Reese v. State

• Decision Date: 11 September 2020
• Docket Number: CR-18-0687
• Parties: Antonio Montez REESE v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

334 So.3d 529 (Mem)

Antonio Montez REESE

v.STATE of Alabama

CR-18-0687

Court of Criminal Appeals of Alabama.

September 11, 2020

Rehearing Denied December 11, 2020

Certiorari Denied March 12, 2021

Alabama Supreme Court 1200170

Lisa M. Ivey of Stubbs, Sills & Frye, P.C., Anniston, for appellant.

Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

COLE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

Windom, P.J., and Kellum and McCool, JJ., concur. Minor, J., concurs specially, with opinion.

MINOR, Judge, concurring specially.

I concur in the Court's affirmance of Antonio Montez Reese's multiple convictions and sentences that stem from an automobile collision in which two individuals were killed and two others were injured.¹ I write separately to address Reese's challenge to a search warrant for the event data recorder ("EDR") from the vehicle he was driving when he caused the collision.

The evidence showed that around 7:00 p.m. on April 22, 2016, Officer Alex Miranda of the Opelika Police Department saw Reese, who was driving his girlfriend's Chevrolet Malibu automobile,² turn without using a signal. Officer Miranda initiated a traffic stop, but Reese fled at a high rate of speed. After Reese almost caused an accident at one intersection, Officer Miranda slowed down and lost sight of Reese. Reese's flight ended when the Malibu he was driving collided with a Toyota Camry automobile that Rhonda Finley was driving and in which Dennis Finley, Thomas Wallace, and Wendi Wallace were passengers. The Wallaces were injured in the crash, and the Finleys were killed.

Law enforcement found marijuana, alprazolam, and cocaine in Reese's vehicle, and, pursuant to a search warrant, law enforcement got the EDR from the Malibu after the car was stored in a tow yard. Testimony at Reese's trial described the EDR as "a module ... [that] determine[s] whether ... to deploy [the] airbags ... [and] if it senses an impending collision ... [it will] record any data relating to the event." (R. 808-09.) The EDR records "speed, throttle percentage, accelerator percentage, whether ... the brakes ... [were] active ... [and] any kind of diagnostic trouble codes ... that were wrong with the car."³ (R. 815.) Data from the EDR showed that in the 5 seconds before impact, the Malibu was traveling between 63 and 68 miles per hour and that the brakes on the Malibu were never engaged during that time. The speed limit on the road where the crash happened was 25 miles per hour.

In the trial court, Reese moved to suppress the data extracted from the EDR because, he said, the search warrant requested the EDR, not the data on it. After a hearing, the trial court denied the motion to suppress.

The trial court held that, under this Court's decision in Sullen v. State, 409 So. 2d 903 (Ala. Crim. App. 1981), Reese lacked standing to challenge the warrant.⁴ In Sullen, this Court recognized that, to have standing under the Fourth Amendment, "a defendant need no longer ‘establish that he was the owner or possessor of the seized property or that he had a possessory interest in the premises searched.’ " 409 So. 2d at 905 (quoting Waters v. State, 360 So. 2d 347, 353 (Ala. Crim. App. 1978) ). But even under that "liberalized" rule of standing, "a defendant must either be charged with a ‘possession’ crime or be ‘legitimately on the premises’ when the search occurs." Sullen, 409 So. 2d at 905 (quoting Waters, 360 So. 2d at 353 ). This Court held that Sullen thus lacked standing because he was not at the place when the items were seized, nor was he charged with possession of the seized items.⁵

In his materials to this Court, Reese does not directly address Sullen. The closest he comes in his opening brief is his statement that

"this Court should reject any suggestion by the State that Reese's expectation of privacy was somehow lessened or even negated because this search did not occur during a typical traffic stop or contemporaneously with Reese's occupation of the vehicle. Simply put, the danger of adopting such a rule is apparent; if this were the law, there would be a significant incentive for increased overreaching by law enforcement in separating suspects from their vehicles to avoid the warrant requirement."

(Reese's brief, p. 40.) Whatever merit there may be in this argument, the danger Reese identifies is not present because law enforcement obtained a warrant before seizing the EDR.

Rather than directly addressing Sullen, Reese focuses his arguments on whether he had a reasonable expectation of privacy in the EDR data. Reese argues, correctly, that "the fact that Reese did not own the car is not dispositive of whether he has an expectation of privacy [in the EDR data]." (Reese's brief, p. 38.) Reese also cites the United States Supreme Court's recent decision in Byrd v. United States, 584 U.S. ––––, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018).

In Byrd, the United States Supreme Court addressed "whether an unauthorized driver has a reasonable expectation of privacy in a rental car." 584 U.S. at ––––, 138 S. Ct. 1518 (emphasis added). The defendant in that case, Terrence Byrd, was the driver and sole occupant of a rental car. Law enforcement, as a part of a traffic stop, searched the car without a warrant and found body armor and 49 bricks of heroin. The lower courts held that Byrd lacked standing to challenge the search because, although the individual who had rented the car had given Byrd permission to drive the car, the rental agreement did not list Byrd as an authorized driver.

Addressing standing under the Fourth Amendment, the Court stated that it

"is not distinct from the merits and ‘is more properly subsumed under substantive Fourth Amendment doctrine.’ Rakas [v. Illinois, 439 U.S. 128,] 139[, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978) )].

"The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 129[, 131 S. Ct. 1436, 179 L.Ed. 2d 523] (2011) (‘To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution’); see also Rakas, supra, at 138–140. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim."

Byrd, 584 U.S. ––––, 138 S. Ct. at 1530.

In recounting how to determine whether an expectation of privacy is legitimate or reasonable, the Court noted that

"more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, which was derived from the second Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347[, 88 S. Ct. 507, 19 L.Ed. 2d 576] (1967), supplements, rather than displaces, ‘the traditional property-based understanding of the Fourth Amendment.’ Florida v. Jardines, 569 U.S. 1, 11[, 133 S. Ct. 1409, 185 L.Ed. 2d 495] (2013)."

584 U.S. ––––, 138 S. Ct. at 1526. Turning to the issue before it, the Court continued:

"One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.

"On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. See Jones v. United States, 362 U.S. 257, 259, 80 S. Ct. 725, 4 L.Ed. 2d 697 (1960) ; Katz [v. United States, 389 U.S.] at 352[, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967)] ; Mancusi v. DeForte, 392 U.S. 364, 368[, 88 S. Ct. 2120, 20 L.Ed. 2d 1154] (1968) ; Minnesota v. Olson, 495 U.S. 91, 98[, 110 S. Ct. 1684, 109 L.Ed. 2d 85] (1990).

"On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it ‘creates too broad a gauge for measurement of Fourth Amendment rights.’ Rakas[v. Illinois], 439 U.S. [128], at 142[, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978)] ; see also id., at 148 (‘We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one's expectation of privacy, but it cannot be deemed controlling’); Minnesota v. Carter, 525 U.S. 83, 91[, 119 S. Ct. 469, 142 L.Ed. 2d 373] (1998).

"Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that ‘[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. The two concepts in cases like this one are often linked. ‘One of the main rights attaching to property is the right to exclude others,’ and, in the main, ‘one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.’ Ibid. (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1)."

584 U.S. ––––, 138 S. Ct. at 1527-28.

Applying those principles, the Court stated that "[t]he central inquiry" for the case before it was "the concept of lawful possession" by Byrd of the rental car and his apparent "right to exclude" others--such as a carjacker--from the car while it was in...