650 F.2d 1075 (9th Cir. 1981), 79-1577, United States v. Sledge

Docket Nº:79-1577; 79-1633.
Citation:650 F.2d 1075
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie SLEDGE and Doni Williams, Defendants-Appellants.
Case Date:July 07, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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650 F.2d 1075 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie SLEDGE and Doni Williams, Defendants-Appellants.

Nos. 79-1577; 79-1633.

United States Court of Appeals, Ninth Circuit

July 7, 1981

Submitted Feb. 6, 1980.

Alan Zarky, Los Angeles, Cal., argued for defendants-appellants; Roger J. Rosen, Los Angeles, Cal., Phillip A. DeMassa, San Diego, Cal., on brief for Sledge.

Daniel J. Gonzalez, Asst. U. S. Atty., Los Angeles, Cal., for the U. S.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, FLETCHER and POOLE, Circuit Judges.

KENNEDY, Circuit Judge:

The question before us is the legitimacy of a police search of appellants' apartment, an apartment which appeared to have been abandoned when in fact the appellants may have intended to return. Appellants were convicted under 21 U.S.C. § 841(d)(1) (1976 & Supp. III 1979) of knowingly and intentionally possessing 55 gallons of piperidine with intention to manufacture phencyclidine (PCP). The principal contention on appeal is that incriminating evidence was illegally seized. We determine the search was valid and affirm.

The circumstances leading to the search were these: appellants, Sledge and Williams, rented an apartment from a landlord named Schammann. On March 1, 1979, the appellants gave Schammann thirty days notice of intent to vacate their apartment "by Sunday, March 31, 1979." The rent had been paid through March. Schammann talked with Sledge and Williams about their leaving early so the apartment could be prepared for new tenants on April 1.

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Shortly after March 15, Schammann went to the apartment to ask the tenants when they were going to vacate. No one was there, so he left a note on the door asking them to telephone him. They did not, and no one answered his subsequent calls. In the late afternoon on March 29, Schammann went by the apartment and saw its front door wide open and the entrance hall light on. A few hours later the situation was unchanged. Without entering the apartment, he noticed that the living room and kitchen were empty. He closed the front door but left it unlocked because he had no key to the deadbolt lock Sledge and Williams had installed there. He placed another note on the door asking appellants to call and inform him of their plans.

On March 30, at about 4:00 p. m., Schammann again visited the apartment. A neighbor, Mary Bell, told him she had not seen the appellants around the apartment. The note Schammann had left was still on the door. He entered the apartment. In contrast to the relatively neat condition of the apartment on visits prior to March 29, the apartment was empty of furnishings not belonging to the landlord. The refrigerator, dishwasher and television were gone, along with all living room and bedroom furniture. Various decorative items were gone. There was no food in the apartment. Empty coke bottles, half-empty bottles of liquor, coat hangers, plastic trash pails, trash bags with glass jars in them and a cardboard box with various chemicals in it were strewn about the apartment. A few clothes were found in the apartment. Schammann estimated there were five or six pieces of clothing, including a hat, jacket, slacks, and a coat. Appellant testified at trial that these items had a value of approximately $1,000. The trial court did not specifically indicate whether it found this valuation credible. On the floor of the bedroom was a shotgun beside an open plastic gun case. Schammann presumed the gun did not function.

Schammann concluded that the defendants had vacated their apartment, and with Bell's help be began to clean the apartment. Bell handled the shotgun and it accidentally discharged. She told Schammann the chemicals might be connected with the manufacture of PCP, and Schammann thereupon called an agent of the Drug Enforcement Administration (DEA), who had previously called Schammann to indicate the DEA's interest in Sledge and Williams.

When the agent arrived, Schammann explained his actions of the last several days, and indicated he had retaken possession of the apartment because he thought the tenants had vacated. The agent seized several items in the apartment. Some time after the seizure, appellants came to the apartment building. After Schammann explained the situation, they left. Appellant Williams telephoned Bell at appellants' apartment and asked her to stop cleaning the apartment, saying she (Williams) would clean it herself. In a later telephone conversation with Schammann, Williams indicated that she had no desire to pick up the clothes left in the apartment.

It should be apparent from this recitation of the facts that the DEA agent did not possess a warrant for the search of appellants' apartment. At trial, appellants moved to suppress the drug paraphernalia seized after the entry and search. The trial court denied the motion because

"(B)ased on the testimony that I have heard, I think it was reasonable for the landlord to conclude, at least by the 30th, that the apartment had been abandoned ( ) And I think as well, the officer, Mr. Hamm, certainly had reasonable grounds to believe that the apartment had been abandoned or vacated, and its possession had been returned to the landlord."

Reporter's Transcript, Volume 2, p. 259 (transcript of suppression hearing). 1 Our

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review of the trial court's denial of the suppression motion requires us to consider whether a search is justified when officers have reasonable grounds to conclude the premises have been abandoned so that authority to permit entry reverts to the landlord, even when in fact the tenant had a subjective or undisclosed intent to return.

The expectations of privacy protected by the fourth amendment, as a general rule, should be measured in objective terms. This follows not only from the proposition that protected expectations are those society as a whole treats as legitimate, itself an objective concept, but also from the premise that "the primary, if not the sole, justification for the exclusionary rule is the deterrence of police conduct that violates Fourth Amendment constitutional rights." United States v. Ajlouny, 629 F.2d 830, 840 (2d Cir. 1980). These concepts necessarily imply an objective standard for evaluating police conduct. 2 On the facts of this case, an objective measure for evaluating privacy expectations of the defendant is appropriate, and by this standard the search was lawful.

An officer cannot always assume that an invitation to enter a room or dwelling is necessarily authorized by the rightful occupant. Thus, in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), the police could not assert that a hotel clerk had authority to admit them to the defendant's room. Such an assumption was an implausibly naive view of the law, and not a factually supportable inference of the occupant's probable intent. 3 The case before us, however, is one in which the officer could rely reasonably on the authority of the landlord to admit him to the apartment. 4

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From a fourth amendment standpoint, the facts of this case show the officer was justified in acting on the landlord's apparent authority to request entry and search of the premises. 5 There was a legitimate basis for the landlord to exercise that authority when premises have been abandoned, and the requisite conditions for abandonment were apparent in the situation the officer confronted.

The law of California recognizes that a tenant can abandon the premises to the landlord; abandonment turns on the intent of the lessee. As in the law of contracts, the parties to the transaction and third persons are entitled to rely on intention as it objectively appears, not on an intention that is subjectively disclosed after there has been reliance or a change of position. 6

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The officer in the case before us acted with care to determine the landlord's authority to admit him. He reviewed the landlord's recitation of the facts which indicated abandonment. The facts were consistent with his own observations and knowledge of the case. He was entitled to assume that the appellants' expectation of privacy had not survived the landlord's apparent right to enter the property and to consent to its search by law enforcement officers. 7 An abandonment by the owner

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or possessor of property ends his reasonable expectation of privacy. 8 If one who has abandoned property from all outward appearances in fact has retained a subjective expectation of privacy, then a search of the property is nevertheless valid if that expectation is intrinsically unreasonable or not otherwise entitled to protection. 9 Abandonment, as in this case, may confer upon a third person with a continuing or residual interest an authority which is sufficient to authorize him to consent to a search. 10

There is authority in this circuit for the proposition that a search is not invalidated

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where a police officer in good faith relies on what reasonably, if mistakenly, appears to be a third party's authority to consent to the search. United States v. Lopez-Diaz, 630 F.2d 661, 666-67 (9th Cir. 1980). This follows necessarily from the view that the fourth amendment protects privacy interests that society deems reasonable and legitimate, and this objective test of reasonableness must be present regardless of the private state of mind of the person who asserts the interest. 11

In Lopez-Diaz, police were notified that one Cawley would arrive in Salem with heroin. Cawley and the defendant arrived in the van and...

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