KENNETH MATTHEW TONGUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Matthew Tongue was convicted of second degree murder and appealed the trial court's denial of his motion to suppress evidence and statements obtained after his arrest in Maryland. The Fifth District affirmed, holding that Tongue had no legitimate expectation of privacy in the stolen vehicle he was driving and therefore lacked standing to challenge its search, making any evidence derived from that search admissible.
The arrest and detention were constitutional because Tongue's misrepresentations (using a false name) justified the continued detention, and Tongue had no legitimate expectation of privacy in the stolen vehicle. Therefore, he lacked standing to challenge the search of the vehicle, and the evidence obtained was admissible.
[1] A defendant who is an automobile thief cannot challenge an unlawful search or seizure of the stolen car in his possession.
[2] A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property…
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Join FLexlaw to unlock all legal intelligence“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.”
Establishes the foundational principle that Tongue lacks standing to challenge the search of property he did not own or have a legitimate interest in.
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Join FLexlaw to unlock all legal intelligenceTongue was detained at a Maryland toll booth while driving a vehicle belonging to murder victim Steven Rosa. Unable to pay the toll and lacking identi…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The appellant, Kenneth Matthew Tongue, was convicted of second degree murder. He appeals the trial court’s denial of his motions to suppress evidence and inculpatory statements. He argues that his arrest by Maryland police officers was illegal because it was based on erroneous information, and therefore any evidence produced by the subsequent search of his person and the vehicle he was driving should have been suppressed. He also argues that he had “standing” to contest his arrest1 and the search of the vehicle he was driving.
The evidence at trial showed that Tongue was apprehended through a chain of bizarre circumstances. He was detained at an automated toll booth in Maryland while driving an automobile belonging to the deceased victim, Steven Rosa. Tongue did not have money to pay the toll, and had no driver’s license or registration to serve as identification for the purpose of completing the pledge card. When asked his name Tongue identified himself as one Thomas Louis Noll. A computer check reported that Noll’s Pennsylvania driver’s license had been suspended, and Tongue, alias Noll, was thereupon arrested for driving with a suspended license. Tongue was given the standard Miranda warnings, and then asked to empty his pockets. Credit cards belonging to Steven Rosa were among the items Tongue emptied from his pocket. Tongue said the cards and the car belonged to a friend. The car was impounded and inventoried. Rosa’s identification was found in the front seat, and the body in the trunk. Tongue was again read his Miranda rights, and he shortly thereafter confessed to strangling Rosa in Florida and placing his body in the trunk.
A subsequent check of Noll’s driving record in Pennsylvania established that the suspension of his license had been prematurely entered into the computer and, in fact, the license was not suspended at the time of the check. Based upon this discovery, Tongue contends on appeal that his arrest was illegal and that the evidence seized from the car and the incriminating statements to the arresting officer should have been suppressed under Albo v. State, 477 So. 2d 1071 (Fla. 3d DCA 1985). In Albo evidence was seized as a result of Albo’s arrest for driving on a suspended license. In fact, the license had been reinstated at the time of the arrest. The Third District, relying on the exclusionary rule and seeking to deter police reliance on information they could and should have corrected, reversed the trial court’s denial of Albo’s motion to suppress. It should be noted, however, that there was no question as to Albo’s legal possession of the automobile.
Tongue also relies on State v. Scott, 481 So. 2d 40 (Fla. 3d DCA 1985), which involved contraband discovered in the search of a car which was driven, but not owned, by Scott. The facts recited in Scott are skeletal, at best, but we assume that Scott was lawfully in control of the automobile at the time, since the Third District opinion relies on Justice Terrell’s opinion in Kersey v. State, 58 So. 2d 155 (Fla.1952) and on Hansen v. State, 385 So. 2d 1081 (Fla. 4th DCA 1980), cert. denied, 392 So. 2d 1379 (Fla.1980). Neither Kersey nor Hansen involved the seizure and search of a stolen vehicle, the factual scenario of the instant case.
There has been no challenge to Officer Panowitz’s right to initially detain Tongue, ascertain his identity2 and obtain from him a written “pledge” to pay the toll in the future. In light of the fact that the initial period of detention to obtain the pledge is unchallenged and was apparently proper, Tongue cannot be heard to com plain about the officer’s decision to continue that detention when Tongue himself prompted the need for it by using a fictitious name. We need not speculate whether under Maryland law, and absent the erroneous computer information, Tongue’s earlier failure to produce a valid license or use of a fictitious name would alone constitute an independent crime for which Tongue could be arrested.3 It is enough that the continued detention prompted by Tongue’s misrepresentations did not constitute an unreasonable seizure of his person under the fourth amendment. Having concluded that the period of custodial detention was reasonable, the only remaining argument available to Tongue is that the officers exceeded the permissible scope of search incident to their Terry detention of his person.
We believe the controlling principle of law applicable to this case is to be found in Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 429, 58 L.Ed.2d 387 (1978):
A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.
439 U.S. at 134, 99 S.Ct. at 425. It has been held that an automobile thief cannot challenge an unlawful search or seizure of the stolen car in his possession. Cameron v. State, 112 So. 2d 864 (Fla. 1st DCA 1959). As stated in footnote 12 of Rakas:
Obviously, however, a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence, in the words of Jones [v. United States], 362 U.S. , at 267, 80 S.Ct. , at 734 [4 L.Ed.2d 697 (1960) ], is “wrongful”; his expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. , 361, 88 S.Ct. , at 516 [19 L.Ed.2d 576 (1967)] (Harlan, J., concurring).
In the instant case, no physical evidence was taken from Tongue’s person. He had no legitimate expectation of privacy in the stolen vehicle, nor any legal right to remove it from the scene even had he not been personally detained or arrested. Thus, no constitutionally protected interest was infringed by the search.
Since Tongue had no legitimate privacy interests infringed by the search of Rosa’s car, he cannot complain in regard to the discovery of Rosa’s body. That discovery provided probable cause for Tongue’s valid arrest on suspicion of murder, after which he was again Mirandized and confessed to that murder. That confession was admissible against him because it was the fruit of a valid arrest following a valid detention, and there has been no showing that the confession was otherwise coerced or involuntary. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
Accordingly, the trial court did not err in denying the appellant’s motion to suppress.
AFFIRMED.
DAUKSCH, COBB and GOSHORN, JJ., concur. . It goes without saying that any defendant always has standing to contest the lawfulness of seizure of his person because of the liberty interest involved. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. See Harper v. State, 532 So. 2d 1091 (Fla. 3d DCA 1988).
. See § 843.02, Fla.Stat. (1987); Steele v. State, 537 So. 2d 711 (Fla. 5th DCA 1989).
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State v. Singleton, 595 So. 2d 44 (Fla. 1992)…review of Singleton v. State, 578 So. 2d 896 (Fla. 3d DCA 1991), which held that Singleton had standing to contest a search of an automobile which he did not have the permission or consent of the owner to use. We find conflict with Tongue v. State, 544 So. 2d 1173 (Fla. 5th DCA 1989), and also find that the district court misapplied our decision in Nelson v. State, 578 So. 2d 694 (Fla.1991).1 For the reasons expressed, we quash the decision of the district court and uphold this search. The relevant facts ref…
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State v. Lennon, 963 So. 2d 765 (Fla. 3d DCA 2007)…ict held that the defendant failed to establish a reasonable expectation of privacy in a stolen laptop computer which was seized from his vehicle, and therefore could not contest the search of the laptop’s files. Id. at 19. See also Tongue v. State, 544 So. 2d 1173 (Fla. 5th DCA 1989)(no legitimate expectation of privacy in stolen vehicle). “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the…
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Hendley v. State, 58 So. 3d 296 (Fla. 2d DCA 2011)…963 So. 2d 765, 769-70 (Fla. 3d DCA 2007) (no expectation of privacy in a stolen jet ski or trailer); State v. Bostick, 745 So. 2d 496, 497 (Fla. 1st DCA 1999) (no standing to challenge seizure of items obtained from a stolen car); Tongue v. State, 544 So. 2d 1173, 1175 (Fla. 5th DCA 1989) (no legitimate expectation of privacy in a stolen vehicle). “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privac…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- Katz v. United States, 389 U.S. 347 (U.S. 1967)
- Jones v. United States, 362 U.S. 257 (U.S. 1960)
- Rakas v. Illinois, 439 U.S. 128 (U.S. 1978)
- Rawlings v. Kentucky, 448 U.S. 98 (U.S. 1980)
- Cameron v. State, 112 So. 2d 864 (Fla. 1st DCA 1959)
- Kersey v. State, 58 So.2d 155 (Fla. 1952)
- Harper v. State, 532 So. 2d 1091 (Fla. 3d DCA 1988)
- Hansen v. State, 385 So. 2d 1081 (Fla. 4th DCA 1980)
- Steele v. State, 537 So. 2d 711 (Fla. 5th DCA 1989)