MEMORANDUM & ORDER
In this pending criminal action, Defendant Tyrone B. Battle,a/k/a Tyerone Battle ("Battle"), moves this Court to suppressevidence and statements arising from his arrest by Boston policeofficers on December 20, 2004. Specifically, Battle alleges thatpolice officers illegally searched Apartment #2 at 15 DunlapStreet, Dorchester, Massachusetts, on the date in question whenthey seized Battle's gun and ammunition from that apartment.Battle contends that all of his statements to the police afterthe allegedly illegal search and seizure must be suppressed as"fruit of the poisonous tree". Having considered the memoranda insupport and opposition of this pending motion, the Court nowresolves the issue as follows.
I. Factual Background
On December 20, 2004 at approximately 3:30 p.m., Boston Police received an emergency 911 call from a woman, lateridentified as LaToya Capers ("Capers"), who said words to theeffect that there was a light-skinned black man with a gun in thehallway outside her apartment saying he was going to kill awoman. The caller did not identify herself nor the man by name orany other description, but she gave an address of 15 DunlapStreet, Dorchester, Massachusetts. She also did not say that shehad seen anyone with a gun but only that she had heard someoneyelling about a gun. The caller then hung up. The call to 911 wasplaced from a cell phone, and the 911 operator called back foradditional information. At that point the woman who answered thephone informed the operator that the man had left the buildingand had gone into a neighbor's house.
A police dispatcher, not the 911 operator, subsequently radioedto police units the report of a male with a gun and a womanscreaming in the hallway of 15 Dunlap Street. Shortly thereafter,Boston Police Officers Griffiths, Puglia and Harlow, who were inplain clothes, arrived at 15 Dunlap Street, a triple-deckerresidence, and observed the main entry to the building open. Theofficers also observed that the front door to the first-floorapartment, Apartment #1, had been forced open, with the inside ofthe doorjamb forced off the frame. The officers entered thatapartment to conduct a protective sweep but did not find anyvictim or suspect inside the apartment. It was later determined that the tenants of Apartment #1 were Chadena Awogboro("Awogboro") and the defendant, Tyrone Battle, who lived therewith two of their children.
Officers Harlow and Puglia then went upstairs and spoke withCapers and her godmother, Karen Jacobs ("Jacobs"), in Apartment#3 on the third floor. Capers and Jacobs reported that they hearda fight occurring between the first floor neighbors and that theyheard something to the effect of, "Debbie, Debbie . . . help me . . .help me . . . he's trying to kill me." They also stated thatthey heard the word "gun" being yelled out at some point duringthe altercation.
In the meantime, Officer Griffiths went to Apartment #2 on thesecond floor and spoke with the tenant, Sandra "Debbie" Pringle("Pringle"). Pringle, who lived in the apartment with her twodaughters, was asked if there was anyone in the apartment withher and she stated, "Just me and my kids." The officer asked herif she had heard any fighting downstairs and she said that shehad heard an argument but did not want to get involved. OfficerGriffiths then asked if he could check the apartment, allegedlyfor her and her children's safety. Pringle permitted the policeto come into her apartment and look around.
While checking the apartment, Officer Griffiths observed a blueor black bomber-style jacket on a kitchen chair. When asked aboutit, Pringle falsely stated that it belonged to her brother. Officer Griffiths then went into one of the bedrooms and found afemale, later identified as Chadena Awogboro, with four children(later identified as Awogoboro's and Pringle's children). Pringlefalsely informed the officer that Awogboro was her sister-in-law.Officer Puglia then came into Pringle's apartment to assistGriffiths and stated that he had information that the victim waspossibly inside Apartment #2. Puglia asked the woman in thebedroom for her name and she said that it was "Joy".
Officer Griffiths then continued a protective sweep ofPringle's apartment. In another bedroom he looked inside a closetand, under a pile of clothes, found the defendant, Tyrone Battle.Battle was taken out of the closet, handcuffed (allegedly forofficer safety), and immediately read his Miranda rights, whichBattle stated he understood. Battle was questioned about whathappened and admitted that he had forced his way into his firstfloor apartment because his girlfriend had locked him out andthat he was trying to retrieve some of his belongings. WhileBattle was being questioned, police determined that there was anoutstanding arrest warrant against him on a prior criminalmatter, and he was then transported to the police station forbooking.
After Battle was removed, the police conducted a second searchof Pringle's apartment. That search was initiated after Pringletold them she wanted to show them something and then directed them to a bureau in her bedroom. Pringle opened thedrawer and showed the officers a fully loaded handgun, which shestated Battle had placed there without her consent. DetectiveJosey then asked Pringle if she would reaffirm her voluntary oralconsent to search her apartment by signing a written consent formwhich she did.
At the police station, Battle agreed to a recorded interview byDetectives Black and Doogan wherein he gave a full confessionregarding the incident and recovery of the firearm andammunition. He admitted that he had hidden in Pringle's bedroomcloset because he knew the police were outside of her apartmentand he stated that the loaded firearm in Pringle's bureau washis. Battle identified the gun by color, make and the number ofbullets in the magazine. He also gave the location of where hehad hidden the gun which matched the location where it was found.Battle said that he hid the gun in Pringle's apartment because hedid not want it in his apartment, anticipating a police responseto Awogboro's screams during their argument. Battle told thepolice he had stolen the gun from an individual named "Blake"about a year earlier. ______________
II. Legal Analysis
Defendant moves this Court to suppress the evidence seized bythe police from 15 Dunlap Street, Apartment #2, as well as thestatements he made to police during and after his arrest. As grounds for his motion, Defendant argues:
1) The police made a warrantless, illegal entry into theapartment he was visiting and thereafter seized him. Defendanthad a reasonable expectation of privacy in the visited apartment,the entry was not supported by probable cause or exigentcircumstances and, therefore, all evidence recovered that flowedfrom the illegal entry into the apartment must be suppressed(specifically the pistol and ammunition recovered from the bureaudrawer of Pringle's bedroom).
2) Defendant's statements made subsequent to his being advisedof his Miranda rights were tainted by the prior illegalseizure, were obtained in violation of his Fifth Amendment rightsand were so-called "fruit of the poisonous tree". Therefore, theymust be suppressed.
A. Legal Standard
Before Defendant can proceed with his suppression challenge, hemust establish that he has standing to make such a challenge.Fourth Amendment rights are personal rights which, like someother constitutional rights, may not be vicariously asserted.Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). A person whois aggrieved by an illegal search and seizure only through theintroduction of damaging evidence secured by a search of a thirdperson's premises or property has not had any of his FourthAmendment rights infringed. Id. at 134. Standing does not automatically devolve upon every accused.United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988)(citing United States v. Salvucci, 448 U.S. 83, 90-91(1980)). Before embarking upon the merits of a suppressionchallenge, a criminal defendant must show that he had areasonable expectation of privacy in the area searched and inrelation to the items seized. Id. Unless and until the"standing" threshold is crossed, the bona fides of the search andseizure are not put legitimately into issue. Id.
A reasonable expectation of privacy necessary to establishstanding for a defendant to challenge a search and seizure isdetermined by several relevant factors. United States v.Gomez, 770 F.2d 251, 254 (1st Cir. 1985). Those factors are
possession or ownership of the area searched or items seized; prior use of the area searched or property seized; legitimate presence in the area searched; ability to control or exclude others' use of the property; and a subjective expectation of privacy.Id. In short, courts must look to whether or not the individualthought of the place or article as a private one and treated itas such. Aguirre, 839 F.2d at 857. Succeeding in this, adefendant must then demonstrate not only that he exhibited asubjective expectation of privacy, but also that his expectationwas justifiable under the attendant circumstances. Id. Whateverfacts may shed light upon either prong of this two-tier inquirymay be weighed in the balance. Id. The factual situation presented by Defendant's case is notunique. On more than one occasion, courts have had to confrontthe Fourth Amendment standing issues presented by houseguests. InMinnesota v. Olson, 495 U.S. 89 (1990), the United StatesSupreme Court held that an overnight guest has a legitimateexpectation of privacy. Nevertheless, the Supreme Court laterheld that one who is merely present with the consent of thehouseholder may not have a reasonable expectation of privacy inthat home. Minnesota v. Carter, 525 U.S. 83, 90 (1998). TheFirst Circuit has held that a casual visitor has no expectationof privacy in another's home and is not afforded the protectionof the Fourth Amendment. United States v. Torres, 162 F.3d 6,10 (1st Cir. 1998).
The Supreme Court's decision is Minnesota v. Carter isparticularly instructive. In that case, defendants were inanother person's apartment for a short time solely for thepurpose of packaging cocaine. The defendants were essentiallypresent for a business transaction for a matter of hours (alonger period of time than Battle was in Pringle's apartment).They had no previous relationship with the apartment tenant andthere was no purpose to their visit other than the businesstransaction. The Supreme Court held that the situation wasmarkedly different from that of the overnight guest who was thesubject in Minnesota v. Olson, and the Court declined toextend the Fourth Amendment protections of Olson to the less intimatesituation presented by Carter.
B. Fourth Amendment Challenge to the Search
Pointing to the case law with respect to Fourth Amendmentstanding, the government argues that Battle is not in a positionto challenge the search. Specifically, the government assertsthat Battle did not have an objectively reasonable expectation ofprivacy in Pringle's apartment and therefore does not havestanding to challenge the search of her premises.
The government contends that Battle's motion does not satisfythe Gomez/Aguirre factors outlined by the First Circuit. Thegovernment asserts that Battle: 1) neither resided nor was anovernight guest at 15 Dunlap Street, Apartment #2, nor did he inany way have possession of the premises, 2) never used, hadcontrol of or direct access to that apartment and 3) did not havea reasonable expectation of privacy in the recovered handgunbecause he stashed it in Pringle's apartment among her personalbelongings.
The government argues further that Battle cannot be deemed asocial guest in the context of the facts of this case.Specifically, Pringle has stated that the argument between Battleand Awogboro had grown so loud, it was scaring her child. WhenPringle opened her door, she found the couple on the floor in thehallway and Battle had his fist raised to Awogboro. She told the couple to be quiet and, when the noise continued, suggested thatthey come into her apartment. As the government states in itsopposition, a social guest is not someone who, like Battle, isinvited into another's apartment because the host feels compelledto stop a fight between him and his girlfriend.
Moreover, the government asserts that Battle did not possessthe requisite meaningful connection as a guest in the apartmentto establish a reasonable expectation of privacy. Though Battlewas friendly with Pringle, he had never spent the night inPringle's apartment nor kept any of his personal items there norhad any access to it without Pringle being present. Furthermore,Battle was only in the apartment for a short period of timebefore the police arrived and there is no evidence that he wasplanning to linger.
Although Battle and his girlfriend were invited into theapartment by Pringle, it was only as an accommodation to thevictim's screams for help. The government argues that Battle was,like the defendant in Torres, nothing more than a casualvisitor to Pringle's apartment and as such had no expectation ofprivacy there. Accordingly, the government asserts that the factsand case law indicate that Battle does not have standing tochallenge the search by police.
The government's reasoning is persuasive, and Defendant'sresponse offers only a weak rebuttal. In fact, Defendant's Suppression Motion expends only one paragraph on the standingquestion, before concentrating the bulk of his argument on thealleged unreasonableness of the warrantless police entry andsearch. Although Defendant may have simply assumed standing wasclear-cut, his few citations on the issue do not withstand thegovernment's countervailing arguments.
Specifically, Defendant cites to Minnesota v. Olson andargues that he was Pringle's social guest, and as such had alegitimate expectation of privacy in her apartment. Defendant,citing to a Second Circuit opinion, argues that Olson standsfor the proposition that any guest, in appropriate circumstances,may have a legitimate expectation of privacy where he is therewith the permission of his host who is willing to share his houseand his privacy with the guest. United States v. Fields,113 F.3d 313, 321 (2d Cir. 1997).
Unfortunately for Defendant, he has several problems with theproposition expounded in Fields. First, Fields has not beenadopted by the First Circuit Court of Appeals. In the FirstCircuit, the Torres standard that a casual visitor has noexpectation of privacy in another's home is prevailing. It isnotable that Defendant makes no reference to Torres anywhere inhis papers. Second, even if Fields were adopted by the FirstCircuit, the defendant in that case was a guest who hadpermission to use an apartment, was given a key and used the apartment in the owner's absence. That fact pattern is a far cryfrom the situation presented by the facts of this case.
Defendant has not made a convincing argument that this Courtshould uphold his challenge to the police search. Defendant'sargument that he had a reasonable expectation of privacy inPringle's apartment is largely dependent on the fact that Pringleconsented to his presence but that action alone does not endowhim with Fourth Amendment protection as a houseguest. In fact, itis unseemly for Battle to argue he had a reasonable expectationof privacy in Pringle's apartment as a result of her hospitalitywhen the very reason for Pringle's "invitation" was an attempt tostop a fight between Battle and his girlfriend during whichBattle was allegedly trying to harm her. This is the antithesisof the situation envisioned by the Supreme Court when it outlinedthe Fourth Amendment standing requirements for houseguests inOlson.
Defendant Battle was nothing more than a casual visitor inPringle's apartment, albeit one who had the consent of the ownerto be there. Battle neither possessed nor owned the areasearched, nor did he have the ability to control or excludeothers' use of the property. He was present in the apartment fora short time, and his presence was only at the invitation, borneof necessity, of Pringle. Even if Battle had an expectation ofprivacy in Pringle's apartment, that expectation was not justifiable under the attendant circumstances. Therefore, Battlelacks standing to challenge the reasonableness of the searchunder the Fourth Amendment.
C. Fourth Amendment Challenge to the Seizure
Nevertheless, Defendant is not foreclosed from challenging thelegality of the seizure of the gun and ammunition. The case lawon that particular question is limited. See United States v.Lisk, 522 F.2d 228 (7th Cir. 1975) ("Although the issue seemssimple and clear-cut, and certainly the problem must be one thatfrequently arises, we have been surprised to find no authoritydirectly in point."). In Lisk, the Seventh Circuit held thatthe defendant had standing to object to a police seizure becauseof his property interest in the object seized despite the factthat he had no standing to object to the search because he lackeda reasonable expectation of privacy in the place searched.
The United States Supreme Court took note of Lisk in UnitedStates v. Salvucci, 448 U.S. 83 (1980). The Supreme Courtobserved that: Legal possession of the seized good may be sufficient in some circumstances to entitle a defendant to seek the return of the seized property if the seizure, as opposed to the search, was illegal.Id. at 91 n. 6. Although the Salvucci Court declined toexplore the issue further because respondents did not challengethe constitutionality of the seizure of the evidence, theJustices left a clear path for other courts to follow. In light of Lisk and Salvucci, one legal scholar offeredthis scenario: [I]f I hide my gun in a neighbor's house without his consent and the police searched his house illegally, I should be able to challenge the seizure of the gun but not the search of the house, because I had no right of privacy in the house. If, on the other hand, my neighbor consented to hide my gun in his house, I would then have a right of privacy and could contest a search which resulted in the seizure of my gun.William A. Knox, Some Thoughts on the Scope of the FourthAmendment and Standing to Challenge Searches and Seizures,40 Mo. L. Rev. 1, 52 (1975), quoted in 6 Wayne R. LaFave, Searchand Seizure: A Treatise on the Fourth Amendment § 11.3(c) (4thed. 2004). Because the facts of this case bear a closerresemblance to those of the former scenario than to the latter,this Court finds that Defendant does have standing to challengethe legality of the seizure of his gun and ammunition.1
Interestingly, Defendant has not specifically challenged theseizure of his gun and ammunition, instead choosing to devote hissubstantive argument to the illegality of the search of Pringle'sapartment. Nevertheless, the requisite threshold is aparticularly high one. When a defendant has standing only toobject to the seizure, then "the case is the same as though the[goods] had been found in plain view in a public place and then seized". Lisk, 522 F.2d at 230. If the seized item wascontraband or the product of criminal activity, it was clearlysubject to seizure. Id. at 230-31. Specifically, the defendantmay only contend that the police lacked grounds to believe thatthe items were connected with criminal activity or some otherlawful basis for seizure.
Although Defendant has made no argument with respect to thelegality of the seizure of his gun and ammunition, the facts ofthe case make the conclusion obvious. Where a third partyconsents to a search and the police find incriminating evidenceagainst another party in the course of that search, the policeare clearly permitted to seize the incriminating evidence.Frazier v. Cupp, 394 U.S. 731, 740 (1969). In this case,Pringle directed the police to search her bureau drawer andBattle's gun was found. The seizure of that gun and ammunition bythe police was not illegal and the evidence will not besuppressed. ORDER
In accordance with the foregoing, Defendant's Motion toSuppress Evidence and Statements (Docket No. 22) is DENIED. Thegovernment's Motion to Schedule a Hearing or Status ConferenceRegarding Defendant's Motion to Suppress and For an Order onExcludable Delay (Docket No. 33) is DENIED as moot.