U.S. v. Baker

• Decision Date: 05 November 1999
• Citation: 221 F.3d 438
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA v. MANNY BAKER, a/k/a HENRY HURTT Manny Baker, Appellant No: 97-1977 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 438

221 F.3d 438 (3rd Cir. 2000)

UNITED STATES OF AMERICA v. MANNY BAKER, a/k/a HENRY HURTT Manny Baker, Appellant

No: 97-1977

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: November 5, 1999

Filed August 7, 2000

On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 97-cr-00297), District Judge: Honorable Charles R. Weiner

Counsel for Appellant: HOPE C. LEFEBER, ESQUIRE (ARGUED) 1420 Walnut Street, Suite 1000 Philadelphia, PA 19102

Counsel for Appellee: MICHAEL R. STILES, ESQUIRE United States Attorney WALTER S. BATTY, JR., ESQUIRE Assistant United States Attorney Chief of Appeals ERIC B. HENSON, ESQUIRE (ARGUED) Assistant United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476

Before: BECKER, Chief Judge, and GREENBERG, Circuit Judges, and McLAUGHLIN, District Judge.^*

OPINION OF THE COURT

BECKER, Chief Judge.

Appellant Manny Baker, a Pennsylvania state parolee, was arrested while leaving the parole office for violating the condition of his parole that required him to refrain from driving. Parole officers searched the passenger compartment of the borrowed car that Baker had driven to the parole office. They also searched the trunk of the car and discovered what they believed to be drug paraphernalia. On the basis of what they found in the trunk, the officers searched Baker's home, where they found weapons and 66 grams of heroin. A federal grand jury indicted Baker for possessing with intent to deliver a controlled substance (heroin) in violation of 21 U.S.C. S 841(a)(1), and for violating the statutes prohibiting felons from possessing firearms, 18 U.S.C. SS 922(g)(1) & 924(a). Before trial, Baker moved to suppress the evidence seized from his home, but the District Court denied his suppression motion. Baker proceeded to trial, where he was convicted of violating SS 841(a)(1) and 922 (g)(1) and sentenced to almost twenty years imprisonment on weapons and drugs charges.

This appeal which, as we shall explain below, is now in its third discrete phase, raises an important first- impression question: whether the standard Pennsylvania Board of Probation and Parole consent to search form, signed by Baker as a condition of his parole, authorized suspicionless searches of his person, property, and residence. Before reaching this question, we will explain our previous conclusions--memorialized in an unrequited certification to the Pennsylvania Supreme Court--that Baker had standing to object to the search of the vehicle, which he did not own, and that the parole officers lacked reasonable suspicion to search the trunk of that car. These holdings are the predicate for the question whether the consent to search form authorized suspicionless searches because, if Baker lacked standing to object to the search, or if the officers had reasonable suspicion, we could dispose of the case without construing the consent form.

The consent to search form provided:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in possession of which constitutes a violation of the parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

If as a matter of Pennsylvania law the standard consent to search form implies a requirement that parole officers have reasonable suspicion in order to conduct a search of a parolee, the evidence against Baker must be suppressed and his conviction set aside. Because we conclude that the form should be so construed (or more precisely, predict that the Supreme Court of Pennsylvania would so construe it), the order of the District Court denying Baker's motion to suppress will be reversed.

I.

In August 1996, Baker drove to the state parole office in Philadelphia for a scheduled visit with his parole officer. As a condition of his parole, Baker had agreed not to drive without a license. During the parole visit, a parole agent asked Baker if he had a driver's license, and Baker responded that he did not. When Baker attempted to drive away after his visit, he was arrested by parole officers for violating this condition of parole.

After Baker was arrested, parole officers searched the passenger compartment and the glove compartment of the car that Baker had been driving and discovered that the car was registered in someone else's name. The officers could not figure out how to open the trunk of the car. One of them asked Baker, then in custody at the parole office, how to open the trunk. Baker explained that the engine must be turned on to open the trunk and gave the officer the keys to the trunk.¹ Once the parole officers got into the trunk, they found what they suspected was drug paraphernalia: "several screw top glass vials, oils, empty clear plastic lunch bags and taller incense bags." The officers then conducted a warrantless search of Baker's home, which yielded numerous weapons and sixty-six grams of heroin. As we have noted, the District Court found that this search was justified by the reasonable suspicion that arose from the items discovered in the car and denied Baker's motion to suppress evidence. This appeal followed.

In a prior opinion, United States v. Baker, No. 97-1977 (3d Cir. Jan. 7, 1999), we ordered a limited remand for the District Court to consider whether Baker had standing to challenge the search of the car and whether there was reasonable suspicion to justify the search of the trunk of the car. On remand, United States v. Baker, No. 97-00297 (E.D. Pa. Mar. 17, 1999), the District Court concluded that Baker had standing and that the parole officers had reasonable suspicion to search the trunk of the car. In the wake of the District Court's opinion, the appeal presented three questions: (1) whether Baker had standing to challenge the search of the car; (2) whether there was reasonable suspicion to search the trunk of the car that Baker drove to the parole office; and (3) if there was not reasonable suspicion, whether the search of the trunk was still valid because of the consent form that Baker signed upon his release on parole.²

Following receipt of supplemental briefing and additional argument, the panel conferred and concluded that: (1) Baker had standing to challenge the search of the car; and (2) that the police lacked reasonable suspicion to search the trunk of the car. On February 18, 2000, we certified to the Pennsylvania Supreme Court (pursuant to Pennsylvania Supreme Court Order No. 197, Judicial Administration, Docket No. 1, filed Jan. 12, 2000) the remaining--and vexing--question whether, under Pennsylvania law, the consent form authorized suspicionless searches.

The Supreme Court did not accept our petition for certification, leaving us to determine whether, under that Court's opinions in Scott v. Pennsylvania Bd. of Probation & Parole, 698 A.2d 32 (Pa. 1997), rev'd on other grounds, 524 U.S. 357 (1998), and Commonwealth v. Williams , 692 A.2d 1031 (Pa. 1997), the consent to search form used by the Pennsylvania Board of Probation and Parole, as a matter of Pennsylvania law, authorizes suspicionless searches or implies a condition that any search conducted pursuant to the consent form be founded on reasonable suspicion.

II.

The threshold question presented by these facts is that of standing. Standing to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched, see Rakas v. Illinois, 439 U.S. 128, 143 (1978), and that he manifest a subjective expectation of privacy in the property searched, see California v. Greenwood, 486 U.S. 35, 39 (1988).

It is clear that a passenger in a car that he neither owns nor leases typically has no standing to challenge a search of the car. See Rakas, 439 U.S. 133-34 (holding that there is no legitimacy to a defendant's expectations of privacy where the area searched is in the control of a third party). "Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted." Id. at 133-34 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134.

For these reasons, we have previously suggested that a defendant who had stolen a car and used it in a robbery would not have standing to object to a search of the car. See United States v. Yeager, 448 F.2d 74, 85 (3d Cir. 1971) (rejecting challenge to search on basis that "if [the defendant's] theories were valid, a stolen car used in a robbery could not be searched and objects therein seized by the police without a search warrant"). We have never considered, however, whether an individual who borrows a car and has control over it has a legitimate expectation of privacy in it.

Cases from other circuits suggest that whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it; ownership is not necessary. Compare United States v. Cooper, 133 F.3d 1394, 1398-99 (11th Cir. 1998) (driver of a rental car whose contract to rent the car had expired four days before the search had a reasonable expectation of privacy in the car because he could have extended the contract with a simple phone call); United States v. Angulo-Fernandez , 53 F.3d 1177, 1179 (10th Cir. 1995) (driver who was able to produce registration papers in the name of the person from whom he claimed to have borrowed the car had standing); United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (permission from the owner to use a...