State v. Martin

• Decision Date: 07 February 1995
• Docket Number: Nos. WD,s. WD
• Citation: 892 S.W.2d 348
• Parties: STATE of Missouri, Respondent, v. Larry F. MARTIN, Appellant. Larry F. MARTIN, Appellant, v. STATE of Missouri, Respondent. 47457, WD 49076.
• Court: Missouri Court of Appeals

Page 348

892 S.W.2d 348

STATE of Missouri, Respondent, v. Larry F. MARTIN, Appellant.

Larry F. MARTIN, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 47457, WD 49076.

Missouri Court of Appeals,

Western District.

Feb. 7, 1995.

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SPINDEN, P.J., and LOWENSTEIN and ELLIS, JJ.

SPINDEN, Presiding Judge.

Larry F. Martin appeals from his conviction and 30 year sentence for trafficking drugs in the second degree. He asserts the trial court erred in failing to suppress the cocaine base (crack) found during an inventory search of the car he was driving and in overruling his objections to the state's use of peremptory strikes to remove two venire persons. Martin also appeals the denial of his Rule 29.15 motion; he contends he was denied effective assistance of counsel. We affirm the judgments of the trial court and motion court.

On October 4, 1991, while patrolling near Chipman Road and Westvale Circle in Lee's Summit, police officer Richard McKinley saw Martin standing at a pay telephone. McKinley obtained information about a 1978 Oldsmobile parked nearby and determined that the car's registration had expired. ¹ He also learned that the plate had been assigned to a 1984 Chevrolet registered by Shevahn Bennett and a man named Robinson.

Moments later, Martin drove the Oldsmobile into, and then back out of, a parking lot. McKinley stopped Martin and asked him for his driver's license. Martin gave McKinley a receipt for a driver's license issued to Anthony L. Brown and told McKinley that his name was Anthony Brown. McKinley determined that Anthony Brown's driver's license had been suspended, so, thinking he was Brown, McKinley arrested Martin.

Another officer, Steve Grub, took Martin into custody and took him to the Lee's Summit police station. McKinley called for a tow truck to move the Oldsmobile Martin was driving because Martin had parked it on the roadway. McKinley filled out a tow form and inventoried items in the car. McKinley discovered several safety inspection stickers in the car's front seat and a portable telephone.

Another officer, Gary Lane, arrived to assist McKinley. Lane discovered a glove compartment key "in the headliner of the car between the trim portion which meets the window." McKinley used the key to open the glove compartment. Inside, he found a brown paper bag containing several rocklike, opaque substances which McKinley believed to be narcotics.

McKinley talked to Martin again at the Lee's Summit police station. Martin admitted to McKinley that his name was Larry Martin and that the car did not belong to him. He said that he did not know anything about the glove box's contents. He told McKinley that Tommy Griddine had bought the car, and it belonged to Imports Plus, a used car dealership in Raytown.

The state's evidence at trial established that Imports Plus had bought the car at a Kansas City automobile auction on September 26, 1991. Griddine, owner of Imports Plus, had accompanied Martin to the auction and had bid on the automobile at Martin's request. Although Martin signed the paperwork, the car was titled in Imports Plus' name. After Imports Plus received the title, Griddine tried several times to contact Martin to let him know that he had received the title. The title later reflected that Martin's girlfriend, Shevahn Bennett, had purchased the car on October 7, 1991.

Martin testified that he bought the car at the auto auction with Griddine's assistance for Bennett. He said that Bennett took possession of the car, but he told her not to drive the car until they received the title and licensed the car. According to Martin, he borrowed the car from Bennett on October 4, 1991, because his car was being repaired. He said that he drove the car to the apartment of another girlfriend, Tonia Patterson, in Lee's Summit to take a shower and to change clothes, but she was not at home. Martin was living with Patterson, but he said that he had left his keys at Bennett's house.

When Patterson did not come to the door, Martin said, he went to the pay telephone to call her. When Patterson did not answer the phone, Martin said that he drove back to the apartment and knocked on the door again. Martin said that Patterson still did not answer the door, so he left the apartment. Officer McKinley stopped him briefly after he drove away from the apartment.

Martin said that he gave the officer a fake driver's license because his license had been suspended for 10 years. He said he had no idea his friend's license had also been suspended. Martin claimed that he had no knowledge of the drugs found in the glove compartment, and he asserts that he did not put the glove compartment key in the visor. He admitted that he owned the mobile phone which officers found in the car.

In his first point on appeal, Martin challenges the trial court's admitting into evidence the crack found in the glove compartment. Martin contends that this evidence should have been suppressed because the police's inventory search violated his rights protected by U.S. CONST. amend. IV and amend. XIV and MO. CONST. art. I, § 15 (1945). He also asserts that the search violated the police department's own regulations. ² The state responds that Martin does not have standing to contest the inventory search because Martin disclaimed any ownership or interest in the vehicle or its contents. We agree with the state.

Martin contends that "a defendant has standing to challenge a search or seizure if the defendant was charged with an offense that includes, as an essential element, possession of the seized evidence at the time of the challenged search and seizure." He relies on State v. Melville, 864 S.W.2d 452, 454 (Mo.App.1993), and State v. Lorenzo, 743 S.W.2d 529, 531 (Mo.App.1987).

In Melville, this court held that a passenger of a vehicle had standing to challenge a search of a car's trunk, which contained suitcases filled with marijuana. The Melville court stated:

The Missouri Supreme Court has held that a defendant has standing to challenge a search or seizure if defendant was on the premises during the search; alleged a propriety or possessory interest in the premises; or was charged with an offense that includes, as an essential element, possession of the seized evidence at the time of the challenged search and seizure. State v. Johnson, 598 S.W.2d 123, 127 (Mo. banc 1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 795, 66 L.Ed.2d 611 (1980); see also State v. Lorenzo, 743 S.W.2d 529, 531 (Mo.App.1987). Defendant was charged with trafficking in the second degree, specifically with possession of more than thirty kilograms of marijuana. ... As possession of the marijuana is an essential element of the crime as charged, defendant has standing to challenge the search of the automobile.

Melville, 864 S.W.2d at 454. ³ In Lorenzo, this court held that § 542.296.1, RSMo1986, conferred automatic standing on a defendant because it allows a person aggrieved by an unlawful seizure to file a motion to suppress. Lorenzo, 743 S.W.2d at 531. The court further held that standing to object to a search may be predicated "upon a possessory interest in the items seized," or would be "automatic," if "the same possession needed to establish standing is an essential element of the crime charged." Id. (quoting State v. Ross, 507 S.W.2d 348, 353 (Mo.1974)).

These cases rely on the "automatic standing rule" which was enunciated in Jones v. United States, 362 U.S. 257, 261-65, 80 S.Ct. 725, 730-33, 4 L.Ed.2d 697 (1980). The United States Supreme Court held that a defendant charged with an offense of which possession is an essential element may attack a search and seizure as repugnant to the Fourth Amendment even if the contraband was not within the defendant's expected zone of privacy. In short order, the Supreme Court changed its mind and overruled the automatic standing rule of Jones in United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). In Salvucci, the Court held that "defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." Id.

Both the Supreme Court of Missouri, in State v. McCrary, 621 S.W.2d 266, 273 n. 11 (1981), and this court, in Wolfe v. State, 613 S.W.2d 892, 896 (Mo.App.1981), have recognized that the automatic standing rule has been abrogated. In Wolfe, we said:

Salvucci overrules Jones v. U.S., supra, and holds that persons charged with crimes, an element of which is possession, can only avail themselves of a Fourth Amendment protection if the illegal search and seizure is personal to them. Stated another way, Salvucci declares that an accused cannot invoke the Fourth Amendment where the illegal search and seizure is of another's person or property[.]

Id. Hence, we must recognize and resolve the conflict between these cases and Melville and Lorenzo.

To the extent that Melville and Lorenzo revive the "automatic standing rule," we overrule those cases. Instead, we hold, in accord with Salvucci, that before an individual can challenge a search and seizure, he or she must establish that he or she had a "legitimate expectation" of privacy in the area searched or the items seized. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978). Hence, we must determine whether Martin suffered violation of any Fourth Amendment right.

As the U.S. Supreme Court said in Rakas:

"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." ... A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. ... And since...