Burns v. State

BUSSEY, Judge,

dissenting:

In my view, the majority has attached insufficient significance to the threshold issue of Defendant’s right to challenge admission of the handgun into evidence on Fourth Amendment grounds. This issue is decisive. The majority resolved this question by according Defendant “automatic standing” under Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 . However, the Jones automatic standing rule is only applicable where the offense charged against the accused requires, as an essential element for conviction, proof of possession by accused at the time of the search and seizure. Jones v. United States, supra, 362 U.S. at 263 , 80 S.Ct. 725 ; Simmons v. United States, 390 U.S. 377, 390 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 ; Brown v. United States, 411 U.S. 223, 227 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 ; Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421, 426 , 58 L.Ed.2d 387 . In the instant case, the possession which underlay the offense charged was defendant’s possession at Mary’s Lounge in Dewey, Oklahoma, at about 10:30 p. m. on the evening of June 6, 1975. This was recognized by the magistrate at preliminary hearing where he stat *805 ed, in response to defendant’s contention that the State had failed to make out the illegal possession alleged in the information, that “Mr. Clapp’s testimony [testimony of the victim of the assault at the bar] was sufficient to show the man was in possession of the firearm.” Preliminary transcript, page 61. This possession occurred three hours or more before the search and seizure took place. Here, as in Brown , “[t]he vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking ‘advantage of contradictory positions.’ ” [Citations omitted]. Brown v. United States, supra, 411 U.S. at 229 , 93 S.Ct. at 1569 . This is simply not a proper case for invocation of Jones “automatic standing.”

Given that defendant may not claim “automatic standing”, defendant was required to affirmatively establish his right to challenge the admission of the pistol on Fourth Amendment grounds. Previously, the inquiry has been phrased in terms of “standing,” and the accused was required to show ownership or possession of the seized evidence, or a possessory interest in the premises searched, or his legitimate presence on the premises at the time of the search, or circumstances sufficient to invoke automatic standing. Jones v. United States, supra. However, after the recent decision of Rakas v. Illinois, supra, it is clear that the issue is properly stated in terms of whether the accused’s substantive Fourth Amendment rights have been violated, i. e. whether accused has shown a reasonable expectation of privacy infringed by the search and seizure in question. Id., 439 U.S. 128, at 139, 148 , 99 S.Ct. 421, at 428, 433 . A claimed possessory or proprietary interest in the place searched or thing seized likely indicates the requisite expectation of privacy, id., Fn. 12, 439 U.S. at 143 , 99 S.Ct. at 430 , while legitimate presence on the premises at the time of the search is no longer controlling, id., 439 U.S. at 148 , 99 S.Ct. at 433 . Viewed in this posture, it seems clear that defendant has failed to make the required showing. At no point in this prosecution has defendant alleged a possessory or proprietary interest in the pickup truck or handgun. Moreover, testimony offered by defendant’s companion and the driver of the pickup affirmatively indicated that the handgun was owned and possessed at the time of the search by the companion. Also, as discussed above, he is not aided by the Jones automatic standing rule. No legitimate expectation of privacy is otherwise apparent from the record. The handgun merely corroborated other testimony positively identifying defendant as the man who brandished a handgun and pointed it at a patron at the bar earlier in the evening.

I would affirm.