1The 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.

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:
2Majority op. at ___.

-2-

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
3

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

-3-

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 generallyKatz 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
4The 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 Amendment 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-

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
-5-

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