State v. Bondurant3/20/1998
instead opposes the motion to suppress on the merits, the defendant is entitled to infer that the state concedes his standing and need not present any proof of his expectation of privacy. White, 635 S.W.2d at 399-400; see also Steagald, 451 U.S. at 209, 101 S. Ct. at 1646. Accordingly, the state would be estopped from raising the issue of standing for the first time on appeal. Moore, 775 S.W.2d at 374. Here, the issue of standing was raised by the state at the suppression hearing and fully litigated.
Next, the defendant asserts that the state should not have been allowed to present oral testimony contradicting the affidavit on the issue of standing. The defendant is correct that the state is prohibited from attempting to impeach the veracity of the search warrant affidavit. See O'Brien v. State, 205 Tenn. 405, 418, 326 S.W.2d 759, 764 (1959); Harvey v. State, 166 Tenn. 227, 228-29, 60 S.W.2d 420, 420 (1933); Poole v. State, 4 Tenn. Crim. App. 41, 50-51, 467 S.W.2d 826, 830-31 (1971). In the present case, however, testimony was introduced by the state on the issue of whether the defendant had a reasonable privacy interest in his parents' property that is protected by the Fourth Amendment, rather than to impeach the veracity of the affidavit. As such, the defendant's authorities are not controlling of the case at bar.
Next, the defendant argues that the evidence presented at the suppression hearing was sufficient to establish that he resided at the Westpoint house regularly, albeit not continuously, and that this was sufficient to establish standing.
At the initial hearing on the motion to suppress, Agent Coleman testified that he procured the search warrant on May 7, 1990 to search the Bondurants' residence in Westpoint in Lawrence County. Before that time, Coleman had talked to Denise on a daily basis since February of 1990. During this time, Denise told Coleman information that had proven to be true. Coleman took Denise's written statements on May 1, 1990, and based on this information, he requested a search warrant on May 7.
At a second hearing on the motion to suppress, the defendant's mother testified that from January 1990 until the time he was arrested, the defendant spent at least three or four nights a week at the house in Westpoint. While the defendant sometimes stayed at Denise's apartment or at Pete's apartment in Pulaski, he did not have a home anywhere else, nor did he own or rent any other premises. He kept clothes, washed clothes, and ate his meals at the house in Westpoint. The defendant called the room upstairs his and kept some of his belongings there. From the time Mrs. Bondurant and her husband moved back to the United States in 1989, the defendant brought their grandson to stay with them almost every weekend.
Mrs. Bondurant and her husband bought the house in 1984. Because her job required her to travel, the twins stayed home with their father. In July 1985, Mr. and Mrs. Bondurant went back to Germany and rented the house to Pete until August 1987. After that, they rented the house to someone else until they returned on September 8, 1989. At that time, Pete and the defendant lived at the house with them.
After the defendant was arrested, he received his mail at Westpoint, some of which was forwarded to that address. Mrs. Bondurant testified that a lot of work had been done to the property, including the building of a driveway near the area where the skull fragments were found.
The state presented proof that the defendant's voter registration on April 4, 1973, listed the defendant as living in Elkton. Although the defendant changed his registration in 1982, 1984, and 1987, he never used the Westpoint address
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