State v. Roberge
| Decision Date | 06 December 1982 |
| Parties | STATE of Tennessee, Plaintiff-Appellee, v. Ronald A. ROBERGE, Defendant-Appellant. 642 S.W.2d 716 |
| Court | Tennessee Supreme Court |
Daniel J. Perky, Lexington, for defendant-appellant.
Jerry L. Smith, Asst. Atty. Gen., for plaintiff-appellee; William M. Leech, Jr., Atty. Gen. & Reporter, Nashville, of counsel.
Appellant was convicted of possession of a controlled substance for resale and was sentenced to serve seven to ten years in the penitentiary. 1 Some seventy-four pounds of peyote cactus buttons containing mescaline, a Schedule I drug, were found in a duffel bag in the trunk of an automobile in which appellant was riding when the vehicle was stopped by Highway Patrol officers on February 24, 1979. The only issue on appeal is whether the trial court erred in overruling appellant's motion to suppress this evidence.
The Court of Criminal Appeals held that the officers had properly opened the trunk of the vehicle in order to inventory its contents. The majority held that the officers had properly opened the unlocked duffel bag in the course of making their inventory, but there was a dissenting opinion with respect to that issue. This Court granted review of the present case, along with several others, in order to consider the proper scope of an inventory procedure in connection with the impoundment of an automobile.
A serious question was raised in the present case, however, as to the standing of appellant and of a codefendant who was tried with him to challenge the search. The Court of Criminal Appeals concluded that the codefendant lacked standing and affirmed his conviction upon that basis. Since the vehicle in which appellant Roberge was riding as a passenger was rented jointly to him and to another person, the Court of Criminal Appeals held that he had sufficient standing to challenge the inventory procedure. The State in this Court has again raised the issue of standing, and we believe that the record is such that appellant has not shown sufficient standing to challenge the opening of the duffel bag and the inventory of its contents. We agree with the Court of Criminal Appeals that he probably did have sufficient standing to challenge the opening of the trunk of the automobile, but at the suppression hearing he was not shown to have any interest, possessory or otherwise, in the duffel bag or anything in it. Indeed the proof was entirely to the contrary.
The record in the present case is very brief. Roberge did not testify either at the suppression hearing or at the trial of the case. It is fundamental that one challenging the reasonableness of a search or seizure has the burden of establishing a legitimate expectation of privacy in the place or property which is searched. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). See Miller v. State, 520 S.W.2d 729 (Tenn.1975), cert. denied, 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975). One does not have automatic standing to challenge a search simply because he is convicted of a possessory offense. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Further, one accused of a criminal offense may testify at a suppression hearing without incurring the risk that his testimony will be used against him by the prosecution as part of its case in chief. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Therefore, in our opinion, it was incumbent upon Roberge to establish in some way that he had some claim to or interest in the duffel bag, the search and seizure of which is the subject of his complaint. Instead he stood mute at the suppression hearing in the face of testimony from his codefendant that the duffel bag did not belong to either of them or to the other occupant of the car, a juvenile female who was accompanying them.
The codefendant, Robert Sproul, testified that he did not know that the duffel bag was even in the trunk of the car and that he never saw it until after he had been taken to jail. He testified that the officers had asked him a general question as to what was in the trunk of the car, and he had told them that there were clothes and souvenirs. The officers testified to the contrary, stating that they had not asked Sproul about the contents of the duffel bag until after they had discovered it, and that he told them that the duffel bag contained some rocks and souvenirs which the parties had gathered in Texas. Sproul's testimony, however, was as follows:
Sproul was the only defense witness at the suppression hearing. Roberge did not take the stand to modify the foregoing testimony either at that hearing or at the trial. The record clearly shows that he made no claim to the contents of the duffel bag and that he has no standing to complain of an alleged illegal search or seizure of it. The written motion to suppress filed on his behalf stated only that Roberge was a passenger in the stopped vehicle. At no time, either orally or in writing, throughout these entire proceedings has Roberge ever claimed any right, title or interest in or to the duffel bag or its contents. In our opinion, therefore, he has not carried the burden of establishing any basis upon which he could claim a violation of any privacy right in connection with its seizure.
The connection of Roberge with the vehicle itself is quite tenuous. It is shown that the automobile was rented. The rental slip found in the car bore his name and that of another person, unidentified in the record. He was intoxicated and asleep when the vehicle, which was being driven by Sproul, was stopped. He was too intoxicated and disoriented to talk with the officers. They arrested him for public drunkenness. Sproul was also intoxicated and was arrested for driving under the influence.
The vehicle was stopped by a patrolman who had been following it and had noticed it weaving across the eastbound lanes of an interstate highway in Henderson County. The trooper called for assistance. After stopping the vehicle he made arrangements with a local wrecker company to tow the vehicle off the interstate highway. It was raining heavily, and the arrest occurred after darkness had fallen. Both Sproul and Roberge were too intoxicated to be entrusted with driving the vehicle, and the juvenile female who was accompanying them did not have a driver's license. The officers consulted with her about driving the car, but she advised them that she was unable to do so. They therefore had no reasonable alternative, in our opinion, other than to have it towed. Sproul had suggested leaving it on the...
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