Opinion
Criminal 03-10329-PBS.
May 5, 2005
MEMORANDUM AND ORDER
I. INTRODUCTION
Defendant Luis Rodrigues moves to suppress three guns found during the December 13, 2000 search of the basement at 72 Boylston Street in Brockton, Massachusetts, claiming a Fourth Amendment violation. After a hearing at which property manager Ronald Walker, Brockton Police Officer Mark Reardon, and Mr. Rodrigues's cousin Marcelino Rodrigues testified, the motion to suppress is DENIED.
II. BACKGROUND
On December 6, 2000, officers from the Brockton Police Department, Boston Police Department, Massachusetts State Police, and Bureau of Alcohol, Tobacco, and Firearms (ATF) executed a search warrant at 70 Boylston Street, Apartment C, in Brockton, Massachusetts. The search warrant permitted the officers to search for two guns, several items of clothing, and any evidence related to an alleged rape. Marcelino Rodrigues and Antonio Depina were at the apartment when the officers entered. The search produced a holster and ammunition clip, as well as some items of clothing and a used condom, but no guns.At the time of the search, Marcelino Rodrigues lived at 70 Boylston Street with Antonio Depina. Although neither was officially listed on the lease, both paid rent on the apartment. Defendant Luis Rodrigues never lived at the apartment and never paid rent there, although he often visited and occasionally slept over.
At the hearing, the government argued that Luis Rodrigues did not live at 70 Boylston Street, despite the fact that in several filings with this Court, the government had stated that he did live at that apartment. The government now asserts that these prior representations were in error.
On December 13, 2000, officers from the Boston Police Department, Massachusetts State Police, and ATF returned to search the area surrounding 70 Boylston Street, based on a tip that firearms had been removed from the searched apartment before the warrant was executed. With the consent of Mr. Walker, the property manager, several officers entered the basement of 72 Boylston Street, the building next to 70 Boylston Street. The basement contained washers and dryers, as well as an area with storage bins in the southeast corner. The storage bins had locks that had been placed on them by individual tenants; however, all the locks had been broken during an unrelated break-in several weeks earlier, and were therefore unlocked. Inside one of the storage bins, which also contained the belongings of a family that was no longer a tenant in the building, the officers found a large red cardboard Nike sneaker box. That box contained the three loaded firearms that are the subject of this motion.
There is some confusion as to how the officers entered the basement of 72 Boylston Street. Mr. Walker testified that he let the officers in using his key, although he is not sure whether the door was actually locked because he didn't check it before using the key. He states that the basement was empty when he entered with the officers. According to the police report, however, the officers found the basement door unsecured, and entered on their own after receiving permission from Walker. Under either scenario, the search was conducted after Walker gave his consent.
Both 70 Boylston Street and 72 Boylston Street contain four apartments. These buildings are part of a larger complex that contains about 48 apartments in total. Tenants in all of these apartments are authorized to use the laundry room and storage bins in the basement of 72 Boylston Street. The laundry room can be accessed through both the front and back doors, both of which are usually locked, although the back door is often propped open by tenants doing laundry.
III. STANDARD OF REVIEW
"[T]o contest a search or seizure on Fourth Amendment grounds, a defendant has the burden of establishing that he has a legitimate and reasonable expectation of privacy in the premises searched or property seized." United States v. Dunning, 312 F.3d 528, 531 (1st Cir. 2002) (citations omitted). The First Circuit has noted several factors that are relevant in determining whether a defendant had a reasonable expectation of privacy in an item or place:
ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case.United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991) (quoting United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)).
IV. DISCUSSION
A. Reasonable Expectation of Privacy
The defendant has not established a reasonable expectation of privacy either in the storage area where the box was found or in the box itself.
1. Basement Storage Area
The defendant has provided no evidence that he ever resided at 70 Boylston Street. He may not simply rely on previous government representations as to his residence, which the government now states were in error. Because the government presented undisputed evidence that defendant did not live in the apartment, he has no basis for claiming an expectation of privacy in the storage area of the basement at 72 Boylston Street. As a non-resident, he had no authority to use the storage area and no ability to control access to the area. There is no evidence that he ever entered the basement or used the bins in the past.
Moreover, the defendant could not claim an expectation of privacy in the storage bin area even if he did live at 70 Boylston Street. "It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building." United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998). In Hawkins, the court found that a basement containing storage spaces assigned to different apartments in the building was a common area of the apartment building, and that the appellant therefore had no reasonable expectation of privacy there. Id. at 31, 33; see also United States v. Garner, 338 F.3d 78, 80 (1st Cir. 2003) ("Without a privacy interest in the common areas of the apartment building, Mr. Garner has no standing to challenge the search and seizure of the drugs and firearm found in a hole in the basement wall.").
2. Storage Bin and Sneaker Box
"Once legally inside [the basement storage area], the police had a right to perceive whatever was available to them through the use of their senses." Hawkins, 139 F.3d at 33. InHawkins, the police located a locked storage space assigned to the defendant, saw through the chicken wire surrounding the storage space that it contained several boxes, and obtained a warrant to search the storage space. Id. at 31-32. In this case, the defendant may not challenge the lack of a search warrant for the storage bin, because he had no reasonable expectation of privacy in the bin. Unlike in Hawkins, the storage bin in this case was not locked and was not assigned to the defendant. The defendant has presented no evidence of possession, ownership, or control of the bin. Under these circumstances, the defendant could have no reasonable expectation of privacy in the storage bin.
Nor did the defendant have a reasonable expectation of privacy in the sneaker box itself. To be sure, a reasonable expectation of privacy may apply to a cardboard box in certain circumstances.See United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) (holding that a homeless defendant had a reasonable expectation of privacy in a box of belongings stored in an acquaintance's garage because "[t]he boxes of homeless people contain the same kinds of personal belongings as the valises, suitcases, and footlockers of those who have the money to buy the latter kind of more expensive containers"). This is not such a case. There is no evidence that the box was labeled or marked in any way with signs of the defendant's ownership or possession. The box was left in a common basement in an unlocked storage bin that did not belong to the defendant. In short, the defendant has suggested no reason why he might have a reasonable privacy interest in the box. See United States v. Garcia-Rosa, 876 F.2d 209, 219 (1st Cir. 1989) (holding that defendant could not challenge search of box found in his wife's dresser in her bedroom, because he never "explained why he had a subjective, let alone an objectively reasonable, expectation of privacy in its contents"), vacated on other grounds by Rivera-Feliciano v. United States, 498 U.S. 954 (1990). Based on the totality of the circumstances, any privacy expectation the defendant held as to the sneaker box was objectively unreasonable.
Thus, the defendant may not assert a Fourth Amendment violation as to the December 13, 2000 search.
B. Consent
Even if the defendant could assert a Fourth Amendment violation in this case, his challenge would not succeed because Mr. Walker, the property manager, gave valid consent for the search.
A warrantless search is permissible where the police obtain consent "from a third party who possessed common authority over or other sufficient relationship to the premises . . . sought to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1974). The basement was a common area of the apartment complex, and Walker looked after the basement facilities and checked regularly to make sure that the door was locked. Walker thus possessed authority over the basement and could grant consent for a search.See United States v. Marshall, 348 F.3d 281, 284-85 (1st Cir. 2003) (noting that a homeowner who rented out two upstairs bedrooms could grant consent to a search of the stairwell and landing in the home if these were common areas of the house);United States v. Hyson, 721 F.2d 856, 859 n. 7 (stating that third-party consent rests on "mutual use of property by persons generally having joint access or control for most purposes");United States v. Elliott, 50 F.3d 180, 186 (2d Cir. 1995) ("[I]f the landlord has joint access or control over certain areas of his apartment building for most purposes, he may validly consent to a search of those areas.").