Opinion
Case No. 1:03CR0007 W
October 8, 2003
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the court on Defendant's Motion to Suppress. On April 29, 2003, the court conducted an evidentiary hearing on the motion, and on July 14, 2003, the court conducted a supplemental evidentiary hearing on the motion. Defendant Wvillado Garcia Escalona ("Escalona") was present at both hearings with his counsel, Jamie Zenger. The government was represented by Colleen K. Coebergh. The court ordered a transcript of each hearing as well as supplemental briefing from the parties. On September 10, 2003, the court heard oral argument on the matter. After thorough review and consideration of the pleadings submitted by the parties, the testimony presented at the evidentiary hearings and the arguments of counsel, the court enters the following memorandum decision and order,
Defense counsel requested a supplemental evidentiary hearing to address discrepancies between two versions of the police report authored by Officer Dale Weese, dated January 2, 2003. Defense counsel became aware of the discrepancies during the April 29, 2003 hearing at which time Officer Weese was referring to his report that had been printed on February 12, 2003 (Exhibit B), while defense counsel was referring to Weese's report that had been printed on January 3, 2003. (Exhibit A.) Although both reports were dated January 2, 2003, and were nearly identical, some of the sentences had been altered.
At the supplemental hearing it was revealed that Officer Weese's supervisor, Tony Fox, reviewed and altered Weese's original report. Although Fox telephoned Weese to inform him of the alterations, Weese had never been given, nor had he ever seen a copy of the altered version of his report until the April 29th hearing. Weese testified fully and consistently regarding his activities at both hearings. The evidence indicates that the changes made to Weese's original report were not within Weese's control. The variations between the reports, although unfortunate, does not affect the credibility of Officer Weese.
BACKGROUND
The court finds the relevant facts as follows. On January 2, 2003, Officer Dale Weese of the Ogden City Police Department received a telephone call from Kim Buckway, the property manager of an apartment complex located at 556 23rd Street in Ogden, Utah. Officer Weese was familiar with Mr. Buckway and had met with him on several different occasions to address problems with rental properties. These problems included, but were not limited to, drugs, trespass and prostitution. (Tr. I at 7-8.) Officer Weese was also familiar with the apartment complex located at 556 23rd Street and had been there before. (Tr. at 8.) During the course of the January 2, 2003, telephone call, Mr. Buckway asked Officer Weese to meet him at the apartment complex to "go over some problems he was having." (Tr. I at 7.) Mr. Buckway did not specifically identify the problems. (Tr. I at 8.)
Reference to the transcript of the evidentiary hearing conducted on April 29, 2003, will be cited as "Tr. I at __." Reference to the transcript of the supplemental evidentiary hearing conducted on July 14, 2003, will be cited as "Tr. II at __."
Officer Weese went to the apartment complex at approximately 5:00 p.m. to meet Mr. Buckway. Officer Weese went alone, but arranged for other officers to meet him at the location. He drove a marked vehicle and was dressed in uniform. (Tr. I at 8-9.) While Officer Weese was waiting for Mr. Buckway to arrive, he noticed a Hispanic male open the door of apartment #23 as if he was going to leave. Officer Weese and the individual made eye contact, and after observing Officer Weese, the individual immediately went back into the apartment and shut the door. (Tr. I at 9-10.) Officer Weese testified that it appeared to him as if the individual was attempting to "sneak back inside" as if he "did not want me to notice him." (Tr. I at 10, 17.)
Officer Weese testified that he had been to the apartment complex within the ten days prior to January 2, 2003, and it appeared to him at that time that apartment #23 was unoccupied. Tools and paint in the apartment suggested that the apartment was being remodeled. (Tr. I at 11, 18.)
Given the Hispanic male's suspicious behavior upon seeing Officer Weese, combined with Officer Weese's prior knowledge regarding the "vacant" status of apartment #23 and his knowledge and experience of prior criminal activity at the complex, Officer Weese decided to make contact at apartment #23 to assess the situation. (Tr. I at 10.) By this time, Detective Sergeant McCallister and Detective Arrowsmith had arrived. (Tr. I at 10.) They were also dressed in uniform and were readily identifiable as police officers. (Tr. I at 28.)
Officer Weese, accompanied by McCallister and Arrowsmith, knocked on the door of apartment #23. The door was opened by an unknown, male individual. (Tr. I at 10.) Through the open door, the officers observed approximately seven additional men in the apartment, sitting around on the floor of the front room, lining the walls. (Tr. I at 10-11, 26.) The officers also observed that the front room contained "very little furnishings" and looked "baron." (Tr. I at 11.)
Officer Weese asked the man who answered the door if he lived at the apartment. The man said he did not. (Tr. I at 11, 26.) Officer Weese then had the man who answered the door ask all of the individuals in the front room whether any of them lived in the apartment or if anyone knew who did live there. According to the individuals in the front room, none of them lived there and none of them knew who did live there. (Tr. I at 11-12.) Officer Weese then asked if he could come in and talk to them and the response was "sure," "yes." (Tr. I at 12.)
Officers Weese, McCallister and Arrowsmith entered the front room. Once inside, they noticed a lot of shuffling and movement in the apartment. (Tr. I at 12.) The officers observed a migration of individuals toward the back rooms of the apartment and they heard noises coming from areas of the apartment they could not see. (Tr. I at 12, 26.)
Given the number of individuals in the apartment, the fact that the officers were considerably outnumbered, the presence of people in areas the officers could not see, and the movement of individuals previously in the front room into back areas, the officers became increasingly concerned about their safety. (Tr. I at 29.)
Detective Arrowsmith observed an individual, later identified as the defendant, "peek his head out" of the bathroom door. (Tr. I at 27, 28.) After making eye contact with Detective Arrowsmith, the defendant closed the bathroom door. (Tr. I at 27-28.) Detective Arrowsmith testified that immediately prior to seeing the defendant "peek out" of the bathroom he heard a loud "bang like" noise come from the bathroom. (Tr. I at 29.)
Officer Weese testified that he also heard the noise and believed it was the sound of a window being forced open. Officer Weese was concerned that someone might be trying to escape through a back window. (Tr. I at 12.) Officer Weese advised Arrowsmith of the noise and then Weese and McCallister left the apartment and went around to the back of the building to check the windows. The officers saw a partially opened bathroom window from apartment #23 with the screen pushed out. Officer Weese found a plastic bag containing a substance that appeared to be crystal methamphetamine lying directly beneath the subject window. (Tr. I at 12-13.) The substance in the bag was later tested and confirmed to be crystal methamphetamine. (Tr. I at 13.)
Officer Weese notified Detective Arrowsmith by radio of the methamphetamine he had found and advised Detective Arrowsmith to determine who, if anyone, was in the bathroom in apartment #23. (Tr. I at 13.) Detective Arrowsmith knocked on the bathroom door and asked the occupant, the defendant, to step out. (Tr. I at 29, 30.) The defendant stepped out of the bathroom and Detective Arrowsmith asked if he had any drugs or weapons in his possession. The defendant indicated he did not. (Tr. I at 30.) Detective Arrowsmith asked the defendant if he could search him. The defendant said "okay" and held his arms up in the air. (Tr. I at 30.) Detective Arrowsmith conducted a "normal" pat-down search of the defendant during which time he found a large, rolled-up bundle of money. (Tr. I at 31.) Detective Arrowsmith asked the defendant if he lived at the apartment and the defendant responded that he did not. (Tr. I at 31.)
Detective Arrowsmith initially spoke to the defendant in English and then repeated his questions in Spanish because defendant acted as if he did not understand. (Tr. I at 34.)
Immediately following this exchange, Detective Arrowsmith had Sergeant McCallister watch the defendant while he proceeded to clear the two back bedrooms of people. There were approximately 11-15 people in the apartment at the time. (Tr. I at 31, 32, 35; Govt's Ex. A.)
Upon reentering the apartment, Officer Weese observed that the occupants continued to maintain that none of them lived at the apartment and that none claimed to know anyone who rented the apartment. Accordingly, Officer Weese decided to check and see if he could find "any evidence as to whether someone was trespassing or someone actually lived there and just wasn't present." (Tr. I at 14.)
Officer Weese remained outside apartment #23 with the suspected methamphetamine until another officer arrived on the scene to watch it for him. (Tr. I at 14.)
Officer Weese had already noted that the front room had "very little furnishings." (Tr. I at 11.) Officer Weese looked in the fridge "to look for food to see if it was empty or full or whatnot." The fridge did not contain much food. (Tr. I at 15; Def's Ex. 1, photograph of refrigerator contents.) Among the limited contents, Weese saw a box of pizza on one of the shelves and a handgun underneath the box. (Tr. I at 15.) Upon entering the bedrooms, Officer Weese observed that these rooms contained more furnishings than the front room and kitchen areas. (Tr. I at 15.)
During the course of events, Officer Weese called Officer Aaron Johnson to the scene because Officer Johnson speaks fluent Spanish. When Officer Johnson arrived Officer Weese asked him to speak with the defendant. Officer Johnson took the defendant into one of the bedrooms. (Tr. I at 40.) Because Officer Johnson had been informed that a large quantity of suspected methamphetamine had been found, he began by advising the defendant of his Miranda rights in Spanish. The defendant indicated that he understood his rights and agreed to talk with Officer Johnson. (Tr. I at 39.) Officer Johnson asked the defendant about the drugs that had been found. The defendant initially denied any knowledge of the drugs. (Tr. I at 40.) Later in the conversation, however, the defendant said that he knew the drugs were there but maintained that they were not his and he had thrown them out the window in an effort to hide them. (Tr. I at 40.) The entire communication between Officer Johnson and the defendant was in Spanish. (Tr. I at 39.)
The defendant testified at the evidentiary hearing, via an interpreter, and said that he had been staying at apartment #23 for approximately 2-3 days prior to January 2, 2003. (Tr. I at 65.) He testified that there were three other people living in apartment 23, but he could not remember any of their names. (Tr. I at 60.) The defendant did not know who signed the written lease for apartment #23 and did not know who the lawful tenants were. (Tr. I at 62.) The defendant never signed any papers with the landlord or person who owned the apartment. (Tr. I at 64.) Defendant testified that a friend, whom he knew only as "Hima," told him that he could move into the apartment. (Tr. I at 60.) The defendant did not know "Hima's" last name, (Tr. I at 63.) Defendant testified that he agreed to pay Hima "close to" $100. (Tr. I at 60-61.) The defendant stated that he was going to pay rent to his friends "and they were going to give the money to the one who rents." (Tr. I at 61.) As of January 2, 2003, the defendant had paid approximately $40 to Hima.
The defendant testified that on January 2, 2003, he told the police that he did not live at apartment #23. (Tr. I at 64.) In addition, on January 2, 2003, the defendant provided the officers with a different but local Ogden address for his home address or residence. (Govt's Ex. A.) When asked by defense counsel whether he had personal belongings in apartment #23 the defendant replied, "yes, because I was just about to move there." (Tr. I at 65.) When asked by the court why defendant told the police he did not live there, the defendant reiterated "because I was just about to move there." (Tr. I at 65.) The defendant testified that no officer ever read him his Miranda rights. (Tr. I at 61.)
The property manager, Kim Buckway, also testified at the hearing, and brought a copy of the rental agreement for apartment #23. (Def's Ex. 3.) The rental agreement lists three individuals with Hispanic names. (Tr. I at 47-48.) The defendant is not listed on the lease agreement. (Tr. I at 48.) There is no one with the name of "Hima" listed on the lease agreement. Mr. Buckway recalled moving some Hispanic men into apartment #23 on or about December 27, 2002. Mr. Buckway testified that the defendant did not look familiar and he did not recall seeing the defendant at that time. (Tr. I at 48.)
DISCUSSION
I. Standing
Although the question of whether a search and seizure violates the Fourth Amendment rights of a particular defendant is often referred to as "standing," "it is `more properly subsumed under Fourth Amendment doctrine.'" United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir.) (quoting Rakas v. Illinois, 439 U.S. 128, 139 (1978)), cert. denied, 502 U.S. 897 (1991). The analysis focuses on whether the challenged search or seizure "violated the Fourth Amendment rights of [the] criminal defendant who seeks to exclude the evidence. . . ." Rakas, 439 U.S. at 140. "It is immaterial if evidence sought to be introduced against a defendant was obtained in violation of someone else's fourth amendment rights. Fourth amendment rights are personal and cannot be asserted vicariously." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990), cert. denied, 499 U.S. 924 (1991).
To ascertain whether a search has violated the rights of a particular defendant who seeks to exclude the resulting evidence, the court considers two primary factors: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society would recognize that expectation as objectively reasonable. See Smith v. Maryland, 442 U.S. 735, 740 (1979). The defendant has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure. Rakas, 439 U.S. at 130 n. 1; Abreu, 935 F.2d at 1132.
To decide whether a reasonable expectation of privacy exists, courts "consider concepts of real or personal property law, bearing in mind that `arcane distinctions developed in property and tort law between guests, licensees and invitees, and the like, ought not to control.'" Arango, 912 F.2d at 445 (quoting Rakas, 439 U.S. at 143 n. 12). "Although neither ownership nor lawful possession are determinative, they are often dispositive factors." Id.
Applying these legal principles to the case at bar, the court first considers whether the defendant demonstrated a subjective expectation of privacy in apartment #23. The defendant testified that he had been staying at the apartment for 2-3 days prior to the incident, had some personal items at the apartment, and had paid $40 to "Hima." However, when asked by the police for his address, the defendant provided the police with a different but nearby address as his home or residence. Moreover, at the evidentiary hearing, the defendant stated more than once that he was "just about to move there" (referring to the apartment), suggesting that he did not perceive himself as having been "moved in" at the time of the search. (Tr. I at 65: 6, 19.) Although the court is mindful that an individual may have "a sufficient interest in a place other than his own home so that the Fourth Amendment protects him," Rakas, 439 U.S. at 142, these responses by the defendant arguably raise a question as to whether the defendant perceived that he had any rights with respect to the apartment at that particular time.
Regardless of the defendant's subjective expectations, however, this court is of the opinion that the defendant did not assert an expectation of privacy that society is prepared to recognize as reasonable. Although property ownership "is an important consideration in determining whether a defendant had a legitimate expectation of privacy,"Abreu, 935 F.2d at 1133, courts have routinely recognized that an individual may have a reasonable expectation of privacy in a variety of situations where the subject property is owned by another. For example, courts have recognized that an individual may have a reasonable expectation of privacy in a borrowed vehicle, United States v. Orrego-Fernandez, 78 F.3d 1497, 1502 (10th Cir. 1996), and a rented motel room, United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991), and that the "expectation of privacy" may extend to an invited guest of the renter of the motel room, United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995) (providing defendant must demonstrate that, in the case of a motel room, that he was the invited guest of the renter of the premises). A house guest may have a reasonable expectation of privacy in the premises of his host, Minnesota v. Olson, 495 U.S. 91, 99 (1990), and under certain circumstances the invited guest of a guest of a registered tenant may be able to establish a reasonable expectation of privacy in the tenant's apartment, United States v. Fields, 113 F.3d 313, 321 (2d Cir.) (stating that "any guest, in appropriate circumstances, may have a legitimate expectation of privacy when he is there with the permission of his host, who is willing to share his house and privacy with his guest," and concluding that the guest of a paying guest of a registered tenant had a reasonable expectation of privacy in the apartment), cert. denied, 522 U.S. 976 (1997).
However, "[m]ere physical possession or control of property is not sufficient to establish standing to object to a search of that property."Conway, 73 F.3d at 979; Arango, 912 F.2d 441, 444-46. The common thread in each of these cases in which courts have found a reasonable expectation of privacy in the property of another appears to be the defendant's successful demonstration that they had permission from the lawful owner, tenant or someone with legitimate authority, to use, occupy or possess the property. In United States v. Arango, the Tenth Circuit addressed the quantum of evidence necessary to establish this reasonable expectation of privacy:
Although we recognize that a proponent of a motion to suppress need not always come forward with legal documentation establishing that he lawfully possessed the area searched [citation omitted], the proponent must at least state that he gained possession from the owner or someone with the authority to grant possession.Arango, 912 F.2d at 445 (concluding defendant lacked standing to challenge search of vehicle where defendant stated that he obtained the vehicle he was driving from a person who was not the registered owner and presented no evidence that said person gained lawful possession of vehicle from registered owner).
In United States v. Conway, 73 F.3d 975 (10th Cir. 1995), the Tenth Circuit applied this principle to the search of a motel room. Under the facts of that case, police officers knocked on a motel room door during the course of a narcotics investigation. The defendant, Conway, answered the motel room door and the officers asked if the motel room was his. Conway stated that the room belonged to someone named "Randy" and that he was merely borrowing the room to engage in sexual relations with a female friend. Although Conway was unable to state the last name of the registered occupant of the motel room, motel records indicated that the room had been registered to a Randy Rone. In addition, Conway had a key to the room. Id. at 978, Conway filed a motion to suppress the evidence found within the motel room and the district court denied the motion.
The Tenth Circuit affirmed the district court's decision, concluding that Conway failed to assert an expectation of privacy that society would recognize as reasonable. While acknowledging that a guest may possess an expectation of privacy in the premises of his host, the court found that Conway failed to present sufficient evidence to show he was an invited guest of the registered occupant of the motel room. The court reiterated that although Conway was not required to come forward with documentation establishing legal possession of the motel room, "he must at least demonstrate, in the case of a motel room, that he was the invited guest of the renter of the premises." Id. at 979. The court noted that Conway failed to present any testimony from the registered occupant confirming his asserted status as the registered occupant's guest, and stated: "His possession of the motel room key and knowledge of the registered occupant's first name only is insufficient to establish his status as a guest." Id. at 979-80. Having failed to demonstrate that he was an invited guest of the registered occupant, the defendant was without standing to challenge the constitutionality of the search of the motel room. See also United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (providing that where occupant of motel room registered to another person presented no evidence to show that he was in lawful possession of the room or that he was the invited guest of the person to whom the room was registered, he failed to establish a reasonable expectation of privacy in the room).
Applying these principles to the case at bar, the court concludes that the defendant has failed to demonstrate that he was occupying or otherwise using the apartment with the permission of the owner, a lawful tenant or any other person with such authority. The court finds it significant that the defendant has been unable to name or identify any of the registered tenants of apartment #23. At the time of the search of the apartment, defendant denied knowing any of the legitimate tenants, and at the evidentiary hearing the defendant similarly testified that he did not know the names of the registered tenants. Although the defendant testified that he gained permission to rent the premises from a person he knew as "Hima," the defendant could not provide Hima's last name. There was no one with the name "Hima" listed on the lease, and there is nothing to indicate that Hima has any relationship to the apartment whatsoever. See United States v. Armenta, 69 F.3d 304, 309 n. 3 (9th Cir. 1995) (concluding that defendant, who claimed to be an overnight guest, lacked standing to challenge search of house because there was no "identifiable host" who could or did give defendant permission to stay at the house; Co-defendant's testimony that defendant was a "guest" was unavailing as co-defendant was not shown to be the renter or owner or to have any relationship with the premises).
That fact that defendant claims he had paid "Hima" $40 at the time of the search does not alter the outcome. Paying someone who does not have authority over the premises cannot serve to confer upon the defendant a legitimate proprietary interest in the apartment and has little if anything to do with defendant's obligation to demonstrate that he was using the premises with the permission of the owner, tenant or someone with similar authority. See generally United States v. Gordon, 168 F.3d 1222, 1227 (10th Cir.) (concluding that defendant did not have a reasonable expectation of privacy in motel room rented to third party despite fact that defendant had a key to the room and testified that he provided the motel room's registered guest with the money to pay for the room; defendant presented no testimony confirming his asserted status as a co-occupant, and fact of payment did not by itself establish his occupancy or that he was staying there as the registered occupant's guest), cert. denied, 527 U.S. 1030 (1999). At best, the defendant claims to be a sublessee of someone who has not been shown to have any authority to grant permission to occupy the apartment. See, e.g., United States v. Silva, 247 F.3d 1051 (9th Cir. 2001) (concluding that defendants' failed to demonstrate they were guests of an identifiable host and upholding district court's finding that there was no evidence that defendants were among the people who had made arrangements to sublease the shed from the tenant and defendants were on the premises at the behest of an unidentified sublessor).
The defendant's testimony that he had been staying at the apartment for 2-3 days, had some personal items in the apartment, and had paid $40 to a person known only as "Hima," is insufficient to satisfy defendant's obligation to demonstrate that he "gained possession from the owner or someone with the authority to grant possession." Accordingly, the court concludes that the defendant has failed to establish an expectation of privacy that society would recognize as reasonable.
II. Abandonment
A. The Apartment
Moreover, even if defendant were successful in establishing an expectation of privacy that society would recognize as reasonable, the defendant, through his words, acts and other objective facts, failed to retain any reasonable expectation of privacy in the apartment. In other words, the defendant abandoned any interest he might have had in the apartment.
The test for abandonment, in the context of the Fourth Amendment, "is whether an individual has retained any reasonable expectation of privacy in the object." United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.),cert. denied, 464 U.S. 859 (1983). An expectation of privacy is a question of intent "which may be inferred from words spoken, acts done, and other objective facts." Id. Abandonment subsumes both a subjective and an objective component. United States v. Austin, 66 F.3d 1115, 1118-19 (10th Cir. 1995), cert. denied, 516 U.S. 1084 (1996). The abandonment must be voluntary. However, police pursuit or investigation at the time of abandonment of property, without more, does not itself render abandonment involuntary. United States v. Trimble, 986 F.2d 394, 399 (10th Cir.), cert. denied, 508 U.S. 965 (1993). Abandonment is akin to the issue of standing because a defendant lacks standing to complain of an illegal search or seizure of property which has been abandoned. United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997).
Abandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual's reasonable expectation of privacy, not his property interest in the item. See United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990);United States v. Barlow, 17 F.3d 85, 87-88 (5th Cir.) (providing that the concept of abandonment in Fourth Amendment jurisprudence is unlike that found in property law concepts, "abandonment" here may be shown "merely [by] an intent voluntary to relinquish [a] privacy interest"), cert. denied, 513 U.S. 850 (1994); United States v. Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981) ("Abandonment here is not meant in the strict property-sense right, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search."),cert. denied, 456 U.S. 946 (1982); see also, United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989) ("The test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object."); State v. Ross, 49 S.W.3d 833, 842 (Tenn. 2001) (providing that a defendant's disclaimer of an interest in the object of a government investigation will result in a loss of the defendant's expectation of privacy in that object, regardless of other considerations such as actual ownership or possession). See generally Oliver v. United States, 466 U.S. 170, 183-84 (1984) (the boundaries of Fourth Amendment law are not defined by property law concepts).
The Tenth Circuit has historically and routinely found "abandonment" in situations where the defendant "either (1) explicitly disclaimed an interest in the object, or (2) unambiguously engaged in physical conduct that constituted abandonment." Garzon, 119 F.3d at 1449.
In this case, the defendant's words and actions objectively manifested his intent to relinquish any reasonable expectation of privacy he might have had in the apartment. When the officers initially approached the apartment and inquired as to who lived there, the defendant declined to respond. Thereafter, when asked specifically by Detective Arrowsmith if the defendant lived at the apartment, the defendant affirmatively told Arrowsmith that he did not. The defendant also told the officers that he did not know who lived in the apartment. Moreover, when the officers asked the defendant to provide his address, the defendant gave them a different but local address. During the course of the encounter, the defendant did not make any protest regarding the officers' entry or search of the premises, and there was nothing in the defendant's words or conduct that would have suggested he had any proprietary interest in the apartment. Finally, at the evidentiary hearing, when the court asked the defendant why told the police he did not live at the apartment the defendant answered, "because I was just about to move there."
The defendant failed to admit and expressly denied any connection with the apartment. He engaged in outward behavior indicating that he did not live at the apartment and had no proprietary interest in the apartment.Compare State v. Ross, 49 S.W.3d 833 (Term. 2001) (concluding that defendant's disclaimer of ownership of key to motel room combined with his assertion that room belonged to someone else was sufficient evidence that defendant abandoned his otherwise reasonable expectation of privacy in his room) and United States v. Ferguson, 2002 WL 460795 (9th Cir. Feb. 22, 2002) (unpublished) (concluding defendant abandoned reasonable expectation of privacy in house by: stating the house and its contents were not his; producing identification listing his address as being in another city; and driving away from premises when released by police). Based on these facts, the court concludes that the defendant abandoned any reasonable expectation of privacy in the apartment.
B. The Bag Containing Crystal Methamphetamine
Similarly, the court concludes that the defendant failed to retain an expectation of privacy in the bag of crystal methamphetamine he threw out the bathroom window. In United States v. Jones, 707 F.2d 1169 (10th Cir.), cert. denied, 464 U.S. 859 (1983), the Tenth Circuit held that the physical act of discarding a satchel on public property where it could be picked up by anyone constituted abandonment.
In this case, when the defendant threw the bag of crystal methamphetamine out the window "he may have hoped that the police would not find it and that he could later retrieve it. However, his ability to recover the [bag] depended entirely on fate and the absence of inquisitive (and acquisitive) passersby." Id. When questioned by the officers, the defendant initially denied any knowledge of the bag of drugs that had been found. Later, although admitting that he had thrown the bag out the window in an attempt to hide the drugs, the defendant maintained that the drugs were not his. In this case, as in Jones, the "words spoken" and, more significantly the "acts done" objectively manifested defendant's clear intent to relinquish his expectation of privacy and abandon the bag of drugs. Id.
III. The Search of Defendant's Person
If the defendant consents to the search of his property, a warrant is not required. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). When the government seeks to admit evidence obtained from a search supported by consent, it bears the burden of demonstrating that consent was freely and voluntarily given. Id. To admit evidence from a consent search, the court must find that "(1) the defendant's consent to an officer's search was voluntary and (2) the search did not exceed to scope of defendant's consent." United States v. Price, 925 F.2d 1268, 1270 (10th Cir. 1991).
In this case, the defendant freely gave his consent to be searched. (Tr. I at 30.) Defendant has not refuted the testimony of the police officers nor has he alleged that he was searched without consent or that his consent was involuntary. As such, there is no legal basis upon which items found on defendant could be suppressed.
Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion to suppress is DENIED.