United States v. Aldred

19 F. App'x 553

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2001
• Docket: No. 00-30311; D.C. No. CR-00-00200-KI
• Status: Published

Opinion

MEMORANDUM¹

Defendant, Robert Benjamin Aldred, was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. The district court granted Defendant’s motion to suppress, ruling that (1) Defendant had a reasonable expectation of privacy in a shed in which he had stayed three weeks earlier and (2) the search warrant was invalid because the supporting affidavit referred to evidence that was observed illegally during a previous search. We reverse.

Fourth Amendment rights cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Johns, 851 F.2d 1131, 1135 (9th Cir.1988). In order to claim the protections of the Fourth Amendment, Defendant must establish, under the totality of the circumstances, that he had a reasonable expectation of privacy in the shed. Minnesota v. Carter, 525 U.S. 83, 88-89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). He failed to meet this burden.

The premise of Defendant’s argument is that he was a “tenant” who could lose his expectation of privacy only if he voluntarily abandoned the property or was formally evicted. That premise is belied by the record and by the district court’s findings of fact, which are not contested on appeal.

Defendant stayed with the Bunnells in their house for about a week, because he was avoiding the police and “needed a place to stay.” He then moved into the shed around the first of October 1999. On October 19, the day after Rhonda Bunnell was arrested, Howard Bunnell told Defendant to “pack, load your stuff up and go.” As the district court found, “the Bunnells had joint access and control of the front room of the shed throughout October and November”; Defendant and his friend were “occupants of the shed,” rather than tenants (emphasis added); and “Howard Bunnell revoked” the “permission to stay in the shed and store their belongings there,” which had been granted to Defendant and his friend earlier. When Howard “revoked that permission,” Defendant left immediately. The search did not occur for another three weeks. After October 19 Defendant did not have permission to stay in the shed, as his actions recognized, so he no longer had a reasonable expectation of privacy there. See United States v. Armenta, 69 F.3d 304, 308 (9th Cir.1995) (noting that a defendant had the status of an overnight guest if he had permission, from an “identifiable host,” to “come and go as he pleased”). Defendant’s “occasional payments toward the cost of electricity” during the time he stayed in the shed did not make him a “tenant” as a matter of law.

Additionally, the record establishes that Rhonda removed Defendant’s padlock from the shed in late October, after he had been told to leave, and that someone eventually removed and burned his belongings. These “affirmative steps” to remove Defendant, coupled with Howard’s revocation of permission to use the shed and Defendant’s immediate compliance with Howard’s revocation, establish that Defendant no longer had a reasonable expectation of privacy in the shed. Cf. United States v. Dorais, 241 F.3d 1124, 1128 (9th Cir.2001) (holding that a hotel guest no longer had a reasonable expectation of privacy in a room, forty minutes after check-out time, when the staff had taken “affirmative steps” to remove him).

REVERSED and REMANDED for further proceedings.

1 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.