Opinion
CRIMINAL ACTION NO: 03-259 SECTION: "J"()
November 4, 2003
ORDER AND REASONS
Before the Court is Defendant's Motion to Suppress Evidence (Rec. Doc. 9). The motion is opposed by the Government (Rec. Doc. 12). The motion to suppress was set for hearing with oral argument on Wednesday, October 22, 2003. Upon consideration of the briefs and evidence submitted by counsel, the record, and applicable law, the Court finds that Defendant's Motion to Suppress Evidence is DENIED.
BACKGROUND
Officers of the Drug Enforcement Administration ("DEA") and Bureau of Alcohol, Tobacco, and Firearms conducted a search at 1400 Annunciation Street, Apartment 1320, New Orleans, Louisiana on July 23, 2003. The apartment is located in a locked gated apartment complex. Laura Parker, who lived in the apartment with her boyfriend, the defendant, signed the DBA form 88 consent to search. During the search, one of the agents found 184 gross grams of heroin, 35 gross grams of cocaine, and a digital scale inside the pockets of a leather jacket.
DISCUSSION
1) Whether the defendant had a reasonable expectation of privacy in the common areas of the locked gated apartment complex?
Under the Fourth Amendment to the United States Constitution, every person has the right " to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. A person has an expectation of privacy protected by the Fourth Amendment if he has a subjective expectation of privacy, and if society is prepared to recognize that expectation as objectively reasonable. Katz v. United States, 389 U.S. 347, 361 (1967). In assessing the reasonableness of individual's expectation of privacy, no one factor is invariably determinative. Rakas v. Illinois, 439 U.S. 128, 152 (1978).
On a motion to suppress the evidence, the proponent of the motion bears the burden of proving facts that demonstrate the reasonableness of privacy in the searched area. United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993). The government accurately states that four circuits have found that no privacy interest exists in locked common areas. United States v. Nohara, 3 F.3d 1239, 1241-42 (9th Cir. 1993); United States v. Conceucion, 942 F.2d 1170, 1171-72 (7th Cir. 1991); United States v. Barrios-Moriera, 872 F.2d 12-14-15 (2d Cir. 1989);United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977). Two other circuits limit their holdings to unlocked common areas, leaving open the question of locked areas. United States v. Cruz Pagan. 537 F.2d 554, 558 (1st Cir. 1976); United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002). Only the Sixth Circuit has found a reasonable expectation of privacy in the locked common areas of an apartment building. United States v. Carricrer, 541 F.2d 545, 550 (6th Cir. 1976).
The circuits holding that there is no reasonable expectation of privacy in the common areas of the apartment have done so because tenants have little control over these areas, and because the areas are available for use by other tenants, delivery people, repair workers, postal people, and the like. The Second Circuit in U.S. v. Eisler, 567 F.2d 814 (2d Cir. 1976), phrased the issue in this way: "An expectation of privacy necessarily implies an expectation that one will be free of any intrusion, not merely unwarranted intrusions. The common hallways of the apartment building were available for the use of residents and their guests, the landlord and his agents, and others having legitimate reasons to be on the premises. Id. That the appellee was a technical trespasser in a common hallway is of no consequence since appellants had no reasonable expectation that conversations taking place there would be free from intrusion."Id. at 816.
The defendant argues that he had a reasonable expectation of privacy in the locked gated area of his apartment complex. Although the defendant attempts to support his argument by citing Fixel v. Wainright, 492 F.2d 480 (5th Cir. 1974), that court's decision actually left open the issue before this Court. In Fixel, the court held that tenants living in a four-unit building had a reasonable expectation of privacy in their shared backyard. Id. at 483. The Fifth Circuit specifically noted that this backyard was "not a common passageway normally used by the building's tenants for gaining access to the apartments. Nor [was] [it] an area open as a corridor to salesmen or other businessmen who might approach the tenants in the course of their trade." Id. at 484.
In the present case, the agents requested and received an access device from the manager of the apartment complex to enter the outside gates of the complex. Moreover, unlike Fixel, the area accessed by the agents is an area used by the building's tenants to gain access to their apartments. Thus, because the manager allowed access to the common area and because the area is a common passageway used by tenants to access their apartments, the defendant did not have a reasonable expectation of privacy.
2) Whether the search was valid in the absence of a warrant?
In this case, it was the defendant's live-in-girlfriend, not the defendant himself, who consented to the search. However, the analysis of the warrantless search does not change. Any person with common authority over, or other sufficient relationship to, the place or effects being searched can give valid consent. U.S. v. Matlock, 415 U.S. 164, 171 (1974). As a resident of the searched house, Ms. Parker clearly had the authority to consent to a search.
Under the Fourth Amendment of the United States Constitution, every search and seizure must be reasonable. U.S. CONST, amend. IV. The Supreme Court has generally interpreted this requirement to mean that an arrest or search must be based on probable cause and executed pursuant to a warrant. Katz v. U.S., 389 U.S. 347, 357 (1967). There are, however, exceptions to the probable cause and warrant requirements.
Government agents, without a warrant or probable cause, may conduct a search based on an individual's voluntary consent, and any evidence discovered during the search may be seized and admitted at trial.Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent may be express or implied and voluntary consent constitutes a waiver of Fourth Amendment rights. Id. at 235. Unlike the waiver of a defendant's rights associated with a fair trial, consent to an unreasonable search may be given unintentionally and without knowledge of the right to refuse consent. Id. at 241-46. In determining whether a defendant's will was overborne in a particular case, courts assess the totality of the circumstances. Id. at 227. This includes both the characteristics of the accused and the details of the interrogation.Id. at 226. Moreover, in a recent Fifth Circuit case, the court espoused six factors that bear on the voluntariness of consent to search. United States v. Portillo-Aguirre, 311 F.3d 647, 658 (5th Cir. 2002). The factors include: (1) the voluntariness of the defendants status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. Id. at 658-59. "Although all six factors are relevant, no single factor is dispositive." Id. at 659. The prosecution has the burden of proving that consent was voluntarily given. Florida v. Rover, 460 U.S. 491, 497 (1983); Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
The defendant claims that one of the agents held up papers that he claimed were a search warrant, when in fact no search warrant existed. The agents asked Ms. Parker if they could search the apartment, but before she could answer, they told her that she could consent to the officers' fairly quick search, or several other officers would conduct a far more intrusive search and "tear up" the apartment. However, after listening to the testimony, and considering the briefs and arguments, this Court finds that the DEA agents identified themselves at the threshold and asked for permission to enter the apartment. The agents asked who lived in the apartment and told Ms. Parker that she was not a suspect. The agents then requested permission to search. Ms. Porter agreed and signed the consent form. Thus, assessing the totality of the circumstances, Ms. Parker's consent was voluntary and valid even in the absence of a warrant. Therefore;
It is HEREBY ORDERED that the Defendant's Motion to Suppress is DENIED.