
    Orlando RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. AO-144.
    District Court of Appeal of Florida, First District.
    April 9, 1985.
    Rehearing Denied May 30, 1985.
    
      Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

This is an appeal from a conviction for trafficking in cannabis, presenting two issues: (1) whether the trial court erred in denying appellant’s motion to suppress physical evidence, and (2) whether the trial court erred in not advising appellant of his rights under Fla.R.Crim.P. 3.170. We affirm.

In March 1980 various members of the Big Bend Narcotics Task Force conducted surveillance and investigation of suspected narcotics smuggling in and around Perry, Florida. On March 13, 1980, officers stopped a car driven by John Louie Houck and arrested him on suspicion of narcotics smuggling. Involuntarily, Houck returned to his property with several officers and agents. Houck had a small barn located at the back of his 20 acres of fenced property. After arriving at Houck’s property, the officers and Houck walked to the small barn and Houck was ordered to call out the name “Orlando.” In response, Rodriguez opened the door of the barn and came out. Through the opened door, officers saw stacks of marijuana, and without a warrant, entered the barn and found and seized 26,688 pounds of marijuana. Rodriguez was then placed under arrest.

At a hearing upon motion to suppress filed by Rodriguez, further facts were presented: Rodriguez told FDLE agents that he had traveled from Miami to Houck’s property in Perry with a male friend who had offered him a job. At the instruction of that friend, Rodriguez had stayed in the barn from March 10 to the time of his arrest on March 13. Rodriguez denied prior knowledge that his job would concern narcotics but admitted seeing the marijuana and a rifle in the barn during his stay. The barn contained a bed and a hot plate. Houck stated that he had given one Doug McCall permission to use the barn and that McCall brought Rodriguez to the barn. At the close of the suppression hearing, the court granted the motion to suppress as to Houck, but denied Rodriguez’s motion because he lacked “standing.” A hearing on the reopened motion to suppress was held and Rodriguez presented additional evidence: Rafael Dearce owed money to Rodriguez and offered to involve Rodriguez in a drug transaction as a partner. Rodriguez and Dearce traveled to Houck’s property and told Houck that Rodriguez would stay in the barn for several days, to guard the marijuana. Rodriguez was not to open the barn to anyone other than Houck, who occasionally did deliver some food to Rodriguez. Judge Lawrence denied Rodriguez’s motion to suppress.

Rodriguez executed a written waiver of jury trial. At trial, there was no live testimony and the evidence was stipulated to be that presented at the hearings on the motion to suppress. The court found Rodriguez guilty as charged. Rodriguez was sentenced to 30 months in jail.

The parties have agreed that appellant had a subjective expectation of privacy in the barn. The remaining question is whether the fact that appellant was lawfully in the barn and had the right to exclude others, under the stated circumstances, adequately supports appellant’s assertion that his expectation of privacy was reasonable.

Appellant clearly occupied the barn in question for the sole purpose of performing his hired function of guarding the 26,-000 pounds of marijuana inside. His subjective expectation of privacy is not disputed, the question being whether the expectation in this case is one which “society is prepared to recognize as reasonable.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Mr. Justice Harlan specially concurring); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

We conclude that the character of Rodriguez’ occupation of the barn was not equivalent to a tenancy based on a right to control and exclude others. The stipulated facts make no reference to keys or other elements of personal control, the agreement being merely that Orlando Rodriguez would not open the barn to anybody except the owner. His only alleged proprietary interest in the marijuana (in conflict with initial testimony that he knew nothing about the marijuana) was that from anticipated potential proceeds “he was gonna be paid back for the loan money” owed him in an unrelated debt by a third confederate involved in the drug transaction. The fact that Rodriguez’ guard duty spanned three days, and therefore included sleeping and eating, does not appear to us to distinguish this case from that presented in United States v. Torres, 720 F.2d 1506 (11th Cir.1983). In these circumstances we find no distinction between the barn in this case and the truck in Torres, and would conclude as the court there did: “All [appellant] successfully established was that he hoped to remain in the [structure] undiscovered and prevent others from entering ... and seizing the marijuana. The interest [appellant] is asserting is quite simply one that the fourth amendment was not intended to protect.” 720 F.2d at 1510. The Rakas court, dealing also with search of a vehicle, recognized the obvious differences in privacy rights in the sanctity of a dwelling, but with respect to the passengers there in question the opinion notes the “claim is one which would fail even in an analogous situation in a dwelling place, since they made no showing that they had any legitimate expectation of privacy” in the parts of the car in question. 439 U.S. 132, 99 S.Ct. 424, 58 L.Ed.2d 394.

Appellant may not, of course, invoke protection from any assumed invasion of Houck’s rights by the entry into the barn in this case, since Fourth Amendment rights may not be asserted vicariously. And we need not consider whether any protection might be accorded if the search and seizure here had involved some specific part of the barn controlled personally by appellant as the setting for those intimate activities that the Amendment is intended to shelter. That is not the circumstance before us, and upon the cited facts we are unable to view appellant’s presence in the barn, and his relationship with the seized contraband, in any light other than that surrounding ordinary employment to watch and protect the property of another. That conclusion is not, in our opinion, altered by the stipulated receipt of proffered evidence that the premises were “leased,” coupled with the stated restrictions on appellant’s control. He was clearly not free, as a tenant would be, to come and go, nor did he have even the personal right to control access by others, being limited entirely to the order of the owner in that respect. Appellant cites no authority supporting standing in that context.

As to the second issue, supra, a proper executed written waiver of jury trial, and appellant’s tactics at trial, made the proceedings below other than the functional equivalent of a nolo contendere plea. Though the trial was abbreviated, there is no evidence that appellant unknowingly waived any constitutional rights. Appellant used the trial to preserve several trial issues for appeal, including the sufficiency of the evidence. The prosecution’s case was based primarily on the legality of the search and seizure discussed above, a matter already contested and decided in the hearings on the motion to suppress. Thus, the appellant’s only legitimate trial tactic was to renew all prior objections, preserving those issues for appeal. These tactics and the brief trial did not cause the unknowing waiver of appellant’s constitutional rights. Appellant’s reliance on A.E.K. v. State, 432 So.2d 720 (Fla.3d DCA 1983), is misplaced because in the instant case, unlike A.E.K., the appellant’s actions during the trial were legitimate trial tactics.

Affirmed.

BOOTH, J., concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

I would reverse appellant’s conviction on the ground that the trial court erred in denying his motion to suppress evidence. In addition to the facts recited in the majority’s opinion, it should be observed that Rodriguez advised the officers that he had been in the exclusive possession of the barn, which contained a bed, hot plate and toilet, and that he had the right to exclude all others with the exception of Houck, the owner, who occasionally delivered food to him. The motion to suppress was granted as to Houck, but denied as to Rodriguez on the ground that the latter lacked standing to object to the search. The state stipulated at the hearing that if appellant had standing, the evidence should also be suppressed as to him.

In defending the denial of the motion to suppress, the state argues, and the majority apparently accepts, relying upon Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), that an individual must show more than that he was legitimately on the premises of .the property searched in order to assert a constitutionally protected expectation of privacy; that he must also demonstrate a subjective expectation of privacy in the area searched, which society is prepared to recognize as reasonable. The Rakas rule of standing represents an adoption in large part of Mr. Justice Harlan’s special concurring opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Although the state agrees that appellant has effectively asserted a subjective expectation of privacy, it contends that his expectation is not one that society, under the circumstances, is willing to recognize as reasonable in that his only intent in maintaining possession of the barn was to guard the marijuana that was found inside it. Such expectation, the state argues, cannot under the circumstances be deemed legitimate.

The applicable decisions of the United States Supreme Court have thus far not adopted either the state’s or the majority’s position. While Rakas repudiated the Court’s prior statement made in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), that anyone legitimately on the premises searched has standing to object to a search, Rakas continues to recognize that legitimate expectations of privacy can have a source outside the Fourth Amendment by reference to concepts of real or personal property law. Thus, “[o]ne of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” 439 U.S. at 143, n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (e.s.). The Court was careful to point out that although one’s expectations of privacy under the Fourth Amendment need not be exclusively based on a common law interest in real or personal property, “the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment.” Id.

Rodriguez’s purpose in occupying the premises — to guard marijuana — is hardly one that society would normally view as legitimate. Does an illegal purpose, however, necessarily vititate one’s subjective expectation of privacy? The answer, as applied to the circumstances before us, clearly must be that it does not. When the question of standing arises, a trial court is directed to consider how the defendant came about his possession, before the gov ernmental intrusion, not what motivated the defendant’s possession. For example, Katz’s temporary occupation of a public telephone booth for the sole purpose of plying his trade as a bookmaker did not defeat his reasonable, subjective expectation of privacy. Similarly, Jones’s occupation of his friend’s apartment, with his friend’s permission and key, entitled him to legitimate expectations of privacy in the apartment, regardless of what motivated him to occupy it.

The analysis made by the Eighth Circuit Court of Appeals in United States v. Little, 735 F.2d 1049, 1052 (8th Cir.1984), offers guidance as to how a court should determine one’s right of standing to challenge a search when it is asserted that such person had no legitimate expectations of privacy in the area searched:

Obviously the word “legitimate” in the phrase “legitimate expectation of privacy” is being used in a special sense. An agreement to use an airplane to transport illegal drugs, and an undertaking to guard the plane to prevent detection, are by no means legitimate. The cases must be analyzed on the hypothesis that no illegal activity is occurring or contemplated. The illegality comes to light only through execution of the warrant or court order whose validity is the very point at issue. Otherwise Fourth Amendment analysis would be pointless, because motions to suppress are never made in the first place unless evidence of criminality has been seized. So the “expectation” that must be taken as a predicate for analysis in this case is the expectation of any innocent person who has arranged with an owner or lessee to use an airplane.

(e.s.) The point of this discussion, as applied to the case at bar, is that Rodriguez came about his occupation of the premises searched legitimately, by means of an agreement to lease, and, as such, is entitled to be accorded a legitimate expectation of privacy, for the purpose of determining his standing to object to the search.

Justice Rehnquist’s opinion in Rakas has been reaffirmed by later decisions of the Court, see Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and there is nothing in other opinions of the United States Supreme Court, relating to searches of open fields, which requires a different result than that which we have reached. Both United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and Oliver v. United States, — U.S. -, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), recognize that possessors of residences and the immediately surrounding premises known as the curtilage have reasonable expectations of privacy within such areas, but that no such expectations extend to objects found in open fields. Although ordinarily a barn would be viewed as within the open fields, nevertheless the facts in the case at bar disclose that both the owner and the occupant of the barn were aware that during its temporary occupancy, it would be used to provide shelter for Rodriguez. As stated, the barn contained a bed, a hot plate and a toilet. Given such circumstances, I would conclude that the lower court erred in denying the motion to suppress on the ground of lack of standing.

Additionally, I do not consider that the majority’s reliance upon United States v. Torres, 720 F.2d 1506 (11th Cir.1983) supports the conclusion that Rodriguez lacked standing to object to the search. Torres was simply an extension of the exception to the warrant requirement applicable to vehicles — not structures — first applied by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The reason for the historical distinction between the two is obvious: Unlike the search of a structure in regard to which a search warrant may be readily obtained, the search of a vehicle or other movable objects can be required without a warrant because the latter, unlike a building, are capable of being quickly moved out of the jurisdiction in which the warrant must be sought. Carroll v. United States; State v. Smith, 193 So.2d 23 (Fla. 3d DCA 1966); Range v. State, 156 So.2d 534 (Fla. 2d DCA 1963). As a result, vehicles are accorded a diminished expectation of privacy due to their inherent mobility, as well as the obvious public nature of vehicular travel. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Despite some rather drastic modifications in the law of search and seizure by the United States Supreme Court during the October term, 1983, the Court continues to exact strict adherence to the warrant requirement as to structures used as private residences. See United States v. Karo, 468 U.S. -, 104 S.Ct. 3296, 82 L.Ed.2d 530, 541 (1984):

At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth Amendment principle. Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.

Again, in Welsh v. Wisconsin, — U.S. -, 104 S.Ct. 2091, 80 L.Ed.2d 732, 742 (1984), the Court observed:

It is axiomatic that “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 32 L.Ed.2d 752, 92 S.Ct. 2125 (1972). And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.... It is not surprising, therefore, that the Court has recognized, as “a ‘basic principle of Fourth Amendment law [,]’ that searches and seizures inside a home without warrant are presumptively unreasonable.”

(citations omitted.)

In that the courts have traditionally imposed less compelling requirements for searches of vehicles as opposed to the searches of structures, the Torres case in my judgment offers no support for the warrantless entry into the structure, which at the time of the entry was used by Rodriguez as a residence.

At any event, I would observe that the facts in Torres are clearly distinguishable from those in the present case. It is true that in Torres the defendant who was arrested inside the truck had the same purpose in mind as the defendant in the case at bar: to guard marijuana; however, I would also observe that the temporary occupant of the truck had no keys to it, did not know who was in possession of the keys, and had not driven the truck. Thus there was no showing that the defendant had come about his possession of the vehicle legitimately. Given these additional facts before it, the Torres court correctly concluded that the occupant of the truck had no legitimate expectation of privacy in the invaded place which society would recognize as reasonable. On the other hand, the appellant in the case on review, as previously stated, had occupied the barn for three days before the warrantless entry under a lease agreement with the owner, and in fact, with the knowledge of the owner, had used the barn as a temporary residence. I therefore fail to see how Torres can serve as authority to deny standing to one who obtained his possession of the premises with the consent of the owner.

In that the state failed to demonstrate the existence of any exigent circumstances which would have permitted the seizure of the contraband without a warrant, I remain of the view that the judgment of conviction should be reversed with directions that appellant be discharged from custody. 
      
      . In considering the application of that standard here, we note that the Katz and Rakas defendants occupied structures for their respective primary communication and travel purposes, which the court found to be protected in the case of Katz, and not so in Rakas. The appellant in the present case, however, occupied the barn for the primary purpose of guarding contraband. His use of the structure for shelter was clearly incidental and collateral to the function for which he was hired.
     