Colin v. State

ALPERT, Judge. This appeal presents us with an interesting and perplexing issue as yet undecided by a Maryland appellate court: whether the operator of a rented automobile who is not listed in the rental agreement as an authorized driver and is specifically precluded from driving the automobile has standing to challenge the constitutionality of the search of that automobile. We shall hold that the person in this situation does not have standing. Appellants, Gordon Colin and Orville Heath were charged with possession with intent to distribute cocaine, possession of cocaine, and possession of marijuana.

On May 21, 1993, Heath’s motion to suppress was denied by Judge D. William Simpson. At a subsequent jury trial in the Circuit Court for Wicomico County, Heath was convicted of all three counts while Colin was convicted of the possession and possession ³⁹⁸ with intent to distribute cocaine. The cases were consolidated for appeal and the appellants ask us: 1. Did the trial court err in denying Appellant Heath’s motion to suppress physical evidence? 1 2.

Was the evidence sufficient to sustain Appellants’ convictions? Motion to Suppress Facts The facts, as developed during the motion to suppress, are as follows. On October 5,1992, Heath was driving an automobile with Virginia tags when he was pulled over by Deputy Mike Houck of the Wicomico County Sheriffs Office. Colin was seated in the front passenger seat.

Houck testified that Heath cut in front of the Deputy’s police car causing him to “slam” his brakes. The Deputy activated his emergency equipment and conducted a traffic stop. Houck ásked Heath for his driver’s license and registration. Heath produced a Connecticut driver’s license and a rental agreement between Enterprise Rental Car and Wanda Harrold, a resident of Hampton, Virginia.

The agreement did not list either Heath or Colin as other authorized drivers. 2 Heath, however, informed the Deputy that Ms. Harrold was his girlfriend and that she had given him permission to drive the car. Deputy Houck then asked Heath if he had “any large amounts of C[ontrolled] D[angerous] S[ubstance] or any weapons in the vehicle, and if [Heath] minded if I searched?” Heath allegedly responded, “No, go ahead and search.” 3 The ³⁹⁹ Deputy then requested back-up and had appellants exit the car. Officers Harbin, Holland, and Thompson arrived shortly thereafter. Deputy Holland watched appellants while the other officers proceeded to search the car.

After searching the trunk of the car, Sergeant Harbin began searching the interior of the car. The officer observed that the cover plate on the ashtray in the right rear passenger door was “cock-eyed.” Harbin obtained a Phillips screwdriver from Deputy Holland and “removed the cover plates on the door panel.” The inside of the door was hollow and empty. Harbin then proceeded to the left door and inspected the rear armrest. He noted that “[o]n the same cover plate [of the ashtray], there was one singular chrome colored screw that holds that plate on.

The top of the screw [had] a Phillips head. The edges were flaired [sic] as if a screwdriver had been used on it and attempted to tighten it up too much in the direction of tightening the screw.” The officer removed that plate and saw “gray foam insulation inside the door panel.” He then pushed the foam aside and discovered “a brown, a very, very dark brown colored plastic” bag. The officer attempted to retrieve the bag from the ashtray opening but found it to be a “very, very tight fit.” Accordingly, the officer removed three screws from the door panel and recovered the bag. The substance in the bag was later identified as cocaine with a street value of up to $25,600.

Discussion Heath asserts that the court erred in denying his motion to suppress on two separate grounds. First, he contends that contrary to the court’s findings, he did have standing to raise a Fourth Amendment claim. Second, he maintains that the scope of the search exceeded the limits of the consent. 4 Standing It is uncontroverted that Heath was driving a rental automobile that belonged to Enterprise and had been leased by ⁴⁰⁰ Ms. Harrold. Heath asserts that he had a reasonable expectation of privacy in the automobile and can therefore raise a Fourth Amendment claim challenging the search of the automobile.

The trial court concluded that because Ms. Harrold was the lessee of the automobile and that neither of the appellants were listed as authorized drivers, Ms. Harrold had breached her contract with Enterprise. Specifically, the trial court reviewed the evidence and noted that [Heath] was the driver of the vehicle. The State has raised the issue of standing. The burden is on [Heath] to show that he did have standing.

The rental agreement, according to the evidence the Court has before it, shows that a vehicle was rented to a person by the name of Wanda Harrold, and under the terms of the rental agreement, no other driver was allowed to operate the vehicle other than Wanda Harrold. There has been no contradictory evidence to that, and although this is not a stolen vehicle, under the evidence I have before me,, it is being operated by someone who is not the lessee of the vehicle and not the person who has a right to operate the vehicle under the terms of the rental agreement, and that although Wanda Harrold, under the evidence, very well could have given permission to operate the vehicle, Wanda Harrold, under the terms of the lease did not have the right nor the authority to give permission to operate the vehicle, and the Court finds that there was no standing by Mr. Heath anymore than the thief of a vehicle would have had standing to object to a search of a vehicle. On appeal, Heath asserts that the trial court’s decision was in error because “Harrold’s contractual promises to Enterprise, however, [do] not impact upon [his] reasonable expectation of privacy in a vehicle of which he was legitimately in possession.” The State asserts that Heath’s Fourth Amendment rights were not violated because he did not “enjoy lawful possession or custody” over' the automobile. We agree with the State and explain. ⁴⁰¹ It is clear that one must have a legitimate and reasonable expectation of privacy in an automobile in order to claim standing to challenge a search of that vehicle under the Fourth Amendment.

See Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387 (1978). This is because, by its terms, “the Fourth Amendment protects people, not places” Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507, 511 , 19 L.Ed.2d 576 (1967), and a Fourth Amendment claim cannot be asserted vicariously. Rakas, 439 U.S. at 133-34 , 99 S.Ct. at 425 (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”) (citing Alderman v. United States, 394 U.S. 165, 174 , 89 S.Ct. 961, 966-67 , 22 L.Ed.2d 176 (1969). See also Lopata v. State, 18 Md.App. 451, 452-53 , 307 A.2d 721 (1973) (“It is not enough for a defendant to show that someone’s constitutional rights have been violated; he must show that his constitutional rights have been violated.” (Emphasis in the original)), cert. denied, 269 Md. 762 (1973).

In order for a person to have a legitimate and reasonable expectation of privacy in an area, two factors are required. In Liichow v. State, 288 Md. 502, 511, 419 A.2d 1041 (1980), the Court of Appeals explained: The traditional test for determining whether a person’s interest in personal property is constitutionally protected from an unreasonable search is whether he has an actual expectation of privacy in the property, and whether that expectation is one which society would recognize as reasonable. See Smith v. Maryland, 442 U.S. 735, 740 , 99 S.Ct. 2577, 2580 , 61 L.Ed.2d 220 (1979) (noting that the first inquiry is whether the defendant “by his conduct, has ‘exhibited an actual (subjective) expectation of privacy’ ” and the second inquiry “is whether the [defendant’s] subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable.” ’ ”) (quoting Katz v. United States, 389 U.S. 347, 351, 361 , 88 S.Ct. 507, 511, 516 , 19 L.Ed.2d 576 (1967)). Thus, the defendant must have a subjective reasonable expectation of privacy in ⁴⁰² the area searched and this expectation must be one that the State is willing to recognize as reasonable.

Here, Heath obviously asserts that he had a subjective expectation of privacy. Our analysis, therefore, focuses on the second step. The key to the second step depends upon the relationship of the individual claiming standing to the owner of the vehicle. We have held previously that even though a thief does not have standing to challenge the constitutionality of a search of the stolen automobile, Palmer v. State, 14 Md.App. 159, 169 , 286 A.2d 572 (1972), a passenger in a taxicab does have standing to challenge the search of the common area of that taxicab.

Bates v. State, 64 Md.App. 279, 287 , 494 A.2d 976 (1985) . See also Bowers v. State, 298 Md. 115, 138 , 468 A.2d 101 (1983) (holding that the trial court properly denied defendant’s motion to suppress because an unauthorized borrower of an automobile does not possess any “proprietary or rightful possessory interest in the car” and accordingly, does not have standing to challenge the constitutionality of the search), appeal following remand 306 Md. 120 , 507 A.2d 1072 (1986), and cert. denied, 479 U.S. 890 , 107 S.Ct. 292 , 93 L.Ed.2d 265 (1986) . We also note that an individual who uses an automobile with the permission of the owner normally does have standing. See United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990) (explaining that “[w]here the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.”); United States v. Garcia, 897 F.2d 1413, 1417-18 (7th Cir.1990) (noting that the defendant who claimed to have borrowed the automobile from the owner did have standing to challenge the search of that automobile); United States v. Blanco, 844 F.2d 344, 349 (6th Cir.), cert. denied, 486 U.S. 1046 , 108 S.Ct. 2042 , 100 L.Ed.2d 626 (1988) (holding that defendant, listed as an authorized driver on the rental agreement, has standing to object to search of door panels of rented automobile); United States v. Miller, 821 F.2d 546, 548-49 (11th Cir.1987) (holding that defendant had standing to challenge search of automobile ⁴⁰³ borrowed from a friend); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (holding that the defendant had standing to challenge the search of an automobile because he “had both permission to use his friend’s automobile and the keys to the ignition and the trunk, -with which he could exclude all others, save his friend, the owner.”), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 1764, 68 L.Ed.2d 241 (1981); United States v. Posey, 663 F.2d 37, 41 (7th Cir.1981) (concluding that the defendant “had an expectation of privacy in an automobile owned by his wife and over which he was exercising exclusive control pursuant to her permission at the time of