State of Tennessee v. Joseph Durward Watson, II - Dissenting Opinion

04/10/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 16, 2016 Session

STATE OF TENNESSEE v. JOSEPH DURWARD WATSON, II

Appeal from the Circuit Court for Blount County

No. C-22828 David Reed Duggan, Judge

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No. E2016-00105-CCA-R3-CD

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TIMOTHY L. EASTER, J., dissenting.

Only a person who has a legitimate expectation of privacy in an invaded place has

standing to claim the protection of the Fourth Amendment and may seek to have illegally

obtained evidence excluded. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978);

Simmons v. United States, 390 U.S. 377, 389 (1968); State v. Willis, 496 S.W.3d 653, 720

(Tenn. 2016); State v. Cothran, 115 S.W.3d 513, 520-21 (Tenn. Crim. App. 2003).

Because of his conduct, Defendant is not such a person. I believe that Defendant’s

actions in this case fall squarely within the rule established by our supreme court in State

v. Ross, 49 S.W.3d 833 (Tenn. 2001). Defendant disclaimed and abandoned whatever

interest he may have had in the property, thus losing a subjective expectation of privacy.

Therefore, I respectfully dissent.

The United States Supreme Court has recognized that warrantless searches and

seizures of abandoned property do not violate the Fourth Amendment. Abel v. United

States, 362 U.S. 217, 241 (1960). Our supreme court has held that abandonment under

the Fourth Amendment “may be shown merely by an intent voluntarily to relinquish a

privacy interest.” Ross, 49 S.W.3d at 842 (internal quotation omitted). Federal courts

have noted that intent “may be inferred from words spoken, acts done, and other

objective facts.” United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973).

Abandonment is not limited to personal property; as this Court has noted, “‘a person can,

as he can with any other property, sufficiently manifest an intent to abandon his house.’”

State v. Michael Anthony Logan, No. M2013-02701-CCA-R3-CD, 2015 WL 4515141, at

*12 (Tenn. Crim. App. July 27, 2015) (quoting United States v. Harrison, 689 F.3d 301,

307 (3d Cir. 2012)), perm. app. denied (Tenn. Nov. 24, 2015); see also State v. Ledford,

438 S.W.3d 543, 553-54 (Tenn. Crim. App. 2014).

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In Ross, the Tennessee Supreme Court held that “a disclaimer or denial of

ownership demonstrates sufficient intent of disassociation to prove abandonment.” 49

S.W.3d at 842 (internal quotation omitted). The Ross court rejected the contention that

“mere disclaimer of ownership, unlike actual abandonment of ownership, should not

defeat an expectation of privacy.” Id. at 841 (citing 5 Wayne R. LaFave, Search and

Seizure § 11.3(a), at 128, 187 (3d ed. 1996)). Instead, the court continued to hold with “a

long line of cases from this Court” as well as the “vast majority of jurisdictions . . . [that]

have equated a denial or disclaimer of an interest in the object of a search with formal

abandonment.” Id.; see id. at 841 n.5 (citing state cases), 842 n.7 (citing federal cases).

In other words, “[a]n owner’s affirmative disclaimer of ownership, if voluntary,

ordinarily constitutes abandonment.” Stanberry v. State, 684 A.2d 823, 832 (Md. 1996);

see also Harrison, 689 F.3d at 307 (“In most cases, disclaiming ownership or physically

relinquishing the property is sufficient to establish abandonment.”). A disclaimer of

ownership is tantamount to a declaration of indifference, thus negating the existence of

any privacy concern. See United States v. Zapata, 18 F.3d 971, 978 (1st Cir. 1994).

Therefore, “‘when one disclaims interest in the premises or possessions searched or in the

articles seized[,] he cannot question the legality of the search and seizure.’” Ross, 49

S.W.3d at 841 (quoting Bowman v. State, 362 S.W.2d 255, 257 (Tenn. 1962)).

In Ross, the Tennessee Supreme Court held that when the appellant stated that a

hotel room key found in his sock did not belong to him but to someone else, he

abandoned his otherwise reasonable expectation of privacy in the hotel room. Id. at 842-

43. I disagree with the majority’s characterization of Ross’s disclaimer as being just “a

relevant fact” in the inquiry and “not alone dispositive.” See supra. The Ross court made

clear that a defendant’s disclaimer of ownership “is more than just another factor to

consider” in evaluating his or her subjective expectation of privacy. 49 S.W.3d at 842.

The court specifically stated that “when a defendant disclaims an interest in the object of

a police investigation at the time of the search, then this fact alone will deprive a

defendant of any expectation of privacy, irrespective of considerations such as ownership

or possession.” Id. at 841 (emphasis added) (citing Miller v. State, 520 S.W.2d 729, 733-

34 (Tenn. 1975)); see also United States v. Salvucci, 448 U.S. 83, 90-93 (1980). In fact,

the Tennessee Supreme Court later clarified that Ross “carved out an exception” to the

totality of the circumstances test by “holding that when a defendant disclaims any interest

in the object of a governmental search, the expectation of privacy is lost.” State v. Talley,

307 S.W.3d 723, 731 (Tenn. 2010) (citing Ross, 49 S.W.3d at 840-42).

In this case, I would conclude that Defendant did not exhibit a subjective

expectation of privacy when he made an affirmative disavowal of ownership. No matter

how much it appears that the levy execution was used as a pretext to gain entry onto the

property, the officers were acting within the bounds of the law when they knocked upon

the front door, checked the registration of vehicles in plain view, and engaged in a

consensual encounter with Defendant in the front yard. Defendant voluntarily told the

officers that he did not live at the house and that the house did not belong to him but to

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his girlfriend. Defendant stated that he left his keys inside the house and that the door

had locked automatically behind him. In addition to Defendant’s affirmative disclaimers

of ownership, his intent to abandon the property can be further inferred from his actions

when he left the property before the officers conducted their search. See United States v.

Ferguson, 33 F. App’x 849, 850 (9th Cir. 2002) (holding that a defendant did not have a

reasonable expectation of privacy when he stated that the house was not his and that its

contents belonged to someone else, produced identification listing his address in another

city, and then drove away from the scene); United States v. Jenkins, 426 F. Supp. 2d 336,

341 (E.D.N.C. 2006) (holding that defendant’s presence during the search strengthened

his subjective expectation of privacy, assuming that his disclaimer of ownership was “not

fatal to his standing”).1 Defendant’s actual ownership of either the house or the keys

thereto is insufficient to establish a subjective expectation of privacy. See Ross, 49

S.W.3d at 840-41. Moreover, because a disclaimer of ownership is sufficient to manifest

an intent to abandon any expectation of privacy, the fact that the officers knew or

suspected that the house actually belonged to Defendant is irrelevant. See United States

v. Sanders, 130 F.3d 1316, 1318 (8th Cir. 1997) (rejecting argument that that defendant

did not abandon his expectation of privacy “because officers knew he was lying when he

claimed not to own the brown bag”). Thus, like in Ross, while Defendant may have “an

actual possessory interest” in the house, it is clear from the record that he “abandoned any

privacy interest” through his words and actions. 49 S.W.3d at 844.

Because Defendant disclaimed his privacy interest in the residence, he lacked

standing to challenge the warrantless search of the curtilage of the home. Because

Defendant lacked standing, I find it unnecessary to decide whether the officers exceeded

the scope of the levy by walking around to the backyard. Therefore, I would reverse the

judgment of the trial court suppressing the evidence found during the subsequent search

of the home pursuant to a search warrant.

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TIMOTHY L. EASTER, JUDGE

1

By no means do I suggest that a defendant’s absence from a property, standing alone, is

sufficient to establish abandonment of that property. See State v. Lemaricus Devall Davidson, No.

E2013-00394-CCA-R3-DD, 2015 WL 1087126, at *12-13 (Tenn. Crim. App. Mar. 10, 2015), aff’d in

part, vacated in part, 509 S.W.3d 156 (Tenn. 2016). However, in this case, I consider the fact that

Defendant left the property, in conjunction with his statements to the officers that he did not own the

home and did not live there just prior to their search, to be indicative of his intent to abandon his

subjective expectation of privacy.

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