State v. Brown

Andrews, Judge,

dissenting.

Accepting the facts as set out in the majority opinion, I do not believe Brown had standing to contest the officer’s entry into and search of the apartment and, therefore, I respectfully dissent.

There is no dispute that the apartment which Brown entered was that of Ms. J. Tabb who resided there with her children and boyfriend. Brown dated Ms. Tabb’s sister and had permission to be in the apartment. This, however, does not bestow the requisite standing for purposes of asserting violation of federal Fourth Amendment rights and similar rights under the Georgia Constitution.

At most, Brown was a visitor in the apartment. “ ‘[A]s a mere visitor ... he had no expectation of privacy in the premises of another, where he had neither a proprietary nor a possessory interest. [Cits.]’ [Cit.] ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 S. Ct. 421, 58 L. Ed. 2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id.’ ” Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989). E.g., Byers v. State, 204 Ga. App. 552, 554 (1) (420 SE2d 23) (1992); Morgan v. State, 195 Ga. App. 732, 736 (4) (394 SE2d 639) (1990); Rich v. State, 188 Ga. App. 287, 288 (1) (372 SE2d 670) (1988).

I am authorized to state that Judge Blackburn joins in this dissent.

Allison C. Griffin, for appellee.