United States Court of Appeals For the First Circuit
No. 21-1862
UNITED STATES,
Appellee,
v.
HOWARD JOHN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Kayatta, Lynch, and Thompson, Circuit Judges.
Samia Hossain for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
February 3, 2023 LYNCH, Circuit Judge. Howard John pleaded guilty to
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
reserving his right to contest on appeal the district court's
denial of his motion to suppress evidence that he possessed an
AR-15 assault rifle and many rounds of ammunition.
In a thoughtful opinion, the district court rejected his
Fourth Amendment claim because John had not shown an objectively
reasonable privacy interest in the items seized from a case John
had left in the home of Nichelle Brison, his former domestic
partner, and their six-year-old son. John no longer lived in the
home and had been told by Brison that he was unwelcome, but
returned there unannounced on November 10, 2018, without her
permission to do so or her permission to have left the unlocked
case with weapons there. The police learned these facts when they
responded to her call for help after John had entered, assaulted
her, and left both her and the boy wounded. The police retrieved
the case, which had blood on it, from the kitchen table. We reject
John's three arguments that the ruling was error and affirm. We
agree with the district court that John had no objectively
reasonable expectation of privacy in the contents of the case.
I. District Court Findings of Fact
We take the facts from the district court's findings in
its February 1, 2021, memorandum and order denying John's motion
to suppress, supplemented "with the addition of undisputed facts
- 2 - drawn from the suppression hearing." United States v.
Cruz-Mercedes, 945 F.3d 569, 571 (1st Cir. 2019) (quoting United
States v. Hernandez-Mieses, 931 F.3d 134, 137 (1st Cir. 2019)).
We note that John did not contest any of the district court's
findings.
A.
Just after midnight on November 10, 2018, Somerville
Police Officers Cleary, Ramirez, and Sousa responded to a domestic
disturbance call made by Brison at 3 Wesley Park, Apartment #202,
Somerville, Massachusetts. Officer Sousa noticed blood on the
apartment's door and on the floor immediately outside the unit.
He knocked on the door multiple times and announced himself as
Somerville Police. The officers heard a male voice from inside
the apartment, asking Officer Sousa to "hold on." Approximately
a minute later, after further knocks and demands from the officers,
John opened the door, his hand bleeding. Officers Sousa and
Ramirez recognized John from a previous domestic disturbance call
at the same address in June 2018 involving John and Brison, in
which Officer Sousa had run John's criminal history and learned he
had previous firearms offenses on his record. Officer Sousa asked
John to step into the hallway; John complied.
While Officers Sousa and Cleary waited with John in the
hallway and called for medical assistance, Officer Ramirez entered
the apartment. Inside, Officer Ramirez found Brison and her six-
- 3 - year-old son. Brison was bleeding from her face, and she stated
that John had struck her face with his hand. The child was bleeding
from his left hand. When Officer Ramirez asked the child about
his injury, he pointed to John and said, "[H]e cut me." The child
also said, without prompting: "He has a gun," referring to John.
Officer Ramirez asked where the gun was located, and the child
responded, "[O]n his back." Officer Ramirez signaled to his
colleagues in the hallway to handcuff John. The officers frisked
John and did not find a gun. They asked John if he had a license
to carry a firearm, and he responded that he did not. They then
arrested John for domestic assault and battery and took him to the
police station. Around this time, Lieutenant deOliveira and other
assistance arrived.
After John was taken to the police station, Officer Sousa
entered the apartment and spoke with Brison. Brison explained
that John had arrived unannounced at her apartment at approximately
11:30 PM, saying he was there to "gather some of his belongings."
John and Brison argued over his unannounced visit because "he did
not live there anymore." Brison reported that John slapped and
choked her until their child "interceded." John then removed bags
from the apartment, including a black backpack. John returned to
the apartment. Brison called the police, but John hit the phone
out of her hand and punched her in the mouth, so all the dispatcher
could hear was "a male and female yelling and screaming" and the
- 4 - female yelling "get off me" before the line went dead. Brison
armed herself with a knife, which John grabbed from her, cutting
himself in the process. Their son was cut and hurt while trying
to intervene. The violence ended when a neighbor knocked on the
door, and the police arrived soon thereafter. Brison told the
officers that she did not own any firearms, and if there were any
firearms in the apartment, they belonged to John.
Officer Sousa also spoke with Brison's six-year-old son,
who said that he had seen a gun with something yellow on it in
John's black backpack. The child also told Officer Ramirez that
there was "a suitcase with guns" in the apartment.
Brison, according to Officer Sousa's report, "asked [the
officers] to locate and remove any firearms in the apartment
because of her concern for the safety of her young son and her own
safety." She signed a form consenting to Lieutenant deOliveira
and Officer Ramirez making "a complete search of the above
described apartment." The officers then opened the black case
that John had left on the kitchen table near the front door.
Brison had never seen the black case before that night when she
observed John pull the case out from underneath an armoire in her
apartment. John produced no evidence that the case was locked or
even had a lock. The black case was covered with "what appeared
to be fresh blood," and contained the lower receiver of an AR-15
rifle, two magazines loaded with 30 rounds of 5.56mm ammunition,
- 5 - three rifle scopes, two clips of 7.62mm ammunition, and other
items.
Officers then searched John's car. The officers
"believed that there was probable cause to believe that the rest
of the rifle could be inside Mr. John's vehicle" based on the "the
lower receiver of the rifle [found inside the case] . . . coupled
with the fact that Mr. John had just removed a backpack from the
apartment, and placed it in his vehicle." The child had also told
police that the black backpack contained a gun. In the car's
trunk, Officer Sousa found a black backpack. Inside the backpack
was a yellow glove and the upper receiver and barrel of an AR-15
rifle.
The Officer in Charge that night searched the police
database for the rifle's serial number and learned that it had
been reported stolen in Kittery, Maine. The Kittery Police
Department informed the Somerville police that other firearms
remained missing from the same firearms burglary. Officer Cleary
and his colleague then returned to Brison's apartment and, with
her consent, performed a second search and found some loose 9mm
ammunition but no additional firearms.
B.
Relying only on the Somerville police incident report
and the police reports contained therein, John moved to suppress
the evidence resulting from the search of his black case,
- 6 - including, as fruit of an unlawful search, evidence from the
subsequent search of his vehicle, the database query, the second
residential search, and his custodial statement. John argued that
Brison's consent to search the case was insufficient because she
had acknowledged to the Somerville police that the case did not
belong to her. John also argued that, if the evidence from the
search of the case was suppressed, there would have been
insufficient information to support probable cause for the
subsequent search of his car. In a later filing supplementing the
motion, John asserted that he had a subjective and objectively
reasonable expectation of privacy in the black case because he had
previously lived in Brison's apartment, kept the case private, and
was in the process of removing it from the apartment.
The government filed an opposition to John's suppression
motion, arguing that John failed to establish a reasonable
expectation of privacy, and, alternatively, that the search was
reasonable under the exigent circumstances, emergency aid, and
plain view doctrines, and that suppression was not warranted
pursuant to the inevitable discovery doctrine.
After holding a hearing, the district court denied
John's suppression motion, concluding that John's expectation of
privacy in his black case was not objectively reasonable "because
his presence in the apartment at or near the time of the search
was not legitimate. [John] entered an apartment he had no
- 7 - permission to be in and assaulted the apartment's occupant."
United States v. John, No. 1:19-cr-10068, 2021 WL 327472, at *5
(D. Mass. Feb. 1, 2021) (citation omitted). The district court
also declined to suppress the evidence found later. John pleaded
guilty, preserving his right to appeal the denial of his motion to
suppress, and the district court sentenced him to time served and
three years' supervised release. This timely appeal followed.
II. Analysis
When reviewing a district court's denial of a motion to
suppress, appellate courts "assess factual findings for clear
error and evaluate legal issues de novo." United States v.
Pimentel, 26 F.4th 86, 90 (1st Cir. 2022). "In assessing these
legal conclusions, however, we also give appropriate weight to the
inferences drawn by the district court and the on-scene officers,
recognizing that they possess the advantage of immediacy and
familiarity with the witnesses and events." Id. (quoting United
States v. Tiru-Plaza, 766 F.3d 111, 115 (1st Cir. 2014)). We
uphold a district court's denial of a motion to suppress "provided
that any reasonable view of the evidence supports the decision."
Id. (quoting United States v. Ferreras, 192 F.3d 5, 10 (1st Cir.
1999)).
The Fourth Amendment of the U.S. Constitution protects
"[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures."
- 8 - U.S. Const. amend. IV. "The Fourth Amendment generally requires
that the government obtain a warrant based on probable cause before
conducting a search." United States v. Moran, 944 F.3d 1, 4 (1st
Cir. 2019) (quoting United States v. Hood, 920 F.3d 87, 90 (1st
Cir. 2019)). "To prevail on a claim that a search or seizure
violated the Fourth Amendment, a defendant must show as a threshold
matter that [they] had a legitimate expectation of privacy in the
place or item searched." United States v. Battle, 637 F.3d 44, 48
(1st Cir. 2011). To determine this, we administer a two-part test:
"[F]irst, whether the defendant had an actual, subjective,
expectation of privacy; and second, whether that expectation 'is
one that society is prepared to recognize as objectively
reasonable.'" Id. at 48-49 (quoting United States v. Rheault, 561
F.3d 55, 59 (1st Cir. 2009)). Factors relevant to this
determination include:
ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case. We look, in short, to whether or not the individual thought of the place (or the article) as a private one, and treated it as such. If the movant satisfies us on this score, we then look to whether or not the individual's expectation of confidentiality was justifiable under the attendant circumstances.
- 9 - United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)
(citation omitted). We reach only whether John has shown that any
expectation of privacy in the contents of the black case is one
that society is prepared to recognize as objectively reasonable.
It is his burden to make that showing. See United States v.
Stokes, 829 F.3d 47, 51 (1st Cir. 2016).
John presents three arguments: (1) that the district
court conflated John's expectation of privacy in Brison's
apartment with his expectation of privacy in the black case; (2)
that the district court's reliance on cases involving a third-
party lien on a defendant's possessions was misplaced; and (3)
that John can maintain a reasonable expectation of privacy in the
black case even though it was left in a space where he did not
have permission to be. We deal with them in the order presented
and hold that John did not have an objectively reasonable
expectation of privacy in the black case because he did not have
permission to be in Brison's apartment, where he also did not have
permission to store the black case.
We reject John's argument that the district court
"erroneously relied on cases that involved evidence lying in plain
view in the home of another rather than the search of a closed
container" and thus elided the distinction between John's black
case and the apartment. The district court properly analyzed
- 10 - John's relationship to the apartment and its occupants as relevant
factors to its totality-of-the-circumstances analysis to determine
whether John's expectation of privacy in the black case was
objectively reasonable.
John is correct that Battle does not hold that police
can open a case belonging to him merely because he had no
expectation of privacy in the apartment where the case was found.
In Battle, the gun was found in plain view on the floor beneath a
couch, not in a closed case. 637 F.3d at 47. But the district
court was clearly aware of this distinction. See John, 2021 WL
327472, at *6 ("The fact the case was a closed container makes
this a closer call than Battle where the gun was found beneath the
couch."). In any event, at least three other circuits have held
that a person who left a bag in a home, in which the person had no
right to be, lost any legitimate reasonable expectation that the
bag would not be opened. See United States v. Sawyer, 929 F.3d
497, 499-50 (7th Cir. 2019); United States v. Cortez-Dutrieville,
743 F.3d 881, 885 (3d Cir. 2014); United States v. Jackson, 585
F.2d 653, 658–59 (4th Cir. 1978). Certainly the circumstances
here provide no reason to distinguish those holdings. John left
his case for a prolonged period without permission or agreement in
a home in which he was entirely unwelcome and had no right to
enter. He could not reasonably have expected that Brison or others
at her request would not open the unlocked case, especially when
- 11 - his own actions gave rise to Brison's fear that the contents of
the case might pose a danger.
Here, as in Battle, John was a "trespasser," 637 F.3d at
49, who had no legitimate expectation of privacy "that society is
prepared to recognize as reasonable," Sawyer, 929 F.3d at 500.
We also reject John's argument that the district court
erred in relying on "cases that found no reasonable expectation of
privacy where a third party held a lien on the defendant's
possessions." First, the district court did not rest its decision
on these cases. See John, 2021 WL 327472, at *5. Second, it is
inconsequential whether Brison had the equivalent of a lien over
John's black case. See United States v. Lnu, 544 F.3d 361, 366-
67 (1st Cir. 2008) (defendant lacked reasonable expectation of
privacy in contents of storage unit in part because storage
facility operator had lien on locker's contents); see also United
States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987) (hotel guest lacked
reasonable expectation of privacy in hotel room or "any articles
therein of which the hotel lawfully takes possession" after the
end of the rental period). Even if "[e]veryone involved knew that
the case belonged to . . . John," the totality of the circumstances
analysis still leads us to the same conclusion: John did not have
an objectively reasonable expectation of privacy in the black case.
- 12 - C.
John's third argument is that, even though he did not
have permission to be in Brison's apartment, he had an objectively
reasonable expectation of privacy in the black case because he was
the sole owner of the closed case, which he had hidden from view;
he exerted control over the case and had not abandoned it; and he
was in the process of removing his belongings from the premises.
We disagree.
The "totality of the surrounding circumstances,"
Aguirre, 839 F.2d at 857 -- including that John no longer lived in
the apartment; that he does not allege he had permission to be in
Brison's apartment at the time he initially placed the case in her
apartment; that he arrived at the apartment unannounced and without
permission; that he assaulted Brison in an altercation that also
left their six-year-old son injured; that he left the black case
in plain view on the kitchen table; that both Brison and the child
told police they worried that John had a firearm in the apartment;
and that Brison made explicit that she did not want any firearms
even if in bags where she and her son lived -- makes clear that
John's expectation of privacy in the black case is not "one that
society is prepared to recognize as objectively reasonable."
Battle, 637 F.3d at 48-49 (quoting Rheault, 561 F.3d at 59).
On November 10, John "was no longer a welcomed guest in
[Brison's] apartment, but instead was a trespasser who stayed
- 13 - beyond his permitted visit." Id. at 49. Trespassers have no
legitimate expectation of privacy "that society is prepared to
recognize." Sawyer, 929 F.3d at 500 (citing Battle, 637 F.3d at
49); see also Cortez-Dutrieville, 743 F.3d at 885 (holding that
defendant lacked reasonable expectation of privacy in overnight
bag found in apartment he was visiting in violation of a protective
order). This reasoning applies with equal force to the black case.
John did not have an objectively reasonable expectation of privacy.
See supra Section II.A.
We reject John's argument that this case is governed by
cases holding that, in some circumstances, an individual can
maintain an objectively reasonable expectation of privacy in a
closed container located in a place where the individual does not
have such an expectation. For example, this court in United
States v. Moran held that the defendant had an objectively
reasonable expectation of privacy in his black trash bags kept
inside his sister's storage unit with her permission. 944 F.3d at
5 n.2. Moran is distinguishable for precisely the reason the
government argues: there was no dispute that the defendant in Moran
stored his closed containers in his sister's storage unit with
permission, see id. at 3-4, whereas here John had none. John's
invocation of United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir.
1994), fails for the same reason. This court in Infante-Ruiz held
that the defendant had an objectively reasonable expectation of
- 14 - privacy in his briefcase located in another's car trunk. Id. at
501-02. Like in Moran, the defendant in Infante-Ruiz had
permission to place his briefcase inside the car's trunk. See id.
at 500-01. Here, John had no such permission to leave the black
case in Brison's apartment.
Furthermore, John's situation is not akin to the late
check-out cases that he cites. See United States v. Ramos, 12
F.3d 1019 (11th Cir. 1994); United States v. Owens, 782 F.2d 146
(10th Cir. 1986). In Ramos, the Eleventh Circuit found the
defendant -- a long-term "tenant of record" in a condo -- had an
objectively reasonable expectation of privacy in a closed
container inside the condo that was searched just a few hours after
check-out time. 12 F.3d at 1021, 1025-26. Owens involved a
similar situation, in which the court found the defendant, a hotel
guest, had an objectively reasonable expectation of privacy in his
left-behind luggage that was searched shortly after check-out
time. 782 F.2d at 148-50. John's situation is nothing like
Ramos's or Owens's.
III. Conclusion
For the foregoing reasons, we AFFIRM the district
court's ruling denying John's motion to suppress the evidence in
the black case and the later discovered evidence.
- 15 -