Showing a reasonable expectation of privacy in the place searched but denying possession is a fine line indeed. Show too much of an expectation of privacy just to challenge the search [always a risky proposition] and you might put yourself in (constructive) possession. State v. Moultrie, 2017 La. LEXIS 1382 (June 29, 2017) (per curiam) [see Treatise § 4.03, Standing is a “two-edged sword”]:
Defendant was found guilty as charged of possession with intent to distribute cocaine, La.R.S. 40:967(A), based on approximately two ounces of crack cocaine found by officers in a barbeque grill in a driveway between two trailers, one of which belonged to defendant’s mother. Officers noticed defendant standing in the street in front of the trailer at approximately 11 p.m. in a high crime neighborhood. Defendant quickly retreated out of view into the driveway when he saw the officers before returning to the street. One officer approached defendant while two others entered the driveway to see if defendant had discarded drugs or a weapon. They noticed that there were torn baggies on the ground that appeared to have cocaine and marijuana residue. At the end of the driveway farthest from the street, one officer also noticed a grill whose lid was slightly askew with dew that had been disturbed on the handle. Inside the grill was the large quantity of cocaine.
When arrested, defendant claimed he lived in the trailer, the grill belonged to his family, and he disavowed any knowledge of the cocaine but said there was nothing the officers “could do about it” because the cocaine was found on his property. At trial, defendant’s sister testified that their mother lives in the trailer (and she gave a street address for the trailer that was not the same as that provided by defendant earlier) but defendant does not live with their mother although he does visit her. Defendant’s sister also testified that their mother owns a barbeque grill, which she moves to various locations on the property as she uses it but she does not normally place where this grill was described to have been.
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Although the state ultimately bears the burden of establishing the validity of a warrantless search, in challenging the search a defendant bears an initial threshold burden of showing that he had a reasonable expectation of privacy in the premises. See, e.g., United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2555, 65 L.Ed.2d 619 (1980). Defendant thus was in the difficult position of having to both distance himself from the barbeque grill, if he hoped to be found not guilty of possession of the cocaine found inside it, and tie himself more closely to the grill, if he hoped to obtain a favorable ruling on the motion to suppress. Trying to do both, he succeeded at neither.
As noted by the dissent in the court below, the ownership of the grill was never established. See Moultrie, 14-1535, pp. 3-4, 182 So.3d at 1026-27 (McDonald, J., dissenting). It was never seized as evidence and never identified from any photograph as the grill belonging to defendant’s mother. Although defendant’s sister testified that her mother used a grill, her testimony did not establish that the grill in which the drugs were found belonged to defendant’s mother. Defense counsel, in fact, argued in closing that the state never proved who owned the barbeque grill or on whose property it sat. Because defendant failed at the threshold to make a showing of any reasonable expectation of privacy in the barbeque grill, the inquiry ends. Accordingly, we reverse the court of appeal’s ruling and remand for consideration of defendant’s claim that the evidence is insufficient to support the conviction.