State v. Hutchinson

• Decision Date: 05 June 1981
• Docket Number: No. 80-1022,80-1022
• Citation: 404 So.2d 361
• Parties: STATE of Florida, Appellant, v. John HUTCHINSON, Appellee.
• Court: Florida District Court of Appeals

Page 361

404 So.2d 361

STATE of Florida, Appellant, v. John HUTCHINSON, Appellee.

No. 80-1022.

District Court of Appeal of Florida, Second District.

June 5, 1981.

Rehearing Denied Oct. 14, 1981.

Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.

Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellee.

OTT, Judge.

This is an interlocutory appeal by the state from an order suppressing certain evidence taken by police officers from a satchel lying under a bench on which appellee's codefendant was sitting. Appellee was subsequently charged with possession of the contents of the satchel. The sole contention by the state is that appellee did not sustain his burden of showing that the search and seizure violated his own constitutional rights. We agree, and reverse the suppression order.

The exclusion of illegally obtained evidence was the rule in Florida long before the United States Supreme Court, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), required state courts to follow the prohibition it imposed on the federal courts by its decision in Weeks v. United States, 323 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Mapp thus had no real effect on Florida. Sing v. Wainwright, 148 So.2d 19, 20 (Fla.1962). The exclusionary rule is now engrafted even more firmly into Florida law. Art. I, § 12, Fla.Const. (1968). ¹

The problems which have arisen in applying the exclusionary rule have mainly centered about the question of who may raise or claim its protection. General rules have been easy to come by, but not so satisfying in practical application. Rule 41(e) of the Federal Rules of Criminal Procedure provides that any defendant "aggrieved" by an unlawful search may move to exclude any evidence thus obtained. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 679 (1960), the Supreme Court construed that language to mean that a defendant who would challenge the legality of a search must show that he was personally the victim of an invasion of privacy. This burden, declared the court, could be discharged by showing that the movant either owned or possessed the seized property or had a protected interest in the premises searched.

More recently, the Supreme Court has redefined the test for determining whether a defendant was the victim of an invasion of privacy. Ownership or possession of the seized property is no longer pertinent. The present rule tacitly defines an aggrieved defendant as one who had a legitimate expectation of privacy i. e., a reasonable expectation of freedom from governmental intrusion in the area searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). ²

So much for the history of the federal rule. State courts are not affected when the Supreme Court narrows the ambit of protection guaranteed by the Federal Constitution if, as here, state law independently guarantees protection at least equal to that required by the federal rule. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). It is only when a state court unnecessarily hampers law enforcement because of erroneous belief that federal rules alone require it that the Supreme Court will review and reverse a judgment favorable to the accused. Oregon v. Hass, 420 U.S. 714, 718-722, 95 S.Ct. 1215, 1219-1220, 43 L.Ed.2d 570 (1975). Since Florida has its own exclusionary rule, we must determine whether it meets the minimum federal standards.

Prior to Jones, Florida subscribed to the general principle that one who would attack the propriety of a search must establish that he himself was the victim of an invasion of privacy. State v. Dycus, 238 So.2d 493, 494 (Fla.2d DCA 1970). But the long-standing rule here had been that only the owner, occupant or lessee of the premises searched had a right to privacy therein, and therefore only they could complain of the search. Mixon v. State, 54 So.2d 190, 192(5) (Fla.1951). A few cases decided by intermediate appellate courts, notably State v. Dycus, supra, and Alexander v. State, 107 So.2d 261 (Fla.2d DCA 1958), contain language suggesting that ownership or a possessory interest in the property seized also bestowed "standing" to challenge the search, but we can find no such statement emanating from the Florida Supreme Court. We also note that Dycus, for example, merely echoed Jones, as we were obliged to do while that opinion represented the latest views of the Supreme Court on Fourth Amendment guaranties.

We conclude that the rule in Florida, independent of any overriding federal minimums, is the statement by our supreme court in Mixon v. State, supra, which accords to only the owner, lessee or occupant the right to complain of the search of an area. We use the present tense, notwithstanding the fact that in 1972 the Florida Supreme Court adopted a set of rules governing the courts of this state, and that rule 3.190(h) of the Rules of Criminal Procedure is practically identical to federal rule 41(e), permitting exclusion motions by any "aggrieved" defendant. We are not prepared to say, and indeed it is hardly our place to say, that in adopting that rule the supreme court intended to broaden the Mixon rule. In short, Mixon and rule 3.190(h) are not necessarily in conflict. If they are, it is for our supreme court to say so. ³

We thus compare Mixon with Salvucci. The federal rule, while representing a substantial narrowing of the Jones concept, obviously extends Fourth Amendment protection to many defendants who would be unable to meet the rigid owner/lessee/occupant test. There might be a few isolated instances in which the reverse would be true, but in most cases owners, lessees and occupants will experience little difficulty in establishing a reasonable expectation of privacy in their premises.

Having concluded that Salvucci affords protection denied by Mixon, it necessarily follows that the Salvucci rule now controls in this state, and we so hold.

Appellee argues that his motion was made, argued and ruled upon more than a month before the Salvucci opinion was handed down, and therefore he had "automatic standing" under Jones. It is true that the exact status of Jones was unsettled until Salvucci as the court conceded there. ⁴ We have already noted that the most significant change effected by Salvucci was its unheralded repudiation of the Jones theory that ownership or possession of the property seized in an illegal search bestowed standing to complain. Salvucci offhandedly labels that an "unexamined assumption" (100 S.Ct. at 2552) and concentrates the fire of express disapproval on the "automatic standing" aspect of the Jones opinion.

It would be a mistake, however, to conclude that "automatic standing" was a viable concept until the point-blank rejection by Salvucci. That was merely the coup de grace, which also provided a cover for the quiet elimination of what the Salvucci majority evidently viewed as Jones' greater defect that "unexamined assumption." The new test devised by Salvucci, focusing on invasion of privacy in the area searched, allows no room for complaint that property belonging to the accused was discovered and seized as a result of a search which illegally invaded someone else's privacy.

The "automatic standing rule" was merely the Jones solution to the dilemma facing a defendant accused of the possession of contraband seized by an illegal search of premises in which he had no special interest. In order to qualify to attack the search, he had to prove his ownership or possession of the contraband. If his suppression motion failed, he stood convicted out of his own mouth. Jones solved that by declaring that when the prosecution charges possession as the basis of its complaint, it should not be heard to deny its own allegation for purposes of the suppression motion. A charge of possession would automatically entitle the accused to challenge the search, thus avoiding any necessity for him to testify or otherwise prove his ownership or possession of the contraband.

There was, however, an obvious alternative, and the Court found it in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Thereafter, testimony or other evidence presented by an accused in attacking a search or seizure could not be used by the prosecutor to prove guilt, whether the charge was possessory or non-possessory. Although the "automatic standing rule" was not expressly discarded, nor even questioned, the effect of the new solution to the "self-incrimination dilemma, so central to Jones," was obvious. Brown v. United States, 411 U.S. 223, 228-229, 93 S.Ct. 1565, 1568-1569, 36 L.Ed.2d 208 (1973).

We think that Simmons, not Salvucci, freed trial courts of all obligation to accord "automatic standing" to defendants wishing to challenge the legality of a search or seizure. That rule was devised to avoid what the Supreme Court deemed an impermissible requirement of election between constitutional guaranties. Simmons completely eliminated that problem. When the reason for the rule vanished, so did the rule itself, or at least the necessity for complying with it. The fact that the rule was not formally interred until twelve years later, in Salvucci, has no bearing on whether a grant of "automatic standing" was necessary in order to protect a defendant's constitutional rights in the interim.

Appellee asserts that his standing to attack the search was never challenged in the trial court, and therefore cannot be questioned here. That argument necessarily assumes that the state had the burden of establishing lack of standing when the motion to exclude was heard below. Appellee in fact makes an explicit...