U.S. v. Haqq, 01-1029.

• Citation: 278 F.3d 44
• Decision Date: 17 January 2002
• Docket Number: No. 01-1029.,01-1029.
• Parties: UNITED STATES of America, Appellant, v. Samad HAQQ, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

278 F.3d 44

UNITED STATES of America, Appellant, v. Samad HAQQ, Defendant-Appellee.

No. 01-1029.

United States Court of Appeals, Second Circuit.

Argued: September 17, 2001.

Decided: January 17, 2002.

William F. Johnson, Assistant United States Attorney (Christine H. Chung, Assistant United States Attorney, of counsel; Mary Jo White, United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellant.

Steven M. Statsinger, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellee.

Before: MESKILL, JACOBS, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

The Government appeals from an Order of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) granting defendant's motion to suppress evidence seized when a police officer, after lawfully entering the defendant's home to execute several arrest warrants and lawfully engaging in a protective sweep of the premises, conducted a warrantless search of a suitcase inside defendant's home. The District Court, in a ruling from the bench relying on Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), held that the search violated defendant's reasonable expectation of privacy in his home.

We vacate the suppression order and remand the cause to the District Court for consideration of the issue of defendant's expectation of privacy in the suitcase.

I. BACKGROUND

In February 2000, defendant-appellant Samad Haqq lived in a two-bedroom apartment in New York City rented by his fiancée, Francine Harris. It is undisputed that at least four people lived in that apartment: Haqq, Francine Harris, Cedric Harris (Francine Harris's six-year-old son), and Reginald Peavy, a friend of Francine Harris's who paid her $75 per week and slept in one of the bedrooms. According to Haqq, another unrelated man, Samuel Myers, also lived in the apartment and slept in the living room.

On the morning of February 9, 2000, New York City police officers, including Detective Ralph Hanna, went to the Harris apartment to arrest Haqq, who was the subject of several outstanding arrest warrants. When they arrived at Harris's apartment, the officers knocked on the door and identified themselves. For five to ten minutes, there was no response; thereafter, Myers opened the door. The officers immediately handcuffed both Myers and Haqq. Leaving Haqq and Myers under guard in the living room, Hanna and another officer conducted a protective sweep of the apartment to ensure that no one else was on the premises.

As part of the protective sweep, Hanna entered the back bedroom of the apartment, where he observed a black nylon suitcase on top of the bed in the center of the room. Hanna searched the suitcase and discovered three handguns.

After seizing the guns, the officers took Haqq to a nearby police station, where Haqq signed a written statement in which he admitted that he had bought the guns to repay a debt to a drug dealer who wanted some "throwaway" weapons. The police then obtained Haqq's consent to a further search of the apartment, where they found two additional handguns and ammunition.

Haqq was subsequently charged in a two-count indictment with possessing firearms after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1),¹ and possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).² Haqq moved to suppress the firearms seized from his apartment and his confession, contending that the initial search of the suitcase was unlawful and that the confession and subsequent search were fruits of the proverbial "poisonous tree." The Government conceded that, if the initial search of the suitcase were unlawful, then the confession and subsequent search would be subject to suppression, but it argued that the initial search had not violated Haqq's Fourth Amendment rights for two independent reasons: because the guns were in plain view, and because Haqq had no reasonable expectation of privacy in the suitcase.

The District Court held evidentiary hearings on the suppression motion on September 19, November 6, and November 21, 2000. At those hearings, Hanna testified that, when he entered the back bedroom, he saw the outline of a handgun through the suitcase, and that he touched the outline, felt a gun, and then opened the pouch to discover three handguns. He also testified that the main compartment of the suitcase contained shoes, which filled "most" of the suitcase.

Despite being given several opportunities in open court to recreate the condition in which the suitcase was found, the Government was unable to repack the suitcase in such a way as to make the outline of a gun visible in the way described by Hanna, except by overstuffing the suitcase with numerous boxes. The District Court found the demonstration involving boxes unconvincing, noting that "no one claims [boxes] were ever actually in the suitcase[, and, w]hen packed with any number of shoes, the protrusion from the suitcase is not recognizable as a gun." Hr'g Tr. dated Dec. 18, 2000, at 10.

With respect to Haqq's expectation of privacy in the suitcase, the testimony at the hearing revealed that the suitcase belonged to Peavy, not Haqq, and that the bedroom in which Hanna found the suitcase was the one in which Peavy slept. The room was also occasionally slept in by Cedric Harris, and Francine Harris would sometimes care for Cedric in the room.

None of the contents of the suitcase at the time it was searched belonged to Peavy; the shoes belonged to Haqq Myers, and Myers's sister. Haqq had used the suitcase during a trip to the Carolinas with Myers, and Myers had placed it in Peavy's room upon their return earlier on the very morning of the execution of the arrest warrants by the police, February 9, 2000.

Haqq and Peavy gave conflicting testimony regarding whether Haqq had Peavy's permission to use the suitcase. According to Haqq, Peavy had given him permission to use the suitcase for the Carolina trip, and, in any event, they had an understanding that permitted each of them to use the other's belongings. Peavy denied ever giving Haqq permission to use the suitcase and also denied the existence of any understanding with Haqq regarding use of belongings.

The District Court granted the motion to suppress. Relying on Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), it held that Haqq's reasonable expectation of privacy in his home was "sufficient to permit him to object to the seizures of objects which were not, in fact, in plain view." Hr'g Tr. dated Dec. 18, 2000, at 6. Because it based its decision on Haqq's reasonable expectation of privacy in his home, the District Court concluded that it was unnecessary to resolve the factual dispute over Haqq's property interest in the suitcase itself:

Even assuming arguendo that the defendant lacked a specific property interest in the container within his home preventing the object inside from being viewed, he had a reasonable expectation of privacy to object to an allegedly unlawful search of his home.

Id. at 6-7. The District Court then found, as a factual matter, that the guns had not been in plain view.

On appeal, the Government challenges only the finding that Haqq's reasonable expectation of privacy in his home was violated by the search of the suitcase. It argues that Haqq's Fourth Amendment rights were not violated unless he had a reasonable expectation of privacy in the suitcase, and that he could have no such expectation because he did not own it and, even if he had permission to borrow it, he had returned it to Peavy by putting it on Peavy's bed in the room that Peavy was renting.

II. DISCUSSION

It has been clear for a generation that "Fourth Amendment rights are personal rights ... [that] may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, a defendant's Fourth Amendment rights are violated "only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (emphasis in original). The cornerstone of the modern law of searches is the principle that, to mount a successful Fourth Amendment challenge, "a defendant must demonstrate that he personally has an expectation of privacy in the place searched." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (emphasis added); see also United States v. Fields, 113 F.3d 313, 322 (2d Cir.1997) ("The ultimate focus of Fourth Amendment analysis remains whether the defendant had a reasonable expectation of privacy in the place searched."). A defendant must also show "that his expectation [of privacy] is reasonable, i.e. one that has a `source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" Carter, 525 U.S. at 88, 119 S.Ct. 469 (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421).

In this case, the District Court held that search of the suitcase violated Haqq's reasonable expectation of privacy in his home. Thus, the District Court, in essence, treated the search of the suitcase in Haqq's home as part of a search of his home. The District Court found support for its conclusion in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). We conclude, however, that the District Court misapprehended the holding of Hicks.

The facts of Hicks are as follows: After a bullet was fired through the floor of the defendant's apartment into the apartment below, police officers entered defendant's apartment (without a warrant) to search for the shooter, for other victims, and for weapons. 480 U.S. at 323, 107 S.Ct. 1149. One of the officers noticed...