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State v. Maloney3/18/1998
963, 968 (Me. 1983). The defendant, not the State, bears the burden of persuasion on the issue of standing. See United States v. Salvucci, 448 U.S. 83, 91, 100 S. Ct. 2547, 2554-55, 65 L. Ed. 2d 619 (1980); State v. Ayers, 464 A.2d at 968 (citing United States v. Dall, 608 F.2d 910, 914 (1st Cir. 1979), cert. denied, 445 U.S. 918, 100 S. Ct. 1280, 63 L. Ed. 2d 603 (1980)). When the motion is based on a claimed violation of the Fourth Amendment, the defendant must demonstrate that his own reasonable expectation of privacy was violated by the action of the State. See, e. g., State v. Hatch, 614 A.2d 1299, 1302 (Me. 1992); State v. May, 608 A.2d 772, 774 (Me. 1992).
Moreover, the State has no burden to produce any evidence until defendant's standing has been established. See State v. Ayers, 464 A.2d at 968; United States v. Lewis, 40 F.3d 1325, 1333 & n.1 (1st Cir. 1994). The court, therefore, will not be called upon to scrutinize the constitutionality of the State's actions if the State successfully controverts the defendant's allegation that the defendant's own rights were violated. See id. at 1333 (citing United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir. 1990)).
Because in most instances there is no dispute that the defendant was the person subjected to the challenged action of the State, the State often does not contest the defendant's standing to bring the motion. Indeed, motion hearings are often conducted in the defendant's absence, see M.R. Crim. P. 43; 2 Cluchey & Seitzinger, Maine Criminal Practice Section 43.2 at IX-9 (1992) (concluding that the purpose of Rule 43 is not served by requiring defendant's presence at arguments about questions of admissibility of evidence).
Here, Maloney filed a motion to suppress alleging that he was the person arrested by Barrett. The State did not contest this allegation. Therefore, the identification of Maloney as the individual arrested by Barrett was established before the hearing began. At that point, the State's sole burden was to prove, by a fair preponderance of the evidence, the existence of probable cause for that arrest. See State v. Fogg, 410 A.2d 548, 550 (Me. 1980).
We conclude, therefore, that the trial court erred in placing the burden of proving the defendant's identity on the State and in granting the motion to suppress evidence based on the lack of identification of the defendant. Because the case must be remanded for further proceedings, we do not address the State's challenge to the court's denial of its motion for further findings and Conclusions.
The entry is: Order vacated. Remanded to the District Court for further proceedings consistent with this opinion.
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