McVickers v. State

551 So. 2d 1130, 1989 Ala. Crim. App. LEXIS 163, 1989 WL 60822
CourtCourt of Criminal Appeals of Alabama
DecidedApril 14, 1989
Docket8 Div. 986
StatusPublished
Cited by5 cases

This text of 551 So. 2d 1130 (McVickers v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McVickers v. State, 551 So. 2d 1130, 1989 Ala. Crim. App. LEXIS 163, 1989 WL 60822 (Ala. Ct. App. 1989).

Opinions

TAYLOR, Presiding Judge.

The appellant, Kathy Hester McVickers, was convicted of trafficking in marijuana, in violation of § 20-2-80, Code of Alabama 1975. She was sentenced to six years in prison.

The evidence presented by the State tended to establish that around 6:00 p.m. on February 23, 1987, the Franklin County Sheriff’s Department received information from a confidential informant that the appellant was involved in the transportation of drugs. Approximately four hours after the first tip, the officers received a second tip from the same informant. The information contained within the second tip revealed the location of the truck used to transport the drugs, as well as its color, model, and make. Although the informant had proved reliable in the past, the officers elected to drive to the residence to confirm the tip. The officers did not know who lived at the residence, or if the appellant had any connection to the residence. After watching the residence for several minutes, the officers concluded that no one was home. They then parked their vehicle in the driveway, and approached the house with flashlights in hand. The officers testified that they did not directly point their flashlights in the truck cab; however, they did cast a “glancing look.” Both men observed packages of what they recognized to be marijuana, in open garbage bags, on the seat. They then proceeded to the carport, where they were met by Lawrence Martie, the owner of the house. The officers told Martie that they had seen marijuana on the truck’s seat. After informing Martie that he was not a suspect, the officers questioned him about the ownership of the truck. Martie stated that the truck belonged to his stepdaughter, Kathy McVickers. Martie told them that Kathy had been at his house that evening and was expected back that night for an overnight stay. Martie then gave the officers permission to remain on the property and, thereby, to keep the truck under visual [1132]*1132surveillance. Approximately one hour later, McVickers and a friend returned to the Martie residence. Both were in possession of alcoholic beverages, a violation of the local liquor laws of Franklin County. They were subsequently arrested for having illegal liquor in their possession. The officers recited the Miranda warnings to the suspects before telling them that they had observed marijuana in the truck. McVick-ers admitted that she had driven the truck to the Martie residence and that the marijuana belonged to her. The toxicology report, which was stipulated into evidence, established the amount of marijuana seized from appellant’s truck to be 93.33 pounds.

The appellant raises two issues on appeal.

I

The dispositive issue presented for review is whether the arresting officers lawfully seized the marijuana. The appellant presents several arguments in support of her contention that the trial court erred in overruling her motion to suppress the evidence of the marijuana.

Appellant contends that she had standing to challenge the court’s ruling receiving the evidence because she had a legitimate expectation of privacy in the truck.

Traditionally, a defendant in a criminal proceeding had standing to challenge the admission of evidence only if he or she could show that his or her own Fourth Amendment rights — and not those of some other person — were violated in the aquisi-tion of the challenged evidence. Seventeenth Annual Review of Criminal Procedure, 76 Geo.LJ. 687 (1988). However, as indicated by Judge Patterson in Ramires v. State, 492 So.2d 615, 618, n. 2 (Ala.Cr.App.1985), the separate inquiry into standing has been abandoned in favor of an inquiry focusing directly on whether the defendant “possessed a ‘legitimate expectation of privacy’ in the area searched.”

“A privacy expectation is reasonable if the defendant subjectively believes that the area or item is private and ‘society is prepared to accept as reasonable’ such an expectation of privacy. Considerations in determining the existence of a reasonable expectation of privacy include: whether the defendant has a pos-sessory interest in the object searched or seized; whether the defendant acted to ensure privacy; whether the defendant exclusively controlled the area searched; whether the item was in plain view; whether the defendant abandoned the item; whether the item was seized from a container that suggested its contents were private; and whether the defendant was legitimately on the premises searched. The defendant carries the burden of demonstrating such a reasonable expectation of privacy.” (Citations omitted.)

Seventeenth Annual Review of Criminal Procedure, 76 Geo.L.J. 688-92 (1988).

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court listed the factors necessary to establish a “legitimate expectation of privacy.” Justice Harlan, in a concurring opinion, stated as follows:

“[Tjhere is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.”

Id., 389 U.S. at 361, 88 S.Ct. at 516. More recently, this standard was reiterated in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

The very reason for having a driveway or walkway leading to a house is to provide easy access for people to come and go from that house. Such areas are therefore merely “semi-private” in nature. United States v. Magana, 512 F.2d 1169, 1171 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975).

[1133]*1133“People commonly have different expectations, whether considered or not, for the access areas of their premises than they do for more secluded areas. Thus, we do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck. In the course of urban life, we have come to expect various members of the public to enter upon such a driveway, e.g., brush salesmen, newspaper boys, postmen, Girl Scout cookie sellers, distressed motorists, neighbors, friends. Any one of them may be reasonably expected to report observations of criminal activity to the police_ If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that police will do so.”

State v. Corbett, 15 Or.App. 470, 516 P.2d 487, 490 (1973) (citations omitted). It is within the realm of possibility that MeVick-ers subjectively believed that she possessed an expectation of privacy in the truck while it was parked in her stepfather’s driveway.

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Bluebook (online)
551 So. 2d 1130, 1989 Ala. Crim. App. LEXIS 163, 1989 WL 60822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcvickers-v-state-alacrimapp-1989.