Powell v. State
| Citation | 824 So.2d 661 |
| Decision Date | 20 August 2002 |
| Docket Number | No. 2000-KA-01873-COA.,2000-KA-01873-COA. |
| Parties | Derrick POWELL, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Court of Appeals of Mississippi |
Webb Franklin, Greenwood, attorney for appellant.
Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appellee.
Before SOUTHWICK, P.J., LEE, and CHANDLER, JJ.
SOUTHWICK, P.J., for the Court:
¶ 1. After a bench trial, Derrick Powell was found guilty of possession of marijuana. Powell appeals arguing that evidence of the marijuana should have been suppressed because the drugs were found after an illegal search. We uphold the search, though on grounds other than those relied upon by the trial court. Consequently, we affirm.
STATEMENT OF FACTS
¶ 2. On May 5, 2000, a search warrant was executed at a residence in Winona, Mississippi. During the search the officers divided their efforts, some participating in the search of the interior of the residence and others providing outside security. Powell, his mother, and his girlfriend, Latisha Merritt, all were present during the execution of the search warrant.
¶ 3. A canine unit was outside of the residence. According to one officer's testimony, the dog was allowed out of the patrol car in order to relieve itself prior to its involvement in the search. When it was close to the automobile that Powell drove, the dog indicated the presence of drugs. The vehicle was located across the street from the residence and was not listed as an item to be searched in the warrant. Taking notice of the dog's behavior, one of the officers went inside to ask Latisha Merritt for permission to search. Merritt consented. Before he returned to notify the other officers, the vehicle's trunk had already been opened. Found in the trunk after the officer returned with permission was 606.9 grams of marijuana. Powell admitted that the drugs belonged to him.
¶ 4. After a hearing on Powell's motion to suppress, the trial court found that the consent to search the vehicle was invalid because the search began prior to the consent. The court instead found that Powell had no standing to assert a Fourth Amendment violation. This was because Powell neither was the owner of the automobile nor was he in lawful possession of it.
¶ 5. Powell subsequently waived his right to a jury trial. The case was submitted on stipulated facts. Powell was found guilty of possession. His appeal has been deflected here.
¶ 6. We initially remanded this case to the lower court for findings as to these questions.
Question 1: Was consent to search the vehicle in which the contraband was discovered voluntarily given by Latisha Merritt or some other person with the authority to grant such consent, and without any knowledge on the part of the person consenting that a search potentially had already begun?
¶ 7. The lower court determined that neither Latisha Merritt nor Mississippi Bureau of Narcotics Agent Mike Perkins had knowledge that the search was already in progress when Merritt gave Agent Perkins consent to search the vehicle.
Question 2: Was the dog taken near the vehicle in which contraband was found in order that the dog could relieve itself, and while being walked away from the house for that purpose gave the normal indication to its handlers of the presence of contraband within the vehicle, or was that explanation a pretext for a purposeful taking of the dog near the vehicle to determine if the dog would alert on the vehicle?
¶ 8. The trial court took judicial notice of the fact that dogs frequently "mark their territory" when entering unfamiliar surroundings. The trial court accepted the explanation offered by the officers that the dog was released from the patrol car so it could relieve itself prior to searching the house.
DISCUSSION
¶ 9. Whether Powell has standing to contest the search of the Merritt vehicle is a question of law except to the extent the facts of ownership and use are contested. We perform a de novo review of that legal issue. Peterson v. State, 671 So.2d 647, 652 (Miss.1996).
¶ 10. The right to be free from illegal searches is a personal right. Unless his own rights were violated by a search, a defendant cannot prevent the use of evidence discovered in the search. White v. State, 571 So.2d 956, 958 (Miss. 1990). This issue of standing is resolved through two inquiries: did the defendant have a subjective expectation of privacy in the placed searched; from society's perspective, was an expectation reasonable? Rakas v. Illinois, 439 U.S. 128, 151, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Court stated that the ultimate question is not whether a defendant has property rights in the area searched, but whether that defendant has a reasonable expectation of privacy in the invaded place. Id. at 143, 99 S.Ct. 421.
[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.
Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
¶ 11. During the suppression hearing, Wesley Merritt testified that title to the vehicle was registered in his name. He had given permission to his daughter, Latisha Merritt, to use the vehicle. Mr. Merritt testified that he did not transfer the title to the vehicle to his daughter because she was only fifteen years old at the time he gave it to her. He testified that he never gave his daughter permission to allow Powell or anyone else to use the vehicle.
¶ 12. Powell claims that an expectation of privacy arises from the fact that his girlfriend, Latisha Merritt, with whom he lived, allowed him free use of the automobile. The State stipulated that Powell had the girl's permission. Through surveillance prior to the execution of the search warrant, the officers knew that Powell frequently used the automobile. Powell argues that because he had Latisha Merritt's permission, he had an actual and reasonable expectation of privacy in the vehicle.
¶ 13. Powell refers us to a federal precedent in which a person who was employed by the renter to drive a rental truck from New York to Dallas, had standing to object to a warrantless search of the truck. United States v. Kye Soo Lee, 898 F.2d 1034, 1038 (5th Cir.1990). The court did not discuss whether the rental agreement allowed the renter to permit others to drive. Only if the rental agreement prohibited the renter from allowing anyone other than specifically authorized individuals to drive the truck would the case be analogous to our facts. To compare our case, here Latisha Merritt was given the vehicle by the actual owner. The father did not authorize his daughter to permit others to use it. Nonetheless, she permitted her live-in boyfriend Powell to do so. We do not find assistance from Kye Soo Lee on whether it is reasonable for a person to expect privacy in a vehicle impermissibly loaned him by the authorized user.
¶ 14. Powell also refers us to a precedent in which a passenger challenged the search of the automobile in which she had been riding. United States v. Martinez, 808 F.2d 1050, 1056 (5th Cir.1987). The passenger was the girlfriend of the absent owner and had his permission to be using the car. The Fifth Circuit found this to be sufficient to give the passenger standing to contest the search. Id. Whether the girlfriend had the owner's permission to allow someone else to drive the car was not an issue in the appeal. We do not find Martinez helpful, since there the defendant was the one who had the owner's authority. The key element in determining Powell's standing is that his use was allowed by someone who had permission but who was not supposed to grant others permission.
¶ 15. We do not find that the terms of an oral loan agreement between father and daughter are controlling as to reasonable expectations of privacy for Fourth Amendment purposes.
Other factors to be weighed include whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.
United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir.1981). Insofar as the evidence reveals, this was Powell's principal, usual mode of transportation. Powell through his girl-friend's loan of the car had been given the implicit right to exclude others except for his girlfriend and her father. He had been using the vehicle freely. We find that he had a possessory interest. Not having the legal right to use the vehicle would have considerable impact on the incidents of liability that grow out of non-permissive use, such as for insurance coverage. But insofar as criminal law is concerned, Powell had a reasonable expectation that the contents of this vehicle would not be searched without Fourth Amendment-compliant justification.
¶ 16. During the suppression hearing, the State put on evidence that Latisha Merritt had given permission to search the vehicle. The vehicle's registration was introduced into evidence. Merritt's father testified that he had given his daughter the car but had not authorized her to let anyone else drive it. Thus the State presented uncontested evidence that the person given possession by the lawful owner had consented to the search. The only evidence also was that though the trunk was opened before the officer returned to the vehicle after obtaining the permission, there was no examining of the trunk until that officer informed the others of the consent. Nothing in the record indicates when the consent was given in relation to when the trunk was opened. We only know that the officers at the vehicle did not learn of the consent until after the trunk was...
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