Hicks v. State

• Decision Date: 27 January 2006
• Docket Number: No. 2D04-2640.,2D04-2640.
• Citation: 929 So.2d 13
• Parties: Larry Edward HICKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

929 So.2d 13

Larry Edward HICKS, Appellant, v. STATE of Florida, Appellee.

No. 2D04-2640.

District Court of Appeal of Florida, Second District.

January 27, 2006.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Larry Hicks challenges his convictions for burglary (count 1) and grand theft (count 2), which were entered after he pleaded no contest to the charges and reserved his right to appeal the trial court's denial of his dispositive motion to suppress.¹ On appeal, Hicks argues that the search of files on a laptop computer found in his car violated his Fourth Amendment rights. We affirm the trial court's denial of Hicks' motion to suppress because Hicks failed to establish that he had a reasonable expectation of privacy in the stolen laptop and thus failed to establish that his Fourth Amendment rights were violated. We write to discuss the state of the law concerning a defendant's reasonable expectation of privacy in stolen property, an issue previously addressed in Florida only in the context of stolen vehicles.

The charges against Hicks stem from an incident in which an officer in an unmarked police car, Deputy Whitney, was conducting a surveillance investigation for burglaries and vandalism in a residential area. At 2:35 a.m., on September 8, 2002, Deputy Whitney observed a white car occupied by two males. The car had its interior light turned on and was stopping in front of multiple residences. The car did not have a tag displayed. The driver of the car stopped at one residence, shut off the headlights, reversed, pulled into the driveway of another residence, stayed for three to five minutes, reversed, and then drove down the street without headlights. Deputy Whitney initially thought that the car belonged to a newspaper delivery man, but when it passed him, he saw that there were no newspapers in the car. His suspicions aroused, Deputy Whitney called for a marked police car to stop the white car based on his observations. Two officers in marked cars, Deputy McKee and Sergeant Perkins, arrived within two to three minutes, and they also observed the white car driving without headlights or a visible tag. Deputy McKee initiated a traffic stop, approached, and asked the driver, Hicks, for his driver's license, registration, and proof of insurance. Hicks replied that he did not have any of the requested items with him. Deputy McKee asked Hicks what he was doing in the area. Hicks replied that "he was looking for J.R." but was unable to provide J.R.'s last name, phone number, address, or age. Deputy McKee then asked to search the car. Hicks responded, "Why not? Go ahead, you are not going to find anything."

In searching the car and its trunk, Deputy McKee found an "abundance of property that was located throughout the vehicle," including a CD player, a leaf blower, a weed-eater, a gold heart locket, a dolphin bracelet, and black flashlights, among other things. Sergeant Perkins also found mail with someone else's address on it. The address to which the mail was directed was located nearby. Upon finding the mail, Sergeant Perkins went to the addressee's house, spoke to the addressee, and determined that Hicks did not have permission to take the mail. Sergeant Perkins brought the addressee to the scene of the traffic stop, and the addressee said that he did not recognize Hicks or the other man in the car.

Sergeant Perkins also found a briefcase in the backseat containing a laptop computer. At some point, Hicks told the officers that his uncle in Orlando had given him the computer. More deputies responded to the scene, including Deputy Ogg. When Deputy Ogg arrived, he learned that there was some suspected stolen property in the white car. Deputy Ogg noticed the computer sitting on the outside of the trunk. Believing "[t]here was prior consent to search the vehicle and objects therein," he turned on the computer and started browsing the files "to locate a possible owner."

Hicks filed a motion to suppress statements made to law enforcement agents and to suppress the property recovered in the search of his car, including the computer. Hicks argued that the search of the computer files exceeded the scope of his consent to search the car. The State argued that Hicks did not have a reasonable expectation of privacy in the computer and, alternatively, that the search was consensual and the officer had probable cause. The trial court determined that it could deny the motion on probable cause grounds, concluding that Deputy McKee had "probable cause to search the vehicle (inclusive of unlocked containers and trunk) without [Hicks'] consent based on the well founded belief that [Hicks] was loitering and prowling." Hicks entered a no contest plea to the charges against him and reserved his right to appeal the trial court's denial of his motion to suppress, which the trial court ruled was dispositive. On appeal, Hicks addresses only the seizure of the computer—arguing that the trial court's reasoning was incorrect.

"When reviewing a trial court's ruling on a motion to suppress, the trial court's factual findings must be affirmed if supported by competent, substantial evidence, while the trial court's application of the law to those facts is reviewed de novo." State v. D.D.D., 908 So.2d 1180, 1181 (Fla. 2d DCA 2005) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and Caso v. State, 524 So.2d 422 (Fla.1988)). Here, Fourth Amendment law supports the trial court's decision to deny Hicks' motion to suppress the evidence obtained from the search of the computer. As the State argued below, Hicks did not have a reasonable expectation of privacy in a computer that he did not lawfully possess and to which he asserted no property or possessory interest at the suppression hearing.²

The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed.³ Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also Dean v. State, 478 So.2d 38, 40 (Fla. 1985). Whether a defendant⁴ has a reasonable expectation of privacy is a threshold inquiry. Rakas, 439 U.S. 128, 99 S.Ct. 421. A search violates a defendant's Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

There are cases from jurisdictions throughout the United States holding that a person does not have a reasonable expectation of privacy in a stolen vehicle. See, e.g., Hall v. State, 820 So.2d 113, 133 (Ala. Crim.App.1999); United States v. Hensel, 672 F.2d 578 (6th Cir.1982); United States v. Hargrove, 647 F.2d 411 (4th Cir.1981). In Florida, the supreme court held that a defendant does not have a reasonable expectation of privacy in a stolen vehicle and thus cannot contest the search of the vehicle; a defendant can contest only the initial stop because the stop involves the seizure of the person. State v. Singleton, 595 So.2d 44 (Fla.1992). These cases do not limit their holdings to vehicles nor do they distinguish between vehicles and other objects.

There are at least four cases nationwide that explicitly hold that a person does not have a reasonable privacy expectation in stolen property other than a vehicle — United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir.2005); United States v. Wong, 334 F.3d 831 (9th Cir.2003); United States v. Lyons, 992 F.2d 1029, 1031-32 (10th Cir.1993); Pennywell v. State, 84 S.W.3d 841 (Tex.App.2002) — although there is no case in Florida that does so.

In Pennywell, the defendant moved to suppress a stolen brown bag containing stolen property on the grounds that the officer lacked either probable cause to arrest the defendant or reasonable suspicion sufficient to justify detaining the defendant. In discussing the stolen bag, the Texas appellate court held that "a thief's mere possession of stolen property does not give rise to any expectation of privacy that society is prepared to accept as reasonable." Id. at 844.

In Lyons, 992 F.2d 1029, the Tenth Circuit discussed a defendant's expectation of privacy in stolen hard disks. In Lyons, the Federal Bureau of Investigation was investigating computer theft at a corporation. During the execution of a warrant to search Lyons' home, FBI agents found stolen equipment, including hard disks belonging to the corporation. Under FBI supervision, the corporation's technician searched the contents of the hard disks without obtaining a separate warrant. The technician discovered several programs stored on the disks that were apparently also stolen from the corporation. The Tenth Circuit held that Lyons failed to meet the "threshold requirement of demonstrating an expectation of privacy in the property searched [stolen hard disks]." Id. at 1032. The Tenth Circuit further held that "[i]n the absence of any evidence of" an "actual, subjective expectation of privacy," it would not even reach the issue of whether the expectation would have been reasonable. Id. at 1031-32. Lyons could not establish a violation of his Fourth Amendment rights.

In Caymen, 404 F.3d 1196, police officers suspected Caymen of stealing a laptop computer by credit card fraud. The police discovered a computer in Caymen's room. Caymen claimed that the computer was his. Not believing him, the police called a computer store that had reported a stolen laptop computer and asked the store manager to...