TN: Ex parte DR court order excluding defendant from premises and changed locks meant no standing

Defendant was excluded from the house searched by an ex parte order of the domestic relations court and the locks had been changed. The fact he had a deed giving him an interest in the property was not determinative, and he had no standing to challenge the search of the house. State v. Cannon, 2012 Tenn. Crim. App. LEXIS 900 (October 30, 2012)

The defendant’s first challenge to the trial court’s conclusion that she had no standing to challenge the searches is that the pending divorce action between the parties, and the accompanying ex parte order granting the victim exclusive possession of their former marital residence, abated with his death. However, even assuming the defendant is correct in this assertion, the operation of civil law is not dispositive of the Fourth Amendment inquiry. As our Supreme Court has explained, “[i]n defining the scope of [Fourth Amendment protections], we adhere to the view expressed in [prior] cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control.” Rakas, 439 U.S. at 143. Rather, “‘(n)o one circumstance is talismanic to the Rakas inquiry.'” Turnbill, 640 S.W.2d at 46 (quoting United States v. Haydel, 649 F.2d 1152, 1154-1155 (5th Cir. 1981)).

The defendant also directs our attention to the fact that the victim had surrendered his interest in the marital home to the defendant via a quit claim deed in 2005, and consequently, the defendant was the sole title holder of record of the home at the time of the searches. The defendant further directs our attention to evidence in the record that the defendant and the victim were engaged in an “on-again, off-again” relationship during the months preceding the murder, that they were attempting to reconcile at the time of the victim’s death, and that the defendant stored some of her clothing at the house. While these facts standing alone might tend to favor the defendant, they are insufficient to establish a reasonable expectation of privacy in the residence when viewed in the context of the record as a whole. At most, they establish that the defendant had an ownership interest in the property searched and a subjective expectation of privacy. However, mere title “does not establish a privacy interest in property, State v. Smith, 656 S.W.2d 882, 887 (Tenn. Crim. App. 1983), and these two factors must be balanced against the remaining Turnbull and other relevant factors.

A person who does not live at a residence and who has no key to a residence usually has no reasonable expectation of privacy in that residence. See State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996). It is undisputed that the defendant lived in a separate location—an apartment located approximately one-half of a mile from the residence at issue. Moreover, the defendant has failed to direct our attention to any clear evidence in the record that supports her claim that she still had a key to the residence that functioned after (as record testimony reflects) the victim had the locks changed following her departure on May 5, 2008.