{"id":1188,"date":"2007-10-25T21:43:07","date_gmt":"2007-07-26T16:31:13","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-07-26T16:31:13","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1188","title":{"rendered":"Conn. refuses to adopt automatic standing under state constitution"},"content":{"rendered":"

Connecticut follows majority rule and decides that, although the state constitution is read more broadly than the Fourth Amendment, on full consideration of all aspects of the argument, the state will not adopt an automatic standing rule, noting the jurisdictions which hold for and against the proposition. State v. Davis<\/a>, 283 Conn. 280, 929 A.2d 278 (2007).<\/p>\n

Comment:<\/em> This was not a rubberstamping of the state’s argument. This is a thorough and thoughtful analysis of whether automatic standing should be adopted, and it balances several factors and policy considerations and discusses at length Jones<\/em>, Rakas<\/em>, and Salvucci<\/em> and other states’ opinions.<\/p>\n

A defendant who fled in the 90’s and left his codefendant for trial, and the co-defendant lost at trial but won his search issue on appeal, could not plead law of the case because the evidence at the trials was different. But, it does not matter because he was a non-passenger, non-driver of the vehicle that was searched, and he has no standing. United States v. Avelar, 2007 U.S. Dist. LEXIS 53434 (N.D. Tex. July 23, 2007)*:<\/p>\n

Avelar relies on Rivas<\/em> [the co-defendant’s case] to argue that, because the Fifth Circuit has determined that the government did not satisfy its burden of establishing that it had reasonable suspicion to conduct a non-routine border search when the drug canine merely “cast” on Rivas’ vehicle, this court is bound to follow the reasoning of Rivas and grant his motion. But Avelar has not adduced evidence, or even argued, that he personally had an expectation of privacy in the tractor and car hauler that Rivas was driving or that any such expectation was reasonable. Furthermore, it is undisputed that Avelar was neither the driver nor a passenger in the tractor, or that he was even present at the Los Indios Port of Entry at the time of the search.<\/p>\n

Accordingly, the court holds that Avelar has not met his burden of establishing that his own Fourth Amendment rights were violated when U.S. Customs officials searched Rivas’ vehicle at the border. The Fifth Circuit’s decision in Rivas<\/em> is inapposite, because Rivas did have standing to challenge the seizure (as fruit of the poisonous tree) that stemmed from a warrantless, non-routine border search of the vehicle he had driven across the border. (bracketed material added)<\/p><\/blockquote>\n

Defendant lacked standing to challenge the search of a sparse apartment that was only being used for a drug operation because he could not show any legitimate connection to the property, such as being a guest with permission to be there. He was apparently just a trespasser. But, if he wasn’t, he loses under Carter<\/em>. United States v. Thornton, 493 F. Supp. 2d 1024 (S.D. Ohio 2007):<\/p>\n

Herein, Thornton failed to present any evidence that he had a legitimate or reasonable expectation of privacy in 2316 Eastview Avenue. For instance, there is no evidence that he was the owner or lessee of that location or even that he was on the premises as a result of permission granted by the person having authority over that house (i.e.,<\/em> its owner or lessee). Moreover, there was no evidence that the Defendant or anyone else was living at that address or had even stayed there overnight. There were no beds, blankets, pillows or sheets therein. Indeed, given that the house was sparsely furnished with no pots or pans in the kitchen and the only food in the refrigerator being left over fast food, this Court finds that 2316 Eastview Avenue was not serving as a residence or a place to sleep overnight for anyone. On the contrary, the quantity of drugs and drug paraphernalia seized at that location cause this Court to find that it was being utilized as a commercial establishment related to the distribution of powdered and crack cocaine. Consequently, like the defendant in Talley<\/em>, Thornton did not have a legitimate or reasonable expectation of privacy in 2316 Eastview Avenue. Moreover, in the absence of evidence that Thornton was inside the house at 2316 Eastview Avenue with the permission of the person having authority over it, this Court must conclude that he was a trespasser. The Sixth Circuit has held that trespassers do not have a legitimate expectation of privacy in the place on which they are trespassing. United States v. Hunyady<\/em>, 409 F.3d 297 (6th Cir.), cert. denied,<\/em> 126 S.Ct. 810 (2005). See also, United States v. McRae<\/em>, 156 F.3d 708, 711 (6th Cir. 1998) (holding that a defendant who had been living in a vacant house for approximately one week failed to demonstrate that he had a legitimate expectation of privacy). However, even if the evidence had established that Thornton was at 2316 Eastview Avenue with the permission of its owner, this Court would nevertheless conclude that, in accordance with Carter, supra<\/em>, he lacked a legitimate expectation of privacy in that location, since, like the defendants in Carter, Thornton was at 2316 Eastview Avenue in order to engage in a commercial activity relating to the distribution of controlled substances, i.e.,<\/em> the sale and\/or purchase of drugs.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-1188","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1188","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1188"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1188\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1188"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1188"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1188"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}