No Expectation of Privacy for Former Resident Boyfriend

by | February 24, 2023

United States v. John, 2023 WL 1495554 (1st Cir. 2023)

Nichelle Brison called the police to report a domestic assault. The phone was knocked from her hand during the call and the call taker could hear “a male and female yelling and screaming,” the female yelling, “Get off me.” Responding officers saw blood on the apartment’s door and on the floor immediately outside the unit. One officer knocked on the door multiple times and announced, “Police.” The officers heard a male voice from inside the apartment saying, “Hold on.” Approximately a minute later, after further knocks and demands from the officers, Howard John opened the door, his hand bleeding. The officers recognized John from a previous domestic disturbance call at the same address earlier in the year. They knew John had previous firearms crimes on his record.

Two officers waited with John in the hallway for medical assistance to arrive while one officer went into the apartment and found Brison and her six-year-old son. Brison was bleeding from her face and said John had struck her face with his hand. The child was bleeding from his left hand and told the officer John had cut him. He also said (without prompting), “He has a gun.” The officers frisked John and did not find a gun. They arrested him for the assault and took him to the station.

Brison told officers she and John argued over his surprise visit because “he did not live there anymore.” She said John slapped and choked her until the young child “interceded.” John then removed bags from the apartment, including a black backpack. When John later returned to the apartment, Brison called the police.

When officers spoke with the six-year-old, he told them he had seen a gun with something yellow on it in John’s black backpack. The child also said there was “a suitcase with guns” in the apartment. Brison told the officers she wanted them to remove any guns in the apartment for her safety and out of concern for her son. She signed a consent form to allow officers to search the apartment.

The court of appeals agreed John held no legitimate expectation of privacy “that society is prepared to recognize as reasonable.”

The officers then opened the unlocked black case 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 it out from underneath an armoire in her apartment. The black case was covered with “what appeared to be fresh blood,” and contained the lower receiver of an AR-15 rifle, loaded magazines, a rifle scope and other ammunition. Operating under the assumption there was probable cause to believe the rest of the rifle could be inside John’s car, officers searched the car and found the upper receiver and barrel. A check revealed the rifle had been stolen in a burglary.

John was charged with being a felon in possession of a firearm. He asked the court to suppress the gun and ammunition. The trial court refused his request, and the court of appeals upheld the denial of the suppression motion.

John claimed he had an expectation of privacy in the gun case because Brison told the officers it did not belong to her. If the search of the gun case was suppressed, John argued, it negated the probable cause to believe the other parts of the rifle would be found in his car. The trial court had ruled 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 permission to be in and assaulted the apartment’s occupant.”

The court of appeals agreed John held no legitimate expectation of privacy “that society is prepared to recognize as reasonable.” John claimed he had an objectively reasonable expectation of privacy in the gun case because he was its sole owner, he had hidden it from view in the apartment, he exerted control over the case and he had not abandoned it. John compared the presence of the gun case to circumstances in which a hotel guest left luggage behind that was searched shortly after check-out time, or someone who had permission to store items in an apartment even though he had moved out. The court noted John had no permission to leave the black case in Brison’s apartment. He was a trespasser committing a crime against the legitimate occupant of the residence. Thus, the officers reasonably relied on Brison’s consent to search the apartment and to inspect the gun case.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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