State v. Machlah

• Citation: 505 N.E.2d 873
• Decision Date: 09 April 1987
• Docket Number: No. 49A04-8612-CR-363,49A04-8612-CR-363
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. Bachir MACHLAH, Massoud Kharrazian, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 873

505 N.E.2d 873

STATE of Indiana, Appellant (Plaintiff Below), v. Bachir MACHLAH, Massoud Kharrazian, Appellees (Defendants Below).

No. 49A04-8612-CR-363.

Court of Appeals of Indiana,

Fourth District.

April 9, 1987.

Rehearing Denied May 22, 1987.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.

Belle T. Choate, Indianapolis, for appellees.

MILLER, Judge.

The State appeals the trial court's suppression of marijuana found in a suitcase in the trunk of a taxicab in which defendant-appellants Bachir Machlah and Massoud Kharrazian were passengers. The State argues the trial court erred in suppressing this evidence, relating to charges of dealing in marijuana, a class C felony, because neither defendant has a legitimate expectation of privacy in the suitcase and therefore cannot challenge its warrantless search and seizure.

We affirm the court's ruling with respect to defendant Machlah who was in exclusive actual possession of the suitcase and placed it in the taxicab trunk. We reverse the court's ruling as to defendant Kharrazian because no evidence was produced at the hearing to connect him with the suitcase, so he had no reasonable expectation of privacy in it.

FACTS

As presented at the suppression hearing, the evidence most favorable to the decision of the trial court reveals that on March 31, 1986, Indianapolis Police Officer Ronald Schmidt and Indiana State Police Detective Daniel Moore were assigned to a multi-agency airport drug detail at the Indianapolis International Airport. Bachir Machlah had been under suspicion of transporting illegal drugs from Florida to Indianapolis for eight months because of his frequent short-duration flights from Florida.

At 11:55 a.m. Schmidt and Moore observed Bachir Machlah and Massoud Kharrazian arrive separately on the same flight from Orlando, Florida. The officers watched Machlah go to the baggage claim area, then bolt through the airport, returning to remove a suitcase from the baggage claim belt, check its ticket, and leave the terminal for a taxicab. Machlah placed the suitcase in the trunk of the taxicab, then put his briefcase and topcoat in the backseat of the cab. Machlah reentered the terminal, approached Kharrazian and the two men left the terminal together and entered the waiting cab.

Officer Moore took an unmarked car stationed outside and followed the cab from the airport. When traffic became heavy, Moore called for assistance. He maintained surveillance until the cab reached the 4400 block of North Keystone Avenue where, with the assistance of two unmarked Indiana State Police units, the taxicab was stopped. Five officers, none in uniform, were at the scene.

Officers' Schmidt and Moore approached the cab, identified themselves as police, asked for identification from Machlah and Kharrazian and ordered the two men out of the cab. Schmidt spoke with Kharrazian regarding his purpose in visiting Indianapolis. Moore asked to search Machlah's briefcase. Machlah handed it to Moore, who opened the briefcase and examined the contents. Moore then asked the cabdriver to open the trunk, and he removed the suitcase and closed the trunk, put the suitcase on the car and opened and searched it. When in excess of ten pounds of marijuana was visible inside the suitcase, Machlah told Moore "That's not my suitcase." Machlah testified he was never asked for his permission to open the suitcase and he did not give permission to anyone to search the suitcase.

Machlah and Kharrazian were arrested and charged with dealing in marijuana, a class C felony, under IND. CODE 35-48-4-10. At a pretrial hearing, the Judge granted the defendants' motion to suppress evidence of the contents of the suitcase. The State now appeals.

ISSUES

The State presents two questions for our consideration:

I. Whether the defendants had a legitimate expectation of privacy in the suitcase and therefore may challenge its II. Whether the suitcase was abandoned by defendant Machlah by one oral disclaimer of ownership after Officer Moore searched the suitcase and discovered the contraband.

search and seizure as a violation of their own Fourth Amendment rights?

DECISION

The seizure and search of the suitcase was conducted without a search warrant. In such cases, the search is presumed unreasonable and the State has the burden to show that the search falls within an exception to the warrant requirement. Brooks v. State (1986), Ind., 497 N.E.2d 210, 215.

Here, the prosecution attempted to show the search of the suitcase was made with consent. A valid consent is a recognized exception to the warrant requirement. Barnett v. State (1986), Ind.App., 493 N.E.2d 1286, 1288. The police officers testified that Defendant Machlah gave permission to search the suitcase (R. 74-75; R. 131-132, 142-143). Defendant Machlah, however, testified that he did not consent to the search of the suitcase. (R. 145-152).

The State had the burden to show that consent was given freely and voluntarily. Stabenow v. State (1986), Ind.App., 495 N.E.2d 197, 202. However, as the motion to suppress was granted, the trial court must have concluded that the State did not sustain its burden of proof. Thus, the State is appealing from a negative judgment and, therefore, must show that the trial court's ruling was contrary to law. State v. Blake (1984), Ind.App., 468 N.E.2d 548, 550. The trial court's determination will be affirmed on appeal unless clearly erroneous, and will be reversed only where the uncontradicted evidence will support no reasonable inference favoring the ruling. Blake, supra, 468 N.E.2d at 550. ¹

I. Expectation of Privacy

The State claims the trial court's ruling was contrary to law because the uncontroverted evidence shows the Defendants lacked standing to challenge the search of the suitcase.

The State challenges the defendants' right to contest the legality of a search and seizure. Machlah argues he had a personal, proprietary or possessory interest in the suitcase searched and therefore his own constitutional rights have been infringed. Defense counsel present little argument regarding Kharrazian's potential interest in the suitcase. ²

There is no "automatic standing" to contest the legality of a search and seizure for a defendant charged with a crime of possession. United States v. Salvucci (1980) 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. A criminal defendant must show that his own constitutional rights have been infringed. Vicarious assertion of another's Fourth Amendment rights is insufficient. A claim of ownership alone is no longer sufficient to gain suppression.

"The recent Supreme Court decisions have recast the requirements for successfully asserting a Fourth Amendment claim. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Court described the standing analysis as artificial and concluded 'the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably interwined concept of standing.' Id. at 139, 99 S.Ct. at 428. Because Fourth Amendment rights are personal and may not be vicariously asserted, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the Court then phrased the question as 'whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it.' 439 U.S. at 140, 99 S.Ct. at 428. The relevant inquiry has thus become the defendant's legitimate expectation of privacy, a phrase derived from the language of Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)."

United States v. Hawkins (11th Cir.1982), 681 F.2d 1343, 1345. The initial inquiry, then, is whether a defendant had a personal and legitimate expectation of privacy in the area searched or the article seized. Rakas, supra, 439 U.S. at 140, 99 S.Ct. at 428-429. See also Humes v. State (1981), Ind., 426 N.E.2d 379; Hope v. State (1982), Ind., 438 N.E.2d 273; Johnson v. State (1985), Ind., 472 N.E.2d 892. ³

Assuming Machlah had a subjective expectation of privacy, this expectation must also be objectively reasonable. Ownership and possession, while not dispositive of expectation of privacy, are relevant factors. Salvucci, supra. Machlah was presumably accompanied by the suitcase on his flight from Florida. The suitcase was in his exclusive actual possession and control after he picked it up from the baggage claim area. Machlah placed the suitcase in the trunk of the cab, retaining constructive possession of the suitcase while it was in the trunk. No one else had either possession or control after Machlah retrieved it from baggage claim and before the taxicab driver opened the trunk at Moore's request and Moore seized the bag. Because of Machlah's actual and then constructive possession of the suitcase before the seizure, we find the evidence is sufficient for the trial court to conclude Machlah had a legitimate expectation of privacy in the suitcase. Therefore the trial court could reasonably find Machlah's own constitutional right to be free of unreasonable search and seizure has been violated and he may challenge the legality of the search.

However, as to defendant Kharrazian, we conclude there was no evidence presented to show he had a legitimate expectation of privacy in the suitcase. In fact, no evidence was presented to show he was even aware of the suitcase in the trunk. He was never observed with the suitcase. Kharrazian arrived on the same Florida flight and shared a cab with Machlah. Kharrazian was never in possession of the suitcase and no evidence has been offered to show he owned the suitcase or that the bag was ever under his control. Here, occupying space within the cab does not constitute an exertion of...