United States v. Devontay Sawyer , 929 F.3d 497 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2923
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVONTAY SAWYER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cr-00161-1 — Jorge L. Alonso, Judge.
____________________
ARGUED JUNE 12, 2019 — DECIDED JULY 9, 2019
____________________
Before WOOD, Chief Judge, and BARRETT and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Devontay Sawyer entered a condi-
tional guilty plea to possessing a firearm as a felon, 18 U.S.C.
§ 922(g), preserving for this direct appeal his challenge to the
denial of his motion to suppress evidence. Sawyer contests
the search of his backpack, which he left inside a home that
he had entered unlawfully. The police found guns inside the
backpack. The district court denied the motion to suppress,
2 No. 18-2156
concluding that Sawyer, as a trespasser, had no legitimate ex-
pectation of privacy in the house and therefore none in the
unattended backpack. We agree with the district court and af-
firm the judgment.
I. Background
On July 26, 2016, Chicago police officers responded to a
report of a residential burglary in progress. After they ap-
proached the home and looked for signs of a forced entry,
someone named M.G. arrived, and told the officers that he
and his wife owned the home. He explained that it was a
rental property with no current tenants and that no one
should be inside. M.G. then saw that one of the home’s front
windows was cracked open and, peering inside, he saw a fig-
ure in the house. He yelled through the window, demanding
that any occupants leave the house. The officers banged on
the front door and ordered all the occupants to come outside.
Ultimately, Sawyer and three others came out and stood with
the officers on the porch.
M.G. then asked the officers to “go inside and check my
house.” In the basement, officers found a backpack; they
opened it immediately and discovered four guns inside. The
searching officers used the radio to inform the officers out-
side, who placed Sawyer and the three others in custody. The
officers who had searched the backpack brought it outside.
Officer Jorie Wood, who had remained outside, then opened
the backpack and found a cell phone. She gave Miranda warn-
ings to the arrestees and asked them who owned the phone.
Sawyer responded that it was his phone and his bag. Wood
later asked Sawyer again if it was his bag, and that time, he
said no.
No. 17-3221 3
After he was indicted, Sawyer moved to suppress the con-
tents of the backpack and his statements about it. He argued
that the officers lacked probable cause or consent to search it.
The government responded that Sawyer had no “standing” to
contest the search because he failed to provide evidence that
he had a subjective expectation of privacy in the backpack,
and that even if he had, Sawyer, as a trespasser, had no legit-
imate expectation of privacy that society is prepared to recog-
nize. The government also argued that the officers obtained
consent from the owner to search the home. The district court
denied Sawyer’s motion to suppress, concluding that Sawyer
lacked “standing” to challenge the search because he was un-
lawfully present in the house and thus had no reasonable ex-
pectation of privacy there. The court further determined that
the officers were entitled to search the backpack as part of
their ongoing investigation of a burglary.
Sawyer then conditionally pleaded guilty to knowingly
possessing a firearm as a felon, 18 U.S.C. § 922(g). He ex-
pressly retained the right to challenge the denial of his motion
to suppress.
II. Discussion
This court reviews the denial of the motion to suppress
de novo. See United States v. Edgeworth, 889 F.3d 350, 353 (7th
Cir. 2018). On appeal, Sawyer maintains that he had a legiti-
mate expectation of privacy in the backpack because it was
undisputed that he owned it and that he told the officers that
it was his. He also contends that the district court character-
ized his privacy interest too broadly by focusing on his expec-
tation of privacy in the home instead of in the closed backpack
itself.
4 No. 18-2156
Analysis of a defendant’s legitimate expectation of privacy
requires us to determine first whether the defendant’s rights
were personally violated. Rakas v. Illinois, 439 U.S. 128, 133–34
(1978). In Rakas, the Supreme Court held that this determina-
tion is not a separate matter of “standing,” “distinct from the
merits of a defendant’s Fourth Amendment claim.” Id. at 138–
39. Instead, it should be addressed through the substantive
Fourth Amendment question of whether the person challeng-
ing the search “had a legitimate expectation of privacy in the
premises he was using” and thus could assert Fourth Amend-
ment protections. Id. at 143; United States v. Carlisle, 614 F.3d
750, 756 (7th Cir. 2010). To determine whether someone has a
legitimate expectation of privacy, courts must consider (1)
whether that person, by his conduct, has exhibited an actual,
subjective expectation of privacy and (2) whether his expecta-
tion of privacy is one that society is prepared to recognize as
reasonable. See Carlisle, 614 F.3d at 756–57. Sawyer bears the
burden of showing that he had a legitimate expectation of pri-
vacy in the backpack. See id. at 758.
Although the district court mischaracterized Sawyer’s ar-
gument as an issue of “standing,” it properly concluded,
nonetheless, that Sawyer, as a trespasser, had no reasonable
expectation of privacy in the backpack he brought in when he
unlawfully entered the premises. The Fourth Amendment re-
quires an examination of “the totality of the circumstances,”
see United States v. Knights, 534 U.S. 112, 118 (2001), which in
this case includes the presence of the unattended backpack in
a home Sawyer was trespassing. A privacy interest is not rea-
sonable when one’s presence in a place is “wrongful.” Rakas,
439 U.S. at 143, n.12. (citation omitted). Here, the officers re-
sponded to a report of a residential break-in and learned from
M.G. that the home should be empty and unoccupied. Sawyer
No. 17-3221 5
and three others then emerged from the home. M.G. re-
quested a search of the home during which the officers dis-
covered and searched the backpack. Sawyer does not assert
that his—and therefore his backpack’s—presence was lawful
or offer any basis for his privacy interest in the home. Thus,
like “[a] burglar plying his trade in a summer cabin during
the off season,” Sawyer lacked a legitimate expectation of pri-
vacy to contest the search within the home because any ex-
pectation he had was not one that society is prepared to rec-
ognize as reasonable. Id. (citation omitted); United States
v. Curlin, 638 F.3d 562, 565 (7th Cir. 2011).
This determination aligns with the decisions of other cir-
cuits that have concluded that a trespasser’s wrongful pres-
ence forestalls a Fourth Amendment challenge. See United
States v. Battle, 637 F.3d 44, 49 (1st Cir. 2011) (defendant who
overstayed his visit became a trespasser with no “legally suf-
ficient interest in the apartment to mount a Fourth Amend-
ment challenge”); United States v. Struckman, 603 F.3d 731, 747
(9th Cir. 2010) (trespassers cannot claim the protections of the
Fourth Amendment); United States v. Hunyady, 409 F.3d 297,
303 (6th Cir. 2005) (trespasser who had tenuous connection
with otherwise empty house had no legitimate expectation of
privacy to contest its search). Because Sawyer has not shown
a legitimate privacy interest in the home where the backpack
was found, he also cannot contest the search of his effects that
he left within the home. See United States v. Mendoza, 438 F.3d
792, 795 (7th Cir. 2006); see also United States v. Gale, 136 F.3d
192, 194–95 (D.C. Cir. 1998) (defendant wrongfully occupying
apartment lacked legitimate expectation of privacy to contest
search of box containing drugs in apartment); United States v.
Jackson, 585 F.2d 653, 658 (4th Cir. 1978) (defendant who
6 No. 18-2156
placed bag in vacant, otherwise empty home had no legiti-
mate reasonable expectation that his effects would remain un-
disturbed).
Moreover, the officers’ search of the backpack did not vi-
olate the Fourth Amendment because M.G. consented to the
search of his home, which included the backpack. An other-
wise unreasonable search is permissible when a third party
with common control over the searched premises consents, or
when someone with apparent authority to consent does so.
United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). A
general consent to search the premises can include consent to
search containers within it if those containers would reasona-
bly hold the expressed object of the search. Fla. v. Jimeno, 500
U.S. 248, 251 (1991). Here, M.G. told the officers that he co-
owned the house, that it was a rental property with no current
tenants, and that no one—and therefore, no personal prop-
erty—should be inside. When he saw a figure inside the
house, he commanded that any occupants come outside and
asked the officers to “go inside and check my house.” He did
not limit the scope of the search. It was objectively reasonable,
then, for the officers to conclude that M.G.’s general consent
to search the house included consent to search a container,
such as the backpack, that could contain evidence relating to
the break-in. See Jimeno, 500 U.S. at 251.
Because Sawyer had no legitimate expectation of privacy
in the backpack, we affirm the district court’s judgment.