Opinion
No. 80SA25
Decided August 25, 1980.
Interlocutory appeal by the People challenging the trial court's order granting the defendant's motion to suppress physical evidence.
Ruling Reversed and Remanded
1. SEARCHES AND SEIZURES — Proponent — Motion to Suppress — Burden — Violation. The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.
2. Violation — Fourth Amendment Rights — "Standing". Establishment of a violation of one's Fourth Amendment rights gives an individual "standing" to assert the issue of the legality of the search or seizure.
3. COURTS — Automatic Standing Rule — Jones v. United States — Overruled — United States v. Salvucci — No Automatic Rights — Assertion of Illegality — Search and Seizure. Automatic standing to claim violation of Fourth Amendment rights under Jones v. United States has recently been overruled by the United States Supreme Court case of United States v. Salvucci, which establishes that a defendant has no automatic rights under the Fourth Amendment to assert the illegality of a search and seizure.
4. SEARCHES AND SEIZURES — Possession — Place or Items — Privacy — Not Sole Criterion. Possession of place searched or of items seized is but one factor bearing on issue of whether defendant had a legitimate expectation of privacy in the invaded place; possession is not the sole criterion to determine whether protected Fourth Amendment interest exists.
5. Assertion by People — Possession of Property by Defendant — Fourth Amendment — Rights Not Violated. Without being legally contradictory, the People can maintain that defendant possessed the property in question but that his Fourth Amendment rights were not violated by seizure of his property.
6. Right to Assert Illegality — Negative — Stolen Automobile — United States v. Salvucci. Under United States Supreme Court case of United States v. Salvucci, defendant who was inside stolen automobile at the time the automobile was searched had no automatic right under the Fourth Amendment to assert illegality of the search and seizure.
7. Automatic Standing in Defendant — Recognize — Inappropriate. Since reasons which gave birth to automatic standing rule have little or no applicability to facts of instant case, it is neither necessary nor appropriate to recognize automatic standing in the defendant to challenge the legality of the search.
8. Privacy — Violation by Government — Basis — Totality of Circumstances — Each Case. The issue of whether government officials violated any legitimate expectation of privacy held by defendant is appropriately based upon totality of the circumstances in each case.
9. Privacy — Expectation — Determinations of Fact — Remand. Relevant factual determinations with respect to whether defendant had a legitimate expectation of privacy in stolen vehicle should be made by trial court after a further hearing on remand.
Interlocutory Appeal from the District Court of the City and County of Denver, Honorable Roger Cisneros, Judge.
Dale Tooley, District Attorney, Brooke Wunnicke, Chief Appellate Deputy, Donna Skinner Reed, Deputy, for plaintiff-appellant.
Marks Olom, Jonathan L. Olom, for defendant-appellee.
In this interlocutory appeal pursuant to C.A.R. 4.1, the People challenge the trial court's order granting the defendant's motion to suppress physical evidence. We reverse and remand for further proceedings.
On the evening of March 16, 1979, a police officer observed an Oldsmobile automobile in the parking lot of Mile High Stadium. A temporary license was displayed on the rear window of the Oldsmobile, but the vehicle described on the temporary license was a Dodge. Upon inquiry the officer learned that the Denver police department had received a report that the Oldsmobile had been stolen. The police kept the vehicle under surveillance. Later that evening the defendant and a woman entered the Oldsmobile, and both were arrested. An officer then searched the vehicle and found another temporary license plate crumpled up on the floor of the back seat. This temporary license plate had been issued for a vehicle other than the Oldsmobile. The police investigated and learned that both temporary license plates had been stolen.
The defendant was charged with aggravated motor vehicle theft, section 18-4-409, C.R.S. 1973 (1978 Repl. Vol. 8) (1979 Supp.), and theft by receiving, section 18-4-410, C.R.S. 1973 (1978 Repl. Vol. 8). Both charges were based upon theft of the Oldsmobile. The trial court granted the defendant's motion to suppress the crumpled temporary license plate found inside the automobile.
Section 18-4-409(2), C.R.S. 1973 (1978 Repl. Vol. 8), provides, in pertinent part: "(2) A person commits aggravated motor vehicle theft if he knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and: "(a) Retains possession or control of the motor vehicle for more than seventy-two hours; . . . ."
The trial court denied the defendant's motion to suppress the temporary license plate which was displayed on the rear window of the Oldsmobile. That ruling is not subject to review by interlocutory appeal. C.A.R. 4.1.
In this appeal the People do not contend that the search of the interior of the automobile was consistent with constitutional provisions prohibiting unreasonable searches. See U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7. Instead, the People claim that the defendant lacks standing to question the legality of the search. We shall consider this claim first within the framework of the Fourth Amendment to the Constitution of the United States and then within the framework of Colo. Const. art. II, § 7.
I.
[1,2] The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976); People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973). Establishment of such a violation gives an individual "standing" to assert the issue of the legality of the search or seizure. See Rakas v. Illinois, supra; People v. Pearson, supra.
The defendant contends that he has automatic standing to assert that the search of the automobile and the seizure of the temporary license were illegal, under the authority of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That case held that, where possession of the seized evidence is an essential element of the offense charged, the defendant is not obligated to establish that his own Fourth Amendment rights were violated but only that the search and the seizure were unconstitutional. In the instant case an element of the crime of aggravated motor vehicle theft with which the defendant is charged is retention of possession or control of the vehicle for more than seventy-two hours. The information charges that the required period of possession occurred some time between August 18, 1978, and March 16, 1979, the date of the challenged search and seizure. Thus, the defendant contends that he is not required to establish that his own Fourth Amendment rights were violated in order to challenge the legality of the search and seizure.
Jones v. United States, supra, has been followed in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Brown made it clear that possession at the time of the contested search and seizure must be an essential element of the offense charged in order to invoke the automatic standing rule.
Although automatic standing cases usually deal with situations in which possession of the item seized is an essential element of the crime charged, the considerations are the same where, as here, possession of the place searched is an essential element of the crime charged. See Williams v. United States, 412 F.2d 729 (5th Cir. 1969); Glisson v. United States, 406 F.2d 423 (5th Cir. 1969); Simpson v. United States, 346 F.2d 291 (10th Cir. 1965).
[3] Whether the defendant would have automatic standing to claim violation of his Fourth Amendment rights under the rule of Jones v. United States, supra, is a question we need not consider. The automatic standing rule of Jones has been overruled recently by the United States Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). There, the court noted that the underpinnings of Jones had been substantially destroyed by later decisions.
The automatic standing rule of Jones was created to solve two problems which no longer exist. First, absent such a rule a defendant charged with a possessory offense might be able to establish standing to challenge a search and seizure only by giving self-incriminating testimony which would be admissible at his trial as evidence of guilt. This problem has been eliminated by the decision in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In Simmons it was held that testimony given by a defendant in support of a motion to suppress evidence on Fourth Amendment grounds cannot be admitted in evidence against the defendant at trial on the issue of guilt unless the defendant makes no objection.
Simmons v. United States, supra, leaves unanswered the question whether self-incriminating testimony by a defendant at a hearing on a motion to suppress evidence can be used to impeach that defendant if he chooses to testify at his trial on the issue of guilt. In United States v. Salvucci, supra, the court stated that this potential detriment to the defendant should be considered in determining the scope of the Simmons rule in an appropriate case, rather than being utilized as a reason to retain the rule of automatic standing. In United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), a somewhat related question was answered. There, physical evidence obtained in violation of the defendant's Fourth Amendment rights was permitted to be used in the government's rebuttal case to impeach a statement made by the defendant on cross-examination by the prosecutor. See also Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
[4,5] Second, it was considered inappropriate to permit the People to maintain contradictory positions. At the suppression hearing, in order to avoid the conclusion that a defendant had standing, the People would assert that he did not have possession of the property seized. Later, at the trial, the People would assert that the defendant did have such possession, in order to establish an element of the substantive offense. In United States v. Salvucci, supra, the court found the concern as to the appropriateness of permitting such contradictory positions to have been resolved in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). That case established that the essential inquiry to determine a defendant's ability to contest the legality of a search is not whether he had possession of the item seized but whether he had a legitimate expectation of privacy in the invaded place. Possession of the place searched or of the item seized is but one factor bearing on that question; possession is not the sole criterion to determine whether a protected Fourth Amendment interest exists. Id. Thus, without being legally contradictory, the People can maintain that a defendant possessed the property in question but that his Fourth Amendment rights were not violated by seizure of the property. See United States v. Salvucci, supra.
[6] Salvucci establishes that the defendant has no automatic right under the Fourth Amendment to assert the illegality of the search and seizure.
II.
Next, we must consider whether the automatic standing rule should be applied in the instant case to protect those values guaranteed by Colo. Const. art. II, § 7.
The first concern expressed in Jones v. United States, supra — that the defendant may be able to establish standing only by giving self-incriminating testimony which would be admissible at his trial as evidence of guilt — is greatly diluted in the case at bar.
At the suppression hearing it was the defendant's position that he was in possession of the vehicle, but that the possession was not wrongful. At the defendant's request his affidavit was received in evidence at that hearing. The affidavit states that the Oldsmobile was provided to the defendant for his personal use in December 1978; that he used the vehicle at all times under the belief that it was not stolen and that the party providing it for his use was authorized to do so; and that at the time of his arrest the defendant believed that he was in lawful possession of the vehicle based upon the authorization he had been given to use the Oldsmobile. Thus, although the defendant claims automatic standing, he has already placed of record his sworn statement with respect to possession of the Oldsmobile and his state of mind with respect to his right to use the vehicle. These are the matters central to a determination whether the defendant has a constitutionally protected interest which would permit him to object to the unlawful search and seizure. See Rakas v. Illinois, supra;
We need not consider for present purposes whether the ambit of constitutionally protected interest under the Rakas standard includes all those interests which would be recognized and protected under Colo. Const. art. II, § 7. Cf. People v. Bannister, 199 Colo. 281, ___, 607 P.2d 987, 988 n. 1 (1980) (reserving the question whether the standing limitations imposed by Rakas v. Illinois, supra, apply to suppression motions based on the provisions of Colo. Const. art. II. § 7).
People v. Pearson, supra. To recognize automatic standing in the defendant at this time would not prevent the use of the affidavit for impeachment at the trial in any manner consistent with the law. See United States v. Salvucci, supra.
The second concern expressed in Jones — that it is inappropriate to permit the People to maintain contradictory positions at the suppression hearing and at the trial — is not present in this case. The People do not base their claim that the defendant lacks standing to challenge the search upon a contention that the defendant did not have possession of the Oldsmobile. Their position at the suppression hearing was that the defendant's possession was not lawful and thus could not be used as a foundation for standing to challenge the legality of the search. See People v. Pearson, supra. Predictably, in order to establish the crime of aggravated motor vehicle theft, the People's position with respect to possession of the Oldsmobile will be the same at the trial.
[7] The reasons which gave birth to the automatic standing rule have little or no applicability to the facts of this case. Under these circumstances, it is neither necessary nor appropriate to recognize automatic standing in the defendant to challenge the legality of the search. See Rakas v. Illinois, supra.
Whether Colo. Const. art. II, § 7, requires that automatic standing be recognized in other factual situations, notwithstanding that its demise as a part of Fourth Amendment law has been recognized in United States v. Salvucci, supra, is a question we leave for another day.
III.
[8] In Rakas v. Illinois, supra, it was held that the questions of standing and reasonableness of the search merge into one: whether the government officials violated any legitimate expectation of privacy held by the defendant. Accord, Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); see People v. Little, 198 Colo. 244, 598 P.2d 140 (1979). Such a determination is appropriately based upon the totality of the circumstances in each case. See Rawlings v. Kentucky, supra. If the Oldsmobile had been stolen, and the defendant knew that it had been stolen, the defendant could have no expectation of privacy which the law would recognize as legitimate. See Rakas v. Illinois, supra; People v. Pearson, supra. On the other hand, if the Oldsmobile had not been stolen or if the defendant reasonably believed that it had not been stolen, and if the defendant reasonably believed that he had a right to use the vehicle, he would have a legitimate expectation of privacy in the vehicle. See People v. Pearson, supra; see also United States v. Ochs, 595 F.2d 1247 (2d Cir. 1979); United States v. Lopez, 474 F. Supp. 943 (C.D. Cal. 1979).
[9] The trial court did not make the factual findings necessary to determine whether the defendant had a legitimate expectation of privacy in the Oldsmobile at the time of the search. The evidence in the record is conflicting on this point. The defendant's affidavit says that the vehicle had been provided to him for his personal use in December 1978 and that he used the vehicle at all times under the belief that it was not stolen. However, the record also contains evidence that the temporary license plate on the rear window of the Oldsmobile did not correspond to the description of the vehicle; that it had been removed from the vehicle for which it was issued without the owner's consent; and that there was no registration in the vehicle when the search was conducted. This circumstantial evidence casts doubt on the accuracy of the defendant's affidavit. The relevant factual determinations with respect to whether the defendant had a legitimate expectation of privacy in the vehicle should be made by the trial court after a further hearing.
The recent developments in the law which have been discussed in this opinion make it appropriate that a further hearing be held to give the parties an opportunity to present additional evidence relevant to the correct legal standards.
Then that court will be able to determine whether the defendant's constitutional rights were violated, based on the standards discussed in this opinion.
We reverse the ruling of the trial court and remand this case for further proceedings consistent with this opinion.
JUSTICE ERICKSON and JUSTICE QUINN dissent.