Opinion
Case No. 2:03CR110 DAK
December 23, 2003
ORDER
This matter is before the court on Defendant Brian McPherson's Motion to Suppress Evidence. Specifically, Defendant seeks to suppress all evidence obtained by the Sandy Police Department agents and any other state or federal law enforcement agents as a result of their entry into and search of storage unit #11A located at 8683 South Harrison Avenue, Sandy, Utah on January 8, 2003 and into the morning of January 9, 2003, the search of his person, and his arrest and questioning by Sandy City Police agents on January 9, 2003. The evidence sought to be excluded includes but is not limited to a .22 caliber derringer, three glass pipes, and statements purportedly made to Sandy Police Department agents linking himself to the aforementioned materials, discussing drug use or knowing possession of a firearm.
An evidentiary hearing on the motion was held on October 1, 2003. At the hearing, Defendant was represented by Henri Sisneros, and Plaintiff was represented by Michele M. Christiansen. Both parties later submitted briefs, and oral argument was heard on November 24, 2003, Before the November 24, 3004 hearing, the court carefully considered all pleadings, memoranda, and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Findings of Fact and Conclusions of Law and Order.
FINDINGS OF FACT
On January 8, 2003, Sandy City Police received information from two citizen informants, Chris and Laura Peters, who came to the police station to report a purchase of "about $900" in stolen property from an individual they identified as "Brian."
After officers verified that the property purchased by the Peterses was stolen, the Peterses advised officers that they could make arrangements to purchase more property from "Brian."
Under Utah law, a person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof. Under Utah law, a person commits theft if he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it probably has been stolen. The amount of stolen property sold to the Peterses would, if proven, qualify as an "A" misdemeanor.
The officers arranged through the Peterses a purchase by an undercover officer of additional property from "Brian" that the police believed might be stolen. According to the case officer, Detective Sooaemalelagi (Sooaemalelagi"), the police officers' main objective was to have an undercover officer make contact with McPherson and obtain more information from him, Prior to going to the storage unit, officers had no information or evidence whether there was stolen property at the storage unit.
The undercover officer was to attempt to purchase property and then follow-up officers would enter and secure the area. Sooaemalelagi did not believe that prior to their attempt that officers had probable cause for a search warrant. The officers characterized this operation as akin to "buy/bust" type of operation whereby officers would attempt to buy contraband then once the buy had culminated, arrest all the parties and seize the contraband. In this operation, the undercover officer had no prearranged signal to indicate to observing officers that a transaction of possibly-stolen property had occurred.
Prior to the attempted purchase of property from the defendant, there was no attempt to identify McPherson through use of a photo array, through use of a subpoena to his phone number which officers possessed, through contacting the Peterses' sister who had initially provided them with McPherson's contact information, or by contacting the owner of the storage unit to see who was the renter for the unit where the purchase of property was to take place. Additionally, officers had no information that McPherson was dangerous or a flight risk. The officers never obtained an arrest warrant for McPherson because they felt that only after a "buy" of stolen property would they have probable cause for an arrest.
The storage units are on private property, are secured by a gated fence, and had security video cameras and an electric key box. Officers had the code for the electric key box and had permission of the management to enter the public area. The individual storage units have locks, are secured by garage-type doors, and the keys are possessed by the renters of the units. Officers had experience with people living in the storage units, and there were indications that McPherson lived in his unit as officers saw bedding, a television, and a microwave inside. Officers believed that under regular circumstances, a search warrant or consent would be necessary to search the units.
Upon arrival at the storage units, the Peterses and the undercover officer entered McPherson's storage unit whose entrance was open and visible from the public street, but McPherson could not be seen from the street. The garage-type door was only open a few feet, so the Peterses opened the door, called out to McPherson, and introduced the undercover officer as their uncle who was interested in purchasing property.
Less than thirty seconds after the undercover agent entered the storage unit, follow-up officers, including Sooaemalelagi, followed the Peterses and the undercover officer to the opening of the storage unit.
The undercover officer observed McPherson up on a ladder where he was fumbling for several minutes with a curtain rod and some boxes that were starting to fall. Then, the undercover officer heard car doors slamming and saw officers in raid gear. The undercover officer saw that McPherson had the falling items pretty much secure. The whole time the undercover officer was inside the shed with the Peterses, and about 10 to 15 feet away from McPherson, he never saw anything that made him concerned for his or the Peters' safety. The undercover officer observed Detective Thoman ("Thoman") enter the shed a few steps, and Sooaemalelagi believed she was just inside of the storage unit when the officers ordered the people in the shed to come outside. Thoman identified himself as "Police!" then stepped over to let the people in the shed walk by.
Prior to ordering the individuals inside of the storage unit to come out, the officers had not heard any voices raised in anger nor yelling nor any threats issuing. They heard only talking in regular tones of voice. Sooaemalelagi observed McPherson up on the ladder when she and
Thoman started to call people out to question why they were there and what they were doing at that time of night. At that time, Sooaemalelagi was inside, "just right at the entrance", of the storage unit trying to get people out. Sooaemalelagi never saw McPherson behave in a violent or threatening manner nor did she believe that he was destroying evidence.
Thoman did not hear any noises or anything else that indicated there might be some danger from McPherson, He observed the undercover officers and the Peterses park, enter the storage shed, then Thoman moved in. Thoman believed that a property exchange was starting, but he didn't wait for the exchange to culminate before he gave directions to McPherson. Thoman already believed that a crime had occurred and was at the storage unit to make an arrest and Thoman observed McPherson on a ladder about ten feet off the ground with his hands inside some clothing that was hanging on a rod. Thoman identified himself, commanded McPherson to put his hands where they were visible, and called for the other people to come out of the storage unit. Thoman observed McPherson turn to look then he put his hands back in the clothing, Thoman put his hand on McPherson' ship or lower back then had him come down the ladder, put McPherson's hands behind his head, and conducted a frisk wherein Thoman uncovered the weapon. The ladder was about forty feet deep into the shed.
CONCLUSIONS OF LAW
The warrantless arrest of McPherson in his storage unit violated his Fourth Amendment rights, and the evidence resulting from this illegal arrest must be suppressed as McPherson has a reasonable expectation of privacy in the storage unit and there were no exigent circumstances justifying his arrest. As the weapon which is the subject of the instant indictment was discovered during the seizure of McPherson, it must be suppressed as the fruit of the unlawful arrest.
The Fourth Amendment protects "against unreasonable searches and seizures." U.S. Const. IV Amend. This protection extends from the reasonable expectation of privacy in the home to other areas in which one has a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 351-53 (1967), A warrant is required to protect these expectations except when consent or exigent circumstances arise. Payton v. New York, 445 U.S. 573, 603 (1980). Otherwise evidence resulting from a Fourth Amendment violation must be suppressed.
I. McPherson Had A Reasonable Expectation of Privacy in the Storage Unit
The Court interprets the Fourth Amendment to protect reasonable expectations of privacy. Katz, 389 U.S. at 351-53. An expectation of privacy is reasonable if it meets a subjective expectation and if it is "one that society is prepared to recognize as reasonable." See Katz, 389 U.S. at 361 (Harlan, J., concurring). The Tenth Circuit has further refined the expectation of privacy test into two queries: whether a defendant had a subjective expectation of privacy in the area searched, and whether that expectation is one that society is prepared to recognize as reasonable. See United States v. Anderson, 154 F.3d 1225 1229 (10th Cir. 1998).
The Court has drawn a line indicating the utmost reasonable expectation of privacy in the home. See, e.g., Payton v. New York, 445 U.S. 573, 590 (1980). But reasonable expectations of privacy extend to areas beyond the home. See, e.g., GM. Leasing Corp. v. United States, 429 U.S. 338, 353-55 (1977) (holding a warrant-less entry into the privacy of a corporation's office invalid). One need not be the owner to have a reasonable expectation of privacy. United States v. Carr; 939 F.2d 1442, 1446 (10th Cir. 1991) (stating an overnight guest in a hotel or home has a legitimate expectation of privacy).
People also have a reasonable expectation of privacy in storage units. The expectation of privacy in a storage shed or mini-warehouse is analogous to the expectation of privacy in a home. United States v. Lyons, 898 F.2d 210, 212-13 (1st Cir. 1990) (stating defendant had privacy expectation in contents of the storage unit but not the padlock); United States v. Dart, 747 F.2d 263, 267 n. 1 (4th Cir. 1984) (stating the expectation of privacy in defendant's mini-warehouse was analogous to that in his home). Further, users of storage units can have a legitimate expectation of privacy even though they are not the lessees. See United States v. Brinson, 762 F. Supp. 1452, 1458 n. 2 (D. Kan. 1991) (explaining that carrying the storage unit key, which is leased to a family member, shows a legitimate expectation of privacy in the unit).
McPherson had a subjective expectation of privacy in the storage unit that society is likely to recognize as reasonable as he, along with all other renters of storage units, expects his belongings in the unit to remain private and undisturbed by others, be they personal or public actors. The storage units are on private property, are secured by a gated fence, have security video cameras and an electric key box. The individual storage units have locks, are secured by garage-type doors, and have keys possessed by the renters of the units. Additionally, there are indications that McPherson lived or stayed in the unit as officers saw bedding, a TV set, and a microwave there. McPherson believed subjectively that he had a right to privacy in his storage unit. Further, while McPherson's mother is the lessee, the parties have stipulated that McPherson has standing to challenge the search of the storage unit.
Moreover, McPherson was inside the unit on a ladder when both the undercover officer entered and the follow-up officers arrived and entered the unit. Therefore, he did not expose himself to the public and did nothing to negate his subjective expectation of privacy. See United States v. Flowers, 336 F.3d 1222, 1228 (10 ® Cir. 2003) (stating that since the defendant was not exposed "to public view, speech, hearing, and touch as if he had been . . . outside his house" he had a legitimate expectation of privacy). McPherson could only be seen as the officers approached the entrance to his storage unit on the private road used to access the units.
With regard to the second query, society recognizes an expectation of privacy in storage facilities as demonstrated in the case law including Dart, Indeed, even the responding officers believed that under regular circumstances, a search warrant would be required to search the units. Thus, there exists a reasonable expectation of privacy in the storage units where McPherson was found and arrested.
II. Absent Exigent Circumstances, the Fourth Amendment Requires an Arrest Warrant to Seize McPherson
The Constitution requires an arrest or search Warrant to protect areas where a reasonable expectation of privacy exists, As officers failed to obtain a warrant prior to arresting McPherson, the search must be suppressed. While a warrant is not always required to make an arrest based on probable cause in a public place, the Fourth Amendment draws a "firm line" at the home. Payton, 445 U.S. at 589-90 (referring to the clearly defined zone of privacy in the home). This prohibits entry into a dwelling without an arrest warrant or a search warrant absent exigent circumstances. See Steagald v. United States, 451 U.S. 204, 214 n. 7 (1981) (holding search for subject of arrest warrant in third party's dwelling invalid without a search warrant); Payton, 445 U.S. at 603 (holding entries into defendants' dwellings to make arrests without a warrant invalid); United States v. Flowers, 336 F.3d 1222, 1226-28 (10th Cir. 2003) (stating officers' entry into the home, after they said "open the door" invalid unless there were exigent circumstances). Further, the warrant requirement extends to all areas of reasonable privacy expectations beyond the home. See, e.g., Michigan v. Clifford, 464 U.S. 287, 292 (1984) ("If reasonable expectations of privacy remain . . . the warrant requirement applies."); Katz, 389 U.S. at 351-53.
The parties have agreed that no arrest warrant was obtained in this case, and in the absence of probable cause or exigent circumstances, the arrest of McPherson was unlawful. The actions of the follow-up officers must be supported by probable cause to believe McPherson had committed a crime and by an arrest warrant because the arrest occurred in a protected area, As demonstrated below, officers arrested McPherson as he stood on the ladder.
An arrest or seizure occurs "when the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen. . . ." Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968). Examples of circumstances that might indicate a seizure, even when a person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. United States v. Mendenhall, 446 U.S. 544, 554 (1980), cited in United States v. Maez, 872 F.2d 1444, 1450 (10th Cir. 1989). The determination of whether an arrest has occurred is not dependant on whether the citizen is formally placed under arrest. Id.
The conduct of the undercover officer who made the first entry is not at issue because it is clear that he did not attempt an arrest or any other type of seizure of McPherson, Indeed, his restraint was appropriate as he knew that he did not have probable cause for an arrest. Additionally, the undercover officer testified that the whole time he was in the storage unit with the Peterses and standing within 10 to 15 feet of McPherson as he stood on the ladder, he never saw anything that made him concerned for his safety or the safety of the Peterses.
It is the actions of the follow-up officers who made the second entry less than thirty seconds after the undercover officer entered that are at issue. Thoman believed that he was at the storage unit to make an arrest, and his actions were consistent with his stated belief. As noted above, the undercover officer, who was much closer to McPherson and watching him struggle with a curtain rod and some clothes, never saw a reason to be concerned for his safety. Thoman and Sooaemalelagi dressed in raid gear identified themselves as "Police!," entered the shed a few steps, and ordered the people in the shed to come out. Any reasonable person in McPherson's position would understand that his liberty had been restrained at the instant the officers identified themselves and ordered the group out of the storage unit.
The compulsory nature of the officers' orders demonstrate that McPherson was arrested when McPherson did not instantly comply with Thoman's directive as he had every right to if he was not being placed under arrest. Thoman saw McPherson, who was still standing on the ladder, turn to look at him then put his hands back into the clothing and curtain rod he had been struggling with as observed by the undercover officer. Thoman approached the ladder, and placed his hands on McPherson's hip or back to compel him to come down the ladder. It was then that Thomas placed McPherson's hands behind his head and frisked him uncovering the gun which is the subject of the indictment. The control exerted over McPherson by Sooaemalelagi and Thoman's actions is established by the tone of voice, the orders given, and the physical contact by Thomas forcing McPherson down the ladder.
III. Officers Lacked Probable Cause to Arrest McPherson
The court finds that there was no probable cause to seize McPherson or to arrest him, and thus the fruits of the search and seizure must be suppressed. Under Utah law, neither the possession nor the sale of stolen property is criminal unless there is evidence that a person knows or believes that the property is stolen or that a person is knowingly depriving a rightful owner's use of the property, In McPherson's case, there is no indication nor any evidence submitted that officers had a basis to believe that McPherson knew or believed the property he sold to the Peterses was stolen. Absent such evidence of a crucial element of the offenses, there was no probable cause to arrest McPherson.
Understanding that there was a lack of evidence of McPherson's knowledge of the stolen nature of the property is critical to assessing the officers' decision to attempt another purchase of property by the undercover officer. The main purpose of the undercover operation was to "go in and hopefully make contact with this person, too, and get more information from him, who he is, and his relationship to that property." The reason the undercover operation was instituted was to find out if McPherson knowingly possessed or sold stolen property. The undercover operation was necessary because absent additional information as to McPherson's knowledge and as understood well by the case detective, there was no probable cause to make an arrest.
IV. There Are No Exigent Circumstances to Justify McPherson's Arrest
Exigent circumstances exist if the suspect is likely to flee before a warrant can be issued, there is an immediate threat to someone's safety, or there is a certain danger the evidence will be destroyed, See United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). There is no indication of exigent circumstances in this case.
There was no attempt by officers to assess McPherson's likeliness to flee nor to assess his dangerousness prior to officers contacting McPherson even though there were ample avenues of investigation to attempt an identification. Officers knew McPherson's first name, had his phone number, knew where his storage shed was located, and knew the owner of the storage shed, so they could easily have determined who "Brian" was, Officers also had witnesses who could identify him from a photo lineup (Peters) and another witness (Peters' sister) who had introduced the Peterses to McPherson for the initial purchase of stolen property. There was no indication that the officers had any information to suggest that McPherson was either dangerous or a flight risk. Absent any attempt to identify McPherson, officers must rely on what happened — or did not happen — at the storage shed to sustain a claim of exigency.
Examining the sequence of events at the storage shed as they occurred chronologically, there was nothing that happened from the time of the initial entry by the undercover officer until the approach by the second officers that could sustain a conclusion that McPherson was either a flight risk or was dangerous. The undercover officer testified that the whole time he was in the shed alone and until the second group of officers arrived, he never saw anything that made him concerned for his safety or the safety of the Peterses. Nor could the officer have seen any behavior by the suspect indicating that he might flee, as he was on the ladder fixing a curtain rod and boxes that were falling. Additionally, neither Sooaemalelagi nor Thoman ever heard anything on their approach to the storage unit that indicated there might be some danger from McPherson — no voices raised in anger, no threats or yelling.
It was only after Sooaemalelagi and Thoman entered the storage unit, observed McPherson on the ladder, and commanded him to show his hands and exit the unit that Thoman testified he became concerned that McPherson's hands were hidden. Therefore, if any "exigency" occurred regarding an immediate danger, it was only in response to the orders of the officer. If any exigency existed relative to McPherson's conduct, the government actors created the very circumstance they rely on to arrest McPherson.
Nor does the behavior ultimately described by Thoman as creating in him a fear of immediate threat or danger persuade as to exigency. Thoman observed McPherson on the ladder which is consistent with what the undercover officer observed, but the undercover officer who was much closer to McPherson did not see any dangerous behavior; nor did Sooaemalelagi. The only behavior McPherson exhibited was fumbling with a curtain rod and some boxes that were starting to fall. It was only after Thoman told him to get his hands out of from where they were and put them in plain view, and McPherson took his hands out momentarily and then immediately turned back and put his hands back in, that Thoman became concerned. From this description that there was no "immediate threat to someone's safety" as is required for exigent circumstances to overwhelm the need for an arrest warrant.
Finally, the nature of the investigation of stolen property is inconsistent with any concern about a destruction of evidence. Unlike situations such as drug cases where the physical attributes of drugs make them subject to destruction, the property in question was not of the type that destruction of the evidence can be offered as a basis for exigency.
CONCLUSION
Based on the foregoing reasons, IT IS HEREBY ORDERED that Defendant's Motion to Suppress is GRANTED.