Bates v. State

MOYLAN, Judge. The appellant, Michael Bates, was convicted by a Baltimore City jury, presided over by Judge Edward J. Angeletti, of possession of heroin with intent to distribute. He was sentenced to a prison term of 20 years and a fine of $25,000. Upon this appeal, the merits of guilt or innocence are not before us.

Neither are the Fourth Amendment merits of whether the search for and seizure of the contraband heroin satisfied Fourth Amendment standards of reasonableness. The sole issue is that of whether the appellant was even entitled to litigate those Fourth Amendment merits. The appellant moved pretrial to suppress the evidence on Fourth Amendment grounds. The State raised a timely challenge to the appellant’s standing to object.

Upon that threshold question of standing, the hearing judge ruled that the appellant, as a passenger in the taxicab that was searched, had no Fourth Amendment standing to object. We reverse that ruling. Surprisingly, there is an absolute dearth of case law dealing with this seemingly routine question of whether a person who hires a taxicab enjoys, for the period of his use and occupancy, any Fourth Amendment standing — an objectively recognized reasonable expectation of privacy — in the common area of that taxicab. Even while ultimately ruling with the appellant, we reject utterly his misplaced reliance on Rios v. United States, 364 U.S. 253 , 80 S.Ct. 1431 , 4 L.Ed.2d 1688 (1960).

In Rios , to be sure, the passenger of a taxicab that was warrantlessly searched ultimately prevailed on the Fourth Amendment merits. The only issue before the Supreme Court in that 1960 decision, occurring as it did during the turbulent twelve-year interim between Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 , in 1949, and Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , in 1961, was the continuing viability of the so-called “silver platter doctrine.” The issue of standing ²⁸² did not arise in the remotest way and was never acknowledged or referred to even obliquely. 1 The failure of Rios as supportive precedent, however, by no means portends a failure of compelling principles. The requirement, in a Fourth Amendment context, that a defendant have standing to object in order to litigate the possible suppression of evidence is but an instance of the broader requirement that there be “a live case or controversy” before courts will involve themselves in the resolution of contested issues. If the prospective litigant can satisfy the court that he is the aggrieved party — that the alleged violation was of his own Fourth Amendment right and not that of someone else — then it is his business whether his Fourth Amendment right was satisfied or violated.

Standing is the threshold question of the entitlement to litigate the merits of the search and seizure. Prior to 1960, it was necessary for a defendant whose standing was challenged to establish to the satisfaction of the court some proprietary or possessory interest in the place searched. In 1960, however, the case of Cecil Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 , dramatically liberalized the class of persons entitled to litigate the Fourth Amendment merits. It recognized a variety of derivative standing, whereunder the Fourth Amendment protection of the host devolved, to some greater or lesser extent, upon others who were legitimately upon the protected premises and could thereby claim through the host some measure of constitutional protection.

Cecil Jones was, in turn, further refined by Rakas v. Illinois, 439 ²⁸³ U.S. 128, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), which held that legitimate presence on the premises, though highly significant, was not an automatic touchstone for purposes of deciding Fourth Amendment standing. Instead of a “bright line formula,” courts would look at the totality of circumstances and determine whether, under the formulation of Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), there was in that particular guest, licensee, or invitee on that particular occasion a reasonable expectation of privacy in that part of the premises actually subjected to the search. Thus, neither Cecil Jones , where standing to contest the search of a residence was extended, nor Rakas v. Illinois, where standing to contest the search of an automobile was not extended, was an automatic “bright line formula” case. Standing rose or fell with the adequacy of the defendant’s proof upon the issue.

In Cecil Jones , the defendant was not a “mere guest.” He established that his friend had given him permission to use the friend’s apartment, that he had a key with which he admitted himself on the day of the search, that he was the only occupant of the apartment because the lessee was away for a period of several days, that he kept some of his clothes in the apartment, that he had slept in the apartment, and that he “had complete dominion and control over the apartment and could exclude others from it.” Rakas v. Illinois, 439 U.S. at 149 , 99 S.Ct. at 433 . In Rakas v. Illinois, by way of contrast, the defendants deliberately chose to rely upon their status as “mere guests” in the search of the automobile and failed to offer any further proof of a reasonable expectation of privacy on their parts. The critical lack in Rakas v. Illinois was not necessarily the lack of a reasonable expectation of privacy but rather the lack of proof of such expectation. The defendant, as the proponent, has, upon timely challenge, the burden of establishing standing; the State has no burden of establishing non-standing.

Rakas v. Illinois, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1. ²⁸⁴ In Rakas, the defendants “asserted neither a property nor a possessory interest in the automobile.” 439 U.S. at 148 , 99 S.Ct. at 433 . The Supreme Court pointed out that the defendants had failed to sustain their burden of proof and that it did “not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling.” Id. With respect to the search of the glove compartment and an area beneath the seat involved in that case, the Supreme Court reasoned that the defendants would have failed to establish standing even if a residence had been involved instead of an automobile: “But here petitioners’ claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of [an] automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” 439 U.S. at 148-149 , 99 S.Ct. at 433 .

Rakas by no means held that a passenger in an automobile for a three-week cross-country trip, with his luggage in the trunk, might not have a reasonable expectation of privacy in that trunk; it merely held that he would have to prove such an additional fact bearing on his reasonable expectation rather than rely upon his status as a mere passenger. A teenaged passenger in his family’s automobile might well have a reasonable expectation of privacy, but he would be required to prove the additional dimension. In the present case, unlike Rakas, there was no failure of proof on the appellant’s part of his reasonable expectation of privacy. The appellant was no mere passenger in an automobile, but the hirer of a taxicab.

That might well be enough to establish even traditional proprietary or possessory standing by pre-1960 standards, but that is a point we do not have to decide. The appellant established that it was he who hailed and hired the taxicab that was ultimately ²⁸⁵ searched. His friend and fellow passenger, James Elfe, occupied the back seat of the taxicab, and the appellant rode in the front seat. Although there was evidence that Mr. Elfe would ultimately pay the fare, the directions to the taxicab driver were given by the appellant.

The appellant knew Baltimore, whereas Mr. Elfe was from New York and unfamiliar with the area. It is clear that the two passengers together hired the taxicab, and there is no question before us as to the division of control between the two. The appellant and his fellow passenger, as a consideration for the contracted payment of the fare, assumed certain incidents of control beyond the mere incidents that would come with the status of a mere passenger or casual hitchhiker. Although they might not be able to forbid the taxicab driver to stop at a gasoline station and refill the fuel tank, they were in a position to name the destination and to choose the route.

Rakas pointed out, at 439 U.S. 144 n. 12, 99 S.Ct. at 431 n. 12, that “[o]ne of the main rights attaching to property is the right to exclude others” and that one who enjoys such a right “will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” With respect to the right to exclude others, it is not without significance that a regulation of the Public Service Commission, COMAR 20.90.02.17B(1), provides, with respect to multiple passengers being picked up at railroad stations and other public places: “[A] passenger who has engaged a cab may not be compelled to share the vehicle with others if unwilling to do so. Drivers may not refuse service in order to effect more profitable grouping.” With respect to a taxicab driver picking up additional passengers en route, § B(2) goes on to provide: “Solicitation of others while enroute to the destination of passengers or parties initially occupying the cab is prohibited.” There is a significant measure of control in the hirer of a taxicab that is not possessed by a mere gratuitous passen ²⁸⁶ ger in an automobile. If the hirer of a taxicab has no reasonable expectation of privacy, what of the lessee of a limousine with a hired chauffeur? The State argues strenuously that there is still a significant measure of residual control in the taxicab driver, but that is quite beside the point.

Involved is not the expectation of the passenger vis-á-vis the driver but vis-avis the rest of the world. The Fourth Amendment protection of one co-owner or co-tenant may frequently be defeated by the wishes and actions of another co-owner or co-tenant. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); United States v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969). That is not the situation before us, however.

The taxicab driver in this case did not invite the police into the taxicab. We are not arbitrating the rights, powers, authority, or obligations of the taxicab driver or the passenger vis-á-vis each other. Although the Fourth Amendment expectations of the passenger might (we do not decide) have been defeasible at the hands of the taxicab driver, they were not compromised vis-á-vis the police. The State relies almost exclusively on the Rakas case and that reliance is misplaced.

In Rakas, the search was of a glove compartment and of an area beneath the seat of the car wherein nothing was initially visible. The Rakas Court itself stressed that, “[l]ike the trunk of [an] automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” 439 U.S. at 148-149 , 99 S.Ct. at 433 . In the present case, the stopping officer shined his flashlight directly on the appellant and observed the appellant take a manila envelope out of his hand, throw it to the floor, and attempt to kick it under the car seat. This was the very envelope that was seized and searched.

The dissenting justices in Rakas attempted to rely on the Rios case, as reinterpreted by Katz , for the proposition that ²⁸⁷ a passenger should have standing in an automobile. The majority initially pointed out that standing had not been, of course, an issue in the Rios case. It then went on, moreover, to distinguish Rios factually, pointing out, at 439 U.S. 149 n. 16, 99 S.Ct. at 433 n. 16: “Additionally, the facts of that case are quite different from those of the present case. Rios had hired the cab and occupied the rear passenger section.

When police stopped the car, he placed a package he had been holding on the floor of the rear section. The police saw the package and seized it after defendant was removed from the cab.” Factually, the present case is virtually indistinguishable from Rios . Although we disdain any reliance on Rios , simply as a matter of craftsmanship, the Rakas majority relied on Rios in this regard and it is,