State v. Wright

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91-007

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Windham Circuit
                                  }
Robert Wright                     }
                                  }          DOCKET NO. 523-3-90WmCr


             In the above entitled cause the Clerk will enter:

     The defendant is charged with the unlawful possession of marijuana in
violation of 18 V.S.A. { 4230(a)(2).  He moved to suppress all evidence
seized from his residence and from the apartment of third parties which was
located in his residence.  The trial court granted defendant's motion, and
gave the State permission to appeal its ruling.  The State challenged
defendant's standing to object to the search of the apartment and maintains
on appeal that defendant's proprietary interest as a landlord does not
accord him standing to challenge this search.  The court concluded that
defendant, by virtue of his ownership of the apartment, had a sufficient
proprietary interest to challenge the validity of the search under Chapter
I, Article 11 of the Vermont Constitution, relying upon our holding in State
v. Wood, 148 Vt. 479, 536 A.2d 902 (1987).  We affirm on different grounds.

     In State v. Wood, we held that Article 11 of the Vermont Constitution,
granting the right "of the people 'to hold themselves, their houses, papers,
and possessions free from search or seizure,' defines a right dependent on
a possessory interest, with equal recognition accorded to the item seized
and the area intruded upon."  Wood, 148 Vt. at 489, 536 A.2d  at 908.  We
declined to follow the rationale of the United States Supreme Court in Rakas
v. Illinois, 439 U.S. 128, 132-43 (1978), which held that under the Fourth
Amendment a motion to suppress could successfully be brought only by one
whose "legitimate expectation of privacy" was violated by the search itself,
and not by one aggrieved solely by the introduction of the incriminating
evidence.  Rakas was quickly followed by United States v. Salvucci, 448 U.S. 83, 90 (1980), which held that possession of the property seized is not
sufficient to confer standing even to defendants charged with possession of
the seized property.  Salvucci reversed the rule of automatic standing
accorded to defendants charged with possessory offenses in Jones v. United
States, 362 U.S. 257, 260-65 (1960).

     We decline to follow Salvucci for the reasons stated in Wood and adopt
the automatic standing rule of Jones for possessory offenses under Article
11 of our Constitution.  In so doing, we follow the well-reasoned and
persuasive opinions in State v. Alston, 88 N.J. 211, 228-29, 440 A.2d 1311,
1320 (1981); and Commonwealth v. Sell, 504 Pa. 46, 68, 470 A.2d 457, 469
(1983), which accord automatic standing to challenge unlawful searches where
the defendant is charged with an offense in which possession of the seized
evidence at the time of the contested search is an essential element of the
crime.

     Affirmed.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[x]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice