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UNITED STATES of America v. Antoine CORTEZ-DUTRIEVILLE, Appellant

United States Court of Appeals for the Third Circuit2014-02-26No. No. 13-2266
743 F.3d 881

Summary

Holding. The court affirmed the district court's denial of the motion to suppress, holding that Dutrieville lacked Fourth Amendment standing to challenge the search because the protection order legally prohibited him from entering the home, and therefore he had no objectively reasonable expectation of privacy in either the residence or his overnight bag located there.

Antoine Cortez-Dutrieville was charged with attempting to possess heroin with intent to distribute after law enforcement executed a search warrant at his child's mother's residence. Dutrieville moved to suppress the evidence, but the district court denied the motion, finding he lacked Fourth Amendment standing because a protection order explicitly prohibited him from entering the home and having contact with the resident. On appeal, Dutrieville argued he had standing as an overnight guest staying with the resident's consent and that his overnight bag retained privacy protections independent of the home.

The court rejected both arguments. Although overnight guests generally have a reasonable expectation of privacy in a host's home, Dutrieville's situation differed fundamentally because Pennsylvania law made his mere presence in the home unlawful, and the protection order expressly stated that the resident's consent could not override this prohibition. Because Dutrieville was legally barred from entering the residence, he could not reasonably expect privacy there, nor could he reasonably expect privacy in personal belongings he brought into a place he was prohibited from accessing.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a person subject to a protection order that prohibits entry to a residence has Fourth Amendment standing to challenge a search of that residence
  • Whether an overnight guest's status provides a reasonable expectation of privacy when the guest's presence violates a protection order
  • Whether personal belongings retain Fourth Amendment protection when located in a place the owner is legally prohibited from entering

Procedural posture

Cortez-Dutrieville filed a motion to suppress evidence from a search warrant executed at his child's mother's residence, which the district court denied on standing grounds; he then entered a conditional guilty plea and appealed the suppression ruling.

Authorities cited

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Opinion

majority opinion

OPINION

SHWARTZ, Circuit Judge.

Antoine Cortez-Dutrieville (“Dutrie-ville”) appeals the denial of his motion to suppress evidence seized from the home of the mother of his child. The District Court denied the motion, holding that Du-trieville was prohibited from entering the home as a result of a protection order and thus lacked standing to challenge the search. We will affirm.

I

On June 8, 2012, United States Customs and Border Protection officers at John F. Kennedy International Airport intercepted a UPS package containing heroin. The mailing address handwritten on the package was “Mrs. APARNA BEENA, NO. 18 Walnut St. Union Town PA 15401.” App. 210. The electronic manifest indicated that the address was “59 Millview Dr. Uniontown, PA 15401.” App. 211-12. When the handwritten address and the electronic address conflict, UPS delivers the package to the electronic address.

Law enforcement agents repackaged the heroin in a new box. The new box listed the Millview address instead of the Walnut address and contained a beeper that would indicate when the package was opened. On this information, the agents obtained an anticipatory search warrant for the Millview address, the residence of Portia Newell, the mother of Dutrieville’s child. The warrant extended to the contents of the package and a list of materials commonly associated with drug trafficking. The search warrant was to be executed once the package was accepted and taken inside the home.

On June 13, 2012, an undercover agent delivered the package to Dutrieville. Two minutes later the beeper activated. Agents approached the home, announced their presence, and, after receiving no response, entered the home. They took Du-trieville into custody and searched the home.

In the rear bedroom, agents found the heroin underneath a blanket. In the master bedroom, they found the empty package, the beeper, Dutrieville’s cell phone, and Dutrieville’s overnight bag, which contained personal items and 45 unused stamp bags (which are often used to package heroin). The agents also found digital scales and other drug paraphernalia in the living room.

Dutrieville eventually admitted that he had been staying at the home with New-ell’s consent for three days. The District Court found that Dutrieville brought his overnight bag with him at the inception of his stay. He also admitted that he was the subject of a Protection From Abuse Order (the “protection order”)* which provided, among other things, that: (1) Dutrieville was not to contact Newell except to make child custody arrangements; (2) Dutrie-ville was “completely evicted and excluded from” Newell’s residence; (3) Dutrieville had “no right or privilege to enter or be present on the premises of [Newell]”; (4) the protection order would remain in effect until October 7, 2013; (5) Newell’s consent could not override the express terms of the order; and (6) Dutrieville could be arrested without a warrant for violating the terms of the order. App. 194-96.

Dutrieville was charged with one count of attempted possession with intent to distribute 100 grams or more of a mixture or a substance containing a detectable amount of heroin in violation of 21 U.S.C. § 841(a)(1).

Dutrieville filed a motion to suppress the evidence obtained during the search, arguing that the anticipatory search warrant was not supported by probable cause. Specifically, he argued that the agents manufactured probable cause by changing the address on the label from the Walnut address to the Millview address. The District Court held that Dutrieville did not have Fourth Amendment standing to bring this challenge since he was subject to a protection order that barred him from the home, and thus he lacked a legitimate expectation of privacy in both the home and the overnight bag. Dutrieville entered a conditional guilty plea which allowed him to file an appeal of the suppression ruling. On appeal, he asserts that he has Fourth Amendment standing and that this Court should remand the case to the District Court for consideration of his probable cause argument.

II

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court’s denial of a motion to suppress for clear error as to the underlying facts, but exercise plenary review of the application of the law to the facts. United States v. Lockett, 406 F.3d 207, 211 (3d Cir.2005). Dutrieville bears the burden of establishing a violation of his Fourth Amendment rights. United States v. Steam, 597 F.3d 540, 551 (3d Cir.2010).

III

“A defendant must have standing to invoke the Fourth Amendment’s exclusionary rule.” United States v. Correa, 653 F.3d 187, 190 (3d Cir.2011). A defendant has standing if he can establish that he had a legitimate expectation of privacy in the invaded place. Id.; see also United States v. Mosley, 454 F.3d 249, 253 n. 5 (3d Cir.2006) (“The ‘standing’ inquiry, in the Fourth Amendment context, is shorthand for the determination of whether a litigant’s Fourth Amendment rights have been implicated.”). An individual’s expectation of privacy is legitimate if: (1) the individual demonstrated a subjective expectation of privacy in the subject of the search and (2) this expectation of privacy is objectively reasonable. See United States v. Kennedy, 638 F.3d 159, 163 (3d Cir.2011). The subjective prong requires a court to determine whether the defendant, “by his conduct, has exhibited an actual expectation of privacy.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (citation omitted). The objective prong requires a court to determine whether the defendant’s “expectation of privacy is ‘one that society is prepared to recognize as reasonable.’ ” Correa, 653 F.3d at 190 (quoting Bond, 529 U.S. at 338, 120 S.Ct. 1462).

The question here is whether Dutrieville had an objectively reasonable expectation of privacy in the home and his overnight bag.

A

Dutrieville argues that he had an objectively reasonable expectation of privacy in the home since he was an overnight guest staying at the home with Newell’s consent. Generally, a person’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). This is because a guest typically “seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684. Moreover, “hosts will more likely than not respect the privacy interests of their guests.” Id. Accordingly, acknowledging “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.” Id. at 98, 110 S.Ct. 1684.

Though most overnight guests have an objectively reasonable expectation of privacy, Dutrieville was not like most overnight guests. The key distinction is that the protection order prohibited Dutrieville from entering the home and from having any contact with Newell. Pursuant to Pennsylvania law, Dutrieville’s mere presence in the home violated the order and exposed him to criminal liability. See 23 Pa. Cons.Stat. § 6114(a). Importantly, Newell’s consent could not override the terms of the protection order. Consequently, like a trespasser, a squatter, or any individual who “occupies] a piece of property unlawfully,” Dutrieville’s presence in the home was “wrongful,” and therefore any expectation of privacy he may have had was not one that society is prepared to recognize as reasonable. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

B

Dutrieville also argues that, even if he lacked a legitimate expectation of privacy in the home, he had one in his overnight bag.. First, according to Dutrieville, the protection order did not extend to any of his belongings, and, therefore, while his presence in the home may have been unlawful despite Newell’s consent, his bag’s presence was not. Second, he attempts to analogize his case to cases holding that an individual retains a legitimate expectation of privacy in bags kept with a third party. See, e.g., United States v. Waller, 426 F.3d 838, 844-45 (6th Cir.2005) (holding that defendant had a legitimate expectation of privacy in luggage stored at friend’s, residence); United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (noting that overnight bags “historically command a high degree of privacy”); United States v. Most, 876 F.2d 191, 197-98 (D.C.Cir.1989) (holding that defendant had a legitimate expectation of privacy in a bag entrusted to store clerks).

These arguments are unavailing. The standing question turns on whether his expectation of privacy was objectively reasonable. Correa, 653 F.3d at 190. Because Dutrieville’s mere presence in the home was unlawful, it follows that he lacked an objectively reasonable expectation of privacy in a bag that he brought with him during an unlawful visit. This is because a person legally prohibited from entering a particular place cannot reasonably expect to use that place as a “private repository for his personal effects.” United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994) (internal quotation marks omitted). After all, if his personal effects are stored at the prohibited place, he cannot lawfully access them and therefore cannot reasonably expect that he will be able to exercise control over -them or that they “will remain undisturbed.” See United States v. Jackson, 585 F.2d 653, 658 (4th Cir.1978) (noting that a trespasser on another’s property or an individual on abandoned,property lacks an. objectively reasonable expectation of privacy in his personal effects stored there); see . also United States v. Baker, 221 F.3d 438, 442 (3d Cir.2000) (holding, in. a case concerning a person’s Fourth Amendment rights in a borrowed car, that standing depends on “the strength of [a person’s] interest” in. the searched -property and- “the nature of his control over it”).

Unlike the cases he cites, Dutrieville asserts a privacy interest locatedin a place he is legally prohibited from entering. Dutrieville was prohibited from entering the home when he brought the bag and was also prohibited from accessing the bag while it was in the home. Accordingly, he lacked an objectively reasonable expectation of privacy in the bag.

IV

For these reasons, Dutrieville lacks standing to challenge the search of the home and his overnight bag. We will therefore affirm the District Court’s order denying his motion to suppress.

. Because Dutrieville lacked an objectively reasonable expectation of privacy in both the home and the bag, we need not consider the subjective prong. Correa, 653 F.3d at 190 n. 3.

. As Dutrieville notes, Pennsylvania courts have held that a de minimis violation of a protection order may not be sufficient to support a conviction for criminal contempt. See Commonwealth v. Haigh, 874 A.2d 1174, 1177-78 (Pa.Super.Ct.2005). Here, Dutrieville admitted that he had been staying in the home for three days in violation of the order. This level of violation exceeds the level that Pennsylvania courts have found to be de min-imis. See id. (holding that a defendants violation was de minimis when he briefly asked his wife about a health problem during a court proceeding).

. United States v. Struckman, 603 F.3d 731, 747 (9th Cir.2010) (noting that trespassers lack Fourth Amendment standing).

. Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir.1975) (holding that squatters on government land lack Fourth Amendment standing).

. United States v. Curlin, 638 F.3d 562, 565 (7th Cir.2011) (collecting cases).

. Our holding is consistent with the holdings of other courts to address the Fourth Amendment rights of an individual violating .a protection order. See Washington v. St. Albans Police Dep’t, 30 F.Supp.2d 455, 457-58 (D.Vt.1998); Commonwealth v. Morrison, 429 Mass. 511, 710 N.E.2d 584, 586 (1999); State v. Stephenson, 760 N.W.2d 22, 26-27 (Minn.Ct.App.2009).