1 The majority asse rts that Ross was never forced to choose whether to incriminate hi mself. Given, however, the State’s r

elianceupon Ro ss’s occupa tion of the roo m as eviden ce of his possession of the contraband seized therein, any admission

he migh t have made alm

ost ce rtai nly wo uld hav e been us

ed agai nst hi m. 

### IN THE SUPREME COURT OF TENNESSEE

AT JACKSON April 3, 2001 Sessio

n STATE OF TENNESSEE v. PETER A LLEN ROSS Appeal from the Co

urt of Criminal Appe

als Circuit Court for Hardin County No. 7757 Charles C. McGinley, Judge

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

A DOLPHO A. B IRCH , J R ., J., dis senting.
For denying th

at a key to a

hotel room belong

ed to him, the defendant

has been stripped of his Fourth Amend ment right to be f ree from unrea

sonable search

es and seizures. T

he majority imposes this harsh result even in the face of obviou s an d undisputed evidence that the subject premises were under

the defendant’s exclusive and private control. Because I am unable to ag ree that a refusal to incrim

inate one’s self in res

ponse to police inqu

iries should result

in a loss of Fourth Amendment rights , I respectf ully dissent.
In my view, citizens should not be forcedto choose between incriminating themselves or sacrificing their right to insi st that the police ob

taina warrant before

int rud ing u pon the ir p rop ert y. 1 See 5 Wayne R. LaFave, Searchand Seizure , § 11.3(e) at 187 (3d ed. 1996) (“Given the fact that one does not o therwise have to incrimina te himself to prese

rve his Fourth Ame

ndment rights, it is difficult to understand how a refusal to make incriminating admissions in response t o p olice 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 d efendant

has a “legitima

te expectation of privacy” in the searched premises. See Rakas v. Illino is , 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 int

erest in the premi

ses. To help

determine when a defendant has such a right of control, the Un

ited States Supreme

Court has on occas

ion looked to

concepts of property law for guidance. As stated in Rakas :2 Majority op. at ___. -2- L egitimation of expectations of privacy by law must have a sourc e outside of the Fourth Amendment , either by reference to concepts of real or personal property law or to understandings that are recog nized andpermitted by society. One of the main rig hts attaching to p

roperty 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 pr

otected by t

he Fourth Amendme

nt, of course , need not be based on a common-

law interest in

real or personal property, or on th e invasion of such an interest. . . . But by focusing on legitimat e expectations of privacy in Fourth Am endmen t jurisprudence, the Courthas not altogether aband oned us e of property concepts in determining the presence or absence of the privacy interests protected by that Amen

dment.
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 f ound 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 distinguish

ed from a mere di

sc laim er of a property interest made to the police prior to

the search, which under the better view does not defeat standing.”). The distinction betweena disclaimer and an abandonment of pr

oprietary interest was elucidated by the United States Courtof 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, p

olice conducted

a warrantless s

earch o f the defendant’s apartment after he had indicated that the apartmentdid 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 discla imer de feated his legitimate expectation of privacy in the premises, explained:

Let us assume that [the de fendant] lie

d to the agents abou

t his habitation. That does not affect the fact that he did

live in [the apa rt ment in question]. Everyone has a legitimate expectation of privacy in his residence.

Ours is not li

ke the case of a courier who disclaimsan interest in

a drug-filled suitcase, or

a suspect who throws drugs on the street and flees. People ar e free to expose th eir belongings to the public, or to throw them away; seizing abandoned suitcase s fro m baggage carousels does not invade any one’s privacy interest. The privacy

interest in a dwel

ling is n ot so easily3 729 S.W.2d 7 23, 727-29 (Tex. Crim. App. 198 7). -3- extinguished, and a misleading response to an of

ficer’s question

is a far cry from a consent to search.
Id. at 1085; see also

S. Michael McColloch, Criminal Procedur e: Arrest, Search and Confessions , 42 Sw. L.J. 565 , 574 (1988 ) (concludi ng, based on Chapa v. State , 3 that “a defendant who dis

claims ownership

and posses sion of a par ticular pl ace or thing, but who can neverthele ss demonstrate some legal, reasonable, or customary right to control the prop

erty or excl

ude others there

from, will retain his standing to chall

enge a searc

h 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 inte

rest 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 hada subjective expec

tation of privacy

; and (2) whether

that expectation is “

one that society

is prepared to recognize as ‘reasonable.’”). This conclusion, howe ver, f ails to sufficient

ly 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 den

ial of ownership in

the face of polic

e questioning sho

uld amount to neither. The illogic of eq

uating denial of

ownership

with actual abandonment is demonstrated by the State’s inconsistent positions in this case: (1) at the suppression he

aring, the State

asserted that Ross haddisclaimed his priv

acy intere st in the hotel room; (

2) at trial,the State offered evidence of Ross’s control over the hotel roo m as the linchpin ev

idence that h

e owned the drugs which police had recovered there; and (3) on appeal, the State reve rts 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 App e als for the Eighth Circuit castigated the government for espousing “inconsistent positions” at trial and on appeal. The court stated:

[T]he government s

hould not be permitted to use at the suppression hearing appellant’s alle

ged disclaimer

to support a

warr ant les s en try, then argue at

trial that appella

nt’s possession of t

he [hotel room] key supportedconstructive possession of the cocaine, and now on appeal argue that the disclaimer constituted abandonment to defeat an exp ect ati on o f pr iva cy.
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 . . . whe n it has made contr

ary asser tions in the courts b

elow . . . .”); United States4 The majority, citing United States v. Salvucci , suggests

that “th e dissent’ s view has been rejected by the United States S upreme 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 content ion, however, r

eads too much into t

he SalvucciCourt’s holding. Salvuccirejected the principle of “automatic s

tanding,” under

which defendants charged with possessory crimes were entitle d 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 i t is illogical

for the State to take inconsi stent positions regarding whet her 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 i tem

. Id. at 88-89, 100 S. Ct. at 2551. The Court stated, “We simply decline to use poss ession of a seized good as a substitute for a fact ual finding that the owner of t

he good had a legiti

mate expectati

on of privacy i

n the area sear

ched.” Id. at 88-89,100 S. Ct. a t 2551. Thus, the Court drew a distinction between a privacy i nterest in the

item seized, which the Court held not t

o be valid, and a privacy intere st in the premise s searched

. See id. at 92, 100S. Ct. at 2553. But wh ile the St ate certain

ly 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 majorit

y opinion

discusses thes e element s at ___.

6 See, e.g. , State v. Tu rnbill , 640 S.W.2d 40, 46 (Tenn. Crim. App. 1982). -4- v. Issacs , 708 F.2d 1365, 1368 (9th Cir. 1983) (“[The defendant’s] denial of ownership should not defeat his legitimate expe c tation 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
Cer tai nly, it is conceivable that a disclaimer of possessory interest might un der 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 in

terest in proper

ty may constitute abandonment). But rather than holding that a disclaimer of interest in the premises to be searched defeats per se

the defendant’s leg

itimate expectation

of privacy

in the premises, I

would rely

on the elementsset 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 pri vacy 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 analy zed 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) “e

xhibited a subjective

expectation that it w

ould remai n free from governmental invasion”; (4) “took normal precautions to maintain [his or her] privacy”; and (5)

“was legitimate

ly on the premises.” Id. at 1154-55.
Of these factors, number (4) may weigh ag ainst Ross, for his denial of a possessory i

nterest in the hotel room undermined his efforts to maintain his privacy. The other app licable factors, however, weigh in his favo r despite his denia

l, for that denial does not change the fact that he was-5-

legitimately

on the premises, had

the right to exclud

e others, and pre

sumably 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 roomto the world. The door was closed and locked, Ross kept the c urtains drawn t o cover the windows, the activities inside the room were hidden from public vi ew, and–con trary to the majority’s assertion–he did not “voluntaril y relinquish

the key” to t

he 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 expec tation of privacy

in the hotel room suf

ficient to creat

e a legitimate expectation of privacy. Under these circumstan

ces, the warrantless, non-consensual search of the hotel room violated

Ross’s Fourth Amen

dment 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 ho ld that Ross indeed h ad a legitimate expectation of privacy

in the hotel room. Ros s had a full suppression hear

ing–consequen

tly, I wo uld hold that the evidence discovered by of ficers during the search of the hotel room should be suppressed. Acc

ordingly, I dissent.

___________________________________ ADOLPHO A. BIRCH, J R., JUSTICE