Facts
In 2000, a search warrant was executed at a residence in Winona, Mississippi. Derrick Powell, his mother, and his girlfriend, Latisha Merritt, were present. A K-9 dog was let out of the car to use the bathroom and then alerted to the presence of drugs in another car parked across the street from the residence.
That car was owned by Latisha Merritt’s father, who only gave Merritt permission to use the car. Despite that, Merritt, who lived with Powell, allowed Powell to use the car. In fact, police surveillance had seen Powell frequently using the car.
Since the car was not on the premises of the house and was not included in the warrant, police went to Merritt and obtained consent to search the vehicle. Before police got the consent, other officers had opened the trunk but had not begun searching. Once they obtained consent, they found 609 grams of marijuana in plastic bags underneath the tire located in the trunk.
It was later determined that 1) there was no evidence that the officers released the dog to use the bathroom as a pretext to sniff the car and 2) Merritt did not know that the trunk had already been opened when she provided consent.
The trial judge noted that the consent was invalid since police had already opened the trunk but indicated that was irrelevant because Powell had no standing to object to the search of the car. He was convicted of possession of more than 500 grams but less than one kilogram of marijuana and sentenced to 12 years.
On appeal, he argued he did have standing to object to the search of the car. MCOA agreed with Powell that he had standing to object to the search of the car but then noted that the consent by Merritt was valid. Thus, MCOA affirmed for different reasons than the trial judge.
Analysis
A. Standing
The U.S. Supreme Court in Rakas v. Illinois, 439 U.S. 128 (1978), said that the issue of standing is resolved through two inquiries: 1) did the defendant have a subjective expectation of privacy in the placed searched and 2) from society’s perspective, was that expectation reasonable?
Rakas explained that the ultimate question is not whether a defendant has property rights in the area searched, but whether that defendant has a reasonable expectation of privacy in the invaded place.
We do not find that the terms of an oral loan agreement between father and daughter are controlling as to reasonable expectations of privacy for Fourth Amendment purposes.
This was Powell’s principal, usual mode of transportation. Powell through his girlfriend’s loan of the car had been given the implicit right to exclude others except for his girlfriend and her father. He had been using the vehicle freely. We find that he had a possessory interest and standing to object to the search.
B. Consent
The lower court determined that the consent obtained from Latisha Merritt was invalid because at the time notice of the consent was given to those at the vehicle, the initial stage of the search had commenced.
Nothing incriminating was found until after the consent was obtained; indeed, it appears that the trunk was simply opened and the officers were standing nearby until MBN Agent Mike Perkins returned. Their impatience was regrettable but not fatal to the search.
Had, for example, Merritt consented after knowing that the search had already begun, she may have been coerced by the sense that refusing was futile. However, the trial court found that the consent was not the product of the premature commencement of the search.
In addition, under the inevitable discovery doctrine, the results from an unreasonable search will be admissible if it can be shown that this evidence would have ultimately been discovered by constitutionally permissible means. See U.S. Supreme Court case, Nix v. Williams, 104 S. Ct. 2501 (1984).
It appears that the only defect was that the trunk was opened prior to the consent’s being obtained. Regardless, even had the contraband been found prior to the officer’s return from talking to Latisha Merritt, so long as her consent was uninfluenced by the early commencement of the search, then the drugs inevitably would have been discovered.
The same consent and the same discovery would have occurred if the officers next to the vehicle had waited a few minutes more. The sequence was wrong, but the late acquired but uncontaminated consent would have cured the search.