State v. Jones

• Decision Date: 01 March 1993
• Docket Number: No. 26645-4-I,26645-4-I
• Citation: 845 P.2d 1358,68 Wn.App. 843
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Laura Marie JONES, Defendant, and Joseph Cinq Adams, Appellant.

Page 843

68 Wn.App. 843

845 P.2d 1358

STATE of Washington, Respondent, v. Laura Marie JONES, Defendant and Joseph Cinq Adams, Appellant.

No. 26645-4-I.

Court of Appeals of Washington Division 1.

March 1, 1993.

Reconsideration Denied May 10, 1993.

Washington Appellate Defender, Eric Broman, Seattle, for appellant.

Norm Maleng, Pros. Atty., Pamela Mohr, Deputy Pros. Atty., Seattle, for respondent.

PEKELIS, Acting Chief Judge.

Joseph Adams appeals his conviction for possession of cocaine with intent to deliver. He contends that the trial court erred in failing to suppress evidence seized by police following a warrantless search and entry. We affirm.

On the night of January 1, 1990, four plainclothes officers were conducting a follow-up investigation of a drive by shooting at an apartment in the city of Seattle. The officers entered a vacant ground floor unit through a broken window. Laura Jones lived in the other ground floor apartment of the 4-unit building. Jones' unit was directly across the hallway from the vacant unit. ¹ The outside door to the ground floor hallway was a locked door, although it was not affirmatively established that it was locked on the evening in question. The officers had not obtained the building owner's permission to enter the apartment on this occasion.

Once inside the vacant apartment, Officer Philip Hay discovered that the apartment door was slightly ajar and the doorknob was missing. ² This permitted the officers to see into the ground floor hallway. Because the door to Jones' apartment had been removed, the officers could also look directly into her apartment. From this vantage point, they observed activity in the apartment and the hallway for approximately 30 minutes.

Officer Hay observed the defendant, Joseph Adams, and a juvenile, Katrina Rainwater, seated in the living room watching television. After about 5 minutes, Officer Hay heard Adams say that he would get his gun if the people who shot into the apartment returned. Following this reference to a gun, the officers remained at the door and continued to peer into the apartment and hallway.

A short time later, the officer observed what he believed to be two consecutive drug transactions in the hallway. In each instance, Adams and Rainwater responded to a knock on the outside door to the apartment. For each transaction, Rainwater opened the door at Adams' behest, the person entered the hallway, and Adams accepted cash in exchange for a bag of what appeared to the officer to be rock cocaine.

After a brief period, the officers decided to leave the vacant apartment and "contact" the people in Jones' apartment. When Officer Hay attempted to open the door, he discovered that it was held shut by a rope tied to a table in the hallway. Officer Hay pulled the door very hard, dragging the table and pulling the door "half way off of its hinges."

Upon entering the hallway, Officer Hay saw Adams hand Jones a plastic bag containing what appeared to be rock cocaine. Jones rushed towards the interior of the apartment, and the officers followed her. Officer Hay testified that he believed Jones was going to dispose of the evidence. Jones dropped the bag on the kitchen floor. The officers seized the bag from the floor and arrested the three occupants.

The trial court denied Adams' motion to suppress evidence of the seized crack cocaine. Adams was found guilty of possession of cocaine with intent to deliver and sentenced within the standard range.

Adams appeals, challenging the judgment against him on the grounds that the trial judge should have excluded from evidence the cocaine seized in Jones' apartment at the time of the arrest. Before evaluating the asserted unconstitutionality of the police activity, we must first decide whether the police infringed Adams' legitimate expectation of privacy in Ms. Jones' apartment and the adjacent hallway. We hold that defendant failed to meet his burden to establish his own legitimate expectation of privacy in the searched areas.

Fourth Amendment rights are "personal rights" that may not be vicariously asserted. State v. Foulkes, 63 Wash.App. 643, 647, 821 P.2d 77 (1991) (citing Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978)). Thus, to establish a Fourth Amendment violation, one must demonstrate a personal and legitimate expectation of privacy in the area searched or property seized. Without such a showing, a criminal defendant cannot benefit from the exclusionary rule's protections because one cannot invoke the Fourth Amendment rights of others. United States v. Salvucci, 448 U.S. 83, 86-87, 100 S.Ct. 2547, 2550-2551, 65 L.Ed.2d 619 (1980).

The Supreme Court has abandoned a separate inquiry into a defendant's "standing" to contest an allegedly illegal search or seizure. Rakas, 439 U.S. at 138-140, 99 S.Ct. at 427-429; State v. White, 40 Wash.App. 490, 494, 699 P.2d 239, review denied, 104 Wash.2d 1004 (1985). The inquiry, after Rakas, is simply whether the defendant's "substantive" Fourth Amendment rights were violated by the allegedly illegal search or seizure. The analysis now focuses on "the extent of a particular defendant's rights", which turns on a determination of whether, under the totality of the circumstances, the disputed search and seizure invaded the defendant's personally held legitimate expectation of privacy in the particular area searched. Rakas, 439 U.S. at 139, 99 S.Ct. at 428; Salvucci, 448 U.S. at 92-93, 100 S.Ct. at 2553-2554; Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). ³ Thus, a defendant seeking to suppress evidence on Fourth Amendment grounds "must in every instance first establish that he had a legitimate expectation of privacy in the place where the allegedly unlawful search occurred." United States v. Freitas, 716 F.2d 1216, 1220 (9th Cir.1983).

In Rakas, the petitioners challenged a search of an automobile in which they were passengers. The searching officers discovered a box of rifle shells in the glove compartment and a sawed-off rifle under the front passenger seat. Affirming the denial of their motion to suppress, the Court held the fact that petitioner's were " 'legitimately on [the] premises' in the sense that they were in the car with the permission of its owner" was legally insufficient to establish a violation of their personal Fourth Amendment rights. [Brackets theirs.] 439 U.S. at 142-43 & n. 10, 148, 99 S.Ct. at 429-30 & n. 10, 433 (specifically disapproving State v. Bresolin, 13 Wash.App. 386, 534 P.2d 1394 (1975), review denied, 86 Wash.2d 1011 (1976)). The Court emphasized that petitioners had made no affirmative showing of any "legitimate expectation of privacy" in the areas searched. 439 U.S. at 148-49, 99 S.Ct. at 432-433.

Similarly, in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the defendant placed illegal narcotics in the purse of his companion shortly before police officers searched the contents of the purse. The Court held that defendant had not made a sufficient showing of a legitimate expectation of privacy in the purse. He had no "right to exclude other persons from access to [the] purse"; he "had never sought or received access to her purse prior to that sudden bailment"; and "the precipitous nature of the transaction [of placing the drugs in the purse] hardly support[ed] a reasonable inference that petitioner took normal precautions to maintain his privacy." Moreover, the Court held that defendant's ownership of the seized drugs was by itself insufficient to establish a legitimate expectation of privacy. 448 U.S. at 105-06, 100 S.Ct. at 2561-62; see also Salvucci, 448 U.S. at 91, 100 S.Ct. at 2552 ("legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest"); accord White, 40 Wash.App. at 495, 699 P.2d 239.

Adams argues that this case involves no "standing" issue "[b]ecause he had a reasonable expectation of privacy in the hallway and the apartment". (Emphasis added.) While Adams may be correct in terms of doctrinal semantics, his conclusion begs the constitutional question Adams must address, for it has been clear since Rakas 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." 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1; accord Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561; United States v. $277,000.00 U.S. Currency, 941 F.2d 898, 901 (9th Cir.1991); State v. White, 97 Wash.2d 92, 110 n. 9, 640 P.2d 1061 (1982). ⁴

In this case, it is unclear what personal interest Adams had in the premises searched because he presented no evidence and made no attempt to prove his own expectation of privacy. Moreover, the record is devoid of facts that would permit a reasoned evaluation of what his privacy interests might be. There is no evidence that Jones specifically invited Adams into her apartment or customarily allowed him to come on the premises. At most, one can infer from his television-watching that he was legitimately on the premises.

Legitimate presence, however, is not enough. Indeed courts have repeatedly rejected the "legitimately on the premises" rationale as a sufficient gauge for measurement of Fourth Amendment rights. Rakas, 439 U.S. at 142, 99 S.Ct. at 429; see also United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.1987) (mere presence at the place searched does not establish expectation of privacy); United States v. Sweeting, 933 F.2d 962, 964 (11th Cir.1991) (temporary access to premises does not establish requisite expectation of privacy); United States v. Robinson, 698 F.2d 448, 454-55 (D.C.Cir.1983). The burden is on the defendant to establish a subjective expectation of privacy. United States v. McHugh, 769 F.2d 860, 864 (1st Cir.1985); see also State v. Jessup, 31 Wash.App. 304, 317-18, 641 P.2d 1185 (1982); United States v. Osorio, ...