Hicks v. State

• Decision Date: 29 August 2003
• Docket Number: No. 5D02-1640.,5D02-1640.
• Citation: 852 So.2d 954
• Parties: Lyndon James HICKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 954

Lyndon James HICKS, Appellant, v. STATE of Florida, Appellee.

No. 5D02-1640.

District Court of Appeal of Florida, Fifth District.

August 29, 2003.

James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and, Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

We are asked to determine in this appeal whether the trial judge erred in denying a motion to suppress certain evidence. Specifically, the defendant argues that the police unlawfully searched his backpack, and seized items in and on top of it.

A vehicle owner filed a police report indicating that someone had broken into her automobile and removed her purse and a spare set of keys. Later, the police received a report that the vehicle associated with the keys had been stolen. Fortunately, the vehicle was equipped with an "Onstar" satellite tracking system, which enabled the police to locate it at a house in Apopka. The vehicle was backed into the front yard and partially hidden from view.

Four police officers went to the front door of the house, and spoke to Elizabeth Setaram (a co-defendant), who answered the door. She initially claimed that she was alone and had no knowledge of the stolen vehicle in the front yard. When asked if she would unlock the front security door, Ms. Setaram responded that she did not have the door key. Apparently, Ms. Setaram then telephoned the homeowner, who eventually returned to the house and gave his permission for the officers to enter and search the entire residence.

One of the law enforcement officers involved in the search testified that while they were at the front door waiting for the homeowner to arrive, Ms. Setaram kept walking back and forth away from the door and was whispering. Eventually she admitted that someone else was in the house. Ms. Setaram called the person "Tip Mathews," and told the officers that he didn't want the officers to know that he was inside the house.

Once inside, the officers made contact with the defendant, Hicks. According to the homeowner, Ms. Setaram had only been at the house for two days. The homeowner related that Ms. Setaram was a friend, and he was allowing her to sleep in the front bedroom. After Ms. Setaram gave permission to the law enforcement officers to search the bedroom, the officers conducting the search observed drug paraphernalia and a substance that turned out to be cocaine.

In addition, while conducting the search of the bedroom, an officer observed a CD case containing nine games resting on top of a backpack that Hicks identified as his. According to the officer, Hicks gave his permission to search the backpack, from which the officer recovered a key ring and keys that had been taken from the stolen vehicle. The victim shortly thereafter was called to the premises and positively identified the CD case and games as having been in the stolen vehicle. The police also recovered from the backpack various screwdrivers, flashlights, rubber gloves, pliers and wire cutters.

In due course Hicks filed a motion to suppress, arguing that the evidence on and in the backpack was illegally seized without a warrant. According to Hicks, once the officers were inside the residence, they handcuffed him and made him sit in the living room. Hicks told the officers that because he was "handcuffed and surrounded by other officers" he "guessed he didn't have any choice," when asked if he would give his permission to search the backpack.

The following was offered by the officer as an explanation for handcuffing the defendant:

Q. Based on the behavior she was exhibiting, in your training and experience, what did that lead you to believe or what did you think might be going on?

A. That she was hiding something and so when we entered the house, we made sure that we secured her. Once we entered the house, we noticed a black male standing in what I believe is a living room area off to the kitchen which is an area she kept walking to and then coming back from. So at that time we secured the black male also just for our safety.

* * *

Q. Okay. When you say secure, what exactly does that entail?

A. We secured him by keeping him in plain sight. We kept him in one room. We took the female into the kitchen area. We secured them by handcuffing them, that way—for their safety and our safety, because we did not feel immediate need that they had any kind of weapons on them. We did a quick pat down, did not feel any kind of weapons, guns, or anything of that nature on them. So that way we can secure them that way.

Although he could not remember the defendant's exact words, the officer recalled that the defendant said with respect to the backpack, "[G]o ahead, search it."

Hicks argued that his consent to search was involuntary because he was handcuffed with an officer by his side at the time that he gave it, even though the authorities knew that he was not armed, having earlier patted him down. He points out that he was not a flight risk because there were four officers on the scene. The defense position was that the consent to search was involuntary and constituted only an acquiescence to unlawfully asserted police authority. After the trial court denied the defense motion to suppress without making factual findings, Hicks pled nolo contendere to burglary of a conveyance, and was sentenced to 13 months in state prison, reserving the right to appeal the denial of the motion to suppress. As part of the plea agreement the State filed a nolle prosequi to the charge of grand theft.

On appeal, Hicks contends that Ms. Setaram was released from her handcuffs once police conducted a pat down while he remained in handcuffs with an officer guarding him at all times. According to Hicks, the police demonstrated their authority and custodial control over him by choosing to restrain him after releasing the female, and, thus, any reasonable person would believe that they had no choice but to consent to a search of his property. Hicks concedes, however, that the police were justified in temporarily detaining him to investigate the reason why a stolen car was parked in front of a house where he was a guest.

The State counters that, assuming the police were justified in detaining the defendant to investigate the stolen car report, it also follows that Hicks had no expectation of privacy in the residence since he did not own or live in the house, and there was no evidence to suggest that he was an overnight guest.

We consider the validity of the search first with respect to the items found on top of the backpack, and then with respect to the items contained within the backpack.¹ The items on top of the backpack were lawfully seized by the law enforcement authorities. The Fourth Amendment to the Constitution of the United States protects persons against unreasonable searches of "their persons, houses, papers and effects." It is, therefore, a personal right that must be invoked by the affected individual. Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Accordingly, suppression of the product of a search that violates the Fourth Amendment can be successfully urged only by those whose rights were violated by the search itself, and not by those who are "aggrieved solely by the introduction of damaging evidence." Jones v. State, 648 So.2d 669, 675 (Fla. 1994),cert. denied, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836; March v. State, 725 So.2d 472 (Fla. 5th DCA 1999). Unfortunately for the defendant, he finds himself in the latter position with regard to the items on top of the backpack.

In order to invoke the Fourth Amendment to suppress a search the defendant must demonstrate that he or she had a subjective expectation of privacy in the location searched and that the expectation was reasonable or legitimate. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz, 389 U.S. at 361, 88 S.Ct. 507. The extent to which the Fourth Amendment offers protection may well depend on the status and location of the defendant at the time of the search. While there are occasions where an overnight guest might have a legitimate expectation of privacy in someone else's home [see Olson, 495 U.S. at 98-99, 110 S.Ct. 1684], one who is merely present with the consent of a homeowner generally may not claim that expectation. See Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In Carter, the United States Supreme Court held that persons present in the home of a casual acquaintance for a few hours for business purposes do not have a reasonable expectation of privacy. Temporary visitors or short-term invitees, such as the defendant in the present case, therefore, are generally unable to advance a position of privacy with success. Whether that expectation is legitimate must in the final analysis depend on the totality of the circumstances. See Tillman v. State, 807 So.2d 106, 109 (Fla. 5th DCA), rev. granted, 835 So.2d 271 (Fla.2002). Indeed, there are some contexts that can be envisioned in which a guest might meet the expectation of privacy test. See Davis v. State, 582 So.2d 61 (Fla. 1st DCA 1991).

The record, however, shows no more than that Hicks was a short-term invitee with no legitimate expectation of privacy with respect to the room where the backpack was located. Regardless of whether Hicks' consent to the search was voluntary, both the homeowner and the resident—those who might actually have had an expectation of privacy—gave permission to law enforcement to search.

Since the search of the bedroom was lawful, the items on top of the backpack were, as indicated previously, properly subject to seizure under the plain view doctrine. See Bolden v. State, ...