Opinion
Case No. 00-20118-01-JWL
December 27, 2000.
MEMORANDUM ORDER
This case is before the court on defendant's motion to suppress (Doc. 57). For the reasons set out below, the motion is denied.
Background
On November 7, 2000, this court held an evidentiary hearing on the motion to suppress. According to testimony at the hearing, police received a tip on August 16, 2000 that an individual with outstanding warrants was present at a residence in Kansas City, Kansas. The informant also told police that methamphetamine was being manufactured at the residence. Police located the residence and began surveillance. While watching the residence, police saw Peter Fuimaona leave the residence shortly before midnight and arrested him at a nearby convenience store on an outstanding warrant. Police found methamphetamine in Mr. Fuimaona's possession.
The police believed that they did not have enough evidence for a search warrant and decided to conduct a "knock and talk" at the residence. One group of officers approached the residence and a second approached a detached garage. The officer in charge of the operation, Detective James Shea, testified that a group of officers was assigned to approach the garage because surveillance revealed that the garage was occupied. Detective Bill Sweeney, one of the officers assigned to the garage, testified that when he reached the front of the garage, he could see into the garage through a narrow crack between the garage door and the doorframe. According to Detective Sweeney, he saw two men in the garage standing near equipment he believed was being used to manufacture methamphetamine. Detective Sweeney knocked on the garage door and announced that he was a police officer. According to Detective Sweeney, he saw one of the men in the garage begin kicking over containers and equipment. Detective Sweeney testified that he believed that the man was destroying evidence and, consequently, he kicked in a panel of the garage door and entered the garage. The two men in the garage, Charles Cosgrove and Brad Richardson, were arrested.
Police described a "knock and talk" as knocking on the front door of the residence, identifying themselves as police and soliciting information for their investigation.
Detective Sweeney testified that he had extensive experience and training in identifying methamphetamine laboratories.
Police knocked and announced their presence at the residence and were given consent to search the residence and garage by the two individuals leasing the property, Rick Harlan and April Gray. Mr. Cosgrove testified at the hearing that he did not know who lived at the residence until after he was arrested and that he had not met Rick Harlan or April Gray before his arrest. Mr. Cosgrove said that he was in the garage at the request of Peter Fuimaona to work on Mr. Fuimaona's car. According to Mr. Cosgrove, he went to the garage with Mr. Fuimaona and Mr. Fuimaona had a code that allowed him to gain access to the garage. Mr. Cosgrove also testified that he met Mr. Richardson, the other man police found in the garage, for the first time that night.
Discussion
In order to challenge a search on Fourth Amendment grounds, Mr. Cosgrove must demonstrate that he had an "expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota v. Carter, 525 U.S. 83, 88 (1998). An expectation of privacy is reasonable if it arises from a source "outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. (quoting Rakas v. Illinois, 439 U.S. 128, 143-44 (1978)). The burden is on Mr. Cosgrove to show that he had a reasonable expectation of privacy. See Id.; United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir. 1999).
The United States Supreme Court decision in Minnesota v. Carter, 525 U.S. 83 (1998), establishes the framework for evaluating Mr. Cosgrove's challenge to the search of the garage. In Carter, two visitors of an apartment went to the apartment "for the sole purpose of packaging . . . cocaine," "had never been to the apartment before," and "were only in the apartment for approximately 2 1/2 hours." The visitors challenged a search of the apartment with a motion to suppress. The Court reasoned that the facts of the case fell "somewhere in between" an overnight guest found to have an expectation of privacy protected by the Fourth Amendment in Minnesota v. Olson, 495 U.S. 91 (1990), and "one merely `legitimately on the premises' . . . typifying those who may not" claim the protection of the Fourth Amendment. The Court emphasized "the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder" in holding that the "situation is closer to that of one simply permitted on the premises." The Carter Court held that "any search which may have occurred did not violate their Fourth Amendment rights."
Like the visitors in Carter, Mr. Cosgrove was much closer to a person who was simply permitted on the premises than an overnight guest. Mr. Cosgrove testified that he did not know Rick Harlan or April Gray, the lessees of the property. In fact, Mr. Cosgrove testified that he did not even know who owned or leased the residence when he arrived with Mr. Fuimaona. Mr. Cosgrove also testified that he had never been to the residence before that night and that he was present at the residence for only part of the night. Mr. Cosgrove testified that he was present to work on Mr. Fuimaona's car. Whether Mr. Cosgrove was present to assist in manufacturing methamphetamine or to work on the car, Mr. Cosgrove was present in the garage for a purpose more akin to the commercial transaction in Carter than a social visit by an overnight guest. Because Mr. Cosgrove, according to his testimony, was not invited on the premises by Rick Harlan or April Gray but by Mr. Fuimaona, Mr. Cosgrove was closer to a person merely permitted on the premises than even the visitors in Carter. Because Mr. Cosgrove was closer to a person who was simply permitted on the premises than an overnight guest, this court holds that Mr. Cosgrove did not have a reasonable expectation of privacy in the garage. IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to suppress (Doc. 57) is denied.
In the case of United States v. Gordon, 168 F.3d 1222 (1999), the Tenth Circuit held that a man who had a key to a motel room, claimed to have paid for the room, and where mens clothing and toiletries were in the room did not establish that he had a reasonable expectation of privacy in the room. Mr. Cosgrove's claim of a reasonable expectation of privacy falls significantly short of even Mr. Gordon's claim. The decision in Gordon compels the conclusion that Mr. Cosgrove did not have a reasonable expectation of privacy in the garage.