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Mi Casa Es Su Casa

When does a search of a residence violate the rights of a guest?

March 10, 2011  |  by Devallis Rutledge - Also by this author


Photo: Newscom.

When you take down a drug house, or enter a home to investigate domestic violence, or serve a search warrant at a residence, which of the multiple people that you sometimes encounter would have the legal standing to challenge the lawfulness of your entry and search?

Those who actually reside there would, of course (unless they are subject to Fourth Amendment waivers as a condition of probation or parole). Burglars, vandals, and other uninvited occupants normally would not. But what about others who are neither residents nor trespassers? And how can your actions at the scene reduce the risk of someone falsely claiming a right to suppress evidence or sue you for illegal entry or search? Three decisions of the U.S. Supreme Court provide the answers.

Jones v. United States

Federal narcotics officers served a search warrant at an apartment in Washington, DC. The only occupant at the time of the entry and search was Cecil Jones, who lived elsewhere but had been staying at his friend's apartment while his friend was out of town. After drugs and paraphernalia were found, Jones was arrested. He moved to suppress the evidence, arguing that the search warrant was defective and the entry and search were unlawful. The U.S. Supreme Court agreed. The court said that as an invited houseguest, Jones had a legitimate expectation of privacy in his friend's apartment and therefore could maintain a suppression motion attacking the lawfulness of the entry and search.

A later Supreme Court opinion, Rakas v. Illinois, partially overruled Jones on one ground; however, Rakas affirmed that Jones was correct to hold that "a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place." (Rakas v. Illinois)

Two subsequent Supreme Court decisions in cases from Minnesota clarified the extent of the connection the visitor must have to claim such an interest.

Minnesota v. Olson

Joseph Ecker robbed a gasoline station in Minneapolis and shot the manager to death. Roger Olson drove the getaway car. Ecker was soon arrested and the murder weapon recovered. The next day, police got a tip as to Olson's whereabouts and surrounded the duplex where he was staying with the two women who resided there. Officers entered without consent or warrant and arrested Olson, who made incriminating statements that he later sought to suppress as fruits of the entry and search of his hosts' home. The U.S. Supreme Court ruled that he could do so.

The court cited to its decision in Payton v. New York, which held that a warrantless, nonconsensual, non-exigent entry into a private home to make an arrest violates the Fourth Amendment. As to Olson's ability to claim the benefit of this rule in someone else's home, the court found that because he was an overnight guest, he had an expectation of privacy that society would consider legitimate. The court said this:

"Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home. Because Olson's expectation of privacy in the Bergstrom home was rooted in understandings that are recognized and permitted by society, it was legitimate, and Olson can claim the protection of the Fourth Amendment." (Minnesota v. Olson)

The court added that there was no exigency to excuse the warrant requirement because (1) Olson was known not to be the murderer; (2) the murder weapon had already been recovered; (3) officers knew the occupants of the residence were friends of Olson and were not in any danger; (4) officers had the house surrounded; and (5) it was evident the suspect could not escape. Since the entry was not justified by exigency, consent, or warrant, it was unconstitutional under Payton. Olson was therefore permitted to suppress his statement.

The Olson case stands for the rule that an overnight guest will normally be allowed to maintain a suppression motion or a civil rights lawsuit based on an alleged unlawful entry or search of his host's residence.

Minnesota v. Carter

A confidential informant in Eagan, Minn., tipped police that drugs were being packaged in an apartment rented by Kimberly Thompson. An officer went there and stood on a walkway, looking through a window, as Melvin Johns and Wayne Carter weighed and bagged cocaine inside Thompson's apartment. The men were later stopped as they drove away, and a search of their vehicle disclosed drugs and a weapon.

Tracing this discovery to the officer's earlier surveillance through their host's windows-which was alleged to constitute an illegal search-both men moved to suppress everything. This time, the U.S. Supreme Court ruled that the guests had no legitimate expectation of privacy in their host's apartment.

"A defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. In Minnesota v. Olson we decided that an overnight guest in a house has the sort of expectation of privacy that the Fourth Amendment protects. Carter and Johns were not overnight social guests but temporary out-of-state visitors.

"Though an overnight guest in a home may claim the protection of the Fourth Amendment, one who is merely present with the consent of the householder may not. While the apartment was a dwelling place for Thompson, it was for these defendants simply a place to do business. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights." (Minnesota v. Carter) (The court did not decide whether or not the sidewalk surveillance through the window constituted a search, lawful or otherwise.)

The Carter case stands for the rule that a mere visitor will normally not be allowed to maintain a suppression motion or a civil rights lawsuit based on an alleged unlawful entry or search of his host's residence.

Investigative Questioning

An officer who makes no attempt to determine the status of all occupants at the time of entry and search will leave suspects with a clean slate to make any claims they choose in court. On the other hand, an officer who ties each occupant down with pointed questions will take away the suspects' ability to make uncontested claims later, after learning the significance of their status under Olson and Carter.

Early in the investigation, you might separate the occupants and ask them one at a time, "This is your house, isn't it? Yeah, but I bet you stayed here last night, didn't you? Yeah, but I bet you were planning on staying here tonight, weren't you?" Phrasing these questions as if you're trying to get the suspect to agree may keep him from falsely claiming residency or overnight guest status and prevent fabricated allegations of standing in court. Document all responses in your report to show who does and who doesn't have standing to contest your entry and search.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

Tags: Point of Law, Search and Seizure, Fourth Amendment


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