Opinion
Case No. 03-00015-01-CR-W-HFS
May 20, 2003
MEMORANDUM AND ORDER
Defendant objects to the report and recommendation that his motion to suppress be denied. Defendant contends there was a Fourth Amendment violation when there was a warrantless search of a residence of relatives where defendant did not live, but where he had been voluntarily admitted and where he was hiding under a bed. Defendant contends the "standing" objection was unsound based on the somewhat dated ruling of the Circuit in Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973).
Fourth Amendment law has changed rather drastically since the Holloway ruling, and I do not find recent decisions relying on that case. On the contrary, it has recently been stated that "a visitor usually lacks a rightful expectation of privacy when present in the home of another — unless the visitor stays overnight." United States v. Sturgis, 238 F.3d 956, 958 (8th Cir. 2001). Since there is no claim here that defendant was an overnight guest, or had any connection with the premises other than seeking temporary sanctuary from a police chase, the views of Magistrate Judge Hays correctly reflect current law, as stated by the Supreme Court. Using recent Supreme Court language, defendant is barred from asserting Fourth Amendment rights because he was "one simply permitted on the premises." Minnesota v. Carter, 525 U.S. 83, 91 (1998). See also Nadel v. Las Vegas Metropolitan Police Dept., 268 F.3d 924, 928 (9th Cir. 2001) (plaintiff was on the premises only for the period "necessary to regain sufficient sobriety to drive"); United States v. Health, 259 F.3d 532, 532 n. 6 (6th Cir. 2001) (distinguishing that case from one in which a defendant was a "`casual, transient visitor'" who would have no reasonable expectation of privacy while on the premises).
Defendant cites United States v. Fields, 113 F.3d 313 (2nd Cir. 1997) for the proposition that persons on the premises with permission may have expectations of privacy even though not establishing they were overnight guests. Defendant Fields had, however, a "significant connection" with the premises that gave him standing. 113 F.3d at 320. Defendant Crawley, the invited guest of Fields, was ruled to be more than a "transient visitor" because he had been at the apartment for several hours before being interrupted by the police intrusion. I have considerable doubt that Crawley's standing would be accepted in this Circuit or would be generally accepted as sufficient, but on the occasion in litigation defendant was surely no more than a transient visitor for some minutes rather than hours. Thus I am satisfied that the legal appraisal by Judge Hays was correct, and there is a dispositive lack of standing here.
I also agree with the alternative rationale of Judge Hays, to the effect that there were exigent circumstances that allowed police entry without taking time to obtain a search warrant. This ruling is unnecessary, as I understand the record, because if defendant cannot challenge his arrest in the house of question, all other issues fall out. It is worth while, however, to discuss them as Judge Hays does, in the alternative, in light of a possible appeal.
The record, which I have reviewed, fully supports the concept that there was hot pursuit of defendant by Officer Bandler. Minor breaks in the chase were tactical in nature, and do not put in doubt the inference that the police knew who they were going after when they entered the house.
The two soft spots in the Government's contention are (1) it was only a traffic violation that initiated the chase and (2) the theory of possible burglary is debatable, since defendant was apparently admitted into the house voluntarily. The flight from the police, however, seems much more serious than the original offense. It is reasonably suggestive of a possible more serious crime (as in fact was the case). One cannot fault police from pursuing someone who could be Public Enemy Number One. While we do not have a "fleeing felon" situation known to the police, this is not necessary. Compare, United States v. Johnson, 207 F.3d 538, 550-1 (9th Cir. 2000).
It could be inferred from some of the language used in the majority opinion in Welch v. Wisconsin, 466 U.S. 740 (1984) that "hot pursuit", when factually established, will justify unwarranted entry into a residence in a traffic case, as the prosecution there argued. United States v. Aquino, 836 F.2d 1268, 1271 n. 4 (10th Cir. 1988). Other parts of the Court's analysis, however, suggest an intention to leave this as an open question. 466 U.S. at 752-3. Compare, United States v. Patch, 114 F.3d 131, 134 (9th Cir. 1997) (using "hot pursuit" in a traffic case to justify some departures from normal limitations on police authority, but noting that entry into a house was not at issue). My best guess is that neither the present Court nor the Circuit would close the doors of the residence in question to the hot pursuit by police in the present case assuming defendant's "standing" to assert an expectation of privacy there.
Likewise, the Magistrate's acceptance of the burglary fear is not out of line. This was no ordinary neighborly visit. Defendant had been seen trying to get into a locked house. What he would do even though he went through an opened door was sufficiently in doubt as to justify law enforcement entry to assure good order. Fear of a future crime is, however, probably the weaker basis for approving a warrantless entry.
I consider a legitimate protective aspect of this entry to be somewhat more justifiable than the exigent circumstances approved by the Circuit in United States v. Kuenstler, 325 F.3d 1015 (8th Cir. 2003). In that case the sense of danger (which was the excuse) seemed entirely self-manufactured, both as a motivation for entry and as a realistic factor that would have been entirely avoided if the police had kept their distance.
For the foregoing reasons, and those stated by Judge Hays, I adopt the report and recommendation and deny defendant's motion to suppress evidence.
DEFENDANT'S RESPONSE TO GOVERNMENT'S RESPONSE TO OBJECTIONS TO THE MAGISTRATE'S REPORT AND RECOMMENDATION
COMES NOW the defendant, Phillip Boose, by and through counsel, in response to the Government's position that defendant did not have a reasonable expectation of privacy in a residence located at 6018 Agnes, Kansas City, Missouri, and asserts that he does have standing to object to the illegal arrest and search.
SUGGESTIONS IN SUPPORT
1. The Government proposes that defendant's reliance on Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973) is misplaced because the Holloway case relied upon the principle of "automatic standing" established inJones v. United States, 362 U.S. 257 (1960). In Jones v. United States, 362 U.S. 257 (1960), the Court held that automatic standing should be conferred on defendants charged with crimes of possession, but, alternatively, that the defendant had standing because he was legitimately on the premises at the time of the search. The Supreme Court held in Rakas v. Illinois, 439 U.S. 128 (1978) that the phrase "legitimately on premises" created "too broad a gauge" for measurement of Fourth Amendment rights and stated that the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and could claim the protection of the Fourth Amendment. Defendant Jones had the permission of the owner to be present in an apartment. Likewise, Mr. Boose had permission of the owner of the residence located at 6018 Agnes, Kansas City, Missouri to be present inside the residence. Mr. Boose knocked on the door and was permitted entry by a relative who opened the door. (Tr. 9, 21-22, 31).
Tr. refers to the suppression hearing transcript held on March 11, 2003.
2. The Rakas case also recognized that persons may have a legally sufficient interest in a place other than their own home so that the Fourth Amendment offers protection from unreasonable intrusions into that place. To claim protection of the Fourth Amendment, the aggrieved must demonstrate a legitimate expectation of privacy in the invaded place. The subjective expectation of privacy is considered legitimate if it is one that society is prepared to recognize as reasonable. Rakas at 143-144.
3. The Government cites United States v. Salvucci, 599 F.2d 1094 (1970) for the holding that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. The Salvucci case overruled the automatic standing rule announced in Jones. However, Mr. Boose does not assert "automatic standing" rather, he asserts that he has a legitimate expectation of privacy in the residence entered by officers who did not possess a warrant.
4. In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court considered the issue of whether a defendant, who was an overnight guest had a reasonable expectation of privacy in the premises and whether the defendant had standing to challenge his warrantless arrest. The Court held that the overnight guest did have a legitimate expectation of privacy in the premises which was protected by the Fourth Amendment and had standing to challenge the warrantless entry into the residence. It was stated by the Court that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home. Id. at 98. The Court further reasoned that exigent circumstances did not justify the warrantless entry into the residence when the police had no reason to believe there was any danger to the other occupants and it was obvious that the suspect was not leaving the residence.
5. Whether a guest spends the night is not dispositive of the issue of the guest's legitimate expectation of privacy in the premises he is visiting to establish standing to challenge a search of the premises.United States v. Fields, 113 F.3d 313 (2nd Cir. 1997). The Second Circuit reasoned that Olson stands for the proposition that any guest, in appropriate circumstances, may have a legitimate expectation of privacy if present "with the permission of his host, who is willing to share his house and his privacy with his guest." Olson at 99. Mr. Boose was a guest of the owner of the residence (Tr. 9) and had a legitimate expectation of privacy. Officer Bandler told a resident of the house if he did not voluntarily allow the officer inside the residence, that the door would be kicked in. (Tr. 8).
6. Defendant has previously addressed the issues of hot pursuit and exigent circumstances in detail in Defendant's Objections to the Report and Recommendation. For the reasons set forth in the Objections to the Report and Recommendation, Mr. Boose submits that neither exigent circumstances nor hot pursuit can support the warrantless entry into the residence.
WHEREFORE, for the reasons set forth herein and for the reasons set forth in Defendant's Objections to the Report and Recommendation of the Magistrate, defendant respectfully moves the District Court for an order overruling the Report and Recommendation of the United States Magistrate and suppressing the evidence as illegally obtained.