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State v. Werner6/5/2003
nsulating the search from any taint of illegality that might have arisen from the arrest. We believe that no such taint existed, but agree with the trial justice that any such taint would have been removed by the independent issuance of the warrant before any search of the apartment took place.
In respect to the search of Apartment 14A in which Det. O'Connell found the sawed-off shotgun concealed in the drop ceiling, the trial justice held that Werner had no standing to object to that search because he had no reasonable expectation of privacy therein.
To support this holding, the trial justice found as a fact that Werner resided in Apartment 14B with Ms. Prefontaine, his girlfriend. This finding was amply supported by evidence given at the trial and provided to the police before trial. It was virtually undisputed that Apartment 14A was completely empty and the door was ajar before Det. O'Connell entered the vacant area. The defendant's argument that he had access to the apartment in the course of his managerial duties (even if taken at face value) would not have given him an expectation of privacy that society would accept and therefore give him standing to object to the search of Apartment 14A, which he had never used as a dwelling. See United States v. Brazel, 102 F.3d 1120, 1148-49 (11th Cir. 1997); State v. Jardine, 110 R.I. 491, 494-95, 293 A.2d 901, 903 (1972). The trial justice made the following comments and findings to support his ruling:
"Now, the Court in this matter after weighing the credibility of the witnesses does not find the testimony of the defendant credible on the prospect that he lived in 14A. The Court does not believe that testimony and, in fact, believes the testimony of Detective O'Connell that the apartment was empty when he conducted the search of 14A.
"* * * "The law supports an individual's rights to privacy. The law does not support a defendant's right to protection from secreting of a firearm to avoid prosecution. Fo rth Amendment rights are personal rights not to be asserted vicariously by a defendant because that defendant is aggrieved by the introduction of damaging evidence.
"In this case, the Court finds as fact that the door to the apartment 14A was partially open, that the apartment was vacant, and that the shotgun alone was hidden in the ceiling. The Court finds that a ceiling area is not an area normally used to store goods used in common experience but to hide contraband.
"Even if the defendant had a subjective expectation of privacy, that expectation in this case in the light of the Court's specific findings and in the light of the totality of the circumstances, considering the defendant's lack of ownership or possession in the areas searched, he certainly did have possessory interest in the weapon seized, historic use or lack of use of the area as indicated by the record, and that use, the Court finds as fact, was casual and infrequent at best, and he was not specifically permitted by either Michael or Joy Coletta-Reisert [owners of the building] to use, store or in any way exercise absolute dominion or control over these premises.
"The Court finds as fact that under the totality of the circumstances and applying the two-prong test and other factors indicated by case law that our society would not find the defendant's subjective expectation of privacy as one which is object[ively] reasonable."
We are of the opinion that the trial justice's findings of fact were supported by the evidence presented by the parties. We also agree with his conclusions of law in the exercise of our independent judgment as required by Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657
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