Opinion
No. 01-20020 G/Bre
October 10, 2001
REPORT AND RECOMMENDATION
Before the court for report and recommendation is the motion of the defendant, Marco Cross, to suppress evidence. On February 1, 2001, the grand jury returned a one-count indictment charging the defendant with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The government has responded to the motion and a hearing was conducted thereon. At the conclusion of the hearing, counsel were permitted to supplement their briefs. As the court has now received and reviewed all of the pleadings filed by the parties, the motion to suppress is appropriate for a report and recommendation.
The evidence presented at the hearing consisted of the testimony of Israel Taylor, Albert Bonner, Jr., and the defendant. Taylor, a Memphis, Tennessee police officer assigned to the Drug Enforcement Administration task force, testified that in August 2000 he was working undercover as part of the police department vice narcotics unit's "buy-bust team." He described the team's function as street level narcotics enforcement utilizing an undercover officer placed in a drug dealing area to purchase narcotics while being shadowed by a "takedown" team. As soon as the undercover officer made a purchase, he gave a signal to the surveillance team by means of a wire transmitter. The takedown team would then arrest the individual from whom the drugs were obtained.
Taylor recalled that on August 17, 2000 at around 5:50 p.m. he was part of a buy-bust team comprised of approximately six officers operating in the 400 block of Pontotoc Street in Memphis, a notorious drug dealing area. He was positioned in an undercover vehicle with Detective Jennifer Robinson and was dressed in shorts and a t-shirt. As the two officers drove westbound on Pontotoc, they were flagged down by an individual identified as Robert Earl Sanders, who asked them what they were looking for. Taylor replied that he was interested in purchasing twenty dollars worth of crack cocaine. Sanders informed the officer that he knew where he could procure the amount requested, entered the car, and directed Taylor to circle the block. The officer complied, ending up almost exactly in the same spot from which he began. Sanders instructed Taylor to pull to the curb and park just past a structure located at 499 Pontotoc. The officer handed Sanders two ten dollar bills. Sanders got out of the car and walked across the street to 499 Pontotoc, which Taylor described as a single story rooming house. The officer informed the surveillance team over his wire of Sanders' destination, an address well known to team members as they had been to the 499 Pontotoc location numerous times before. Sanders walked around the east side of the building and was out of the officer's sight for a brief moment. Taylor did not observe Sanders actually entering the house at 499 Pontotoc. Rather, it was his belief that Sanders dealt at the doorway of the residence. A minute or less from the time he left the vehicle, Sanders returned from the same side of the structure and entered the car again, telling the officer to drive away. As Taylor did so, he asked Sanders if he had anything. After Sanders handed him a piece of something that appeared to be crack cocaine, Taylor gave the verbal takedown signal over his body recorder, at which point the surveillance team prepared to arrest Sanders. After delivering the signal, the officer drove to a Mapco convenience store about a third of a block away. The takedown team pulled into the lot behind him and took Sanders into custody. The money given to Sanders to purchase the crack cocaine was not found on his person after his arrest. At no time did Taylor enter the residence at 499 Pontotoc or have contact with Cross, the defendant. On cross examination, the officer admitted that he did not frisk Sanders before he exited the vehicle and could not be certain that Sanders did not have the crack cocaine on his person from the beginning of the encounter.
Albert Bonner, Jr., also employed by the Memphis Police Department and assigned to its vice narcotics unit's buy-bust team, testified that he was part of the surveillance group positioned along Pontotoc on August 17, 2000. His duty in that capacity was to keep Taylor in his sights in the event he required assistance. Bonner, along with Detective Charlie Smith, was located in an unmarked truck and wore a bullet proof vest emblazoned with the word "Police" across the front, black clothing, and a holstered weapon. At the time Sanders first approached Taylor, Bonner and his partner were parked on a street just east of Pontotoc. He could hear the conversation between Taylor and Sanders over the radio and observed Taylor's unmarked vehicle circling the block. Sanders got out of the car and went to 499 Pontotoc. When Taylor advised the other officers on the team that he could not see Sanders, Bonner pulled onto Pontotoc just far enough to permit him to view the residence. He recalled seeing Sanders cross the street and approach the steps of 499 Pontotoc, where he spoke to a black male later identified as the defendant and then returned to Taylor's vehicle.
When the takedown signal was administered, Bonner eased closer to 499 Pontotoc and observed Cross still on the porch with the door open. He was talking with a black male cutting grass to his right. Bonner continued past the building and parked. He and his partner exited their vehicle and slipped around the north side of the structure. As they rounded the corner of the house and approached Cross, who was still standing in the open glass storm door, from his left, the defendant wheeled in their direction. The officer instructed him to stop and grabbed for the door at the same time the defendant did so. Cross turned to retreat back into the house, yanking the door out of Bonner's hand. The door slammed shut, shattering the glass, and then partially sprung open again. The officer was coming up the steps at that point and observed Cross making a right turn in the hallway of the residence, moving quickly.
Bonner opened the door the rest of the way and the two officers entered the rooming house slowly, weapons drawn, as the interior hallway was very dark and they were uncertain whether there were other persons present in the dwelling. According to Bonner's testimony, they entered the house because they feared Cross would destroy the money received from Sanders along with any additional drugs he may have possessed. Bonner described the interior of the rooming house as having separate doors for each bedroom. The bedrooms were apparently rented out to various individuals. As the officers moved into the hallway through the kitchen, Bonner heard a noise to his right coming from behind a door. At that point, the officer did not know whether Cross was in that particular room. Bonner identified himself as a police officer and instructed the occupant of the bedroom to open the door. There was no answer. Bonner banged on the door, knocking it ajar. The open door revealed Cross closing a drawer and removing from his waistband a .9 millimeter Larson handgun, placing it on a nearby sofa or small chair. He was also attempting to pull his pants up and button them. Dormer instructed Cross to put his hands on his head, placed him on the floor, and handcuffed him. A check of the building's remaining rooms, conducted after Cross was detained, revealed only stacked furniture and old mattresses. The officer testified that one of the rooms had a security storm door that they were unable to open.
After Cross was handcuffed, the officer called for his supervisor, who arrived at the residence and spoke with Cross, obtaining his verbal consent to search the room. Bonner opened the drawer he had seen Cross close and discovered inside a bag of what appeared to be crack cocaine. The substance, weighing 5.7 grams, later tested positive for the drug. A pat down search of the defendant revealed the previously marked OCU funds given to Sanders by Taylor in his right front pocket. Officers also found a .25 caliber handgun hidden in a shoebox.
On cross examination, Dormer testified that he did not see Sanders enter the 499 Pontotoc residence, although he could have done so without the officer's knowledge, or Cross exit it. Nor did he observe any exchange between the two men. He recalled seeing Sanders and Cross together for a brief five or ten seconds before Sanders left to return to Taylor's vehicle. At that time, Bonner did not know whether Cross lived at the 499 Pontotoc address. It was Bonner's recollection that the officers' weapons were not drawn as they approached the house. The officer denied breaking the glass in an attempt to open the door from the inside. Bonner conceded that, at the time he entered the room in which Cross was located, he was uncertain whether the defendant had performed an illegal act. He did not know whether Cross had cocaine or whether Sanders had given him money.
The court also heard testimony from the defendant himself, who testified that he lived with his girlfriend, Beverly Brisco, at 504 Burlington Circle in Prayser but sometimes stayed at 499 Pontotoc with a friend, Ezra Hicks, when he and Brisco argued. Cross recalled that, on the day of his arrest, he and friends Nuke Larouche and Lisa Brown were walking through the door of the residence. They were standing in the doorway talking while another individual cut the grass nearby. He insisted that he did not see or speak with Sanders at the doorstep. He did not know whether Sanders spoke with Brown. Nuke walked out the door and away from the steps. Cross and Brown were still in the doorway when they saw Nuke begin shaking his head. About that time, they observed Bonner run up to the house with his weapon drawn. He told them to hold the door open, but Brown slammed it closed. Cross at that point was standing in the kitchen. He denied attempting to flee, stating he had no reason to do so. Dormer banged on the door with his gun in his hand, stuck his hand inside the door and twisted the knob. After entering the house, the officer asked Cross repeatedly where the "bitch" had gone. Dormer continued into the hallway with Cross, still asking where the woman had gone, and began kicking doors. The defendant denied being in the room described by the officer. Rather, he insists, he remained in the kitchen.
The defendant related that the outer door of the residence was tinted yellow so that one could not see inside. In addition, the door was constructed in such a way that it locked automatically when the door closed and could then be opened only with a key or from the inside. Thus, it could not, once closed, have sprung open again. Cross testified that the 499 Pontotoc residence was owned by his grandmother, Casberry Webb, and was operated as a rooming house. He, however, had no ownership interest in the building and did not rent any of the rooms. He did not have a key to the residence and did not store belongings there. He sometimes bathed in the rooming house's communal bathroom. The room occupied by Hicks, with whom Cross stayed when he was on the outs with his girlfriend, was located in the back of the house. He stated that each room, including Hicks', had a storm door. There was apparently another entrance used by Hicks that was padlocked. Cross had a key to Hicks' room, but not to the outside storm door. When he visited the 499 Pontotoc address, one of the residents would open the outside door, which was always kept locked, for him. He indicated that he was able to and did come and go from Hicks' room even when Hicks was not there.
Defendant has filed a motion to suppress evidence obtained at 499 Pontotoc, arguing that the officers' entry into the residence constituted a violation of his rights under the Fourth Amendment of the United States Constitution. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Amendment's exclusionary rule is personal, however, benefitting only those defendants whose own Fourth Amendment rights have been violated.United States v. Heath, 259 F.3d 522, 532 (6th Cir. 2001). Generally speaking, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); see also Heath, 259 F.3d at 532. At the hearing and in its post-hearing memorandum, the government has taken the position that Cross lacks standing to challenge the search of the rooming house as he did not reside at the premises searched. Before addressing the merits of defendant's motion to suppress, the court must first satisfy itself that Cross is entitled to claim that the Fourth Amendment guarantees have been offended as to him under the circumstances of this case.
The ability to assert a Fourth Amendment challenge to the search of a particular venue depends "upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas, 439 U.S. at 143, 99 S.Ct. at 430.
A determination of whether a legitimate expectation of privacy exists involves a two-part inquiry. First, we ask whether the individual, by conduct, has exhibited an actual expectation of privacy, that is, whether he has shown that he sought to preserve something as private. Second, we inquire whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable.United States v. King, 227 F.3d 732, 743-44 (6th Cir. 2000) (citations and internal quotations omitted). "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12. Factors the court may consider in determining whether an expectation of privacy is legitimate include the defendant's proprietary or possessory interest in the premises, whether he has the right to exclude others, whether he has taken normal precautions in order to secure his privacy, whether he has demonstrated a subjective expectation that the place would remain free from government intrusion, and whether he is legitimately on the property. King, 227 F.3d at 749. A defendant bears the burden of demonstrating that his own Fourth Amendment rights were infringed upon. United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998). Whether a legitimate expectation of privacy exists is to be determined based on the totality of the circumstances. United States v. Silva, 247 F.3d 1051, 1055 (9th Cir. 2001); Jones v. Lewis, 874 F.2d 1125, 1131-32 (6th Cir. 1989), reh'g denied (July 11, 1989).
In Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990), the Supreme Court held that overnight status alone is sufficient to show that a defendant had a legitimate expectation of privacy in the home of another. In so finding, the Court noted that "[t]o hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society."Olson, 495 U.S. at 98, 110 S.Ct. at 1689.
More recently, in Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998), the Supreme Court was faced with a different fact situation which the Court found distinguishable from that addressed in Olson. In Carter, the persons seeking the protection of the Fourth Amendment were present in the home searched, not as overnight guests, but for two and a half hours for the sole purpose of conducting a drug transaction. There was no previous relationship with the householder and no other purpose for the visit. "Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household." For those visitors, the apartment was "simply a place to do business." Carter, 525 U.S. at 89-90, 119 S.Ct. at 473-74. The Court recognized that, for Fourth Amendment purpose, property used for commercial purposes is treated differently, and accorded less protection, from that used as a residence. The Court stated that
[i]f we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely "legitimately on the premises" as typifying those who may not do so, the present case is obviously somewhere in between. But 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, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises.Id. at 90-91, 119 S.Ct. at 474. Under these circumstances, the Court concluded that such visitors had no legitimate expectation of privacy in the premises. Id. at 91, 119 S.Ct. at 474. In a concurring opinion in which he joined the majority, Justice Kennedy stated that he agreed with the majority because "its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host's home."Id. at 99, 119 S.Ct. at 478 (Kennedy, J., concurring). Justice Breyer concurred in the judgment and Justice Ginsburg authored a dissenting opinion, joined by Justices Stevens and Souter, in which he stated that the logic of Olson extends to shorter term guests as well as those who stay overnight, as "[v]isiting the home of a friend, relative, or business associate, whatever the time of day, serves functions recognized as valuable by society." Id. at 107-09, 119 S.Ct. at 481-43 (Ginsburg, J., dissenting).
In interpreting the Supreme Court's decisions, the Sixth Circuit held in Heath that the defendant had a legitimate expectation of privacy in the apartment searched based on the presence of several indications of "acceptance into the household," including his status as an overnight guest as often as once a week over a period of two years, his possession of a key to the apartment which afforded him unfettered access to the premises and the ability to exclude and admit others, and his familial relationship with the householder (they were cousins). The court noted that the family tie was "clearly a `relationship' which pre-date[d] the apartment's use for illegal conduct as contemplated by Carter." Heath 259 F.3d at 532-33.
Similarly, in United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir.), cert. denied, 531 U.S. 999, 121 S.Ct. 498, 148 L.Ed.2d 469 (2000), the Sixth Circuit concluded that the defendant had standing to challenge the search of another's home where he had been friends with the lessee for approximately seven years, occasionally spent the night there, kept some personal belongings in a living room closet, ate meals with the family during visits, and was permitted to stay in the home even when the residents were not present. Standing was not doomed by the fact that the defendant apparently did not possess a key to the house or know the makeshift method used by the lessee in opening the door.
At the other end of the spectrum, the Sixth Circuit has held that a "casual, transient visitor" does not have standing to challenge a search of the premises. In United States v. McNeal, 955 F.2d 1067, 1069-70 (6th Cir.), cert. denied, 505 U.S. 1223, 112 S.Ct. 3039, 120 L.Ed.2d 908 (1992), the Sixth Circuit upheld the trial court's determination that no legitimate expectation of privacy existed where the defendant possessed a key to the apartment searched as well as other apartments in the complex in which he did not reside, had no personal effects in the premises, and stated to police that he did not stay there and had merely stopped to use the telephone. The case cited by the government in support of its position is in a similar vein. In United States v. Harris, 255 F.3d 288 (6th Cir. 2001), cert. denied, ___ S.Ct. ___, 2001 WL 1076025 (U.S. Oct. 9, 2001), the defendant, who had been involved in selling drugs from the residence, conceded that he was merely a casual visitor to the house searched. According to the evidence, he was on the premises solely for the purpose of engaging in drug related business transactions. On those facts, the court found no legitimate expectation of privacy. Harris, 255 F.3d at 294-95.
Upon careful review of the evidence presented in this case as well as the applicable caselaw, the court finds, based on the totality of the circumstances, that the facts of this case fall closer to the Olson,Heath, and Pollard end of the privacy continuum than that inhabited byCarter, McNeal, and Harris, although the question is a close one. Here, Cross' presence at 499 Pontotoc cannot be said to be of a purely commercial nature. While he did not store personal belongings at the residence, he had familial ties with the owner of the building, was permitted to use the common facilities for bathing, and occasionally stayed overnight with a friend who rented one of the rooms. He had a key to the individual room in which the search was conducted and was allowed to be in the room even when his friend, the renter thereof was away. Although he did not possess a key to the outer door, Cross was known to the dwelling's other residents, who knew to admit him when he requested entry. While it is unclear from the testimony whether the defendant was actually an overnight guest at 499 Pontotoc on the day of the search at issue, the court finds that that fact alone is not dispositive. See United States v. Gamez-Orduno, 235 F.3d 453, 459 n. 8 (9th Cir. 2000) (status as overnight guest may not be necessary, quoting § Wayne R. LaFave, Search and Seizure § 11.3, at 15 (3d ed. Supp. 2000), which stated that "the several opinions in Carter add up to a `different majority . . . [that] actually embraced the position that a social guest would not have to be an overnight guest in order to have standing in the premises of another'"); United States v. Fields, 113 F.3d 313, 317-21 (2d dr.), cert. denied, 522 U.S. 976, 118 S.Ct. 434, 139 L.Ed.2d 334 (1997) (guest who prepared cocaine in the householder's young son's bedroom with her permission; could and did bring guests to the residence, with whom he drank beer and watched television; possessed a key; had used the premises 40 to 50 times; and could come and go even in the householder's absence had a legitimate expectation of privacy, even though he did not spend the night there, citing Olson).
Having established that Cross had a legitimate expectation of privacy in the room in which the evidence was found, the court now moves to the merits of his motion to suppress that evidence. As the court has previously noted, the Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. "Generally, this means that, with some specifically delineated exceptions, every governmental search and seizure must be made pursuant to a warrant." United States v. Taylor, 248 F.3d 506, 511 (6th Cir. 2001), pet. for cert. filed (Sept. 12, 2001). When police officers compromise an individual's privacy without a warrant, however, a search and seizure may be nonetheless reasonable under a recognized exception to the warrant requirement. If the police do not have a warrant and no exceptions apply, no evidence obtained in the search and seizure may be admitted against one with standing to invoke the Fourth Amendment's protections. United States v. Haddix, 239 F.3d 766, 767 (6th Cir. 2001).
It is undisputed that Bonner did not possess a warrant when he entered 499 Pontotoc. The government contends, however, that one of the recognized exceptions to the warrant requirement — exigent circumstances — applies in this case and excuses the necessity for a warrant. In United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984),cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985), the Sixth Circuit set forth three situations in which abandonment of the warrant requirement because of exigent circumstances would be justified: (1) hot pursuit of the fleeing suspect, (2) where a suspect represents an immediate threat to officers or the public, or (3) where immediate action on the part of the police is necessary to prevent the destruction of evidence or to thwart the escape of known criminals. Morgan, 743 F.2d at 1162-63; Haddix, 239 F.3d at 767 (citing Morgan).
The law is well-settled that a warrantless entry will be sustained when the circumstances then extant were such as to lead a person or reasonable caution to conclude that evidence of a federal crime would probably be found on the premises and that such evidence would probably be destroyed within the time necessary to obtain a search warrant.United States v. Okomadu, 236 F.3d 333, 337 (6th Cir. 2001) (quotingUnited States v. Radka, 904 F.2d 357, 362 (6th Cir. 1990)). Thus, a warrantless entry into a residence to prevent the destruction of evidence may be permitted if based on probable cause and supported by exigent circumstances. United States v. Lewis, 231 F.3d 238, 241 (6th Cir. 2000). The Supreme Court has held that "[w]here there are exigent circumstances in which police action literally must be `now or never' to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation." Okomadu, 236 F.3d at 337 (quotingRoaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973)). In determining whether exigent circumstances exist, the court is to consider the totality of the circumstances and the "inherent necessities of the situation at the time." Radka, 904 F.2d at 361-62 (quoting United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir. 1988)). A "mere possibility of the loss or destruction of evidence is an insufficient basis for the warrantless entry of a house to prevent the destruction of evidence." Id. at 363. As the Sixth Circuit noted inHaddix, "[n]otwithstanding the ease in which narcotics can be destroyed, a warrantless entry into the home of a suspected drug trafficker, effected without an objectively reasonable basis for concluding that the destruction of evidence is imminent, does not pass constitutional muster." Haddix, 239 F.3d at 768 (quoting Radka, 904 F.2d at 361). The government bears the burden of demonstrating that officers had probable cause to believe an imminent threat of destruction of evidence was present. United States v. Gaitan-Acevedo, 148 F.3d 577, 584 n. 4 (6th Cir. 1998), reh'g denied (June 26, 1998).
Probable cause had been defined as "reasonable grounds for belief, supported by less than prima fade proof but more than mere suspicion."United States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995).
In this case, the government argues that the officers were in hot pursuit of Cross and that they believed he was going to attempt to destroy evidence. According to Bonner, he entered the house because he was afraid Cross would destroy the money received from Sanders and any drugs in his possession. However, the evidence adduced at the hearing reveals that the officers did not know whether Cross actually had any contact whatsoever with Sanders. Taylor only saw Sanders go around the back of 499 Pontotoc out of his sight for a few brief moments and never saw Cross. In addition, he had no knowledge of what may have been on Sanders' person prior to going to the house. The back-up officer, Bonner, observed Sanders perhaps speak to Cross for a few seconds but did not witness any type of exchange between the two. Nor was he in a position to overhear any conversation that might have occurred during the brief moments the men were in proximity to one another. He did not see Sanders go into the house or Cross come out of it. Although there is evidence to suggest that narcotics officers were familiar with the address itself, there was no indication from the testimony that they had prior dealings with the defendant, knew whether he lived at the Pontotoc address, or were aware that he may be involved in drug activity. In addition, it is clear that Cross could not have been cognizant of Sanders "imminent arrest because he could not see Sanders or Taylor's vehicle from his vantage point on the other side of the house. Therefore, he had no motivation to immediately destroy any drugs or money he may have possessed in the residence. Accordingly, based on the totality of the circumstances, it is the opinion of the undersigned that the government has failed to satisfy its burden of showing that probable cause and exigent circumstances existed in this case.
Based on the foregoing, it is RECOMMENDED that the motion to suppress be GRANTED.