                                                                                         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
                     ___________________________________

                           No. E2016-00105-CCA-R3-CD
                       ___________________________________


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.


                                                       _________________________________
                                                       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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