Moses v. State

328 Ga.App. 625

760 S.E.2d 217

MOSES

v.The STATE.

No. A14A0140.

Court of Appeals of Georgia.

July 15, 2014.

Reconsideration Denied July 30, 2014.

Certiorari Denied Oct. 20, 2014.

Donald Franklin Samuel, Atlanta, for Appellant.

Joshua Daniel Morrison, Paul L. Howard Jr., for Appellee.

McFADDEN, Judge.

A jury found Marco Moses guilty of aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. He appeals his convictions. He argues that the trial court erred in denying his motion to suppress evidence found during a search of a house that he and his mother owned and at which his mother lived. We agree with Moses that the trial court erred in holding that he lacked standing to make this challenge but find that the trial court did not err in denying his motion on the merits, and we find that Moses has waived appellate review of alternative grounds for suppression that he raised post-conviction. Moses argues that the trial court erred in allowing certain impeachment evidence, but we find that the state laid the necessary foundation for the evidence. Moses argues that the trial court erred in allowing various other evidence, argument, and lines of questioning at trial, but we find that he waived appellate review of these claims by failing to object at trial. Finally, Moses argues that his trial counsel was ineffective, but we find he has not met his burden of showing he received ineffective assistance of counsel. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that shortly after midnight on September 26, 2007, Dantavious Walker drove his friend's car to a convenience store. As Walker returned to the car after making a purchase, a van (whose driver Walker later identified as Moses) pulled up and a man (whom Walker also later identified) emerged and began shooting at Walker and the car. Walker was shot several times as he fled the scene in the car. Walker identified Moses as the van's driver in an interview with police at the hospital several hours later.

On October 1, 2007, police obtained a warrant to arrest Moses and a warrant to search for him at a house where his mother lived. They found Moses there and arrested him. Later that day, police obtained another warrant to search that house for items including guns. In a bathroom adjoining the master bedroom, police found a gun that a ballistics expert subsequently tied to shell casings found at the scene of the shooting. In the master bedroom, police found Moses's belongings, including his clothing, jewelry, identification, and paperwork bearing his name.

2. Motion to suppress.

Moses moved to suppress the evidence found during the search of the house at which he had been arrested on the ground that the search warrant affidavit contained insufficient facts to support the issuance of the warrant. The trial court denied the motion, finding both that Moses lacked standing to challenge the search of the house and, alternatively, that the motion failed on its merits. The trial court reiterated these two holdings in an order denying Moses's motion for new trial.

“On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801(2), 756 S.E.2d 513 (2014) (citation and punctuation omitted). “[W]e may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial.” Jackson v. State, 295 Ga.App. 427, 430(3), 671 S.E.2d 902 (2009) (citation omitted).

(a) Standing to challenge search.

Moses argues that the trial court erred in finding that he lacked standing to challenge the search. “In order to claim the protections of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Smith v. State, 284 Ga. 17, 21(3), 663 S.E.2d 142 (2008) (citations and punctuation omitted). In other words, “a defendant must demonstrate both a ‘subjective’ expectation of privacy and that the expectation is one that society is willing to recognize as reasonable.” Rashid v. State, 292 Ga. 414, 418(3), 737 S.E.2d 692 (2013) (citation omitted). The trial court held that Moses lacked standing to challenge the search of the house because he did not live there and because people “came and went from the room in question.”

Viewed most favorably to the trial court's findings and judgment, the evidence is sufficient to sustain the trial court's finding that Moses did not live in the house. Moses concedes in his appellate brief that there was a “clear dispute in the evidence” on this point. Moses's mother testified that he did not live there, and the trial court expressly credited that testimony despite the mother's equivocation on the point and contradictory evidence presented by Moses.

Nevertheless, “a place need not be respondent's ‘home,’ temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.” Arnold v. State, 237 Ga.App. 857, 859(1), 517 S.E.2d 97 (1999) (citation omitted). See generally Minnesota v. Olson, 495 U.S. 91, 95–100(II), 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (discussing considerations for determining whether person has legitimate expectation of privacy in place where he does not live).

Notwithstanding the evidence that Moses did not live in the house, there was undisputed evidence that he had a legitimate expectation of privacy there. First and foremost, Moses owned the house, possessing joint tenancy with his mother. Georgia cases acknowledge that a party's ownership interest in property is relevant to the party's standing to contest a search of that property. See, e.g., Thomas v. State, 274 Ga. 156, 159(3), 549 S.E.2d 359 (2001) (noting that defendant had no expectation of privacy where he had “no ownership or possessory interest in the premises”); Carreno v. State, 272 Ga.App. 229, 231(1)(c), 612 S.E.2d 62 (2005) (finding defendant had no standing to contest search of apartment in which he had “no ownership or possessory interest”); Floyd v. State, 237 Ga.App. 586, 587, 516 S.E.2d 96 (1999) (“A defendant does not have a reasonable expectation of privacy in the premises of another where the defendant is a transient visitor who has no ownership or possessory interest.”).

The trial court discounted Moses's ownership of the house on the ground that a property owner can lack a reasonable expectation of privacy in property when it is leased to a tenant. As noted in 6 LaFave, Search & Seizure § 11.3(a) (5th ed. 2012), “the mere fact of ownership standing alone will not necessarily suffice. In particular, if the owner of certain premises has leased them to another without reserving any right of possession to himself, then it cannot be said that a police intrusion into those premises encroaches upon his expectation of privacy.” Id. at 170 (citations omitted). But no evidence showed that Moses leased the property to a tenant. The persons residing at the house were his mother (who co-owned the property) and his minor daughter. And undisputed evidence showed that, in addition to his ownership, Moses retained other rights in the house—he received mail there and kept his personal property in the master bedroom, including his clothing, jewelry, identification, and personal papers. At the time of his arrest, Moses was at the house, and his vehicle was parked in the garage. In fact, at trial the state emphasized Moses's connection with the house, although it maintained that he lived elsewhere.

This undisputed evidence showed that Moses was neither a transient visitor at the house nor a landlord who had relinquished his rights of possession to a tenant. He owned the house, had access to it, kept personal items there, and spent time there. Moses had an expectation of privacy that was “rooted in understandings that are recognized and permitted by society [and was an expectation] society is prepared to recognize as reasonable.” State v. Brown, 212 Ga.App. 800, 803, 442 S.E.2d 818 (1994) (citations and punctuation omitted).

Although the trial court found that people “came and went from the room in question”—presumably the master bedroom and its adjoining bathroom—the record does not demonstrate any people having access to those rooms other than Moses, his mother, the mother of his minor child, and “cleaning people.” It is undisputed that both Moses's mother and the child lived in the house, and that the mother co-owned the house with Moses. The state has pointed to no authority that a property owner who otherwise had a reasonable expectation of privacy in the house relinquished that expectation by allowing persons such as household residents, family members of residents, or housecleaners access to the house. See Arnold, 237 Ga.App. at 859(1), 517 S.E.2d 97 (language in tenant's lease agreement giving landlord “right of entry” into apartment for specific, normally scheduled purposes such as maid service or repairs did not demonstrate that tenant had waived any expectation of privacy as to all entries into the premises).

For these reasons, we find that the evidence viewed in the light most favorable to the trial court's findings and judgment nevertheless showed that Moses had standing to challenge the search of the house. Accordingly, the trial court erred in holding that he did not have standing.

(b) Merits of the motion to suppress.

Moses moved to suppress the evidence found in the search of the house on the ground that there was not probable cause for the warrant authorizing...