Ramires v. State, 1 Div. 778

• Decision Date: 11 June 1985
• Docket Number: 1 Div. 778
• Parties: Paul Michael RAMIRES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 615

492 So.2d 615

Paul Michael RAMIRES v. STATE.

1 Div. 778.

Court of Criminal Appeals of Alabama.

June 11, 1985.

Rehearing Denied July 23, 1985.

Certiorari Quashed July 18, 1986

Alabama Supreme Court 84-1163.

W. Donald Bolton, Jr. and Thack H. Dyson, Foster, Brackin & Bolton, Foley, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Paul Michael Ramires, was convicted of the offense of unlawful possession of marihuana in violation of § 20-2-70, Code of Alabama 1975. He was sentenced to fifteen years' imprisonment.

The following is a rendition of the facts which were established by the testimony taken during the trial and during the hearing on the motion to suppress. ¹ On the evening of February 9, 1980, Investigator Pierce of the Baldwin County Sheriff's Department was patrolling in the vicinity of County Road 4 when he noticed an "18-wheeler" truck stop by Moesch's Diesel Repair and Shipyard. Upon observing a vehicle following the truck, Pierce ascertained that the automobile was a Hertz rental car from Mobile. When Pierce later drove by, the truck was not there, but he observed a chain across a driveway located west of Moesch's Diesel. The driveway, which belonged to Childress and Company, provided access to the Intracoastal Canal. In going by that driveway almost every day, Pierce had never before seen a chain across it.

He left the area and attempted to locate the truck, but after a futile search, Pierce returned. When he passed the driveway this time, he observed truck tracks coming from the driveway onto the pavement. The chain was not there. Pierce drove down to the canal, where he observed small pieces of burlap and evidence of a lot of foot traffic. Again, he left and futilely attempted to find the truck. He returned between 4:00 and 5:00 a.m. The chain was again blocking passage down the driveway.

Later in the morning of February 10, Pierce met Chief Deputy Anderson and, after removing the chain, they went down to the canal, where they saw a V-shape indentation in the bank. Upon glancing toward Moesch's Diesel, Pierce noticed the rigging of a shrimp boat which had not been there the night before. From a vantage point approximately 125 yards from the boat, the two officers observed mud on the boat's bow and the boat's name which, at the time, they thought to be Ricky C. They later discovered that the boat was the Ricky G.

The shipyard foreman, Mr. Redding, was summoned to Moesch's Diesel by the officers. After observing that the boat was tied in a slip without his prior approval or knowledge, Redding yelled to see if anyone was on board. When he received no response, he went aboard and made a general search. After asking Redding if it was all right to come aboard, the two officers boarded the boat. Redding then decided to look in the fishhold. He made this decision, not by suggestion or direction of either of the two officers, but because three years earlier, two men had died in the fishhold of a boat and, because he had discovered no one on deck, he thought someone might be below. So Redding pushed over an outboard motor which was lying on the hatch. The testimony conflicts on the point of whether Pierce aided Redding in lifting the hatch. When the hatch was lifted, Redding and the officers observed burlap wrapped bales. From the bales' appearance and odor, the Chief Deputy suspected them to be marihuana. The men closed the hatch, replaced the motor, and left. The boat was then put under surveillance. Then, Anderson and Pierce surveyed the surrounding area in an attempt to find the rental automobile seen earlier.

After a futile search, Anderson and Pierce went back down to the canal, where they observed activity around the shrimp boat. Later, the truck arrived at the canal bank and the Ricky G subsequently pulled up beside it. Although Anderson could not distinguish anyone, he could hear "what sounded to be something being thrown up into the rear of the truck," which based upon his experience, sounded like bales of marihuana being thrown into the truck. After the truck had cranked up and was starting to move, and while the boat was backing out into the canal, Anderson directed all surveillance units to move in. A boat carrying several Gulf Shores police officers followed the Ricky G. When the Ricky G was stopped, Officers Yohn, Maples, and Stewart boarded the boat; placed its occupants, Calvin Collier and Ramires, under arrest; and informed them of their Miranda rights. Both were asked if either could pilot the shrimp boat back to shore, but they said that neither knew how to operate it and that neither was piloting the boat when it was stopped.

After the boat was taken back to Moesch's Diesel area, Mr. Carter of the Department of Forensic Science boarded the boat and collected green plant material from the hold and the deck. He also collected a bale and samples from 28 of the bales in the truck. This plant material, upon testing, was determined to be marihuana.

Ramires was indicted for unlawful possession of marihuana as proscribed by § 20-2-70, Code of Alabama 1975. Throughout the proceedings below, Ramires contested the admissibility of the marihuana which formed the basis of the indictment. He specifically contended that the marihuana was the product of an illegal search of the Ricky G.

At the suppression hearing, Ramires testified that Robert Collier and Roy Nicaud were the owners of the shrimper; that he had been employed by the two men for approximately one and one-half years; that he regularly worked on the Ricky G as a crewman; that his duties included "a little bit of everything," except he did not load and unload the boat's cargo; and that, when the boat was seized, he was on the boat, but Calvin Collier was piloting the boat. Ramires further explained that when he worked on the boat, he stayed in quarters in the wheelhouse and he left some personal belongings aboard, but he did not store any personal items such as clothes or toiletries down in the hold. Ramires also testified that, although he did not know at all times what the boat was carrying, he knew what its cargo was on February 10. Finally, Ramires claimed to have a possessory interest in the marihuana.

In addition to Ramires's testimony, the trial court heard the testimony of the shipyard foreman, Redding, who testified that, when he observed the boat, it was blocking a slip owned by Moesch's Diesel and was on private property; that boats are never left there; that a gangplank connected the vessel with the dock; and that no one was aboard.

Finally, Officers Stewart and Yohn testified that, when they seized the boat, they asked Ramires and Collier who was piloting the boat, because someone had to pilot the shrimper back to the dock. Both answered that neither was piloting the boat, neither knew how to operate the boat, and neither owned the boat.

Ramires contends that, contrary to the trial court's ruling, the marihuana seized as a result of the warrantless entry and search of the Ricky G should have been suppressed. However, it is now settled that a defendant may not claim the benefits of the exclusionary rule unless his or her own Fourth Amendment rights have been violated. ² Cochran v. State, [Ms.6 Div. 886, April 24, 1984] --- So.2d ---- (Ala.Cr.App.1984). Thus, our threshold consideration is "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). See also Collier v. State, 413 So.2d 396 (Ala.Cr.App.1981), aff'd, 413 So.2d 403 (Ala.1982). It is not sufficient that a defendant may have a subjective expectation of privacy, for "[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 144, n. 12, 99 S.Ct. at 430, n. 12. In making this determination, we are guided by the requirement that "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas, 439 U.S. at 131, n. 1, 99 S.Ct. at 424, n. 1. See also Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Although courts do not often discuss the applicable standard of proof, when they do, it is declared to be the preponderance standard. 3 W. LaFave, Search and Seizure, § 11.2(c) (Supp.1985).

Ramires contends on appeal, as he did in the trial court, that he sufficiently met the burden and standard of proof by the following evidence: (1) he was legitimately on board the shrimper as a crewman, and (2) he claimed to have a proprietary interest in the marihuana.

Legitimate presence on the premises at the time of the search was once considered a basis for asserting Fourth Amendment rights. Jones v. United States, 362 U.S. 257, 265-67, 80 S.Ct. 725, 733-34, 4 L.Ed.2d 697 (1960). However, in Rakas, 439 U.S. at 148, 99 S.Ct. at 433, the Court proclaimed that, while relevant, the fact that a defendant was legitimately on the premises is not determinative of whether he or she had a legitimate expectation of privacy in the particular area searched. See also Lentini v. State, 406 So.2d 998, 1001 (Ala.Cr.App.1980), cert. denied, 406 So.2d 1003 (Ala.1981). However, in the instant case, Ramires was not even on board the vessel at the time of the initial entry and search.

Thus, the only remaining evidence upon which Ramires asserts that his own Fourth Amendment rights were violated in his assertion that he, in fact, had some type of proprietary interest in the seized marihuana. However, upon our review of the manner in...