Opinion
No. 108,404.
2013-03-22
STATE of Kansas, Appellant, v. Douglas TWIGGS, Appellee.
Appeal from Geary District Court; Maritza Segarra, Judge. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., of Salina, for appellee.
Appeal from Geary District Court; Maritza Segarra, Judge.
Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., of Salina, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This interlocutory appeal asks us to determine if Douglas Twiggs had standing to challenge the search of his mother's car parked near his apartment. In order to establish standing to object to a police search of an automobile, a nonowner of the car must show the court more than mere possession of the keys to the car. The person objecting to the search must show proof of a legitimate possessory interest in the car granted either by an owner of the car or someone in authority to grant possession of the car. Because Twiggs presented no proof that he had a possessory interest in the searched car, we hold the district court's ruling that Twiggs had standing to challenge the search of the car was erroneous. We see no proof in this record that Twiggs had a legitimate expectation of privacy in this car. Thus, we reverse and remand.
The facts are not in dispute.
This case began with a controlled drug buy between a confidential informant and Douglas Twiggs in Junction City, Kansas. Police officers observed the actions of the two that took place outside the apartment. During the transaction, the confidential informant entered Twiggs' apartment. Twiggs then left the apartment, got into a parked Chevrolet Impala, and then returned to his apartment. The Chevrolet Impala was registered to Twiggs' mother, Rene Twiggs. Douglas “Twigh” was listed as coowner of the vehicle. The confidential informant later left Twiggs' apartment with some marijuana.
Some time later, Geary County law enforcement officials arranged a second drug purchase. On this occasion, Twiggs arrived at his apartment in a Mitsubishi automobile. Twiggs got out of the car and entered his apartment where a different confidential informant purchased marijuana from him.
After that, the police obtained a search warrant permitting officers to search Twiggs' apartment and the Impala automobile. In their application, the police alleged there was probable cause to believe drug dealing activities were taking place in the designated apartment and the Impala automobile.
Lieutenant Michael Life assisted in the execution of the search warrant. During the search of Twiggs' apartment, Life discovered a set of keys on the kitchen counter. He picked up the keys and asked Twiggs where the car was located. Twiggs responded that his car was at his mom's house. Life then picked up a second set of keys and asked Twiggs where this car was located. Twiggs told Life these keys belonged to his mom's car—which was also located at his mom's house.
Life took the second set of keys outside Twiggs' apartment and pressed the alarm button, thereby activating the alarm on a Mitsubishi car parked near the apartment. Life approached the Mitsubishi and looked inside. In the back seat, Life could see CDs similar to Twiggs' self-promoting hip hop CDs that had already been discovered in Twiggs' apartment. Life locked the Mitsubishi and returned to Twiggs' apartment, where he asked Twiggs about the car. Twiggs gave no response to Life's questioning.
At that point, Life believed he had probable cause to search the Mitsubishi. Life found marijuana in his search of the car. Life said he searched the Mitsubishi because of its mobility, noting the officers did not know where Twiggs' mother and brother were located at the time. At the time of the search, Life was unaware that the Mitsubishi was involved in the second controlled buy. But Life said he thought he heard another officer say something like, “There's the Mitsubishi too,” as they were approaching Twiggs' residence. Nevertheless, other police officers on the scene were aware of the Mitsubishi's use during the second purchase. Apparently, law enforcement officers did not include the Mitsubishi in their request for a search warrant in order to protect the identity of the informant involved in the second controlled buy.
The State charged Twiggs with possession of marijuana with intent to sell within 1,000 feet of a school zone, possession of marijuana, criminal acquisition of drug proceeds, and two counts of sale of marijuana within 1,000 feet of a school zone.
Twiggs moved to suppress the evidence found in the Mitsubishi.
Twiggs filed a motion to suppress the evidence found in the Mitsubishi, arguing that because the search warrant did not authorize the search of the Mitsubishi car, all contraband found in the car should be suppressed. The State responded with an argument that Twiggs lacked standing to challenge the search of the vehicle, noting that the Mitsubishi was registered to Rene Twiggs, his mother.
The State argued that mere possession of the keys did not give Twiggs standing to challenge the search, noting a person challenging the search of a vehicle must first establish an expectation of privacy in that car. The State noted Twiggs had failed to assert any expectation of privacy in the Mitsubishi and his pleadings asserted that the Mitsubishi was registered to Rene Twiggs and nothing more.
The district court granted the motion to suppress the evidence obtained from the Mitsubishi. The court decided that (1) Twiggs had standing to challenge the search; (2) the collective knowledge doctrine did not apply to give Life probable cause to search the Mitsubishi; (3) Life lacked probable cause to search the Mitsubishi; and (4) even if Life had probable cause to search, there was no exigent circumstances that would allow a warrantless search of the automobile.
The State appealed those rulings. We address the issue of standing because we think it is dispositive of the appeal.
This is a question of law.
When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district court's decision are supported by substantial competent evidence; the ultimate legal conclusion drawn from those facts is a legal question permitting de novo review. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001). The question whether standing exists is a question of law requiring unlimited review. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011).
A brief review of the law of standing is helpful at this point. We note initially that a defendant cannot object to the seizure of evidence without first establishing he or she has standing to challenge the search that led to the seizure. In order to establish standing, the defendant must demonstrate an expectation of privacy in the property searched. A defendant may testify at a suppression hearing to establish standing to challenge a search without jeopardizing his or her defense at trial. State v. Gonzalez, 32 Kan.App.2d 590, 593, 85 P.3d 711 (2004).
While these challenges to a search typically arise when a passenger in a car wishes to contest a search, courts generally have held that when the nonowner of a vehicle wishes to challenge a search, he or she must claim a possessory interest in the vehicle or otherwise demonstrate an expectation of privacy in the vehicle.
Several cases from our court have held that the person challenging the search has the burden to demonstrate standing. In State v. Davis, 31 Kan.App.2d 1078, 1080, 78 P.3d 474 (2003), rev. denied 277 Kan. 925 (2004), Davis and Handson were arrested after they were seen placing stolen items in a vehicle. Handson had the keys to the vehicle. On appeal from the denial of Davis' motion to suppress the evidence found in the vehicle, this court held the district court erred in determining she lacked standing to challenge a search where she testified (1) she owned the vehicle; (2) her name was on the title; and (3) she had lent the keys to Handson so he could do the driving. The court said this uncontroverted testimony was sufficient to establish standing to challenge the search. The court noted that while the State bears the burden of proving the lawfulness of a search at a suppression hearing, once Davis asserted ownership of the vehicle the State was then required to present evidence she was not the owner or that she had relinquished possession. 31 Kan.App.2d at 1082–83.
Also, in State v. Preston, 41 Kan.App.2d 981, 988–89, 207 P .3d 1081 (2009), rev'd in part on other grounds294 Kan. 27, 272 P.3d 1275 (2012), the court held that Preston had a sufficient possessory interest in a vehicle and therefore standing to challenge a search, where the evidence indicated Preston was the driver and the passenger/owner of the vehicle told the officer to ask Preston for consent to search.
Again, in State v. Ralston, 45 Kan.App.2d 1024, 1031–32, 257 P.3d 814 (2011), rev. denied 293 Kan. –––– (January 20, 2012), this court held Ralston lacked standing to object to a search of the stolen vehicle in which she was a passenger, noting “the burden is on the defendant to show an expectation of privacy in the property searched.” The court noted that Ralston failed to meet this burden because she presented no evidence that she was unaware the vehicle had been stolen.
The Tenth Circuit Court of Appeals analyzes the standing issue in the same manner. In United States v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir.2003), the court stated that when determining whether a nonowner of a vehicle has standing to challenge a search, the court considers (1) whether the defendant asserted ownership over the items seized; (2) whether the defendant testified to his or her expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony that he or she had a legitimate possessory interest in the vehicle.
Most recently, our Supreme Court in Gilbert confirmed that a passenger lacks standing to challenge a vehicle search where the passenger fails to claim a possessory interest in the vehicle or demonstrate a reasonable expectation of privacy with regard to the vehicle or its contents. 292 Kan. at 433, 435–36. The court stated:
“[A] defendant's Fourth Amendment rights are not implicated during the search of an automobile he or she neither owns nor claims a possessory interest in, even if the evidence obtained during the search is used against the defendant later. In this case, Gilbert does not claim any ownership or possessory interest in the vehicle or the contents that were searched. In addition, he does not claim any interest in the property that was seized from that vehicle. His contention that simply being a passenger affords him an expectation of privacy was rejected in Rakas [ v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978),] and a long line of decisions by this court.” 292 Kan. at 435.
In State v. Epperson, 237 Kan. 707, 716–17, 703 P.2d 761 (1985), the court held that a passenger lacked standing to challenge the search of a vehicle because he did not testify he had an ownership interest in the cocaine found in the vehicle and therefore failed to show he had a reasonable expectation of privacy in the vehicle.
Twiggs lacks standing to challenge the search of the Mitsubishi,
We note that the district court determined the issue of standing before any testimony was taken on the motion to suppress. The court required no evidence from Twiggs, making her ruling only after listening to the arguments made by both counsel. This failure to require proof led to the erroneous ruling.
Once the State alleged Twiggs lacked standing to challenge the search of the Mitsubishi, it was Twiggs' burden to demonstrate otherwise. Twiggs could have met this burden by testifying at the suppression hearing that his mother lent him the vehicle or that he owned items found in the vehicle, such as the CDs. But Twiggs did not testify at the suppression hearing. Even in his motion to suppress, Twiggs did not claim an ownership interest or a possessory interest in the vehicle. Instead, he merely indicated that the vehicle was registered to Rene Twiggs as the primary owner and Larry Neese as the co-owner. Twiggs made no claim and provided no evidence that he had a reasonable expectation of privacy in the Mitsubishi.
At one point in the hearing, the court even noted that Twiggs' motion did not allege that he was in lawful possession of the Mitsubishi. The court stated it would allow Twiggs to put on evidence regarding standing. Twiggs failed to do so. Instead, he argued that if the State was contending he did not have control or possession of the Mitsubishi the court should exclude the evidence found in the vehicle as irrelevant. Twiggs argued the State could not “have it both ways.” This tepid argument does not equate to proof of an expectation of privacy that must be guarded by law.
After that, the district court decided Twiggs had standing to challenge the search because: (1) The officers knew Rene Twiggs owned the Impala automobile which was covered by the search warrant, and that Rene also owned the Mitsubishi; (2) the officers knew Rene was Twiggs' mother; (3) Twiggs told the officers the keys to the Mitsubishi belonged to his mother's car; and (4) the officers knew the Mitsubishi had not been stolen.
In our view, the district court's analysis of this point is based entirely upon its inferences instead of placing the burden upon Twiggs to demonstrate standing. Basically, the district court inferred from the arguments of counsel that Twiggs had standing.
We must examine those inferences more closely. First, the district court placed undue emphasis on the fact that Rene Twiggs was the owner of both the Impala and the Mitsubishi. The evidence indicated that “Douglas Twigh” was the second owner of the Chevrolet Impala. Obviously, as a registered owner, Twiggs had standing to object to a search with regard to the Impala. To the contrary, Rene Twiggs and Larry Neese were the registered owners of the Mitsubishi automobile. Thus, it was incumbent upon Twiggs to establish some sort of possessory interest in a car owned by two other persons. Next, the district court inferred that the officers knew that the Mitsubishi was not stolen because it was not reported stolen. It is unclear from the record upon what facts that this inference was based. Here, it seems the court shifted the burden at that point to the State to show that there is proof that the vehicle was stolen. Again, we emphasize that it was Twiggs' burden to prove he had a possessory interest in the Mitsubishi and after establishing that, the burden shifted to the State. Actually, one could infer from the fact that no one had reported the Mitsubishi stolen that Rene Twiggs did not yet know it had been stolen. If one could so infer, then which inference is correct? The police knew it was not stolen because it was not reported stolen, or it was not reported stolen because the owner did not know it was stolen. Only evidence can solve such a problem. This demonstrates why inferences should not be the basis for a conclusion concerning standing.
To us, Twiggs argues that the argument he calls a “proffer to the court” was sufficient to demonstrate standing. He acknowledges that a defendant has the burden to demonstrate an expectation of privacy and may testify at a suppression hearing to establish standing in these circumstances but says this was unnecessary in this case. Twiggs says standing was established here because the Mitsubishi was registered in his mother's name and he had the keys. We do not find that to be dispositive.
We note the issue of the keys with some interest. Initially, Twiggs made no claim of interest in the Mitsubishi when the officers found the Mitsubishi keys in his apartment. He merely stated that they were keys to his mother's car which was located at her house. His lie was revealed when the officer activated the alarm switch and the Mitsubishi parked outside was giving an alarm. So initially, Twiggs made no claim of any interest in this car parked outside his apartment.
The most persuasive authority on this point comes from the Tenth Circuit. That court has repeatedly indicated that the defendant must do more than show mere possession of a car's keys to establish standing to challenge a search. In Valdez Mocker, 333 F.3d at 1209, the court stated that a nonowner's mere possession of the car and its keys does not suffice to establish a legitimate possessory interest in a car, as the nonowner bears the burden of establishing the fact that possession was gained from the owner or someone with authority to grant possession. Again, in United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000), the court noted that the mere fact of being in the car, or even possessing the car keys, is insufficient to meet the defendant's burden of proving standing.
In our view, Twiggs failed to establish any link between the keys being in his apartment and any possessory interest he had in the Mitsubishi. A fair reading of the record reveals that the district court, through its inferences, established that link for Twiggs. It is just as possible to infer that Twiggs' mother left her keys in Twiggs' apartment but did not give him permission to use the car. This demonstrates that it was Twiggs' burden to prove otherwise.
We conclude that Twiggs failed to demonstrate through testimony or any other evidence that he had a reasonable expectation of privacy in the Mitsubishi automobile that was searched. In the absence of any evidence on the issue of standing, we hold the district court erred in ruling Twiggs had standing to challenge the search made by the police. Because Twiggs lacked standing to challenge the search, we reverse the district court's suppression of the evidence found in the Mitsubishi.
Reversed and remanded.
ATCHESON, J., concurring:
I agree that Defendant Douglas Twiggs lacked standing to challenge the search of his mother's Mitsubishi sedan, and, therefore, his motion to suppress the marijuana found there should be denied. But I do not share the majority's reasoning in arriving at our common destination. I would find that the circumstantial evidence presented at the suppression hearing was sufficient to satisfy Twiggs' burden of demonstrating standing. Uncontroverted evidence showed him to be a bailee. And given the confusing way the Geary County District Court handled the hearing, I would assume a bailment of the car for purposes of deciding the appeal. The uncontroverted evidence also shows Twiggs told Lieutenant Michael Life that the car belonged to his mother and was at his mother's house when it actually was in the parking lot of Twiggs' apartment complex as his place was being searched. Twiggs' statement amounted to an abandonment or relinquishment of any possessory interest he might have had in the car. In turn, having disclaimed any possessory interest in the car at the time the police were literally at his door, Twiggs could not reassert that interest when it was convenient for him to do so in support of his motion to suppress.
A defendant bringing a motion to suppress bears the burden of establishing standing—a legally recognized interest in the object or premises searched—by a preponderance of the evidence. As with most things in the law, standing may be proven through circumstantial evidence, and a court may draw reasonable inferences from the evidence. At the hearing on the motion to suppress, the district court separated standing from the merits of the motion for reasons that are not entirely clear. The district court entertained argument on standing and reviewed the affidavit in support of the search warrant, the motion, and other documents. The district court then ruled that Twiggs had standing and proceeded to hear testimony on the merits. Twiggs did not testify.
The material in front of the district court, including the testimony, showed that Twiggs' mother was the registered owner of the Mitsubishi. The keys to the car were in Twiggs' apartment. In plain view in the car were multiple copies of a music CD on which Twiggs had performed, and he was pictured on the cover. The affidavit for the search warrant showed that officers had seen Twiggs drive the Mitsubishi to his apartment 2 days before the officers executed the warrant. While the warrant was being executed, Lt. Life showed the keys to the Mitsubishi to Twiggs. Twiggs told Lt. Life the car belonged to his mother and it was at her house.
Things would be a lot simpler if Twiggs or his mother had testified at the suppression hearing that she had loaned him the Mitsubishi. That would have plainly established his standing. What the evidence does show, however, is that Twiggs had a car registered to an immediate family member for at least a couple of days without it having been reported stolen. Twiggs had personal property in the car. All of that is undisputed. In its unrebutted state, the evidence makes at least a prima facie showing that Twiggs was the bailee of the Mitsubishi. That is, Twiggs had no ownership interest in the car but had possession of it with the owner's permission. See Black's Law Dictionary 162 (9th ed. 2009) (“Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title.”).
The evidence would be susceptible to an inference that Twiggs had stolen the car from his mother and she had not yet realized it had been taken, as the majority suggests. But the conclusion is speculative, especially since the prosecution neither called Twiggs' mother to testify to that effect nor offered a stolen vehicle report from her. The majority suggests drawing an inference from the absence of that sort of evidence improperly shifts the burden to the State. I don't think so. Evidence the car had been stolen or at least taken without permission would be more in the nature of evidence necessary to rebut the prima facie showing of standing from Twiggs.
The majority also indicates Twiggs was obligated to offer direct testimony to prove standing. But that seems similarly incorrect. Circumstantial proof ought to suffice. See State v. Corbett, 281 Kan. 294, Syl. ¶ 6, 130 P.3d 1179 (2006) (“A conviction for the gravest crime may be sustained by circumstantial evidence[.]”). Direct evidence would have been better, but it was not essential. I similarly discount the failure of Twiggs to affirmatively assert standing in his written motion. A motion to suppress should adequately state the grounds for suppression, so the prosecution can adequately present its case at the hearing. Apart from standing, the prosecution bears the burden of proof on a motion to suppress. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008). The failure to set out standing in a motion to suppress, however, shouldn't result in a denial of the motion on its merits but in an order to state the grounds with greater particularity in an amended motion.
Given the way the district court took up standing first and ruled in Twiggs' favor, Twiggs might have decided he didn't need to offer more evidence, let alone testify in support of standing. From that perspective, a fair argument could be made that the majority's finding of insufficient evidence really requires a remand for a supplemental evidentiary hearing on standing—not a reversal with directions that the motion be denied.
In any event, I would find that the undisputed evidence presented at the hearing adequately supported a finding that Twiggs was a bailee of the Mitsubishi. A bailee typically has standing under the Fourth Amendment to challenge a search. See United States v. Perea, 986 F.2d 633, 640 (2d Cir.1993) (“[I]n the Fourth Amendment context, bailees can have a sufficient interest in bailed property to give them standing to object to its seizure or search.”); United States v. Benitez–Arriguin, 973 F.2d 823, 827–28 & n. 1 (10th Cir.1992); see also United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 949 n. 2, 181 L.Ed.2d 911 (2012) (Although a Jeep was registered to defendant's wife, he drove it and, therefore, “had at least the property rights of a bailee.”). In Jones, the government declined to challenge defendant's Fourth Amendment standing as a bailee. 132 S.Ct. at 949 n. 2. Even if Twiggs were not a bailee, I would assume he had a sufficient possessory interest in the Mitsubishi to trigger the protections of the Fourth Amendment. Notwithstanding that assumption, he still loses.
The courts recognize that for Fourth Amendment purposes parties may renounce, abandon, or otherwise relinquish their ownership or other possessory interests in property, and having done so, they no longer have a legal basis to assert standing. A party may lose standing by disclaiming any interest in the property. United States v. Randolph, 628 F.3d 1022, 1026 (8th Cir.2011) (defendant had “no standing to challenge search” because he “disclaimed any possessory or ownership interest in the car”); United States v. Ojeda–Ramos, 455 F.3d 1178, 1187 (10th Cir.2006) (defendant “disclaimed any interest” in suitcase when asked by law enforcement officers, effectively abandoning it and relinquishing any claim to Fourth Amendment protections); United States v. Denny, 441 F.3d 1220, 1229 (10th Cir.2006) (“Because Defendant abandoned [the property], he had no standing to object to [the] search of [it].”). For example, in United States v. Hawkins, 116 Fed. Appx. 776, 778–79 (8th Cir.2004) (unpublished opinion), the court found that the defendant asserted a bailment interest when he told drug investigators he had carried a bag out of a bus terminal at the behest of a stranger. But the defendant relinquished that interest by indicating to the investigators he had completed his task and simply was waiting at the curb for a ride. Accordingly, the court affirmed the denial of his motion to suppress illegal drugs found in the bag because he had retained no constitutionally protectable interest.
Here, Twiggs similarly relinquished any possessory interest he had in the Mitsubishi when he told Lt. Life the car was his mother's and was at her home. Those representations were inconsistent with Twiggs being the bailee of the car or having some comparable interest in it, since he effectively disclaimed both ownership and possession. Based on that statement, Twiggs talked himself out of any basis to assert standing under the Fourth Amendment to challenge the search of the car. He cannot redeem at the suppression hearing what he relinquished at the time of the search. And Twiggs' lie to Lt. Life about the location of the car doesn't change that result. The legal process seldom grants dispensation to liars. See Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 653, 28 L.Ed.2d 1 (1971) (criminal defendant may be impeached with his or her prior inconsistent statement police obtained voluntarily but without administering required Miranda warnings because “ Miranda cannot be perverted into a license to use perjury”); United States v. Sanders, 130 F.3d 1316, 1318 (8th Cir.1997) (In a search and seizure case, the court pointed out: The Fourth Amendment “does not immunize people who, finding themselves in a compromising situation, voluntarily trade their interest in privacy [of the property to be searched] for a chance to escape incrimination, no matter how unwise that decision may seem in retrospect.”). For that reason, I concur in the result and agree the case should be remanded with directions that the district court deny the motion to suppress.