United States v. Antoine Cortez-Dutrieville , 743 F.3d 881 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-2266
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UNITED STATES OF AMERICA
v.
ANTOINE CORTEZ-DUTRIEVILLE,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 2-12-cr-00183-001)
District Judge: Hon. Terrence F. McVerry
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Submitted Under Third Circuit LAR 34.1(a)
February 11, 2014
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Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit
Judges.
(Filed: February 26, 2014)
Lisa B. Freeland, Esq.
Renee Pietropaolo, Esq.
Office of the Federal Public Defender
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant
David J. Hickton, Esq.
Michael Leo Ivory, Esq.
Rebecca R. Haywood, Esq.
United States Attorney’s Office
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION
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SHWARTZ, Circuit Judge.
Antoine Cortez-Dutrieville (“Dutrieville”) 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 Dutrieville was prohibited from
entering the home as a result of a protection order and thus
lacked standing to challenge the search. We will affirm.
2
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 Dutrieville 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
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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 Newell’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) Dutrieville 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
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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.
Stearn, 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
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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 (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).
The question here is whether Dutrieville had an
objectively reasonable expectation of privacy in the home and
his overnight bag.1
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 (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. Moreover,
1
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.
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“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.
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).2 Importantly, Newell’s consent
could not override the terms of the protection order.
Consequently, like a trespasser,3 a squatter,4 or any individual
2
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 minimis. See id. (holding that a
defendant’s violation was de minimis when he briefly asked
his wife about a health problem during a court proceeding).
3
United States v. Struckman, 603 F.3d 731, 747 (9th
Cir. 2010) (noting that trespassers lack Fourth Amendment
standing).
4
Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st
Cir. 1975) (holding that squatters on government land lack
Fourth Amendment standing).
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who “occup[ies] a piece of property unlawfully,”5
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 (1978).6
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.
5
United States v. Curlin, 638 F.3d 562, 565 (7th Cir.
2011) (collecting cases).
6
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, 710 N.E.2d 584, 586
(Mass. 1999); State v. Stephenson, 760 N.W.2d 22, 26-27
(Minn. Ct. App. 2009).
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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 located in 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
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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.
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