2005 | Cited 0 times | D. Massachusetts | May 5, 2005



Defendant Luis Rodrigues moves to suppress three guns foundduring the December 13, 2000 search of the basement at 72Boylston Street in Brockton, Massachusetts, claiming a FourthAmendment violation. After a hearing at which property managerRonald Walker, Brockton Police Officer Mark Reardon, and Mr.Rodrigues's cousin Marcelino Rodrigues testified, the motion tosuppress is DENIED.


On December 6, 2000,1 officers from the Brockton Police Department, Boston Police Department, Massachusetts State Police,and Bureau of Alcohol, Tobacco, and Firearms (ATF) executed asearch warrant at 70 Boylston Street, Apartment C, in Brockton,Massachusetts. The search warrant permitted the officers tosearch for two guns, several items of clothing, and any evidencerelated to an alleged rape. Marcelino Rodrigues and AntonioDepina were at the apartment when the officers entered. Thesearch produced a holster and ammunition clip, as well as someitems of clothing and a used condom, but no guns.

At the time of the search, Marcelino Rodrigues lived at 70Boylston Street with Antonio Depina. Although neither wasofficially listed on the lease, both paid rent on the apartment.Defendant Luis Rodrigues never lived at the apartment and neverpaid rent there, although he often visited and occasionally sleptover.2

On December 13, 2000, officers from the Boston PoliceDepartment, Massachusetts State Police, and ATF returned tosearch the area surrounding 70 Boylston Street, based on a tipthat firearms had been removed from the searched apartment beforethe warrant was executed. With the consent of Mr. Walker, theproperty manager, several officers entered the basement of 72 Boylston Street, the building next to 70 Boylston Street. Thebasement contained washers and dryers, as well as an area withstorage bins in the southeast corner. The storage bins had locksthat had been placed on them by individual tenants; however, allthe locks had been broken during an unrelated break-in severalweeks earlier, and were therefore unlocked. Inside one of thestorage bins, which also contained the belongings of a familythat was no longer a tenant in the building, the officers found alarge red cardboard Nike sneaker box. That box contained thethree loaded firearms that are the subject of thismotion.3

Both 70 Boylston Street and 72 Boylston Street contain fourapartments. These buildings are part of a larger complex thatcontains about 48 apartments in total. Tenants in all of theseapartments are authorized to use the laundry room and storagebins in the basement of 72 Boylston Street. The laundry room canbe accessed through both the front and back doors, both of whichare usually locked, although the back door is often propped openby 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 alegitimate and reasonable expectation of privacy in the premisessearched or property seized." United States v. Dunning,312 F.3d 528, 531 (1st Cir. 2002) (citations omitted). The FirstCircuit has noted several factors that are relevant indetermining whether a defendant had a reasonable expectation ofprivacy 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 (1stCir. 1988)).


A. Reasonable Expectation of Privacy

The defendant has not established a reasonable expectation ofprivacy either in the storage area where the box was found or inthe 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 previousgovernment representations as to his residence, which thegovernment now states were in error. Because the governmentpresented undisputed evidence that defendant did not live in theapartment, he has no basis for claiming an expectation of privacyin the storage area of the basement at 72 Boylston Street. As anon-resident, he had no authority to use the storage area and noability to control access to the area. There is no evidence thathe ever entered the basement or used the bins in the past.

Moreover, the defendant could not claim an expectation ofprivacy in the storage bin area even if he did live at 70Boylston Street. "It is now beyond cavil in this circuit that atenant lacks a reasonable expectation of privacy in the commonareas of an apartment building." United States v. Hawkins,139 F.3d 29, 32 (1st Cir. 1998). In Hawkins, the court found that abasement containing storage spaces assigned to differentapartments in the building was a common area of the apartmentbuilding, and that the appellant therefore had no reasonableexpectation of privacy there. Id. at 31, 33; see also UnitedStates v. Garner, 338 F.3d 78, 80 (1st Cir. 2003) ("Without aprivacy interest in the common areas of the apartment building,Mr. Garner has no standing to challenge the search and seizure ofthe 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 policehad a right to perceive whatever was available to them throughthe use of their senses." Hawkins, 139 F.3d at 33. InHawkins, the police located a locked storage space assigned tothe defendant, saw through the chicken wire surrounding thestorage space that it contained several boxes, and obtained awarrant to search the storage space. Id. at 31-32. In thiscase, the defendant may not challenge the lack of a searchwarrant for the storage bin, because he had no reasonableexpectation of privacy in the bin. Unlike in Hawkins, thestorage bin in this case was not locked and was not assigned tothe defendant. The defendant has presented no evidence ofpossession, ownership, or control of the bin. Under thesecircumstances, the defendant could have no reasonable expectationof privacy in the storage bin.

Nor did the defendant have a reasonable expectation of privacyin the sneaker box itself. To be sure, a reasonable expectationof 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 reasonableexpectation of privacy in a box of belongings stored in anacquaintance's garage because "[t]he boxes of homeless peoplecontain the same kinds of personal belongings as the valises,suitcases, and footlockers of those who have the money to buy thelatter kind of more expensive containers"). This is not such a case. There is no evidence that the box was labeled ormarked in any way with signs of the defendant's ownership orpossession. The box was left in a common basement in an unlockedstorage bin that did not belong to the defendant. In short, thedefendant has suggested no reason why he might have a reasonableprivacy interest in the box. See United States v.Garcia-Rosa, 876 F.2d 209, 219 (1st Cir. 1989) (holding thatdefendant could not challenge search of box found in his wife'sdresser in her bedroom, because he never "explained why he had asubjective, let alone an objectively reasonable, expectation ofprivacy in its contents"), vacated on other grounds byRivera-Feliciano v. United States, 498 U.S. 954 (1990). Based onthe totality of the circumstances, any privacy expectation thedefendant held as to the sneaker box was objectivelyunreasonable.

Thus, the defendant may not assert a Fourth Amendment violationas to the December 13, 2000 search.

B. Consent

Even if the defendant could assert a Fourth Amendment violationin 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 obtainconsent "from a third party who possessed common authority overor other sufficient relationship to the premises . . . sought tobe inspected." United States v. Matlock, 415 U.S. 164, 171 (1974).The basement was a common area of the apartment complex, andWalker looked after the basement facilities and checked regularlyto make sure that the door was locked. Walker thus possessedauthority 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 upstairsbedrooms could grant consent to a search of the stairwell andlanding in the home if these were common areas of the house);United States v. Hyson, 721 F.2d 856, 859 n. 7 (stating thatthird-party consent rests on "mutual use of property by personsgenerally 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 certainareas of his apartment building for most purposes, he may validlyconsent to a search of those areas."). V. ORDER

Defendant Luis Rodrigues's motion to suppress in relation tothe December 13, 2000 search (Docket No. 534) is DENIED.

1. While the government states that this search occurred onDecember 6th, the defendant states that it occurred on December8th. Regardless, the precise date is irrelevant for purposes ofthis motion.

2. At the hearing, the government argued that Luis Rodriguesdid not live at 70 Boylston Street, despite the fact that inseveral filings with this Court, the government had stated thathe did live at that apartment. The government now asserts thatthese prior representations were in error.

3. There is some confusion as to how the officers entered thebasement of 72 Boylston Street. Mr. Walker testified that he letthe officers in using his key, although he is not sure whetherthe door was actually locked because he didn't check it beforeusing the key. He states that the basement was empty when heentered with the officers. According to the police report,however, the officers found the basement door unsecured, andentered on their own after receiving permission from Walker.Under either scenario, the search was conducted after Walker gavehis consent.

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