2580 (1979), Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (plurality opinion)). The Court of Appeals determined that appellant could not affirmatively prove either prong of this test, thus the trial court did not abuse its discretion in denying the motion to suppress. Oles, 965 S.W.2d at 645.

After this decision, reconsideration en banc was requested. Oles, 965 S.W.2d at 645. This request was denied in a 5-4 decision. Id. Justice Andell delivered an opinion dissenting from the denial of en banc reconsideration, in which Justice O’Connor joined. Id. The dissenting opinion argued that one more test was required to determine that this search was reasonable. Id. (emphasis in original). It averred that the minimum constitutional requirements for a warrantless search are (1) probable cause that evidence will be uncovered and (2) exigent circumstances justifying the search. Id. (citing Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981 (1970)). This case did not involve exigent circumstances nor probable cause, thus the trial court should have granted the suppression motion. Id.

Generally, a trial court’s ruling on a motion to suppress is reviewed by an abuse of discretion standard. See Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). However, the instant case presents us with a question of law based on undisputed facts, thus we apply de novo review. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

This is a case of first impression for this Court and the legal questions presented are varied and complex. First, this Court must determine whether an arrestee retains any expectation of privacy in clothing lawfully taken and inventoried by police incident to an arrest.² Second, if we conclude that such a privacy interest exists, we must then determine if a subsequent search of that clothing without a warrant, probable cause, or “plain view” knowledge of the clothing’s relevance as evidence, violates the remaining privacy interest protected by the Fourth Amendment.³

Initially, we decide that it is of no consequence that appellant was arrested for a different crime than the one for which he was eventually charged.⁴ It is beyond dispute that a firearm or controlled substance found in a search incident to lawful arrest would not be suppressed, regardless of the charge on which police initially arrested an accused. There is no reason to have a different result here. The police lawfully arrested appellant pursuant to an open arrest warrant. Any evidence discovered in a search incident to that arrest, if otherwise reasonably seized, should not be suppressed merely because it relates to a different crime than the one for which appellant is eventually charged.

This Court has held that police may initially analyze a detainee’s clothing incident to arrest. See Marquez v. State. 725 S.W.2d 217, 234 (1987), cert. denied, 108 S.Ct. 201 (1987). In that case, Marquez was arrested and immediately transported to the police station. Id. An officer ordered him to disrobe after noticing that there were blood stains on his clothing and shoes. Id. Forensic analysis verified that the blood stains on his clothing matched the victims’ blood and Marquez was charged with murder. Id. In affirming Marquez’ conviction, this Court held that “[t]he warrantless seizure of a suspect’s clothing subsequent to a legal arrest, while in custody or detention, is permissible.” Id. The sole rationale supporting this ruling was a citation to a United States Supreme Court opinion, United States v. Edwards, and three cases from this Court that had also cited Edwards. 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d. 771 (1974); and see Russell v. State, 665 S.W.2d 771 (Tex. Crim. App. 1983), cert. denied, 104 S.Ct. 1428 (1984); Stewart v. State, 611 S.W.2d 434 (Tex. Crim. App 1981); Deal v. State, 508 S.W.2d 355 (Tex. Crim. App. 1974).

In Edwards, police booked the suspect at night, but waited until the following morning to submit his clothing for laboratory analysis. See 415 U.S. at 805, 94 S.Ct. at 1238. The Court held that “in a situation like” the one in Edwards, the legal arrest of a person, for at least a reasonable time and to a reasonable extent, takes the arrestee’s “own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.” 415 U.S. at 809, 94 S.Ct. at 1239-40.⁵ The Edwards Court apparently based their holding on the “plain view” doctrine, stating

“[w]hen it became apparent that the articles of clothing were evidence for the crime for which [appellant] was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of a crime when it is lawfully encountered.”⁶

Id. 415 U.S. at 806, 94 S.Ct at 1238 (citations omitted). However, they certainly left open the possibility of expanding this basis with a companion statement that ended the same paragraph:

“Indeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.”

Id.

The distinctions between the instant case and the cases of Edwards and Marquez are important. Most notably, Edwards and Marquez dealt with blood-splattered clothing easily visible to the arresting officer, whereas the officer in the instant case could not see the blood in “plain view”. When appellant’s clothing was taken eight days after his arrest to the forensics lab for testing, the search was more extensive than the original search at arrest and inventory. This “second search” distinction has caused conflicting results among federal and state courts, as will be explained below. Also see LaFave, Wayne R., Search & Seizure § 5.3(b) (3^rd Ed. 1996). Additionally, Edwards and Marquez involved clear findings of probable cause, while here the police did not appear to have sufficient probable cause to apply for a search warrant of appellant’s clothing. Finally, the instant case involves an eight-day delay between the arrest and the analysis of appellant’s clothing, where the aforementioned cases involved only a half-day delay. Therefore, although Edwards and Marquez provide the foundation for today’s ruling, clearly they are not dispositive of the issues presented in the instant case.

The Texas cases cited by Marquez are equally distinguishable on their facts from the unique issues presented by this case, but one of them does provide guidance in answering the first question presented:

“The arrest of appellant, standing alone, [does] not destroy whatever privacy interests she had in the contents of the purse, [but it does] at least for a reasonable time and to a reasonable extent, subordinate those interests to the legitimate governmental interest in discovering weapons and preventing the destruction or secretion of evidence.”

Stewart v. State, 611 S.W.2d 434, 438 (1981). Thus, arrestees do retain some level of privacy interest in the personal effects or belongings taken from them incident to their arrest. However, this finding only begs the question: is this diminished expectation of privacy legitimate, in that it prohibits the police from searching an arrestee’s clothing or effects without a warrant or probable cause? This question is best answered by focusing on what the Fourth Amendment is designed to protect.

We recently held that the Fourth Amendment safeguards an individual’s legitimate expectation of privacy from unreasonable governmental intrusions. Villarreal v. State, 935 S.W.2d at 138. Although Villarreal involved an accused’s expectation of privacy in another’s home and is distinguishable from this case on that fact, it affirmed the standard by which an appellant must prove a legitimate expectation of privacy: (a) that by his conduct, he exhibited an actual subjective expectation of privacy, i.e. a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)).

However, an arrestee attempting to prove these two prongs must additionally overcome the already lowered expectation of privacy that exists in arrest and detainment situations. It is clear by our ruling in Marquez that this Court determined the expectation of privacy in inventoried items is lessened or partially dissipated, or we could not have held that it was valid for police to search and seize the blood-stained shirt.⁷ Marquez, 725 S.W.2d at 234. Further, while an appellant is incarcerated, he has no expectation of privacy in the jail cell or the clothing he wears within the cell. See Soria v. State, 933 S.W.2d 46, 60 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 2414 (1997). Thus, from a jail cell where he has no expectation of privacy, and in regards to clothing previously determined to be outside the realm of Fourth Amendment protection, an arrestee must prove that his conduct reflected a genuine intention of an expectation of privacy, and that society would deem such an expectation as objectively reasonable under these circumstances.

Courts consider many factors in determining whether or not an expectation of privacy is legitimate. See Villarreal, 935 S.W.2d at 138 (citations omitted). However, many of these factors are inapplicable to the case at bar, largely because a jail cell and a storage facility operated by law enforcement are simply not places commonly associated with notions of privacy. For example, it is completely inapplicable in this situation to consider whether the accused had a property or possessory interest in the place invaded, or whether he was legitimately within the place invaded. See id. In this case, the place “invaded” is a storage area operated by the officers investigating the accused -- who himself has no ability to enter the area even if he so wanted.

Some of the factors are applicable to this situation, however, such as whether the accused had complete dominion or control and the right to exclude others from his belongings, whether he took normal precautions customarily taken by those seeking privacy, or whether his claim of privacy is consistent with historical notions of privacy. See id. These factors all weigh against a finding of an expectation of privacy in the present case, but none as strikingly as the one involving historical notions of privacy. No situation imaginable is as alien to the notion of privacy than an arrestee sitting in a jail cell, completely separated from his effects that are lawfully controlled and inventoried by the very police that are investigating him.

It is doubtful in these situations that any appellant would harbor a subjective belief that inventoried items are still private to him.⁸ Notwithstanding that improbability, based on the application of the factors described above, it is nearly certain that society would not recognize this belief as objectively reasonable in these situations. This inevitably leads to the conclusion that it is proper for police to examine and test clothing validly within their control and custody, regardless of the existence of probable cause or exigent circumstances.

Several federal and state courts agree with this conclusion. See United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) (defendant arrested for traffic violation had personal effects taken from him, including currency, that were inventoried for safekeeping; seven days later officer checked currency’s serial numbers against “bait money” from a recent robbery; court held that these numbers were seen but not recorded and upheld the search under Edwards); United States v. Phillips, 607 F.2d 808 (8^th Cir. 1979) (personal effects were taken from defendant upon arrest; these effects were later placed in an envelope; still later the envelope’s contents were examined and an incriminating note was found; search upheld under Edwards); United States v. Johnson, 820 F.2d 1065 (9^th Cir. 1987) (court upheld search when “expectation of privacy significantly reduced” by earlier inventory when serial numbers on money not recorded at first inventory but later verified by police); State v. Bible, 175 Az. 549, 858 P.2d 1152 (Ariz. 1993) (court upheld police seizure and testing of clothes on different charge from one defendant arrested; “authorities merely tested that which had properly come into their possession”); State v. Williams, 248 Kan. 398, 807 P.2d 1292 (Kan. 1991) (second look not limited to cases where officers observe item and recognize it as evidence later); State v. Wheeler, 128 N.H. 767, 519 A.2d 289 (1986) (boots lawfully seized and later lawfully tested against prints at different crime scene); Contreras v. State, 838 S.W.2d 594 (Tex. App.--Corpus Christi 1992, pet. ref’d) (police not required to obtain warrant for fingerprints or shoes seized from appellant at arrest).

Nevertheless, not all courts agree as to the proper breadth of this “second look”. The Fifth Circuit has held that an arrestee’s privacy rights are dissipated in items inventoried by police. See United States v. Thompson, 837 F.2d 673 (5^th Cir. 1988) (keys taken from defendant at arrest are later identified as evidence linking him to dynamite; court held person lawfully arrested has no reasonable expectation of privacy with respect to property properly taken from his person for inventory by police); United States v. Grill, 484 F.2d 990 (5^th Cir. 1973) (key taken from defendant at arrest that later linked defendant to crime is not suppressed; no reasonable expectation of privacy breached by an officer’s taking a second look at matter to which expectation of privacy at least partially dissipated). In both Grill and Thompson, the Fifth Circuit held that the second search was no more intrusive than the initial search, thereby distinguishing these cases from its own precedent, United States v. Brett, 412 F.2d 401, 405 (5^th Cir. 1969). In Brett, an officer searched the watch pocket of Brett’s jeans three days after his arrest and found a packet containing trace amounts of heroin; this pocket was not searched during his original arrest and inventory. Id. The Fifth Circuit determined that (1) this search was more extensive than the one performed at his actual arrest and inventory, (2) plain view was not applicable due to the trace amounts of heroin found, and (3) no exigent circumstances warranted the disposal of the warrant requirement. Id. Therefore, the court determined that the second search violated appellant’s rights under the Fourth Amendment. Id. See also D’Antorio v. State, 837 P.2d 727 (Alaska, 1992) (second glance not applicable if later examination more intensive than first).

This Court respectfully disagrees with this analysis. The D’Antorio and Brett Courts grant a defendant more protection simply because he is already incarcerated; a search that was legal at arrest becomes illegal because the evidence was not in “plain view” nor were exigent circumstances present that nullified the requirement for a warrant. This reasoning does not follow the relevant case law, however. The Edwards Court could have easily held that the plain view exception justified the seizure of Edward’s clothing, but it did not do so. Rather, it merely alluded to the idea -- without ever explicitly utilizing the legal term “plain view” and invoking its well established precedent -- and then somewhat undercut this conclusion with a broad statement asserting that it would be difficult to find anything wrong with the police searching something they have under their control. Similarly, the Edwards Court did not discuss exigent circumstances as playing any role in its decision; indeed, it is difficult to see how the facts of Edwards would allow a finding of exigent circumstances since the police had the clothing under their control and were in no imminent danger of losing the evidence. The inherent flaw with the analysis in D’Antorio and Brett is that both relieve an arrestee of his burden to prove his existing and legitimate expectation of privacy. The Fourth Amendment is not a magic wand that creates privacy rights where there were previously determined to be none, nor should it restore dissipated rights without appellants providing some evidence that they harbored legitimate expectations of privacy. Therefore, once it is determined that police lawfully seized the personal effects of an arrestee, his expectation of privacy is diminished in those effects until he can and does exhibit subjective expectations through his conduct, presumably at the time of release from detainment or incarceration. Furthermore, the exceptions that dissipated the expectation of privacy at arrest (weapons, secretion or destruction of evidence, etc.) are removed at the time of release, thus the circumstances compel a finding that this expectation would be objectively reasonable.

Reviewing this search under a totality of the circumstances, there is virtually no evidence that appellant harbored a subjective expectation of privacy in his clothing that was in the custody of the police, nor is there evidence that society would deem such a belief reasonable under these circumstances. Appellant has failed to meet his burden of proof in establishing a legitimate expectation of privacy in this clothing.⁹ Therefore, appellant’s clothing is not encompassed under the protection of the Fourth Amendment and the search of this clothing was reasonable and valid.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Price, J.

Date Delivered: May 26, 1999

Publish

¹ Appellant’s brief before the Court of Appeals explained that there were no exigent circumstances to authorize a warrantless search, thus the search was illegal under the Fourth Amendment of the Federal Constitution, Article I, § 9 of the Texas Constitution, and Code of Criminal Procedure articles 14.01 to 14.06 (Vernon 1977 & Supp. 1998) and article 38.23 (Vernon Supp. 1998). However, the Court of Appeals focused solely on the Federal Constitutional issue. We will also focus only on the Federal Constitutional issue, as it provides appellant with at least an equal amount of protection as its Texas Constitution counterpart, and the statutory provisions do not apply without a Fourth Amendment violation.

² The precise reason for review stated in appellant’s petition for discretionary review is:

“whether law enforcement, without a search warrant, may test the clothing of a person lawfully arrested and in custody for one offense in order to investigate that person’s involvement in another (a second) offense, when there are no exigent circumstances to justify the warrantless testing, nor is there probable cause to test the clothing for the second offense.”

³ The Fourth Amendment provides in pertinent part, “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched.” U.S. Const. amend. IV.

⁴ Appellant stresses this distinction to warn that police may use “pre-textual” stops in order to arrest suspects on petty, unrelated charges and then search their clothing subsequent to the arrest. We have previously rejected this “slippery-slope” argument when the police have established probable cause to arrest. See Garcia v. State, 827 S.W.2d 937, 943 (Tex. Crim. App. 1992), Crittenden v. State, 899 S.W.2d 668, 669 (Tex. Crim. App. 1995). In this case, it is uncontroverted that the police had a valid warrant to arrest appellant, and any subsequent cases would similarly require valid probable cause to arrest or the evidence would be suppressed.

⁵ Appellant stresses that Edwards cautioned against expanding its holding when it stated “[w]e do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to post arrest seizures of the effects of an arrestee.” 415 U.S. at 808, 94 S.Ct. at 1239. However, in a footnote appended to that quotation, the Supreme Court explained that such conduct must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Id. n.9 (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (reasonable for State to require appellant to give blood test in criminal prosecution for driving while intoxicated); but cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (unreasonable for State to attempt to extract capsules of morphine from appellant’s mouth by force, then utilize “stomach pump” to induce vomiting to expel capsules). Thus, it is not clear that this warning envisioned the issues in this case, but rather warned against violative searches of a person’s actual bodily person, that are inherently more violative than a search of appellant’s clothing.

⁶ A search incident to arrest is also justified by the officer’s right to protect himself from concealed weapons on the accused’s person or within their immediate area of control. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467 (1973). As this is clearly not an appropriate argument in this case (the clothes had been completely out of appellant’s control for eight days before the search) we will focus on more appropriate precedent.

⁷ It is immaterial what justification is employed for finding a lowered expectation of privacy, whether it is the standard inventory practice of the booking station, the plain view exception, or others. Another potential argument could be that the police could consent to the search, as they have control and authority over the items to be searched. See United States v. Matlock, 415 U.S. 164, 171 (1974); Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994) (third party may properly consent to a search when he has control over and authority to use the premises being searched), cert. denied, 115 S.Ct. 1317 (1995). Regardless of why appellant’s expectation of privacy is substantially diminished, the expectation remains diminished until appellant can exhibit conduct reflecting an expectation of privacy.

⁸ The Court of Appeals posited that appellant could have shown such a subjective belief by asking friends or family members to pick up his clothes for him at the detention facility. However, even if this shows a subjective intent that appellant considered these clothes private, it is not at all clear that this intent would be considered objectively reasonable by society.

⁹ We are unpersuaded by the Court of Appeals’ dissenting opinion that requires a subsequent test to establish that this search was reasonable. Once appellant fails to prove that his privacy interest is legitimate, he is not afforded the protection of the Fourth Amendment until the time at which his legitimate privacy interest is restored. The police were reasonable in their analysis of clothing properly within their custody, and “[i]ndeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” Edwards, 415 U.S. at 806, 94 S.Ct. at 1238.