                       IN THE SUPREME COURT OF TENNESSEE
                                   AT JACKSON
                                             April 3, 2001 Session

                    STATE OF TENNESSEE v. PETER ALLEN ROSS

                                Appeal from the Court of Criminal Appeals
                                    Circuit Court for Hardin County
                                 No. 7757   Charles C. McGinley, Judge


                           No. W1999-00972-SC-R11-CD - Filed July 9, 2001


ADOLPHO A. BIRCH, JR., J., dissenting.

         For denying that a key to a hotel room belonged to him, the defendant has been stripped of
his Fourth Amendment right to be free from unreasonable searches and seizures. The majority
imposes this harsh result even in the face of obvious and undisputed evidence that the subject
premises were under the defendant’s exclusive and private control. Because I am unable to agree
that a refusal to incriminate one’s self in response to police inquiries should result in a loss of Fourth
Amendment rights, I respectfully dissent.

        In my view, citizens should not be forced to choose between incriminating themselves or
sacrificing their right to insist that the police obtain a warrant before intruding upon their property.1
See 5 Wayne R. LaFave, Search and Seizure, § 11.3(e) at 187 (3d ed. 1996) (“Given the fact that one
does not otherwise have to incriminate himself to preserve his Fourth Amendment rights, it is
difficult to understand how a refusal to make incriminating admissions in response to police
interrogation can be held to deprive a person of Fourth Amendment standing.”).

         Proper analysis of Fourth Amendment privacy interests, I submit, should give considerably
more weight to the accused’s actual proprietary interest in the object of a search or seizure. As noted
by the majority, Fourth Amendment analysis turns upon whether the defendant has a “legitimate
expectation of privacy” in the searched premises. See Rakas v. Illinois, 439 U.S. 128, 142, 99 S. Ct.
421, 429, 58 L. Ed. 2d 387 (1978). Under traditional Fourth Amendment jurisprudence, a right of
control over the premises always has been a pivotal element in determining whether the defendant
has a cognizable privacy interest in the premises. To help determine when a defendant has such a
right of control, the United States Supreme Court has on occasion looked to concepts of property law
for guidance. As stated in Rakas:



         1
          The majority asse rts that Ross was never forced to choose whether to incriminate himself. Given, however,
the State’s reliance upon Ro ss’s occupa tion of the roo m as eviden ce of his possession of the contraband seized therein,
any admission he might have made almost certainly would have been used against him.
                Legitimation of expectations of privacy by law must have a source
                outside of the Fourth Amendment, either by reference to concepts of
                real or personal property law or to understandings that are recognized
                and permitted by society. One of the main rights attaching to property
                is the right to exclude others, and one who owns or lawfully possesses
                or controls property will in all likelihood have a legitimate
                expectation of privacy by virtue of this right to exclude. Expectations
                of privacy protected by the Fourth Amendment, of course, need not
                be based on a common-law interest in real or personal property, or on
                the invasion of such an interest. . . . But by focusing on legitimate
                expectations of privacy in Fourth Amendment jurisprudence, the
                Court has not altogether abandoned use of property concepts in
                determining the presence or absence of the privacy interests protected
                by that Amendment.

Id. at 143 n.12, 99 S. Ct. 430 n.12 (citations omitted, emphasis added).

        Despite the majority’s statement that “the concept of abandonment in Fourth Amendment
jurisprudence is unlike that found in property law concepts,”2 treatment of the concept is indeed
related to property law. Abandonment of property results in a loss of the possession or control which
gives rise to the “right to exclude” emphasized in Rakas. Cf. LaFave, supra, § 11.3(a) at 128
(“Abandonment must be distinguished from a mere disclaimer of a property interest made to the
police prior to the search, which under the better view does not defeat standing.”). The distinction
between a disclaimer and an abandonment of proprietary interest was elucidated by the United States
Court of Appeals for the Seventh Circuit in United States v. Brown, 64 F.3d 1083 (7th Cir. 1995).
In that case, similar to the one at bar, police conducted a warrantless search of the defendant’s
apartment after he had indicated that the apartment did not belong to him. Id. at 1084-85. The
search produced a large amount of contraband. Id. The Court of Appeals, in rejecting the
Government’s contention that his disclaimer defeated his legitimate expectation of privacy in the
premises, explained:

                Let us assume that [the defendant] lied to the agents about his
                habitation. That does not affect the fact that he did live in [the
                apartment in question]. Everyone has a legitimate expectation of
                privacy in his residence. Ours is not like the case of a courier who
                disclaims an interest in a drug-filled suitcase, or a suspect who throws
                drugs on the street and flees. People are free to expose their
                belongings to the public, or to throw them away; seizing abandoned
                suitcases from baggage carousels does not invade anyone’s privacy
                interest. The privacy interest in a dwelling is not so easily



       2
        Majority op. at ___.

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                extinguished, and a misleading response to an officer’s question is a
                far cry from a consent to search.

Id. at 1085; see also S. Michael McColloch, Criminal Procedure: Arrest, Search and Confessions,
42 Sw. L.J. 565, 574 (1988) (concluding, based on Chapa v. State,3 that “a defendant who disclaims
ownership and possession of a particular place or thing, but who can nevertheless demonstrate some
legal, reasonable, or customary right to control the property or exclude others therefrom, will retain
his standing to challenge a search of the property in question”). The principle explained in Brown
applies with even greater force to the case under submission.

         The majority concludes that a disclaimer of an ownership interest is sufficient to defeat the
defendant’s subjective expectation of privacy in the premises. See generally Katz v. United States,
389 U.S. 347, 362, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (holding that the question whether
a defendant’s expectation of privacy is legitimate has two components: (1) whether the defendant
had a subjective expectation of privacy; and (2) whether that expectation is “one that society is
prepared to recognize as ‘reasonable.’”). This conclusion, however, fails to sufficiently take into
account that the defendant’s actual possessory interest is unaffected by such a denial. Only such acts
as true abandonment (a voluntary relinquishment of the proprietary interest) or consent (a voluntary
choice not to rely on one’s right to exclude) should be held to defeat a citizen’s privacy interest in
his or her property. A mere unsworn denial of ownership in the face of police questioning should
amount to neither.

         The illogic of equating denial of ownership with actual abandonment is demonstrated by the
State’s inconsistent positions in this case: (1) at the suppression hearing, the State asserted that Ross
had disclaimed his privacy interest in the hotel room; (2) at trial, the State offered evidence of Ross’s
control over the hotel room as the linchpin evidence that he owned the drugs which police had
recovered there; and (3) on appeal, the State reverts to its initial contention that Ross’s denial
defeated his privacy interest. In United States v. Morales, a case quite similar factually to the one
at bar, the United States Court of Appeals for the Eighth Circuit castigated the government for
espousing “inconsistent positions” at trial and on appeal. The court stated:

                [T]he government should not be permitted to use at the suppression
                hearing appellant’s alleged disclaimer to support a warrantless entry,
                then argue at trial that appellant’s possession of the [hotel room] key
                supported constructive possession of the cocaine, and now on appeal
                argue that the disclaimer constituted abandonment to defeat an
                expectation of privacy.

737 F.2d 761, 763-64 (8th Cir. 1984); see also Steagald v. United States, 451 U.S. 204, 209, 101
S. Ct. 1642, 1646, 68 L. Ed. 2d 38 (1981) (“The Government . . . may lose its right to raise factual
issues of this sort . . . when it has made contrary assertions in the courts below . . . .”); United States


        3
         729 S.W.2d 7 23, 727-29 (Tex. Crim. App. 198 7).

                                                      -3-
v. Issacs, 708 F.2d 1365, 1368 (9th Cir. 1983) (“[The defendant’s] denial of ownership should not
defeat his legitimate expectation of privacy in the space invaded and thus his right to contest the
lawfulness of the search when the government at trial calls upon the jury to reject that denial.”).4

        Certainly, it is conceivable that a disclaimer of possessory interest might under certain
circumstances rise to the level of an abandonment. See United States v. Veatch, 674 F.2d 1217,
1221 (9th Cir. 1981) (discussing cases holding that a disclaimer of interest in property may constitute
abandonment). But rather than holding that a disclaimer of interest in the premises to be searched
defeats per se the defendant’s legitimate expectation of privacy in the premises, I would rely on the
elements set forth in United States v. Haydel,5 which has been cited favorably by this state’s Court
of Criminal Appeals,6 to guide the analysis of whether the defendant’s expectation of privacy should
be treated as legitimate. As noted by the majority, the Haydel court suggested that the question of
the defendant’s expectation of privacy in the premises should be analyzed in terms of whether the
defendant: (1) had an ownership interest in the property; (2) had “the right to exclude others from
that place”; (3) “exhibited a subjective expectation that it would remain free from governmental
invasion”; (4) “took normal precautions to maintain [his or her] privacy”; and (5) “was legitimately
on the premises.” Id. at 1154-55.

        Of these factors, number (4) may weigh against Ross, for his denial of a possessory interest
in the hotel room undermined his efforts to maintain his privacy. The other applicable factors,
however, weigh in his favor despite his denial, for that denial does not change the fact that he was


         4
           The majority, citing United States v. Salvucci, suggests that “the dissent’s view has been rejected by the United
States Supreme Court for more than two decades.” Majority op. at ___ (citing 448 U.S. 83, 88-89, 100 S. Ct. 2547,
2551-52, 65 L. Ed. 2d 619 (1980)). This contention, however, reads too much into the Salvucci Court’s holding.
Salvucci rejected the principle of “automatic standing,” under which defendants charged with possessory crimes were
entitled to challenge the legality of a search “without regar d to whethe r they had an e xpectation of privacy in the premises
searched .” 448 U.S. at 85, 100 S. Ct. at 2549 (overruling Jones v. United States, 362 U .S. 257, 8 0 S. Ct. 725, 4 L. Ed.
2d 697 (19 60)). Th is holding take s nothing awa y from my asse rtion that a mere denial of possessory interest is, unlike
actual abandonm ent or consent, insufficient to defeat a legitimate expectation of priva cy in the premises.

          To the extent that the majority pummels my assertion that it is illogical for the State to take inconsistent
positions regarding whether the defendant abandoned his interest in the premises, Salvucci likewise prese nts inadequ ate
support. The Salvucci Court held that “the vice of prosecutorial self-contradic tion” was no t implicated b y the State’s
claim that Fourth A mendm ent standing w as not confe rred by a p ossessory inter est in a seized item. Id. at 88-89, 100 S.
Ct. at 2551. The Court stated, “We simply decline to use possession of a seized good as a substitute for a factual finding
that the owner of the good had a legitimate expectation of privacy in the area searched.” Id. at 88-89, 100 S. Ct. at 2551.
Thus, the Court drew a distinction between a privacy interest in the item seized, which the Court held not to be valid,
and a privacy intere st in the premise s searched . See id. at 92, 100 S. Ct. at 2553. But while the State certainly may argue
under Salvucci that the defend ant owned the seized co ntraband but did not have a privacy interest in the premises, this
by no means changes the fact that it is inconsistent for the State to argue both in favor and against a p ossessory interest
(and a concomitant privacy interest) in the premises searched.


         5
             649 F.2d 1152 (5 th Cir. 1981). The majority opinion discusses these elements at ___.

         6
             See, e.g., State v. Tu rnbill, 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982).

                                                             -4-
legitimately on the premises, had the right to exclude others, and presumably expected that the hotel
room would remain free from intrusion by the State. Though Ross denied to police that the room
was his, the record otherwise reflects no indication that he did anything to expose the contents of the
room to the world. The door was closed and locked, Ross kept the curtains drawn to cover the
windows, the activities inside the room were hidden from public view, and–contrary to the majority’s
assertion–he did not “voluntarily relinquish the key” to the room, but instead kept it concealed on
his person until the police demanded that he surrender it. These factors compel the conclusion that
Ross had a subjective expectation of privacy in the hotel room sufficient to create a legitimate
expectation of privacy. Under these circumstances, the warrantless, non-consensual search of the
hotel room violated Ross’s Fourth Amendment rights.

       Having decided that Ross had a possessory interest in the hotel room and that a consideration
of the Haydel factors legitimizes this interest, I would hold that Ross indeed had a legitimate
expectation of privacy in the hotel room. Ross had a full suppression hearing–consequently, I would
hold that the evidence discovered by officers during the search of the hotel room should be
suppressed. Accordingly, I dissent.


                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE




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