EMBRY, Justice.
O'Leary's conviction for possession of marijuana is here for review after we issued the writ of certiorari to the Court of Criminal Appeals the second time.
That appellate court, 417 So.2d 214 initially reversed the conviction on the basis that the record did not disclose a proper arraignment. At the behest of the State, we granted certiorari to review that holding and reversed that court regarding arraignment. We remanded for further proceedings, 417 So.2d 217. On remand, the Court of Criminal Appeals decided the remaining issues adversely to defendant and affirmed his conviction. Now defendant challenges that court's latter decision.
The pertinent underlying facts are summarized in the opinion of the Court of Criminal Appeals, O'Leary v. State, [Ms. June 23, 1981] 417 So.2d 219 (Ala.Cr.App.1981), as follows:
"The series of incidents that formed a basis for the prosecution in the instant case, as well as the prosecutions against nine other individuals, transpired during the last few days and nights of 1977, particularly but not exclusively December 30 and December 31....
"....
"For a few days before December 31, 1977, there had been a joint investigation, covering the area of Baldwin County surrounding the place where the marihuana was found and seized, conducted by law enforcement officers of Alabama Bureau of Investigation, United States Customs Service, Alabama Beverage Control Board and Baldwin County Sheriff's Department. It pertained to suspected unlawful activities on water and on land between Ft. Morgan, Alabama, and its environs, and the Alabama-Florida boundary near its southern end, and resulted in the discovery and seizure, in the early daylight hours of January 31 [sic], of the marihuana, on board a vessel that
"The Cher had been preceded at varying distances by a pleasure yacht by the name of 'Island Girl' from the Ft. Morgan area to the area of the Bear Point Marina. It then went only a short distance farther in a generally easterly direction and stopped without coming to land. Soon thereafter, both of the vessels were boarded by some of the law enforcement officers. Those boarding the Cher found the marihuana; those boarding the Island Girl found no marihuana or other controlled substance. On the Island Girl were the defendant (appellant) and another man. They were both arrested on the occasion. On the same occasion, persons who had landed from the Cher were arrested; soon thereafter the marihuana was discovered, and all arrested, including defendant (appellant), were transported to the Baldwin County Jail."
had been traced upon its entry from the Gulf of Mexico to where it had been moored and abandoned by its occupants at Bear Point Marina. The vessel was consistently referred to in the evidence as a 'sailboat' by the name of 'Cher.'
At a further point in the opinion, there appears a more detailed statement of the surveillance of the two vessels by law enforcement officers. It reads:
"About nine or nine-thirty P.M. December 30, 1977, the Island Girl was observed by one of the officers testifying leaving Bear Point Marina and proceeding west along the long and winding intercoastal [sic] waterway toward Ft. Morgan. It was thereafter followed by U. S. Customs Supervisory Patrol Officer Joe McKnight and A. B. C. Agent Aubrey Little, in an open fishing boat, at Gulf Shores, who maintained visual surveillance of the Island Girl by means of its running lights to a point approximately two miles east of Ft. Morgan, a total distance of about thirty miles from Bear Point Marina. Meanwhile, according to the testimony of U. S. Customs Agent Jim Moree, he and Mr. Forrest Robinson went to Mobile, obtained a U. S. Customs boat and brought it alongside Agent Little's boat, where it was boarded by S. P. O. McKnight, who commenced and maintained surveillance of Island Girl by radar on the customs boat. Also in the meantime, U. S. Customs Agent Reggie Montgomery and Officer Roland Howell of the Baldwin County Sheriff's Department paralleled largely the travel of the Island Girl and each of the boats following it by their movement on motor vehicles along the highway on the Baldwin County Peninsula between Gulf Shores and Ft. Morgan. Agent Montgomery viewed the Island Girl with binoculars from the end of the pier at the end of the peninsula at Ft. Morgan. He observed what was afterwards determined to be the Cher coming from the Gulf of Mexico.
"According to the testimony of S. P. O. McKnight, after he had commenced radar surveillance of the Island Girl he observed by radar the sailboat, afterwards determined to be the Cher, and noticed that it 'left our location and headed on a straight line toward the blip we had established as being the Island Girl.' He further testified:
" 'After the light flashed, the boat moved away from where our boat was, and traveled to a point to a quarter of a mile from the position the Island Girl was in. At this time the Cher gave another flash of deck lights, turned them off, the Island Girl, after a few seconds and flashed back to the sailboat with a spot light or something. We were unable to determine what. Again the Cher turned on its deck lights and again another flash of lights from the Island Girl. At this time they both proceeded eastbound in the intercoastal [sic] back towards the Gulf Shores area.
" 'MR. HENDRIX:
" 'Q. Which boat was in the lead?
" 'A. The Island Girl.
" 'Q. Approximately how far behind the Island Girl did the Cher follow?
" 'A. The Cher varied its distance anywhere from a quarter mile to half mile. Most of the time a quarter mile distance between the two.
" 'Q. How far did you maintain your distance between you and Cher?
" 'A. Ours also varied as to traffic conditions--light tugboat traffic in the Intercoastal [sic]. But we stayed a maximum of two miles all the time.
" 'Q. Did you have them on radar at that time?
" 'A. Yes, sir.'
"On cross-examination his testimony continued as follows:
" 'Q. Could you tell us, sir, when you saw the two boats meet, what do you mean by them meeting?
" 'A. They came to a point one-quarter mile apart, and light signals were observed from each boat. And they simultaneously started their movements to the east, and maintained the same distance between them all the way for the entire thirty miles.
" 'Q. Okay. First of all, they did not come in direct proximity with each other, did they?
" 'A. They did not touch each other.
" 'Q. There was a quarter of a mile between them?
" 'A. Yes, sir.
" '....
" 'Q. I see. Are you familiar with the position in which the Island Girl was when the Cher came to rest at some area near the Island?
" '....
" 'A. The Island Girl, when the Cher went into the cut of land--Pirates Cove, the Island Girl remained in the intercoastal [sic], approximately a half mile to a mile from that place. It was just east of where the Cher left the intercoastal to go into that point of land. The Island Girl continued to a point just east of that and idled into the Intercoastal Canal.' "
"SPO McKnight testified further that he was among those who boarded the Cher and found the bales of marihuana thereon.
"Agent Aubrey Little of the Alabama Bureau of Investigation, (Public Safety) testified that he, with a deputy sheriff and an officer of U. S. Customs boarded the Island Girl soon after it was stopped as heretofore stated and saw the defendant as they boarded it, who identified himself by name and stated that he was the captain of Island Girl...."
Although defendant was neither aboard the sailing vessel "Cher," at the time of his arrest, nor when the marijuana and numerous other articles were seized from that vessel, he challenged the search and seizure as unconstitutional by way of a motion to suppress as evidence at trial all "papers, documents, vehicles, boats, controlled substances, marijuana, firearms, and any other evidence" seized. The motion was denied by the trial court.
Reviewing that action of the trial court, the Court of Criminal Appeals held:
"... As to the suppression of that evidence, appellant is without standing. There is nothing in the record or the transcript to indicate that he owned the Cher or had any legal right to possess or control it. The only evidence as to his connection with it is that which shows his connection with the contraband it was transporting. By his plea of not guilty, he denies such a connection. His position in so doing and claiming an interest in the Cher that would entitle him to the benefit of constitutional protection against an unreasonable search and seizure of the Cher is duplicitous.... Furthermore, whatever interest he had in the marihuana, which the jury by its verdict decided that he had, would not be sufficient to show that the Cher, or that which was searched or seized on the Cher other than the marihuana, was one of his 'houses, papers, and [or] effects' as to which the Fourth Amendment to the Constitution of the United States affords security...."
Defendant asserts this ruling was error because, he contends, he was entitled to "automatic standing" under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The "automatic standing rule," as enunciated in Jones, and later clarified in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208
That rule was expressly overturned in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), wherein the court remarked:
(1973), is that a defendant has standing to test the constitutionality of a search and seizure where his indictment charges "possession of the seized evidence...
