STATE of Tennessee v. Peter Allen ROSS.
Supreme Court of Tennessee, at Jackson.
July 9, 2001.
48 S.W.3d 833
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General, Nashville, TN, for the appellee, State of Tennessee.
OPINION
WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, and JANICE M. HOLDER, JJ., joined.
The appellant was convicted of possession of a controlled substance and drug
BACKGROUND
On August 31, 1998, two officers with the Savannah Police Department accompanied a person to Shaw‘s Motel to recover stolen checks in her possession. Upon arriving at the motel, the suspect informed the officers that she was staying in room 121. The officers knocked on the door to that room, and when it was finally opened, the officers detected the smell of marijuana and found four people inside thе room, including the appellant, Peter Allen Ross.
The officers then asked everyone to leave the room and to empty their pockets. When the appellant came outside, the officers told him to remove his shoes. As he did so, he removed a key to room 132 from his sock and kept it in the palm of his hand. One of the officers noticed that the appellant had something in his hand, and when the officers discovered that it was another room key, they asked the appellant whether the key belonged to him. The appellant denied that the key was his, and he instead claimed that it belonged to another occupant of the room, Ms. Safon Black. When the officer asked Ms. Black whether the key belonged to her, she also denied ownership, but she told the officers that they were nevertheless free to search anything that belonged to her.
Another officer soon arrived with a drug dog, and the officers searched room 121, finding only a small amount of marijuana behind the dresser. However, when the officers next took the dog to room 132, they discovered 53.5 grams of cocaine base, more cоmmonly known as crack cocaine, in a night stand drawer.1 The officers also found a set of electronic scales, a roll of plastic sandwich bags, and several items bearing the appellant‘s name, including his wallet, two car titles, and a receipt dated August 28. Later investigation revealed that room 132 was registered to the appellant.
On November 23, 1998, the Hardin County Grand Jury indicted the appellant with one count of possession of more than
On April 21, 1999, a jury found the appellant guilty as charged on both counts of the indictment. At the sentencing hearing, the trial court found that the following three enhancement factors applied to increase the length of his sentence: (1) that the appellant has a previous history of criminal behavior; (2) that the appellant has previously failed to comply with conditions of probation; and (3) that the appellant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed as an adult. The appellant argued that one mitigating factor also applied: that his criminal conduct neither caused nor threatened serious bodily injury. The trial court disagreed, however, finding that a threat of serious bodily injury was present because crack cocaine “is an inherently addictive and dangerous substance that [the appellant] had in his possession in a very significant quantity.” The trial court then sentenced the appellant, as a Range I standard offender, to serve twelve years for the controlled substances conviction, the maximum sentence available for a Class B felony, and to serve a concurrent sentence of eleven months, twenty-nine days for the drug paraphernalia conviction.
On appeal to the Court of Criminal Appeals, the appellant argued that (1) the search of room 132 was in violation of the federal and state Constitutions; (2) the evidence was insufficient to support a finding beyond a reasonable doubt that he possessed the items seized in room 132; and (3) the trial court erred in imposing the maximum sentence in the range for his offense by failing to consider the specified mitigating factor. With respect to the lawfulness of the search, the Court of Criminal Appeals upheld the denial of the motion to suppress, finding that the appellant‘s disclaimer of the motel room key operated as a disclaimer of any legitimate expectation of privacy in the room searched. Although the appellant argued that the purported disclaimer was only of the key and not of the room itself, the intermediate court held that this distinction was not “reasonable under the facts,” and that “[b]y disclaiming the key, the [appellant] disclaimed his connection to the room.” The Court of Criminal Appeals also found that the evidence was sufficient to support the appellant‘s convictions and that the sentence was appropriate.
The appellant then requested, and we granted, permission to appeal to this Court on the three issues addressed by the Court of Criminal Appeals. For the reasons discussed below, we affirm the judgment of the intermediate court.
SUPPRESSION OF EVIDENCE
The appellant first argues that the trial court erred in denying his motion to suppress the search of his motel room. More specifically, he claims that because the officers possessed neither a warrant nor probable cause to believe that illegal items were present in room 132, the search was in violation of the federal and state Constitutions. In response, the State argues
When reviewing a trial court‘s findings of fact and conclusions of law in ruling upon a motion to suppress evidence, we are guided by the now familiar standard of review set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court‘s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at 23. In reviewing these factual findings, we are mindful that “[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id.; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000). As such, “the prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.‘” See State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). Our review of a trial court‘s application of law to the facts, however, is conducted under a de novo standard of review. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).
The Fourth Amendment to the United States Constitution provides that “[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....” Article I, section 7 of the Tеnnessee Constitution similarly prohibits unreasonable searches and seizures, and we have long held that this provision is identical in intent and purpose with the Fourth Amendment. See, e.g., State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn. 1997). As we stated in State v. Downey, “[t]he essence of the prohibition against unreasonable searches and seizures under the Fourth Amendment is to ‘safeguard the privacy and security of individuals against arbitrary invasions of government officials,‘” 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)), and consequently, the state and federal constitutional protections “are implicated only when a police officer‘s interaction with a citizen impermissibly intrudes upon the privacy or personal security of the citizen,” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000).
It is well settled that the Fourth Amendment‘s procedural safeguards do not apply to police investigative activities unless those activities constitute a “search” within the meaning of the Fourth Amendment. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). Since Katz v. United States, 389 U.S. 347 (1967), the Supreme Court has declined to define the term “search” in a literal fashion, and it has instead chosen to define a search as an invasion of a reasonable or legitimate expectation of privacy. See id. at 351; Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see also State v. Roode, 643 S.W.2d 651, 652-53 (Tenn. 1982). As a result, “an investigation by governmental authorities which is not a searсh as defined by the Supreme Court may be conducted without probable cause, reasonable suspicion or a search warrant.” State v. Bell, 832 S.W.2d 583, 589-90 (Tenn. Crim. App. 1991).
Taking the second inquiry first, it can hardly be denied that if the appellant manifested an actual expectation of privacy in his rented motel room, then this expectation would be one that society recognizes as legitimate and reasonable. At least since 1964, the United States Supreme Court has recognized that the Fourth Amendment privacy protections surrounding one‘s home are extended to cover hotel rooms and other temporary living spaces. See Stoner v. California, 376 U.S. 483, 490 (1964). Although no case from this Court has recognized an expectation of privacy in hotel or motel rooms, every federal circuit has found that such an interest exists in these places.3 Accordingly, we conclude that a true manifestation of privacy in a hotel or motel room is one that society would recognize as legitimate and reasonable.
The genuine issue, therefore, is whether the appellant “exhibited an actual (subjective) expectation of privacy,” or whether, in the words of Bond, he has shown that “he sought to preserve [something] as private.” See 529 U.S. at 338. Actual ownership or possession of the place or thing searched is alone insufficient to manifest a subjective expec-
- [whether the defendant owns the property seized];
- whether the defendant has a possessory interest in the thing seized;
- whether the defendant has a possessory interest in the place searched;
- whether he has the right to exclude others from that place;
- whether he has exhibited a subjective expectation that the place would remain free from governmental invasion;
- whether he took normal precautions to maintain his privacy; and
- whether he was legitimately on the premises.
See State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982); see also State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991); State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990).
Although the Turnbill test appears to apply a totality-of-the-circumstances approach to determine whether a defendant has an actual or subjective expectation of privacy in the object of a search, the test does not address what effect a defendant‘s disclaimer of ownership has upon his or her expectation of privacy. Indeed, in the cases where the intermediate court has considered a defendant‘s disclaimer, this fact has received only as much attention as the other Turnbill factors would permit.4 However, a long line of cases from this Court indicates that a defendant‘s disclaimer is more than just another factor to consider, and “when one disclaims interest in the premises or possessions searched or in the articles seized he cannot question the legality of the search and seizure....” Bowman v. State, 211 Tenn. 38, 41, 362 S.W.2d 255, 257 (1962).5 In fact, at least one of our previous decisions suggests that when a defendant disclaims an interest in the object of a police investigation at the time of the search, then this fact alone will deprive a defendant of any expectation of privacy, irrespective of considerations such as ownership or possession. See Miller v. State, 520 S.W.2d 729, 733-34 (Tenn. 1975).
Although at least one commentator has maintained that mere disclaimer of ownership, unlike actual abandonment of ownership, should not defeat an expectation of privacy, see 5 Wayne R. LaFave, Search and Seizure § 11.3(a), at 128, 187 (3d ed. 1996) (specifically noting our decision in Miller), we continue to hold otherwise. In the vast majority of jurisdictions, courts have equated a denial or disclaimer of an interest in the object of a search with formal abandonment, because like aban-
Turning to the facts of this case, we concludе that the appellant‘s conduct failed to exhibit an “actual (subjective) expectation of privacy” in the motel room. Katz, 389 U.S. at 361 (Harlan, J., concurring). The trial court‘s findings, which are supported by the weight of the evidence, demonstrate the following facts: (1) the appellant produced the key to room 132 from his sock voluntarily and without being asked to do so by any of the officers; and (2) the appellant not only denied ownership of the key to room 132 when asked, but he actually asserted that the key belonged to someone else. By disclaiming ownership of the key, the appellant effectively gave “the authorities the green light to proceed insofar as his own Fourth Amendment rights [were] concerned,” see People v. Allen, 17 Cal. App. 4th 1214, 21 Cal. Rptr. 2d 668, 671 (1993), and this disclaimer, combined with his assertion that the room actually belonged to someone else, is sufficient evi-
We also reject the appellant‘s argument that his disclaimer of the key had no effect upon his privacy interest in the room itself. We will not re-examine the factual findings of the trial court when those findings are supported by the weight of the evidence, Odom, 928 S.W.2d at 23, but even taken as true, we find the appellant‘s distinction to be meaningless. By voluntarily relinquishing the key, the appellant relinquished his ability to exclude others from the room. Because “[n]either possession nor ownership of property establishes a legitimate expectation of privacy unless the party vigilantly protects the right to exclude others,” United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991) (citing United States v. Salvucci, 448 U.S. 83, 90-93 (1980)), a party cannot assert a privacy interest in a room after surrendering his or her ability to control who could have access to that room. Accord State v. Huffman, 169 Ariz. 465, 820 P.2d 329, 330-331 (App. 1991) (holding that denial of ownership of motel room key relinquishes any reasonable expectation of privacy in the room). Therefore, we conclude that the appellant‘s attempted distinction is without merit.
The dissent asserts that our holding on this issue is “illogical” because it permits the State to deny the defendant‘s possession of the hotel room during the suppression hеaring, yet seek to prove the defendant‘s possession of the room during the trial. Respectfully, not only has the dissent‘s view been rejected by the United States Supreme Court for more than two decades, see Salvucci, 448 U.S. at 88-89, but it also ignores that the Fourth Amendment protects against unreasonable intrusions of privacy, not merely against unreasonable interference with possession of property. The dissent seems to overlook the fact that possession of an object or place is only relevant to the extent that it demonstrates the presence of an expectation of privacy. Katz, 389 U.S. at 351.9 Therefore, contrary to the dissent‘s characterizations, the State has not taken contradictory or “illogical” positions throughout the course of this litigation. The State‘s position at the suppression was not that the appellant lacked a possessory interest in the hotel room; it was simply that he lacked any legitimate expectation of privacy in that room. See, e.g., United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989) (stating that “it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.“). It was with perfectly legal consistency, then, that the State argued later at trial that the appellant‘s possession of the motel room established his constructive possession of the items contained therein.
We agree that actual possession of searched premises is an important factor to consider when assessing whether a defendant has a privacy interest that society is willing to accept as legitimate. Our agreement with this principle is precisely the reason we have concluded that the appellant‘s expectation of privacy in his motel room could have been one that soci-
The dissent also expresses the view that citizens “should not be forced to choose between incriminating themselves or sacrificing their right to insist that the police obtain a warrant before intruding upon their property.” Whatever merit this view may have, the appellant in this case was not forced to make such a choice. Importantly, the appellant has never denied that he was in possession of the mоtel room, and he readily admitted this fact at the suppression hearing and again at trial. Indeed, his defense has consistently been that the drugs and drug paraphernalia belonged to another occupant of the room, not that he lacked any possessory interest in the room in which these items were found.
Because the appellant has conceded that he had a possessory interest in the motel room, we do not find that any manifestation of a subjective privacy interest in that room would have been tantamount to compelled self-incrimination. We note, however, that another case may be presented where the assertion of ownership or possession goes to prove an essential, contested element of the crime. See Simmons v. United States, 390 U.S. 377, 394 (1968). Because this issue need not be resolved today, however, we await the appropriate case in which to fully address this question.
SUFFICIENCY OF THE EVIDENCE
Having found that the search of the motel room did not violate the appellant‘s rights under the federal or state Constitutions, we must now address whether the evidence is sufficient to support the aрpellant‘s convictions for possession of crack cocaine and drug paraphernalia. The appellant takes specific issue with the possession element of each charge, and he argues that because the motel operator testified that a second person was registered as a guest in room 132, the evidence does not support a finding that the cocaine in room 132 was possessed by the appellant. We disagree.
When a defendant challenges the sufficiency of the convicting evidence on appeal, this Court begins with the premise that a guilty verdict “removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Williams, 913 S.W.2d 462, 466 (Tenn. 1996). The State is not only entitled to the strongest legitimate view of the evidence on appeal, but it is also entitled to all reasonable and legitimate inferences that may be drawn from the evi-
POSSESSION OF A CONTROLLED SUBSTANCE
We analyze first the evidence supporting the appellant‘s conviction for possession of a controlled substance.
The real issue, therefore, is whether the evidence is sufficient to support a finding that the appellant “possessed” the cocaine base found in room 132. We first note that the statute prohibiting “possession” of a controlled substance is not restricted to proof of actual possession, and evidence of either constructive possession or other control over the substance is sufficient to establish this element. State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991); Peters v. State, 521 S.W.2d 233 (Tenn. Crim. App. 1974). In discussing the nature of constructive possession in a similar context, the Court of Criminal Appeals has stated that
[t]he term “possession,” as used in the [controlled substances] statute, embraces both actual and constructive possession. Before a person can be found to constructively possess a drug, it must appear that the person has “the power and intention at a given time to exercise dominion and control over... [the drugs] either directly or through others.” In other words, “constructive pos-
session is the ability to reduce an object to actual possession.”
State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996) (citations omitted) (omission and second alteration in original). As such, although a defendant‘s mere presence at a place where controlled substances are found will not support an inference of possession, id. at 956, a person in possession of the premises where controlled substances are found mаy also be presumed to possess the controlled substances themselves, see Armstrong v. State, 548 S.W.2d 334 (Tenn. Crim. App. 1976).
In this case, viewing the evidence in the light most favorable to the State, the evidence is more than sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the appellant possessed the cocaine base. The proof was uncontroverted that room 132 was registered in the appellant‘s name, that the appellant himself paid for the room in cash, and that the appellant possessed the key to room 132. Inside the room, officers discovered several items bearing the appellant‘s name, including his wallet, two car titles, and a receipt dated August 28. Although the room was registered for two persons, we find that the appellant‘s possession of and residence in the motel room is strong evidence of his “ability to reduce [the cocaine base] to actual possession,” Transou, 928 S.W.2d at 956, and consequently, we hold that the evidence is more than sufficient to establish the appellant‘s constructive possession of the cocaine base found in room 132.
POSSESSION OF DRUG PARAPHERNALIA
For many of the same reasons, we also conclude that the evidence is sufficient for a rational trier of fact to find the elements of possession of drug paraphernalia with unlawful intent beyond a reasonable doubt.
The evidence in the record demonstrates that the electronic scales and plastic sandwich bags could be used as drug paraphernalia and that the defendant intended to use the items for illicit purposes. Officer Moncher, who has had specialized training and ten years of experience in narcotics law enforcement, testified that electronic scales are commonly used to weigh narcotics10 and that plastic bags are commonly used to package crack cocainе, usually for resale. Further, the presence of these items in close proximity to such a large amount of crack cocaine, along with the fact that, according to Officer Moncher, several “rocks” of crack cocaine were already packaged for resale, certainly supports a finding that these items were intended to be used to package cocaine for resale. Finally, as we found earlier, the evidence is more than sufficient to support a finding that these items were within the constructive possession of the appellant. Cf. State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997) (upholding a convic-
CONSIDERATION OF MITIGATING FACTOR IN SENTENCING
Finally, the appellant asserts that the trial court improperly sentenced him to serve the maximum sentence in the range by refusing to consider the mitigating factor that “[t]he defendant‘s сriminal conduct neither caused nor threatened serious bodily injury,”
When either a defendant or the State “challenges the length, range, or manner of service of a sentence, this Court conducts a de novo review of the record with a presumption that the determinations made by the sentencing court are correct.” State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); see also
The appellant‘s greater conviction for possession of a controlled substance constitutes a Class B felony,11 and in determining the appropriate sentence for this offense, a court begins with the presumption that the appellant should receive the minimum in the range. See
In this case, the trial court found that the State had proven three enhancement factors warranting a sentence greater than the minimum: (1) that the appellant has a previous history of criminal behavior,
With respect to the presence of mitigating factors, the trial court refused to consider the factor urged by the defendant that his conduct neither caused nor threatened serious bodily injury. See
By its plain language, the
The State notes that the Court of Criminal Appeals has split on the issue of whether a per se exclusion of this mitigating factor is warranted in cocaine possession cases, and we acknowledge that many of that court‘s unpublished decisions have found this factor to be inapplicable in cocaine possession casеs, usually for the same reasons as cited by the trial court. Without attempting to analyze or distinguish the many and varied facts and circumstances in these cases, we conclude that when, as here, (1) the conviction for possession is based only upon constructive possession, and (2) the threat of serious bodily injury is more conceptual than real, little justification exists in having a per se rule that excludes consideration of this mitigating factor. Indeed, a per se exclusion of a particular mitigating factor to an entire class of offenses not always or not
However, in rejecting a per se exclusion of this mitigating factor in cocaine possession cases, we do not require that this factor be accorded any especial significance in a given case. Indeed, given the facts of this case, we conclude that the mitigating factor is entitled to very little weight in the overall sentencing determination. Our review of the record indicates that the trial court appropriately assigned substantial weight to the three enhancing factors, and because the scales are tipped so far in their favor, we are unable to say that the maximum sentence in the range is improper or contrary to the preponderance of the evidence. Cf. State v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim. App. 1995). Accordingly, we hold that while the trial court should have considered the
CONCLUSION
In summary, we affirm the appellant‘s convictions for possession of a controlled substance and possession of drug paraphernalia. We hold that the search of the appellant‘s motel room did not violate the Fourth Amendment to the United States Constitution or Article I, section 7 of the Tennessee Constitution. Because the appellant disclaimed ownership of the room key and because he claimed that the key belonged to another person, he thereby forfeited any reasonable expectation of privacy that he may have otherwise possessed in that room. We further hold that the evidence is sufficient for a reasonable jury to find guilt beyond a reasonable doubt on both charges and that the sentence imposed by the trial court was according to the preponderance of the evidence. The judgment of the Court of Criminal Appeals is affirmed.
Costs of this appeal are assessed to the appellant, Peter Allen Ross, for which execution shall issue if necessary.
ADOLPHO A. BIRCH, JR., J., filed a dissenting opinion.
ADOLPHO A. BIRCH, JR., J., dissenting.
For denying that a key to a hotel room belonged to him, the defendant has been stripped of his Fourth Amendment right to be free from unreasonable searches and seizures. The majority imposes this harsh result even in the face of obvious and undisputed evidence that the subject premises were under the defendant‘s exclusive and private control. Because I am unable to agree that a refusal to incriminate one‘s self in response to police inquiries should result in a loss of Fourth Amendment rights, I respectfully dissent.
In my view, citizens should not be forced to choose between incriminating themselves or sacrificing their right to insist that the police obtain a warrant before intruding upon their property.1 See 5 Wayne R. LaFave, Search and Seizure,
Proper analysis of Fourth Amendment privacy interests, I submit, should give considerably more weight to the accused‘s actual proprietary interest in the object of a search or seizure. As noted by the majority, Fourth Amendment analysis turns upon whether the defendant has a “legitimate expectation of privacy” in the searched premises. See Rakas v. Illinois, 439 U.S. 128, 142 (1978). Under traditional Fourth Amendment jurisprudence, a right of control over the premises always has been a pivotal element in determining whether the defendant has a cognizable privacy interest in the premises. To help determine when a defendant has such a right of control, the United States Supreme Court has on occasion looked to conсepts of property law for guidance. As stated in Rakas:
Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.... But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment.
Id. at 143 n. 12 (citations omitted, emphasis added).
Despite the majority‘s statement that “the concept of abandonmеnt in Fourth Amendment jurisprudence is unlike that found in property law concepts,”2 treatment of the concept is indeed related to property law. Abandonment of property results in a loss of the possession or control which gives rise to the “right to exclude” emphasized in Rakas. Cf. LaFave, supra, § 11.3(a) at 128 (“Abandonment must be distinguished from a mere disclaimer of a property interest made to the police prior to the search, which under the better view does not defeat standing.“). The distinction between a disclaimer and an abandonment of proprietary interest was elucidated by the United States Court of Appeals for the Seventh Circuit in United States v. Brown, 64 F.3d 1083 (7th Cir. 1995). In that case, similar to the one at bar, police conducted a warrantless search of the defendant‘s apartment after he had indicated that the apartment did not belong to him. Id. at 1084-85. The search produced a large amount of contraband. Id. The Court of Appeals, in rejecting the Government‘s contention that his disclaimer defeated his legitimate expectation of privacy in the premises, explained:
Let us assume that [the defendant] lied to the agents about his habitation. That does not affect the fact that he did live in [the apartment in question].
Everyone has a legitimate expectation of privacy in his residence. Ours is not like the case of a courier who disclaims an interest in a drug-filled suitcase, or a suspect who throws drugs on the street and flees. People are free to expose their belongings to the public, or to throw them away; seizing abandoned suitcases from baggage carousels does not invade anyone‘s privacy interest. The privacy interest in a dwelling is not so easily extinguished, and a misleading response to an officer‘s question is a far cry from a consent to search.
Id. at 1085; see also S. Michael McColloch, Criminal Procedure: Arrest, Search and Confessions, 42 Sw. L.J. 565, 574 (1988) (concluding, based on Chapa v. State, 729 S.W.2d 723, 727-29 (Tex. Crim. App. 1987), that “a defendant who disclaims ownership and possession of a particular place or thing, but who can nevertheless demonstrate some legal, reasonable, or customary right to control the property or exclude others therefrom, will retain his standing to challenge a search of the property in question“). The principle explained in Brown applies with even greater force to the case under submission.
The majority concludes that a disclaimer of an ownership interest is sufficient to defeat the defendant‘s subjective expectation of privacy in the premises. See generally Katz v. United States, 389 U.S. 347 (1967). This conclusion, however, fails to sufficiently take into account that the defendant‘s actual possessory interest is unaffected by such a denial. Only such acts as true abandonment (a voluntary relinquishment of the proprietary interest) or consent (a voluntary choice not to rely on one‘s right to exclude) should be held to defeat a citizen‘s privacy interest in his or her property. A mere unsworn denial of ownership in the face of police questioning should amount to neither.
The illogic of equating denial of ownership with actual abandonment is demonstrated by the State‘s inconsistent positions in this case: (1) at the suppression hearing, the State asserted that Ross had disclaimed his privacy interest in the hotel room; (2) at trial, the State offered evidence of Ross‘s control over the hotel room as the linchpin evidence that he owned the drugs which police had recovered there; and (3) on appeal, the State reverts to its initial contention that Ross‘s denial defeated his privacy interest. In United States v. Morales, a case quite similar factually to the one at bar, the United States Court of Appeals for the Eighth Circuit castigated the government for espousing “inconsistent positions” at trial and on appeal. The court stated:
[T]he government should not be permitted to use at the suppression hearing appellant‘s alleged disclaimer to support a warrantless entry, then argue at trial that appellant‘s possession of the [hotel room] key supported constructive possession of the cocaine, and now on appeal argue that the disclaimer constituted abandonment to defeat an expectation of privacy.
737 F.2d 761, 763-64 (8th Cir. 1984); see also Steagald v. United States, 451 U.S. 204, 209 (1981) (“The Government... may lose its right to raise factual issues of this sort... when it has made contrary assertions
Certainly, it is conceivable that a disclaimer of possessory interest might under certain circumstances rise to the level of an abandonment. See United States v. Veatch, 674 F.2d 1217, 1221 (9th Cir. 1981) (discussing cases holding that a disclaimer of interest in property may constitute abandonment). But rather than holding that a disclaimer of interest in the premises to be searched defeats per se the defendant‘s legitimate expectation of privacy in the premises, I would rely on the elements set forth in United States v. Haydel,5 which has been cited favorably by this state‘s Court of Criminal Appeals,6 to guide the analysis of whether the defendant‘s expectation of privacy should be treated as legitimate. As noted by the majority, the Haydel court suggested that the question of the defendant‘s expectation of privacy in the premises should be analyzed in terms of whether the defendant: (1) had an ownership interest in the property; (2) had “the right to exclude others from that place“; (3) “exhibited a subjective expectation that it would remain free from governmental invasion“; (4) “took normal precautions to maintain [his or her] privacy“; and (5) “was legitimately on the premises.” Id. at 1154-55.
Of these factors, number (4) may weigh against Ross, for his denial of a possessory interest in the hotel room undermined his efforts to maintain his privacy. The other applicable factors, however, weigh in his favor despite his denial, for that denial does not change the fact that he was legitimately on the premises, had the right to
Having decided that Ross had a possessory interest in the hotel room and that a consideration of the Haydel factors legitimizes this interest, I would hold that Ross indeed had a legitimate expectation of privacy in the hotel room. Ross had a full suppression hearing—consequently, I would hold that the evidence discovered by officers during the search of the hotel room should be suppressed. Accordingly, I dissent.