Search and Seizure_standing to challenge--car not owned by defendant_left open at scene
of crime
The trial court erred by granting defendant's motion to suppress drugs seized from a car
which defendant did not own or lease and where defendant left the car open as he fled from
police at the scene of an assault. Defendant did not have a legitimate expectation of privacy and
lacked standing.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Jeffrey Evan Noecker for defendant appellee.
McCULLOUGH, Judge.
The State of North Carolina appeals from the trial court's
decision to grant defendant's motion to suppress evidence. At the
pretrial hearing, the State presented evidence which tended to show
that on 19 January 2003, Officer James D. Smith of the Wilmington
Police Department responded to a 911 call that originated from an
apartment located at 4806 Kubeck Court in Wilmington. When he
arrived, Officer Smith heard a fight in progress. A female victim
was screaming, “Stop hitting me, get out.” Officer Smith also
heard glass breaking and things being thrown around. Officer Smith
knocked on the door and identified himself as a member of theWilmington Police Department. Since he was not allowed inside the
apartment, Officer Smith went from the front door to the back door.
He then called for backup, and another officer arrived.
After about fifteen minutes, the occupant of the apartment,
Carrie McDonald, allowed the police to enter. Prior to going
inside, the officers heard the back sliding glass door open and
believed that someone may have exited the apartment. At that time,
the police were unable to find any suspects.
The officers asked McDonald to identify the person who was
fighting with her. She responded that the individual was “James
Murphy.” However, when Officer Smith asked questions about Murphy,
McDonald gave evasive answers. Officer Smith did not believe that
McDonald was telling the truth based on her demeanor and reluctance
to answer questions.
Officer Smith began to consider how to properly identify the
suspect. He noticed that a Ford Explorer was parked outside the
rear of the apartment. The truck was about seven or eight feet
from the apartment, and the back hatch was hanging over the patio
at the rear of the apartment. Officer Smith testified that “the
rear hatch was ajar, it wasn't closed.”
Officer Smith asked McDonald if the truck belonged to the
suspect, and she said that it did. Before giving Officer Smith
consent to search the SUV, however, McDonald claimed that the
suspect did not drive and that his aunt rented the vehicle for him.
Officer Smith decided to search the vehicle to get a positive
identification of the assailant. He went to the rear of thevehicle and saw that the hatch was open. Officer Smith found a
jacket, removed it, and began looking through it for
identification. He discovered a jail release form with the name
Harold Boyd, Jr. on it. Hoping to find further identification,
Officer Smith opened the center console where he found crack
cocaine, heroin, and marijuana. Finally, Officer Smith opened the
glove box and found a document which indicated that Angela Brunson,
defendant's former wife, rented the SUV. In an interview with
police, Brunson verified that she had rented the vehicle for
defendant.
During the hearing before the trial court, the State argued
that the motion to suppress evidence should be denied because it
was untimely filed and defendant lacked standing. Defendant
claimed that he had standing because all the evidence indicated
that he was in lawful possession of the vehicle. The trial court
ruled in favor of defendant and found that the search was a
violation of the Fourth Amendment. The trial court also suppressed
the drug evidence that Officer Smith discovered in the vehicle.
The State appeals.
On appeal, the State argues that the trial court erred in
granting defendant's motion to suppress the evidence because
defendant did not have standing or a legitimate expectation of
privacy in the vehicle. We agree and reverse the decision of the
trial court.
The Fourth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment, protects“[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures[.]”
U.S. CONST. amend. IV. “[T]o have standing to contest a search, a
defendant must have a legitimate expectation of privacy in the
thing to be searched.” State v. Barnes, 333 N.C. 666, 675, 430
S.E.2d 223, 228, cert. denied, 510 U.S. 946, 126 L. Ed. 2d 336
(1993). Our courts consider many factors in determining whether a
defendant has a legitimate expectation of privacy. State v.
Phillips, 132 N.C. App. 765, 770, 513 S.E.2d 568, 572, appeal
dismissed, disc. review denied, 350 N.C. 846, 539 S.E.2d 3 (1999).
“A person's right to be free from unreasonable searches and
seizures is a personal right[.]” State v. Mlo, 335 N.C. 353, 377,
440 S.E.2d 98, 110, cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841
(1994). To be entitled to the protections of the Fourth Amendment,
defendant “must demonstrate that any rights alleged to have been
violated were his rights, not someone else's.” Id. Generally, a
defendant may not object to the search and seizure of the property
of another. Id. at 378, 440 S.E.2d at 110. “The burden of showing
this ownership or possessory interest is on the person who claims
that his rights have been infringed.” Id. at 378, 440 S.E.2d at
111.
In the case at bar, the issue is whether defendant has
standing to challenge the search of a vehicle that he did not own
and did not lease where defendant also fled from police after
leaving the vehicle open at the scene of an assault. We hold that
defendant did not have a legitimate expectation of privacy underthese circumstances and therefore had no standing to contest the
search of the vehicle.
Our appellate courts have considered specific instances in
which a third party, rather than defendant, rented or owned the
property which was searched. See State v. McMillian, 147 N.C. App.
707, 557 S.E.2d 138 (2001), disc. review denied, 355 N.C. 219, 560
S.E.2d 152 (2002). In McMillian, the police found defendant in a
motel room after he robbed a man outside of a convenience store.
Id. at 709, 557 S.E.2d at 141. Defendant argued that evidence
obtained from the warrantless search of the motel room violated his
constitutional rights. Id. at 711, 557 S.E.2d at 142. Because a
third party rented the room and defendant was merely present in the
room of another, “defendant did not have a reasonable expectation
of privacy and . . . [could not] invoke the protections of the
Fourth Amendment.” Id. at 712, 557 S.E.2d at 143. The result in
McMillian supports the State's position in the present case. Here,
a third party, rather than defendant, rented the car which police
searched. Under the general rule, defendant may not object to the
search and seizure of the property of another.
Federal courts have reached similar results in at least two
instances. Although these cases are not binding on this Court, we
find them to be instructive. In United States v. Carr, 939 F.2d
1442, 1446 (10th Cir. 1991), defendant did not have a legitimate
expectation of privacy in a hotel room that he occupied for three
weeks because the room was not registered to him or someone with
whom he was sharing it. Similarly, defendant “did not have alegitimate expectation of privacy by virtue of having stayed a week
in . . . [a] vacant . . .[house] that he did not own or rent.”
United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998).
These cases reveal that temporary occupancy or temporary use
of property does not automatically create an expectation of privacy
in that property. Furthermore, while we recognize that these cases
involve living spaces, rather than motor vehicles, our courts have
determined that “there is a diminished expectation of privacy in a
motor vehicle.” State v. Spruill, 33 N.C. App. 731, 734, 236
S.E.2d 717, 719 (1977). Thus, the distinguishing fact in the
present case (use of a vehicle instead of the living space of
another) does not bolster defendant's case.
We are also aware that courts may consider principles of real
property law, including the right to exclude, when determining the
scope of rights afforded by the Fourth Amendment. In State v.
Teltser, 61 N.C. App. 290, 294, 300 S.E.2d 554, 556 (1983),
defendant had no reasonable expectation of privacy because he
abandoned a suitcase and buried it on property that he did not own.
Since defendant had no ownership or possessory interest in the
wooded area, he had no right to exclude others from accessing it.
Id.
In this case, defendant did not own, rent, or lease the
vehicle. Furthermore, even if he had permission to use the
vehicle, defendant relinquished possession and control when, in an
effort to avert police, he fled from the scene of an assault
leaving the vehicle open and ajar. Under these circumstances,defendant would not have the right to exclude others from the
vehicle.
Finally, the Teltser Court recognized that a person who
abandons property may also relinquish his reasonable expectation of
privacy in that property:
“The issue is not abandonment in the strict
property-right sense, but whether the person
prejudiced by the search had voluntarily
discarded, left behind, or otherwise
relinquished his interest in the property in
question so that he could no longer retain a
reasonable expectation of privacy with regard
to it at the time of the search.”
Id. at 292, 300 S.E.2d at 555 (quoting United States v. Colbert,
474 F.2d 174, 176 (5th Cir. 1973)).
Our Court explained this principle further in State v. McLamb,
70 N.C. App. 712, 321 S.E.2d 225 (1984). There, the Court stated
that there would not be a reasonable expectation of privacy “if the
defendants did not own or possess the vehicles or the land where
they were located[.]” Id. at 716, 321 S.E.2d at 228. “[S]ince the
vehicles were in rough, grassy undeveloped areas and appeared to be
abandoned, [defendants] could have had no reasonable expectation of
privacy as to them.” Id. at 717, 321 S.E.2d at 228. Likewise, in
the present case, defendant abandoned the vehicle by leaving it
open and ajar in a location that was seven or eight feet from the
back entrance of the victim's apartment.
Based on the facts and circumstances of this case, we conclude
that defendant did not have a reasonable expectation of privacy in
the vehicle and therefore did not have standing to challenge thesearch. Accordingly, we reverse the trial court's decision which
granted defendant's motion to suppress evidence. The case is
remanded to the trial court for proceedings not inconsistent with
this opinion.
Reversed and remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
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