573 F.3d 279 (6th Cir. 2009), 08-3317, United States v. Washington

Docket Nº:08-3317.
Citation:573 F.3d 279
Opinion Judge:BOGGS, Chief Judge.
Party Name:UNITED STATES of America, Plaintif-Appellant, v. Tracy WASHINGTON, Defendant-Appellee.
Attorney:Daniel S. Goodman, United States Department of Justice, Washington, D.C., for Appellant. Richard W. Smith-Monahan, Federal Public Defender's Office, Cincinnati, Ohio, for Appellee. Daniel S. Goodman, United States Department of Justice, Washington, D.C., for Appellant. Richard W. Smith-Monahan, F...
Judge Panel:Before: BOGGS, Chief Judge; and BATCHELDER and COOK, Circuit Judges.
Case Date:July 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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573 F.3d 279 (6th Cir. 2009)

UNITED STATES of America, Plaintif-Appellant,


Tracy WASHINGTON, Defendant-Appellee.

No. 08-3317.

United States Court of Appeals, Sixth Circuit.

July 22, 2009

Argued: June 12, 2009.

Page 280


Daniel S. Goodman, United States Department of Justice, Washington, D.C., for Appellant.

Richard W. Smith-Monahan, Federal Public Defender's Office,

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Cincinnati, Ohio, for Appellee.


Daniel S. Goodman, United States Department of Justice, Washington, D.C., for Appellant.

Richard W. Smith-Monahan, Federal Public Defender's Office, Cincinnati, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and BATCHELDER and COOK, Circuit Judges.


BOGGS, Chief Judge.

In the early morning hours of Christmas day, two police officers entered George Young's apartment without his permission or a warrant. His nephew, Tracy Washington, had been residing in the apartment for several months and was entertaining friends. Young was in jail at the time and the police told Washington that he was suspected of criminal trespass. Despite Washington's vigorous and repeated objections, these officers patted him down and searched the apartment, finding illegal drugs, drug paraphernalia, and a loaded gun. We affirm the district court's suppression of this evidence because the Fourth Amendment prohibits the warrantless search of a private home to investigate minor offenses, such as this one, that do not pose any threat of imminent violence or result in an ongoing injury to the community.


Washington began living with his uncle, George Young, in the fall of 2006 at 1906 Elm Street, Cincinnati, Ohio. Police regularly patrolled this building, which was the site of frequent drug arrests and activity. In his deposition, Officer Brendon Rock said that in the course of his six years on the Cincinnati police force, he had responded to disturbances in basically every apartment in the building. During his patrol on December 18, 2006, Officer Rock recognized Young as the man he had recently observed drop a crack pipe in the hallway of the building and arrested him on drug paraphernalia charges. As Officer Rock was ushering Young into a police car, Young shouted up to Washington, who was watching from the window of the apartment, instructing him to secure the apartment and keep people out.

A few days after Young's arrest, the building's landlord, Jeff Moore, informed Officer Rock that he had observed a number of non-residents loitering in the halls. There were already many signs in the hallways indicating that trespassers and non-residents were unwelcome, and Moore requested that police officers patrol the building and remove any such individuals. With respect to Young's apartment, Moore told Rock that tenants had informed him there was a great deal of foot traffic and a tenant had seen one man enter the unit with a gun. Moore also apparently told Rock that, in light of Young's arrest, no one was permitted to be in the unit. However, he did not indicate that there had been or would be any attempt to evict Young. Officer Rock did not act on this information immediately or make any effort to obtain a warrant on the basis of this tip. Rather, he agreed to continue patrolling the building's halls.

Driving past the apartment building a few days later at 5:40 am on December 25, 2006, Officer Rock observed two women on the street engaged in a verbal altercation. One of the women involved, Ellen Wilson, told Officer Rock that she was Young's girlfriend and was looking after his apartment while he was in jail. From the street, Officer Rock observed that the lights in Young's apartment were on. Wilson told Rock that there were two people in the unit. She did not request his help or say they were trespassing. Nevertheless,

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Rock claims that his unspoken assumption at the time was that any visitors were trespassing because the landlord had previously told him that no one other than Young was permitted in the unit. At Rock's request, Wilson agreed to let the police search the apartment. For his own part, Rock later testified that he did not believe Wilson had authority to consent to the search. Asked why he bothered obtaining her written authorization, he explained, " to cover all my bases."

Wilson accompanied Rock to the apartment, knocked on the door and exclaimed that she was with the police. An unknown person in the apartment opened the door. Officer Rock and his partner entered. Washington was among those who were immediately visible, and he became belligerent and told Rock that he was not allowed in the apartment. Officer Rock testified that drug paraphernalia in the living room was in plain view once he was inside the apartment. Nothing in the record suggests this material was visible from the doorway. Upon seeing this evidence of criminal activity, Rock asked the defendant if he had anything illegal in his possession. Washington replied, " You can't search me." Officer Rock informed Washington that he was suspected of criminal trespass and would be patted down. Washington then stated, " I'm dirty." Rock asked again whether Washington possessed anything illegal. Washington nodded affirmatively. Rock asked if it was a firearm, and Washington nodded affirmatively a second time. Rock and his partner placed Washington in handcuffs and retrieved a .357 revolver from the waistband of Washington's pants and a crack pipe from his pocket.

A criminal history check revealed that Washington was a previously convicted felon imprisoned for more than one year and so he was charged under 18 U.S.C. § 922(g)(1) for being in possession of a firearm. Although the district court initially denied the defendant's motion to suppress for lack of standing, it then granted the defendant's motion to reconsider and suppressed the evidence in light of defendant's evidence showing that he had an expectation of privacy in the unit and that the search violated the Fourth Amendment. In its motion to reconsider, the government for the first time argued that, even if Washington had an expectation of privacy, both probable cause and exigent circumstances justified the warrantless search of the apartment. The district court denied this motion, and the government appeals. There are two issues before us: first, did the district court err in concluding that Washington demonstrated an expectation of privacy in the apartment such that he now has standing to assert the search violated the Fourth Amendment? And second, has the government demonstrated that exigent circumstances justified the search so as to overcome the Fourth Amendment presumption of unreasonableness that attaches to warrantless searches of a private home?


" When reviewing a district court's decision on a motion to suppress, we use a mixed standard of review: we review findings of fact for clear error and conclusions of law de novo." United States v. Davis, 514 F.3d 596, 607 (6th Cir.2008). Washington's standing to challenge the search of his uncle's apartment hinges on whether he had a reasonable expectation of privacy in the residence. To establish such an expectation, the defendant must show (1) that he had a subjective expectation of privacy, and (2) that his expectation was objectively reasonable.

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United States v. Pollard, 215 F.3d 643, 647 (6th Cir.), cert. denied, 531 U.S. 999, 121 S.Ct. 498, 148 L.Ed.2d 469 (2000). An expectation is objectively reasonable only when it is one that " society is prepared to recognize as legitimate." Ibid.

The Sixth Circuit has generously construed the Fourth Amendment as protecting nearly all overnight guests, even when the guest occupies a common area in the apartment that is not private from other residents. See id. at 647-48 (holding that an occasional overnight guest who was permitted to be in the residence alone and who kept personal belongings in a closet in the living room had a reasonable expectation of privacy). In certain cases, this circuit has even extended standing to challenge a search to non-overnight guests who are permitted to keep items in the residence. See United States v. Waller, 426 F.3d 838, 844 (6th Cir.2005) (holding that a transient person who was never an overnight guest had a reasonable expectation of privacy in a friend's apartment where he showered, changed clothes, and kept some personal possessions).

On appeal, the government concedes that Washington had a subjective expectation of privacy,1 Br. Appellant at 28, but gives several reasons why this expectation was objectively unreasonable. First, the government contends that because Washington was previously arrested for trespassing in a different unit of the same apartment building, he could not possibly maintain an objectively reasonable expectation of privacy in the apartment leased by his uncle. Br. Appellant at 30. The government cites no legal precedent in support of this claim, and it is without merit. A person who trespasses in one apartment may legitimately live in another; he is not thereby cast out of the habitation.

Next, the government contends that society does not recognize Washington's expectation of privacy as reasonable because he was engaged in criminal activities in the apartment. See Br. Appellant at 31. Although it is certainly true a person cannot acquire an expectation of privacy in a structure that has been legally condemned such that any presence is forbidden, United States v. Whitehead, 415 F.3d 583, 587-88 (6th Cir.2005), the use of a space for illegal activity does not alter the privacy expectations of a person who would otherwise have standing. Minnesota v. Carter, 525 U.S. 83, 91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); see also id. at 109-10, 119 S.Ct. 469 (" As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis.... If the illegality...

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