                                                                                                       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
                           ___________________________________


The Defendant, Joseph Durward Watson II, was charged with possession with the intent
to sell more than one-half ounce but less than ten pounds of marijuana. See T.C.A. § 39-
17-417 (2014). He filed a motion to suppress the evidence recovered from the search of
the home in which the marijuana was found. The trial court granted the motion,
determining that the police exceeded the scope of a levy issued for the collection of
unpaid court costs and fines. On appeal, the State contends that the trial court erred by
granting the motion to suppress because the Defendant disclaimed any expectation of
privacy in the home, depriving him of standing to challenge the search. We affirm the
judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. TIMOTHY L. EASTER, J., filed a dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Mike L. Flynn, District Attorney General; and Matthew Dunn,
Assistant District Attorney General, for the appellant, State of Tennessee.

Nathaniel H. Evans (on appeal and at hearing), Knoxville, Tennessee, and Joe Costner (at
hearing), Maryville, Tennessee, for the appellee, Joseph Durward Watson II.

                                              OPINION

      On July 7, 2014, the Defendant was indicted for possession with intent to sell
more than one-half ounce but less than ten pounds of marijuana.1 The Defendant filed a
1
 The record reflects that the Defendant was charged in two additional cases and that at least one of those
cases arose from a subsequent search of the same home during which additional marijuana was
motion to suppress the drug-related evidence seized at a home on December 20, 2013,
that led to the charge in the present case.

       At the hearing, Blount County Sheriff’s Investigator David Mendez testified that
he was assigned to the Fifth Judicial District Drug Task Force. On December 20, 2013,
he was assigned to serve a levy on the Defendant for unpaid court costs and fines from a
previous case. Investigator Mendez explained that it was not uncommon for deputies in
the Drug Task Force to execute levies for unpaid court costs and fines from drug-related
cases. He acknowledged the sheriff’s department had received a complaint, alleging the
Defendant was selling narcotics out of his home, before the levy was obtained.

       Investigator Mendez testified that he and Sheriff’s Deputy Pearson went to the
Defendant’s home to serve the levy and that at some point, Chief Ron Talbott arrived at
the home. Investigator Mendez stated they walked onto the front porch and knocked on
the door for several minutes. When nobody opened the door, the deputies stepped away
from the door and checked the registration of two vehicles parked in the driveway.
Investigator Mendez stated that the Defendant walked out of the home and that
Investigator Mendez explained they were there to serve a civil levy and how a civil levy
worked. Investigator Mendez said that he asked the Defendant if he had anything of
value in his pockets and that the Defendant emptied some loose change from his pockets.
Investigator Mendez stated that they “asked” the Defendant “that we needed to get in his
residence to execute the levy.” Investigator Mendez said the Defendant responded that
he did not live there, that the home belonged to his girlfriend, that the front door locked
automatically when he left the home, and that “he left his keys inside.” Investigator
Mendez said that the Defendant asked if he was free to leave and that the deputies
allowed him to leave without incident. The Defendant left on foot.

       Investigator Mendez testified that when he spoke to the Defendant, a deputy was
attempting to obtain records showing the Defendant lived at the home because the
deputies believed the Defendant was lying. Investigator Mendez noted the sheriff’s
department had information that the Defendant lived there. After the Defendant left, the
deputies knocked on the front door again because Investigator Mendez said the
Defendant stated that his girlfriend was inside the home. Investigator Mendez said that
nobody came to the door, that the deputies “walked down the side of the house, looking
for . . . [personal] property to . . . satisfy the levy,” and that the deputies smelled
marijuana coming from the crawl space vent. Investigator Mendez said that he walked to

discovered. The suppression hearing transcript reflects that the trial court understood the motion was
relevant to all three of the Defendant’s cases. Although the trial court’s order granting the motion to
suppress reflects three circuit court docket numbers, the court’s order of dismissal only reflects the docket
number associated with the initial search. Likewise, the appellate record only contains a single judgment
form, reflecting a dismissal in the docket number associated with the initial search.

                                                    -2-
the deck and looked through a window to determine if anyone was inside the home, that
he did not see anyone inside, and that he smelled marijuana coming from the nearby
crawl space vent. Investigator Mendez said that he and the deputies returned to the front
of the home and knocked on the door a third time. Investigator Mendez said that he saw
partially smoked marijuana cigarettes in an ashtray on the front porch and that he
obtained and executed a search warrant that afternoon.2 He said several pounds of high-
quality marijuana were found inside the home.

       On cross-examination, Investigator Mendez denied that he was instructed to look
for drug activity at the Defendant’s home when attempting to execute the levy and that he
was only there to collect money or personal property for the levy. He admitted, though,
that he had information that the Defendant was selling drugs and that he thought he might
find something illegal. Investigator Mendez maintained that the purpose of serving the
levy was not to investigate the Defendant or to “look[] for a reason to get a search
warrant.”

       Investigator Mendez testified that two vehicles in the driveway were not registered
to the Defendant, although the Defendant had been seen driving one of them. He denied
drugs were found inside the crawl space. He said that he initially knocked on the front
door for twenty minutes, that he looked through the front-porch window, and that he did
not see anything. Investigator Mendez denied that he patted down the Defendant and
said that he did not take the change from the Defendant’s pants pockets because it
amounted to less than one dollar. Investigator Mendez said that the levy was never
served upon the Defendant and denied that the Defendant advised he intended to pay his
outstanding fines and court costs immediately.

        Investigator Mendez testified that the Defendant stated that the home did not
belong to him, that his “keys” were inside the home, and that his girlfriend was inside the
home. Investigator Mendez said that he checked to determine whether the front door was
locked after the Defendant left on foot. Investigator Mendez estimated that he was three
feet from the crawl space vent when he smelled marijuana.

       Blount County Circuit Court Clerk Tom Hatcher testified that his office had
established a collections department in an effort to collect outstanding ligation taxes,
court costs, and fines owed by criminal defendants and that levies and garnishments were
used to collect the outstanding debts. He stated that the Defendant pleaded guilty and

2
  The search warrant and affidavit were received as exhibits at the suppression hearing but were not
included in the appellate record. This court granted the State’s motion to supplement the record, in
relevant part, with the exhibits received at the hearing. The supplement to the record did not include the
exhibits. See T.R.A. P. 24(a) (stating it is the appellant’s responsibility to ensure the record on appeal
includes items “sufficient to convey a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of [the] appeal”); see also State v. Caudle, 388 S.W.3d 273 (Tenn. 2012).
                                                      -3-
received an effective six-year sentence in November 2003. Mr. Hatcher said that
although the Defendant’s sentences had expired, the Defendant owed approximately
$3000 in court costs and fines. Mr. Hatcher stated that at the expiration of a criminal
sentence, his office was permitted to collect any unpaid fines and court costs as a civil
judgment by establishing a payment plan, garnishing wages, or issuing a levy. Mr.
Hatcher testified that the levy issued in this case was in accordance with the policies of
his office but that the sheriff deputy’s return stated the levy was not executed.

       On cross-examination, Mr. Hatcher testified that unpaid debts were considered
civil judgments after the trial court lost jurisdiction at the expiration of a criminal
sentence. Upon questioning by the trial court, Mr. Hatcher stated that law enforcement
officers contacted his office, requesting that a deputy clerk determine if the Defendant
owed money relative to the 2003 convictions. Mr. Hatcher said the request was not
unusual. Upon further cross-examination, Mr. Hatcher testified that Defendant paid his
debt within one day of the issuance of the levy.

        Blount County Sheriff’s Deputy Chief of Investigations and Fifth Judicial District
Drug Task Force Director Ron Talbott testified that the Task Force received several
complaints of heavy traffic at the home at issue in this case in November and December
2013, that “utility records” showed the Defendant lived at the home, and that Chief
Talbott learned various police informants had purchased drugs from the Defendant “in
the past.” Chief Talbott said that he learned the Defendant had unpaid fines from
previous criminal cases, that the court clerk’s office was contacted about the debt, and
that a levy was issued. Chief Talbott stated that levy executions were not done daily but
that the Drug Task Force executed levies against criminal defendants who owed fines.
Chief Talbott explained that the Drug Task Force received a portion of the collected fines
in drug-related cases.

      Chief Talbott testified that when he arrived at the Defendant’s home, deputies
were present and knocking on the front door. He said that the deputies met him in the
driveway and that the deputies believed someone was inside the home because of noise
coming from inside. Chief Talbott said that the Defendant came out the front door and
walked toward the deputies and that the Defendant said he did not live there, the door
was locked, and “his keys were inside.” Chief Talbott said the Defendant stated that the
home belonged to his girlfriend. Chief Talbott said that the Defendant was asked if he
had anything of value on him, that the Defendant only had loose change, and that the
Defendant was told he was free to leave.

        Chief Talbott testified that he found the encounter with the Defendant suspicious,
that the deputies knocked on the front door again, and that he walked down the driveway
toward the back of the home to find anything of value. Chief Talbott described the home
as “a rancher-style . . . located on a very tall crawl space.” He estimated that the crawl
                                           -4-
space was about six feet tall on the driveway side of the home, placing the vents at eye
level. Chief Talbott said he smelled unburned marijuana through the crawl space vents
on the side and back of the home. He said that he and Investigator Mendez discussed the
odor of marijuana and the discovery of partially smoked marijuana cigarettes on the front
porch and that they left to obtain a search warrant. Chief Talbot said that during the
execution of the search warrant, marijuana was found in a bathroom on the back of the
home, located just above the crawl space vents. He said that during the search, a woman
presented a receipt showing that the Defendant’s court debt had been paid in full after the
Defendant left the home.

       On cross-examination, Chief Talbott testified that after the Drug Task Force
received its initial complaints about heavy traffic at the Defendant’s home in November,
deputies began speaking with informants to determine if anyone had made hand-to-hand
drug transactions with the Defendant. He said that the utility records for the home were
also investigated and that he learned the Defendant had outstanding fines in an unrelated
drug case. Chief Talbott said that the Drug Task Force received multiple complaints
between November 18, and December 20, although the complaints were not documented
due to time constraints and because some of the complaints were duplicative. He said
that he received two complaints regarding heavy traffic before 10:00 p.m. at the
Defendant’s home, a complaint regarding the occupants’ smoking marijuana on the front
porch, and a complaint regarding the occupants’ yelling obscenities. Chief Talbott said
that he was five feet from the crawl space vent when he smelled marijuana but that he did
not gauge the distance at which the odor dissipated. Chief Talbott agreed that while
serving a levy, he was not permitted to break into someone’s home.

       The Defendant attempted to call an expert witness to dispute whether the deputies
could smell marijuana from outside of the home. The State objected because the witness
had been inside the courtroom throughout the proceedings despite the invocation of the
sequestration rule. See Tenn. R. Evid. 615. The trial court stated that whether the
officers could smell marijuana was not dispositive to the case, and the court prohibited
the expert testimony. See Tenn. R. Evid. 702.

       Blount County Sherriff’s Investigator Rusty Aycocke testified for the defense that
he remembered discussing complaints about the Defendant’s selling marijuana during at
least one or two Drug Task Force staff meetings in the fall of 2013. Investigator
Aycocke said that he spoke to his confidential informants to determine whether they had
information about the Defendant. Investigator Aycocke said he arrived at the
Defendant’s home after the search warrant had been executed.




                                           -5-
       The Defendant testified that he lived with his then-girlfriend, Monique Ayala3, and
their daughter at the home at issue in this case and that he stayed overnight at the home
the night before the deputies searched it. He said that in December 2013, he attended
school and stayed overnight at the home three or four nights per week, that he “had some
clothes there,” and that “we [were not] in there too long.” He said that he owned and
possessed keys to the home.

        On cross-examination, the Defendant testified that he did not immediately answer
the door when the deputies knocked because he was asleep. He agreed he eventually left
the home and spoke with two deputies, who told him he was not under arrest and was free
to leave. The Defendant said that he did not fully understand why the deputies were there
because he had “just paid on the fines,” although he had not paid the full balance. He
said, though, his mother paid the full balance before the deputies entered the home.

        The Defendant testified that he and his wife were joint owners of the home but
clarified that they “rented to own” the home in February 2014, which was when the
second search warrant was issued. He said that he and his wife had moved into the home
about two months before the initial search but that he did not “stay[]” there much because
of school and because he “was helping” his mother. He said that he kept clothes and
music recording equipment inside the home and that he could not recall any additional
possessions he kept there. He said the majority of the household items belonged to his
wife. He said that the marijuana and paraphernalia found during the search belonged to
him.

       The trial court granted the Defendant’s motion to suppress the evidence and
ultimately, dismissed the charge relative to the initial search. Relative to whether the
Defendant had standing to challenge the search of the home, the court noted the State’s
reliance on State v. Ross, 49 S.W.3d 833 (Tenn. 2001), in arguing that the Defendant
lacked standing because he lied when he said he did not live at the home. The court
determined that although Ross was instructive, the facts underlying our supreme court’s
determination that the defendant in Ross disclaimed all privacy interests in the area to be
searched were distinguishable from the present case. The court found that the Defendant
said that it was not his home and that it was his girlfriend’s home. The court also found
that the Defendant said that the door was locked, that he had a key, that he left “it” inside
the home, and that he could not reenter the home. The court determined that the
Defendant had standing to challenge the search.



3
  Ms. Ayala was indicted as a codefendant in one of the Defendant’s additional cases. Although her
attorney participated in the suppression hearing, the record does not reflect that her attorney argued the
evidence in the present case should have been suppressed in her related case. The trial court’s orders do
not reflect the docket number of Ms. Ayala’s case.
                                                   -6-
        The trial court initially found after reviewing the statute that no valid civil
judgment upon which to levy existed because pursuant to the Tennessee Rules of Civil
Procedure, unpaid fines and court costs did not automatically become a civil judgment
without “some procedure whereby they are converted to a judgment.” Alternatively, the
court found that even if a valid levy existed, the deputies had suspicions of criminal
activity and used the levy as a pretext to gain access to the property in order to establish
probable cause for a search warrant. The court expressed concern that levies were being
used to circumvent the establishment of probable cause and warrant requirements and
found that such use of a civil levy was improper. The court noted a distinction between
using a legitimate reason, such as a broken taillight, as a pretext to initiate a traffic stop
on a public roadway and a place “where the officer does not have a right to be,” such as a
person’s private property.

        The trial court found that if the levy were properly obtained and valid, the deputies
would have been permitted to knock on the front door and speak with anyone who
opened the door. The court found that the Defendant eventually emerged from the home,
that the deputies asked him to empty his pockets, and that the deputies briefly spoke to
the Defendant. The court found that although the levy was issued against the Defendant,
the Defendant identified the home as his girlfriend’s home, and that when the Defendant
left the property, the deputies remained on the property, looked through the windows, and
walked around the curtilage of the property. As a result, the court determined that the
deputies exceeded the scope of executing the levy when the deputies entered the curtilage
after the Defendant, the subject of the levy, left the property. The court noted that the
Defendant was not served with the levy before leaving the property and that the return
stated the levy was not served. The court determined that any effort to execute the levy
when it was left unserved upon the Defendant was “for naught.”

       On October 26, 2015, the trial court entered an amended order regarding its
findings relative to whether the outstanding fines and court costs owed by a criminal
defendant automatically converted to a civil judgment. The court stated that it had
determined based upon relevant case law that criminal court judgments ordering the
payment of fines and costs were treated as if they automatically became a civil judgment
without any additional action. The court found that the deputies had obtained a valid levy
but reaffirmed its remaining findings based upon of the facts of this case that the deputies
improperly used the levy to gain access to the Defendant’s property and exceeded the
scope of the levy by entering the curtilage. On December 21, 2015, the trial court entered
an order dismissing the case. This appeal followed.

      The State contends that the trial court erred by granting the Defendant’s motion to
suppress the evidence from the home. Although the State does not argue that the
Defendant did not possess a reasonable and legitimate expectation of privacy inside the
home, it continues to rely on Ross in arguing that because the Defendant disclaimed and
                                             -7-
abandoned his privacy interest in the home, he has no standing to assert a privacy interest
and a violation of his Fourth Amendment rights as a result of the search. The Defendant
responds that the trial court properly determined the Defendant had standing to challenge
the search.

       A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about
the “credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.”
Odom, 928 S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55
S.W.3d 515, 521 (Tenn. 2001). A trial court’s application of the law to its factual
findings is a question of law and is reviewed de novo on appeal. State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997). In reviewing a trial court’s ruling on a motion to
suppress, this court may consider the trial evidence as well as the evidence presented at
the suppression hearing. See State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998);
see also State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012).

       Both the Fourth Amendment to the United States Constitution and Article I,
section 7 of the Tennessee Constitution prohibit unreasonable searches and seizures. The
Tennessee Supreme Court has interpreted the two provisions to be identical in intent and
purpose. State v. Turner, 297 S.W.3d 155, 165 (Tenn. 2009); State v. Binette, 33 S.W.3d
215, 218 (Tenn. 2000). “[A] warrantless search or seizure is presumed unreasonable, and
evidence discovered as a result thereof is subject to suppression” unless conducted
pursuant to one of the exceptions to the warrant requirement. State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997). However, “the state and federal constitutional protections
‘are implicated only when a police officer’s interaction with a citizen impermissibly
intrudes upon the privacy or personal security of the citizen.’” Ross, 49 S.W.3d at 839
(quoting State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). The United States Supreme
Court has “define[d] a search as an invasion of a reasonable or legitimate expectation of
privacy.” Id. (citing Katz v. United States, 389 U.S. 347, 351 (1967)). Therefore, “an
investigation by governmental authorities which is not a search as defined by the
Supreme Court may be conducted without probable cause, reasonable suspicion or a
search warrant.” Id. (quoting State v. Bell, 832 S.W.2d 583, 589-90 (Tenn. Crim. App.
1991)).

        Fourth Amendment rights are personal in nature and “may not be vicariously
asserted,” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (quoting Alderman v. United
States, 394 U.S. 165, 174 (1969)), but “may be enforced by exclusion of evidence only at
the instance of one whose own protection was infringed by the search and seizure.”
                                           -8-
Simmons v. United States, 390 U.S. 377, 389 (1968). “The ‘capacity to claim the
protection of the Fourth Amendment depends . . . upon whether the person who claims
the protection of the Amendment has a legitimate expectation of privacy in the invaded
place.’” State v. Willis, 496 S.W.3d 653, 720 (Tenn. 2016) (quoting Rakas, 439 U.S. at
143); see also State v. Cothran, 115 S.W.3d 513, 520-21 (Tenn. Crim. App. 2003). “One
who challenges the reasonableness of a search or seizure has the initial burden of
establishing a legitimate expectation of privacy in the place where property is searched.”
State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (citing Rawlings v.
Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982)). In
determining whether an individual’s Fourth Amendment rights have been infringed, we
must determine “(1) whether the individual, by his conduct, has exhibited an actual
(subjective) expectation of privacy and (2) whether the individual’s subjective
expectation of privacy is one that society is prepared to recognize as reasonable.” Ross,
49 S.W.3d at 840 (internal quotations omitted) (citing Katz, 389 U.S. at 361 (Harlan, J.,
concurring) and Bond v. United States, 529 U.S. 334, 338 (2000)).

        Because the Fourth Amendment protects people and privacy rather than places and
property, “[a]ctual ownership or possession of the place or thing searched is alone
insufficient to manifest a subjective expectation of privacy.” Ross, 49 S.W.3d at 840-41
(citing United States v. Salvucci, 448 U.S. 83, 91 (1980)). Therefore, courts will “look to
a variety of factors to determine whether an ‘individual legitimately may claim under the
Fourth Amendment that a place should be free of government intrusion not authorized by
a warrant.’” Id. at 841 (quoting Oliver v. United States, 466 U.S. 170, 177-78 (1984)).
Our supreme court has recognized a “list of specific factors relevant to such an inquiry,”
adopted by this Court in State v. Turnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982).
Ross, 49 S.W.3d at 841 (noting that the seven Turnbill factors appear to apply a totality-
of-the-circumstances approach).

       However, a defendant’s disclaimer of ownership “is more than just another factor
to consider” in evaluating his or her subjective expectation of privacy. Id. Our supreme
court has held that “a disclaimer or denial of ownership demonstrates sufficient intent of
disassociation to prove abandonment.” Id. at 842 (internal quotation omitted). Like
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). “[W]hen a defendant disclaims an interest in the object of a
police investigation at the time of the search, . . . this fact alone will deprive a defendant
of any expectation of privacy, irrespective of considerations such as ownership or
possession.” Ross, 49 S.W.3d at 841 (citing Miller v. State, 520 S.W.2d 729, 733-34
(Tenn. 1975)). 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.’” Id. (quoting Bowman v. State, 362 S.W.2d 255, 257 (Tenn. 1962)).

                                             -9-
        In Ross, the police traveled to a motel to speak with a woman regarding stolen
checks and were advised which room the woman had rented. The police knocked on the
door to the motel room and smelled the odor of marijuana when the door opened. Four
people were inside the room, including the defendant, and the police requested that
everyone leave the room and empty their pockets. The police requested that the
defendant remove his shoes, and he removed a motel key to room 132 from a sock and
held the key in his hand. The police saw the key and asked the defendant if the key
belonged to him. The Defendant said that the key did not belong to him and that the key
belonged to Safron Black, who had also been inside the room with the defendant. The
police asked Ms. Black if the key from the defendant’s sock belonged to her, and she
denied ownership of the key but told the police they could search anything that belonged
to her. The police searched room 132 and found a large amount of crack cocaine, drug
paraphernalia, the defendant’s wallet, and two car titles and a receipt reflecting the
defendant’s name. The defendant sought to suppress the evidence found inside motel
room 132 because the police did not have a search warrant and did not have probable
cause to believe illegal items were inside the room. Ross, 49 S.W.3d at 837-38.

        Our supreme court concluded in Ross that although an objective and reasonable
expectation of privacy exists inside a motel or hotel room, a person may disclaim an
interest in the object or place to be searched by the police. Id. at 841-42. The court
determined that the defendant in Ross disclaimed an interest in the motel room and that
his disclaimer alone without consideration for other factors resulted in the loss of his
subjective expectation of privacy in the room. Id. at 842. The court reasoned that the
defendant’s stating that the key did not belong to him but belonged to another identified
person was a disclaimer of ownership of the key and that the disclaimer was sufficient to
establish that the defendant abandoned his reasonable expectation of privacy in the room.
Id. at 842-43. The court noted that the defendant’s voluntarily relinquishing the key to
the police resulted in the defendant’s relinquishing his ability to exclude others from the
room and that the right to exclude others was a critical factor in establishing a legitimate
expectation of privacy. Id. at 843 (citing United States v. Torres, 949 F.2d 606, 608 (2nd
Cir. 1991)); see Turnbill, 640 S.W.2d at 46 (holding that one factor in determining
whether an individual has a subjective expectation of privacy is “whether he has the right
to exclude others from that place”). The court determined that a defendant may not claim
a privacy interest in an area to be searched “after surrendering his or her ability to control
who could have access” to the area. Id. at 843. Therefore, the court concluded that
“while the evidence . . . reflects that the appellant had an actual possessory interest in the
motel room and its contents . . . the record is also clear that he abandoned any privacy
interest in the room when he relinquished his right of exclusion.” Id. at 844.

       As a preliminary matter relevant to whether the Defendant had standing to
challenge the search of his home, the Defendant argues that Ross is distinguishable from
the present case because the property disclaimed in Ross was a motel room, not a home,
                                            - 10 -
and that that “[i]t goes against common sense to assert that a person could disclaim an
interest in his or her own home.” However, abandonment of an objective, reasonable,
and legitimate privacy interest in a particular location pursuant to the Fourth Amendment
differs from abandonment under property law. Id. at 842; see also United States v.
Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981) (holding that abandonment in the
constitutional context “rests . . . on whether the person . . . relinquished his interest in the
property that he no longer retained a reasonable expectation of privacy in it at the time of
the search”). “[A] person can, as he can with any other property, sufficiently manifest an
intent to abandon his house.” United States v. Harrison, 689 F.3d 301, 307 (3d Cir.
2012); see State v. Ledford, 438 S.W.3d 543, 553-54 (Tenn. Crim. App. 2014) (holding
that the defendant manifested an intent to abandon his home by failing to comply with
court orders under public health and safety ordinances). “Therefore, the fact that for
common law purposes real property cannot be abandoned is not dispositive.” Harrison,
689 F.3d at 307. Whether the location of the search was a home or a motel room is
inconsequential to this case because our courts have established that both areas involve a
reasonable and legitimate objective expectation of privacy. The critical inquiry is
whether the Defendant subjectively disclaimed his reasonable and legitimate expectation
of privacy in the home.

        Relative to the trial court’s findings regarding the Defendant’s keys, we note that
the record reflects that when the deputies attempted to execute the levy, the Defendant
left the home and spoke to the deputies in the driveway. Although the Defendant told the
deputies that he did not live at the home and that the home belonged to his then-
girlfriend, the Defendant said that his keys were locked inside the home when the
deputies stated that they needed to get inside to execute the levy. The trial court
determined that the Defendant was unable to reenter the home because his house key was
locked inside, which was a reasonable and legitimate inference to draw from the
evidence. Although the State might disagree with the trial court’s inference that the keys
referred to by the Defendant were to the home, as opposed to the vehicles parked in the
driveway, the trial court’s inference is a legitimate view of the evidence and supported by
the record. The record does not reflect that the Defendant’s keys did not include a key to
the home, and no evidence shows the deputies inquired about it. Furthermore, the
Defendant was never asked whether he had property inside the home upon which to levy,
although he was the subject of the levy, and the levy was never served upon the
Defendant. Therefore, the record does not preponderate against the court’s findings in
this regard, and the court’s findings are conclusive on appeal.

       In any event, we conclude that Ross is distinguishable from the present case. The
defendant in Ross relinquished his motel room key to the police and told the officers that
the key belonged to another person. Our supreme court reasoned that these two facts
considered together were the critical conduct in determining that the defendant had
disclaimed or abandoned his reasonable expectation of privacy in the area searched.
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Ross, 49 S.W.3d at 842-43. The court reasoned that the defendant’s voluntary
relinquishment of the key resulted in his inability to exclude others from the room, which
was critical to establishing a subjective expectation of privacy. Id. at 843; see Turnbill,
640 S.W.2d at 46; see also United States v. Ferguson, 33 F. App’x 849, 850 (9th Cir.
2002) (stating that the defendant “no longer retained a reasonable expectation of privacy
at the time of the search” when the defendant said the home and its contents belonged to
another person, produced identification listing his address in another city, and drove away
from the scene). We note that the defendant’s stating the motel room did not belong to
him was not alone dispositive to whether the defendant had disclaimed his privacy
interest in the room, although it was a relevant fact.

        In contrast, the Defendant in the present case did not surrender any authority to
exclude others from the home. Although he stated that the home belonged to his then-
girlfriend, the Defendant said his keys were locked inside the home when the deputies
told the Defendant that they “needed to get [inside the home] to execute the levy.” The
Defendant did not relinquish a right to exclude the deputies from the home, and the
record reflects that the Defendant was unable to reenter the home because his keys were
locked inside. The record supports a conclusion that the Defendant did not affirmatively
and expressly disclaim or relinquish his privacy interest in the home. The Defendant’s
leaving on foot after answering the deputies’ questions and after the deputies told him he
was free to leave is of no consequence to this case. The Defendant was locked out of the
home and did not possess keys to any of the vehicles parked in the driveway. As a result,
we conclude that the Defendant had standing to challenge the subsequent search.

       The State does not challenge the trial court’s determination regarding the deputies’
exceeding the scope of the levy by entering the curtilage of the home. Rather, the State
argues that the deputies did not violate the Defendant’s Fourth Amendment rights by
entering the curtilage of the home because the Defendant had disclaimed any privacy
interest in the home. Because we have concluded that the Defendant did not disclaim his
privacy interest in the home and because the parties do not challenge the trial court’s
determinations regarding the deputies’ exceeding the scope of a valid levy by entering the
curtilage, we conclude that the trial court did not err by granting the Defendant’s motion
to suppress and by dismissing the charge against him.

        Based upon the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                          ______________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE

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