Ford v. State

SALMON, Judge. Maurice Ford was convicted by a jury in the Circuit Court for Baltimore County of possession of heroin with intent to distribute and possession of that substance. The jury acquitted Ford of illegal possession of a registered firearm. After ⁵³⁸ sentencing, Ford filed this appeal in which he makes two major arguments: (1) That the motions judge erred when he ruled that he (Ford) did not have standing to contest a warrantless search of a Chevrolet Cavalier automobile that he drove regularly; (2) That the motions judge erred when he denied a motion to suppress evidence seized from appellant’s home by police officers who entered the home without first knocking or announcing.

I Ford does not contest the sufficiency of the evidence produced by the State to convict him. Nor does he contend that the trial judge committed any error. According to appellant, the motions judge alone erred. As a consequence, only a brief outline of the background facts is necessary.

Ford lived at 2212 Firethorn Road in Baltimore County with his fiancé, Althea Fisher, at all times here relevant. Ms. Fisher’s four children also live at that address. The Baltimore County police received an anonymous tip in February 2007 advising that drug related activities were taking place at 2212 Firethorn Road. As a result of that tip, the police began surveillance of the house and its occupants.

Police officers also began retrieving and inspecting garbage from the house “at the place of normal [trash] collection.” As a result of three of these trash inspections, the police retrieved a total of thirty-four empty gel capsules containing heroin powder residue; also recovered from the trash were marijuana stems. Two detectives, who were members of the Baltimore County Police Department, applied for a search and seizure warrant for Ford’s house. The application for the warrant detailed what had been seized during the trash inspections and set forth Ford’s past criminal arrest history, which dated back to 1989. According to the application, Ford’s criminal history included two convictions for drug-related crimes and numerous charges that had been nolle prossed by the prosecuting ⁵³⁹ authorities.

The application requested that the judge issue a “no knock” warrant based on the risk to police officers that (purportedly) existed because of: 1) a check of Ford’s background that revealed he had prior “guns or weapon charges” filed against him and 2) “training, knowledge and experience ... [leading the officers who applied for the warrant to believe] that drug dealers commonly have in their possession, on their persons, in their cars, or in their residence’s firearms .... ” A “no knock” search warrant was issued on May 23, 2007, by a District Court judge. In addition to allowing the police officers to enter the home without knocking, the warrant permitted the police officers to search the property located at 2212 Firethorn Road as well as Ms. Fisher and Ford. The warrant did not permit the search of any automobile owned or operated by Ford or Ms. Fisher. On June 6, 2007, at approximately 8:56 p.m., the “no knock” warrant was executed by members of the Baltimore County Police Department.

Once inside the house, the officers located Ford in the living room and secured him. Detective Glenn Wagner then asked Ford if there were any drugs in the house. Ford responded in the negative. Disbelieving that answer, the officers began to search the house.

Detective Frank Masson recovered baggies and empty gel capsules with white powder residue from the pocket of a leather jacket hanging inside a basement closet. Detective Wagner also searched a closet on the main floor of the residence and found, in the pocket of a coat, 43 gel caps filled with white powder that was later determined to be heroin. Officer Jeff Newell went outside the house to search a Chevrolet Cavalier that the police had seen Ford driving before the search commenced. When, in relation to the recovery of the drugs from the house, the search of the car commenced is not shown in the trial record or the record in the suppression court.

Officer Newell searched the passenger compartment of the Chevrolet Cavalier and found no incriminating evidence. He ⁵⁴⁰ next opened the trunk, where he found a beige coat. In the pocket of that coat, Officer Newell found a small digital scale and a loaded 25 caliber handgun. II Ford filed pre-trial motions to suppress several items of evidence.

Only two of those motions are here relevant. One motion was to suppress the evidence recovered as a result of the search of the Chevrolet Cavalier. Another motion sought to suppress the evidence seized from Ford’s home on the grounds that the police entered that home without first knocking or otherwise announcing their presence. A. The Search of the Chevrolet Cavalier At the outset of the suppression hearing, the prosecutor announced that he did not concede that appellant had standing to challenge the search by Baltimore County police officers of the Chevrolet Cavalier.

The State and Ford then stipulated: 1) that the vehicle searched was titled in the name of Althea Fisher, and 2) that Ford was seen, shortly before the execution of the search warrant, parking the Chevrolet Cavalier. Ford testified at the suppression hearing that he and Ms. Fisher had “been together” for seven years and that she was the mother of his two-year old child. In 2001, while Ford was in prison, Ms. Fisher purchased the 2001 Chevrolet Cavalier that was later searched by the police. Ford started driving the Cavalier after he got out of prison in 2002.

In his words, he drove “the car all the time.” Ms. Fisher also drove the car but Ford drove it more than she did. To Ford’s knowledge, no one else drove the Chevrolet Cavalier. While living together from 2002 until the time of his arrest on June 6, 2007, Ford and Ms. Fisher pooled monies from their paychecks in order to pay expenses. The bills that were paid out of that pool of money included car payments on the Chevrolet Cavalier.

In 2006, Ms. Fisher purchased a Dodge van. Thereafter, Ford continued to regularly drive the Cavalier while Ms. ⁵⁴¹ Fisher usually drove the van. On cross-examination, the prosecutor asked Ford if he considered the Chevrolet Cavalier to be his car. Ford answered: “I can’t consider it my car because it’s not mine.” Ms. Fisher left the house driving the Dodge Caravan on the date the search warrant was executed.

She was arrested by the police not long after she left. Prior to leaving, the van had been parked in front of the house. In order to save the parking spot for his fiancé, Ford got in the Cavalier and drove it from the rear of the residence to the front and parked it where Ms. Fisher’s van had been parked. The search of Ford’s house took place within one hour thereafter.

The motions judge ruled that Ford did not have standing to challenge the search of the Chevrolet Cavalier because the car belonged to Ms. Fisher. According to the motions judge, although Ford had an “expectation of privacy” while driving the automobile with Ms. Fisher’s permission, he did not have such an expectation when he was not driving because Ms. Fisher could say to any third party that he or she also had permission to drive the car. B. The “No Knock” Entry At the hearing to suppress the evidence seized from Ford’s home, no witnesses testified. The prosecutor and defense attorneys agreed, in response to the motions judge’s questions, that the police entered Ford’s home without knocking or otherwise giving Ford any notice that they were about to enter.

The court admitted into evidence, as State’s exhibit No. 1, the search and seizure warrant that allowed the police to search the premises. Also admitted was the application for the warrant, which was signed by Detective Wagner and his colleague, Detective H.L. Ellingson. In the application for the search warrant, the detectives stated that the police had received an anonymous tip in February 2007, advising that “heroin is being used and sold” at 2212 Firethorn Road. The application also said that heroin and marijuana residue had ⁵⁴² been found through inspections of the trash at Ford’s home.

It also spelled out, in detail, Ford’s criminal record. According to the application for the warrant, appellant had been arrested fourteen times between June 4, 1989, and April 22, 2004. In Baltimore City he had been convicted of felony theft (10/11/91); unlawful manufacturing of controlled dangerous substances (10/8/97); felony theft (9/14/98); and unlawful possession of a controlled dangerous substance. In Baltimore County, he had been convicted of unauthorized use of an automobile in September 19, 1991.

Furthermore, he had been arrested for numerous other charges, such as third-degree burglary, second-degree assault, carrying a deadly weapon with the intent to injure, and possession of controlled dangerous substances with intent to distribute. All of the last mentioned charges were nolle prossed or otherwise dismissed prior to trial. In the application for the search warrant, the affiants also said “that guns and violence are commonly associated with narcotics and narcotic dealers .... ” and that “[d]ue to the background check and information reflecting criminal involvement pertaining to guns or weapons charges [against] ... [Ford], your affiants request that a ‘No Knock’ Search and Seizure Warrant be issued for officer safety purposes.” At the suppression hearing, defense counsel acknowledged that one of the reasons that often justify the issuance of a “no knock” warrant is concern about the safety of the police officers who are called upon to execute the search warrant. Movant’s counsel contended, however, that the writers of the application for the warrant assumed, without any basis, that “somebody who was involved with drugs, possesses a gun.” Counsel also argued that Ford’s past criminal history, as set forth in the application for the warrant, did not show that Ford was “in any way violent or presented any sort of danger to the police officers.” 1 The prosecutor countered by arguing ⁵⁴³ that the number of his prior convictions demonstrated that Ford was a “career criminal.” In denying the motion to suppress the evidence seized in the house, the motions judge said, in relevant part: It seems to me that the warrant provided probable cause to believe that this defendant was in fact selling heroin.

And was selling it from that location that was sought to be searched. Now, the police knew that that’s what they were dealing with. They then pulled the record of Mr. Ford. And Mr. Ford’s record ... goes back to ... 1989 with continual contacts with the police for various criminal activity.

Some of which is distribution of drugs ... There are allegations of robbery with a dangerous and deadly weapon. Or wearing a handgun. Carrying a handgun.

More than one of those ... I think the norm is for heroin dealers to arm themselves, particularly where they keep their stash of drugs. In this case I think specifically the police were justified in doing what they did. And in executing the warrant in the way they executed it.

And I don’t think Mr. Ford’s privacy was invaded one iota more or less by the way they executed the warrant in this case. Ill Ford’s Standing to Protest the Search of the Car 2 The issue of whether a non-owner of an automobile, who is not physically present when the automobile is seized, ⁵⁴⁴ has standing to challenge the search of the vehicle has been discussed in only one prior Maryland appellate decision. That decision is Coomes v. State, 74 Md.App. 377 , 537 A.2d 1208 (1988). Coomes , however, provides little guidance because the defendant in that case presented almost no evidence in regard to the standing issue.

The reason that so little evidence on the standing issue was presented in Coomes was because the State waited until after the evidence concerning probable cause to search had been presented and after the defendant had argued the probable cause issue, before bringing up its contention that the defendant had no standing to challenge the search. Id. at 383-84 , 537 A.2d 1208 . Brenda Coomes was arrested in connection with a breaking and entering. Id. at 380 , 537 A.2d 1208 .

Witnesses reported that after the crime the man and woman who had committed the break-in left in a 1984 Ford Bronco. Id. A description of the vehicle and its occupants was broadcast. The suspects were subsequently located on McGlothlin Road in Cecil County.

Id. After a 1986 Bronco was secured, Maryland State Police Officers approached Brenda Coomes and her male companion. Ms. Coomes immediately admitted that she and her companion had committed the breaking and entry. The police filed an application for a search warrant asking for permission to search the Ford Bronco as well as the premises [208 McGlocthlin Road] where Brenda Coomes and her companion had been located.

Despite what was said in the application for the warrant, the search warrant itself authorized the police to search the premises, but not the Ford Bronco. Id. at 380-81 , 537 A.2d 1208 . While Coomes was in custody, the police executed the search warrant. They searched not only the premises at 208 ⁵⁴⁵ McGlocthlin Road but also searched the Ford Bronco that was parked in front of the house.

Id. at 381 , 537 A.2d 1208 . Coomes filed a motion to suppress the introduction of drugs that were found in both the house and in the vehicle. Id. At the suppression hearing, a detective testified that Ms. Coomes told him that the vehicle she was driving that day was a 1986 Ford Bronco that belonged to her husband.

A detective also testified that he did not know in whose name the Bronco was titled. Furthermore, he could not recall whether Ms. Coomes’ keys, which he confiscated, included keys to the Bronco. Id. at 395 , 537 A.2d 1208 . The motions judge ruled that Ms. Coomes had not established that she had standing to challenge the search of the Ford Bronco.

Id. at 383 , 537 A.2d 1208 . In reviewing the standing issue, this Court ruled that, at most, the testimony established that Ms. Coomes was driving the vehicle that the police searched on the day that she was arrested. Id. at 396 , 537 A.2d 1208 . Also proven [based on what she had told arresting officers] was that Ms. Coomes’ name was not on the title to the vehicle.

Id. In Coomes , we stated: It may very well be that [Ms. Coomes], had she presented evidence on the point, could have established her standing to challenge the search of the Bronco; however, on this record, we are unable to say that the court was truly erroneous in ruling that she did not have standing. Id. at 396 , 537 A.2d 1208 . This last quoted sentence strongly suggests that the mere fact that Ms. Coomes did not have legal title to the vehicle would not, ipso facto, mean that she did not have standing to challenge the search of the vehicle.

What was suggested in Coomes , was said explicitly in Whiting v. State, 389 Md. 334, 337, 347-48, n. 9 , 885 A.2d 785 (2005), viz: The history of standing under the Fourth Amendment was summarized in Graham v. State, 47 Md.App. 287 , 421 A.2d 1385 (1980), in an opinion authored by Judge Wilner, who now sits on this Court, when he was on the Court of Special ⁵⁴⁶ Appeals. After exploring its history, Judge Wilner succinctly opined: [T]he “standing” question is a preliminary one that should be resolved, for if appellant has no lawful right to contest the respective searches, the question of their validity becomes moot. Putting the cart before the horse may sometimes be easier to do, but it does make the ultimate journey considerably more difficult. When may a person be heard to complain that his Fourth Amendment right has been violated?

Judge Wilner then answers his question by stating: The considerations here are not so simple as they may appear at first glance. Even under Rakas [u Illinois,] ( 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978)), the precepts of civil property law, though highly relevant, are not necessarily controlling. The legitimacy of one’s expectation of privacy is in large measure a function of its reasonableness, and that, in turn, is determined to some extent by the elements of time, place, and circumstance. (Internal citations omitted) (emphasis added).

Ms. Coomes, unlike Ford, made an exceedingly feeble effort to prove standing. In Coomes , there was neither direct nor circumstantial evidence introduced that showed that Ms. Coomes had permission of the owner to drive the vehicle on the date it was searched or at any other time. Moreover, unlike the subject case, there was no proof that the non-owner drove the vehicle on a regular basis. This Court, in Colin and Heath v. State, 101 Md.App. 395 , 646 A.2d 1095 (1994), was called upon to decide “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 a search of that automobile.” Id. at 397 , 646 A.2d 1095 .

Gordon Colon was a passenger in a motor vehicle owned by Enterprise Rental Car Company (“Enterprise”). Id. at 398 , 646 A.2d 1095 . The rental car, driven by Orville Heath, cut in front of a police vehicle driven by Deputy Mike Houck of the ⁵⁴⁷ Wicomico County Sheriffs Office. Id.

When Deputy Houck stopped the vehicle, Heath produced an agreement showing that the car he was driving had been rented to one Wanda Harrold by Enterprise. The agreement did not list either Heath or his passenger as authorized drivers. Heath, however, told Deputy Houck that Ms. Harrold was his girlfriend and that she had given him permission to drive the car. Id.

Deputy Houck asked Heath if he minded if he (Deputy Houck) searched the vehicle. According to Deputy Houck, Heath gave permission. Id. at 398-99 , 646 A.2d 1095 . A search of the vehicle uncovered cocaine valued at $25,600.00.

Id. at 399 , 646 A.2d 1095 . In resolving the issue of whether Heath had standing to challenge the search of the vehicle, Judge Alpert, speaking for this Court, mentioned a number of prior cases dealing with standing in situations where the defendant was driving the vehicle before a traffic stop and a search of the vehicle follows immediately thereafter. In doing so, the Court noted, as a general principle, “that an individual who uses an automobile with the permission of the owner normally does have standing.” For that proposition, the Court cited the following cases: 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 ⁵⁴⁸ automobile 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 the search.”); cert. denied, 455 U.S. 959 , 102 S.Ct. 1473 , 71 L.Ed.2d 679 (1982). Additionally, it is established that the renter of an automobile has an expectation of privacy in it and therefore can assert standing.

United States v. Tragash, 691 F.Supp. 1066, 1070 (S.D.Ohio 1988). Id. at 402-03 , 646 A.2d 1095 . Judge Alpert distinguished the cases just cited on the grounds that Heath “was the driver of a rented automobile which he borrowed from the lessee,” but was not “listed as an authorized driver on the rental agreement,” nor did Heath “produce evidence of any independent agreement with Enterprise allowing him to drive the automobile lawfully.” Id. at 403 , 646 A.2d 1095 . In fact, “the contract between Enterprise and ..., [Heath’s girlfriend] expressly prohibits the motor vehicle from being driven by anyone other than the Renter----” The Court ultimately ruled that the renter of the vehicle was without any authority to give Heath her permission to drive the automobile and that, even if Heath had a subjective expectation of privacy in the vehicle, such an expectation of privacy was not “one that we are willing to consider as reasonable.” Id. at 405 , 646 A.2d 1095 .

In the case sub judice, the State contends that the rule that an individual who uses an automobile with the permission of the owner ordinarily does have standing, applies only when the defendant is driving at the time the seizure (the stop) of the automobile is made and the search is conducted immedi ⁵⁴⁹ ately thereafter. The basis for this argument is that in cases where the driver is present when the automobile is seized, the driver is in control of the automobile at the time the alleged constitutional violation occurs, whereas in cases like the one sub judice, the driver lacks control because he or she is no longer present. The State has cited no case in which the court has found this distinction determinative and our research has uncovered none. We have found five non-Maryland cases that illustrate the point that a defendant can have standing to challenge the warrantless search of an automobile notwithstanding the fact that the defendant was not the record owner of the vehicle and was not present at the time of the seizure.

In chronological order those cases are: In Interest of J.R.M., a child under 17 years of age, 487 S.W.2d 502 (Mo.1972); United States v. Burke, 506 F.2d 1165 (9th Cir.1974); Pollard and Brown v. Indiana, 270 Ind. 599 , 388 N.E.2d 496 (1979), New Mexico v. Soto, 131 N.M. 299 , 35 P.3d 304 (App.2001);and United States v. Whitehead, 428 F.Supp.2d 447 (E.D.Va.2006). In the J.R.M. case, a sixteen year old boy (“J.R.M.”) was suspected of having murdered a thirteen-year old girl. 487 S.W.2d at 503. The investigation of the murder uncovered the fact that the murder victim had been seen riding with a young male in a red Corvair a few days before her disappearance. Id.

A witness provided the police with a description of the vehicle. Id. Two police officers went to a school where they learned the name of a male student [J.R.M.] who’s last name corresponded with a sticker the witness had seen on the red Corvair. Id.

A few days later, the police located the car in a downtown parking lot where J.R.M.’s father had rented a parking space. Id. at 504. With no one around, police officers had the car towed to a facility where they conducted a thorough examination of the red car. Id.

Inside the car, police discovered evidence that incriminated J.R.M. Id. Pri- or to trial, J.R.M. filed a motion to suppress the evidence obtained as a result of the search of the red Corvair. Id. It was developed at the suppression hearing that the juvenile lived with his parents where the Corvair was usually kept. ⁵⁵⁰ The boy had a right to use the car at any time, had a key to the vehicle, and drove the car to school each day.

Id. at 509. A juvenile court judge ruled that J.R.M. did not have standing to challenge the search of the automobile. The Missouri Supreme Court, sitting en banc, held that J.R.M. did have standing. Id.

The Court said: The question ... becomes one of whether he [J.R.M.] must show more to establish standing as to the search of the Corvair than he would have been required to do in the case of a search of the bathroom in the house where he lived. In our view, the standard for establishing standing should be and is the same in both cases. In Katz the Supreme Court considered the issue of standing in regard to intrusion into the privacy of a public telephone booth. The test applied was the same as it would have been if a residence had been involved.

We perceive no reason for a different approach or test where the search is of an automobile. It is true that the Supreme Court in Chambers v. Maroney, supra,[ 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970) ] and Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 , relaxed under certain circumstances the requirements as to a right of search and seizure of motor vehicles because of their mobility, but those holdings do not imply that any difference in the requirements for standing should exist in the search of a home, office, phone booth, or automobile. If we should deny standing to appellant herein under the factual situation that existed, we logically also would be required to deny standing to the wife of the owner of an automobile who had no title thereto but who used the car regularly, as did the appellant here. We do not believe that such denial of standing would accord with the recent United States Supreme Court decisions on that question.

Accordingly, we hold that appellant did have standing to seek to suppress the evidence obtained by search and seizure of the Corvair. 487 S.W.2d at 509 (emphasis added). The facts in the J.R.M. case, insofar as standing is concerned, are quite analogous to those here present. But that ⁵⁵¹ case was decided prior to the Supreme Court’s decision in Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), which involved the issue of whether a passenger in a car that was stopped had standing to challenge the search of the car-. Id. at 130-31 , 99 S.Ct. 421 .

In holding that the passenger lacked standing, the Rakas Court said: We are concerned here with an automobile search. Nothing is better established in Fourth Amendment jurisprudence than the distinction between one’s expectation of privacy in an automobile and one’s expectation when in other locations. We have repeatedly recognized that this expectation in “an automobile ... [is] significantly different from the traditional expectation of privacy and freedom in one’s residence.” United States v. Martinez-Fuerte, 428 U.S. 543, 561 , 96 S.Ct. 3074, 3084 , 49 L.Ed.2d 1116 (1976). In United States v. Chadwick, supra, 433 U.S., [1] at 12, 97 S.Ct., [2476] at 2484[, 53 L.Ed.2d 538 (1977)], the distinction was stated more broadly.

Id. at 153-54, 99 S.Ct. 421 . Therefore, to the extent that the Missouri Supreme Court based its J.R.M. decision on the belief that no difference (insofar as standing is concerned) exists between a challenge to standing when the search of a car is at issue than when the search is of a residence, the reasoning of the J.R.M. opinion is not persuasive. In United States v. Burke, 506 F.2d at 1171 , the Court reached a conclusion similar to the one reached in the J.R.M. case. Robert Burke (“Burke”) was arrested for bank robbery on August 28,1973, while leaving his home in a 1973 Chevrolet van.

Id. at 1167 . The van was not seized at that point, however. Subsequently, the FBI secured permission to search the van from Burke’s brother, who owned it. The FBI searched the van and found a pistol hidden therein.

Id. Burke was later convicted of bank robbery and related charges. On appeal Burke challenged the validity of the search of the van and argued that the court improperly denied ⁵⁵² his motion to suppress the evidence obtained as a result of the vehicle search. Id. at 1170 .

The Burke Court said: The Government’s contention that the appellant is without standing to protest the search of the van rests upon the fact that record ownership and licensing of the van was in the name of the appellant’s brother. However, the appellant testified that the van was really his, and that ownership and registration were in his brother’s name only for the purpose of acquiring credit. The appellant also made an offer of proof to produce five witnesses who would verify the appellant’s claim that the van was really his. The District Court declined this offer but also explicitly stated that it did not find the appellant’s standing to be in issue.

The court concluded that regardless of who owned the van, defendant used it extensively. The Supreme Court has stated: It is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Jones v. United States, 362 U.S. 257, 266 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960). As a result of his repeated use of the van, the appellant had a reasonable expectation of privacy and freedom from search in the use of the van.

See Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). The situation here is analogous to that of the tenant’s right to freedom from search. See Stoner v. California, 376 U.S. 483 , 84 S.Ct. 889 , 11 L.Ed.2d 856 (1964). The District Court properly concluded that there were no standing obstacles involved in the instant case.

Id. at 1170-71 (emphasis added). The above-quoted language in Burke , which we have emphasized, provides support for Ford’s position that he had standing in this case. ⁵⁵³ In Pollard, and Brown v. Indiana, the defendants were charged with murder and kidnaping. 388 N.E.2d at 499-500 . Prior to their arrest, the police learned that during the kidnaping the victims had been transported in a blue and white 1964 Chevrolet automobile. Id. at 501.

The Chevrolet was owned by Willie B. Pollard, the wife of James Pollard, one of the defendants. Id. at 501-02. The police discovered the location of the vehicle near the residence of James Pollard, Id. at 501, and towed it to a garage where police officers, prior to obtaining a search warrant, began an inventory of the vehicle’s contents. Id. at 502.

The police recovered a knife from the front seat of the Chevrolet and also observed, but did not touch, the barrel of a gun. Several hours after the inventory had commenced, a police officer arrived at the garage with a warrant allowing the police to search the vehicle. Id. Pursuant to the warrant, the officers removed the firearm, lifted fingerprints, and removed certain other incriminating items from the trunk of the vehicle.

James Pollard and others moved to suppress the evidence obtained as a result of the search. Id. at 501. The State maintained, as a threshold matter, that Mr. Pollard lacked standing to challenge the legitimacy of the search. The State stressed that Mr. Pollard did not own the vehicle-his wife did.

Mr. Pollard contended, in response, that because the vehicle was owned by his wife he had a possessory interest in the vehicle. Id. at 502. In the Pollard and Brown case, the Indiana Supreme Court held that Mr. Pollard had standing to challenge the search. The court explained: Appellant Pollard’s situation is somewhat different [from that of his co-defendant].

The searched automobile was apparently owned by Pollard’s wife. The question then is whether or not Pollard has established that he had a legitimate expectation of privacy in an automobile owned by his wife. As the State points out, Pollard did not establish that his use of the vehicle was within his wife’s permission. However, the Rakas [v Illinois] court pointed out that in defining the scope of Fourth Amendment interest’s “arcane distinctions developed in property and tort law between ⁵⁵⁴ guests, licensees, invitees, and the like, ought not to control.” Rakas, supra, at 439 U.S. 128 , 99 S.Ct. [at] 430, 58 L.Ed.2d [at] 401.

Thus the legitimacy of a defendant’s privacy expectations in the searched premises will not always turn upon whether his name appears on the deed, lease or certificate of registration. Surely, a husband’s expectation of privacy while in an automobile titled to his spouse is as legitimate as that of the wife. This is not to say that other factors, not present in this case, such as divorce or separation, would not affect the legitimacy of a husband or wife’s privacy interest in property owned by his or her spouse. We hold only that under the facts of this case, appellant Pollard had a legitimate expectation of privacy in his wife’s automobile such that any unreasonable search and seizure of the vehicle would amount to an infringement of his Fourth Amendment rights.

Id. at 503 (emphasis added). Ford’s evidence in regard to standing was at least as strong as that of James Pollard. Although Ford was not married to the owner, he (unlike Pollard) proved that he helped pay for the vehicle and regularly used it with the owner’s permission. The defendant in Soto was charged with burglary of an automobile repair shop.

State v. Soto, 131 N.M. 299 , 35 P.3d 304, 305-06 (N.M.App.2001). One of the issues presented on appeal was whether the defendant, Donisio Soto, had standing to object to the search of a vehicle when: 1) he was not present at the time of the search; 2) he did not own the vehicle; 3) he drove the vehicle frequently and 4) his girlfriend, Vera Rodriguez, who owned the car regularly allowed the defendant to drive the vehicle. Id. at 306 . The Soto Court held that the defendant “had a reasonable expectation of privacy in the car he shared with his live-in companion.” Id. at 307 .

The case of U.S. v. Whitehead, 428 F.Supp.2d 447 (E.D.Va. 2006), like the case sub judice, involved the question of whether a permissive user of an automobile had standing to challenge the warrantless search of it. In Whitehead , the ⁵⁵⁵ police received a complaint regarding a fight at 968 Marcus Drive in Newport News, Virginia. Id. at 449 . When the police arrived at the address they were informed by witnesses that Andre Whitehead (“Mr.Whitehead”), one of the men involved in the fight, had a gun in a nearby vehicle.

Id. at 449 . Upon further inquiry, the officers learned that the owner of the vehicle was Mr. Whitehead’s wife, who eventually consented to a search of it. Id. When the vehicle was searched, the police found a handgun.

Mr. Whitehead was charged with various offenses, including removing or altering a serial number on a firearm. Id. at 449 . He filed a motion to suppress the gun found as a result of the warrantless search of the motor vehicle. Id. at 450 .

The Government responded to the motion by contending that Mr. Whitehead