U.S. v. Battle

• Citation: 637 F.3d 44
• Decision Date: 03 March 2011
• Docket Number: No. 10–1058.,10–1058.
• Parties: UNITED STATES of America, Appellee,v.Malden O. BATTLE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

637 F.3d 44

UNITED STATES of America, Appellee,

v.Malden O. BATTLE, Defendant, Appellant.

No. 10–1058.

United States Court of Appeals, First Circuit.

Heard Jan. 4, 2011.Decided March 3, 2011.

Jon R. Maddox, by Appointment of the Court, for appellant.Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and STAHL, Circuit Judge.STAHL, Circuit Judge.

Defendant-appellant Malden O. Battle was charged with two counts of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Battle moved to suppress the evidence supporting the charges, which was seized pursuant to a warrantless entry into the apartment of his ex-girlfriend and a subsequent search occurring after a warrant was obtained. After a two-day evidentiary hearing, the district court denied the motion. Thereafter, Battle entered a guilty plea, reserving his right to appeal the denial of his motion to suppress. He was then sentenced to a seventy-six month term of imprisonment followed by three years' supervised release. Battle instituted the instant appeal based on his reserved challenge and the sentence imposed by the district court. We affirm.

I. Background

In reviewing the denial of a motion to suppress, we recount the facts “ ‘as the trial court found them, consistent with record support.’ ” United States v. Andrade, 551 F.3d 103, 106 (1st Cir.2008) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir.2003)).

On August 21, 2004, Odemira Rosa visited the Dorchester, Massachusetts apartment of his sometime girlfriend, Helena Fonseca. Rosa is the father of Fonseca's son, and although he lived elsewhere, he paid the rent for Fonseca's apartment, had his own key, enjoyed unlimited access to the unit, and spent significant time there. In the summer of 2004, Rosa and Fonseca were on a break in their relationship, and Fonseca and Battle briefly became involved romantically. Battle would occasionally stay with Fonseca, which was the case on August 21, when Rosa visited the apartment and discovered Battle and Fonseca together inside. Upon Rosa's entry, Battle confronted Rosa with a gun, and Rosa quickly left the apartment.

This armed encounter precipitated the end of the one-month relationship between Battle and Fonseca, and Fonseca told Battle to leave her house and not come back. Battle, however, continued to call Fonseca, which frightened her, and so Fonseca and her children temporarily moved in with Rosa.

On September 1, 2004, Rosa visited Fonseca's apartment to ensure that Battle had vacated the premises. Although Rosa did not find Battle at the apartment, he did discover various items belonging to Battle, including a gun in a black bag in the closet.

The following morning, on September 2, 2004, Rosa went to the Dorchester police station and told Police Officer John Teixeira and Sergeant Detective Paul Donovan about the August 21 incident and the discovery of the gun in the closet. Rosa explained to the officers that although the apartment was in Fonseca's name, Rosa paid the rent and had a key and unlimited access to it.

The police accepted Rosa's invitation to visit the apartment, and at approximately 10:30 a.m., Rosa brought Donovan, Teixeira, and six other officers to Fonseca's building. He used his key to usher them inside and waited one floor below Fonseca's unit while the police knocked on the apartment door. Battle opened the door and stepped out into the hallway, claiming that he had his girlfriend's permission to be present. Some officers entered the apartment and conducted a “protective sweep,” but they found nothing. Battle called Fonseca, and when he told her that the police were in her apartment she asked, “What are you doing at my house? I don't want you at my house.... I didn't tell you you could go to my house.” The officers instructed Fonseca to return home.

The officers and Battle then entered the apartment. One officer read Battle his Miranda rights while Battle sat on the living room couch. Battle identified himself and told the officers that he was in the process of moving out. After he called his attorney, he stated that he did not want to answer any more questions. The officers ceased questioning Battle, but they asked him to leave the apartment so that they could “freeze” it while they obtained a search warrant.

As Battle stood up from the couch to leave, an officer noticed and retrieved a gun located on the floor beneath the couch. When Fonseca arrived back at the apartment, she identified the gun as belonging to Battle, having seen him with the weapon on prior occasions. The police then arrested Battle and brought him to the station.

Later that day, the officers obtained a search warrant using an affidavit that referenced the gun found underneath the couch. After searching the apartment and Battle's car, the officers discovered another gun, ballistics vests, boxes of ammunition, a bag containing three small bags of cocaine, $2982 in U.S. currency, various clothes, Battle's personal papers and photographs, and receipts in both Battle's and Fonseca's names.

Battle moved to suppress all of the items seized from the apartment and car, and the district court denied the motion. It held that Battle did not have a legitimate expectation of privacy in Fonseca's apartment and therefore lacked standing ¹ to invoke the Fourth Amendment's protections. It also held that even if Battle could assert his claim, the claim failed because the police obtained valid third-party consent from Rosa to enter the apartment, and the discovery of the gun, which led to the discovery of the other items seized, was justified by the “plain view” doctrine.

Battle pled guilty to the indictment and was sentenced to seventy-six months' imprisonment followed by three years' supervised release. The district court calculated the sentence based on a total offense level of twenty-one and a criminal history category of V, which under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) provided for a seventy to eighty-seven month prison term.

II. Analysis

A. Motion to Suppress

In reviewing a motion to suppress, we review legal determinations de novo and findings of fact and credibility determinations for clear error. United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009) (citing Andrade, 551 F.3d at 109). We will uphold the denial of a motion to suppress as long as any reasonable view of the evidence supports it. United States v. Gonzalez, 609 F.3d 13, 18 (1st Cir.2010).

Battle contends that he had a legitimate expectation of privacy in Fonseca's apartment enabling him to assert his Fourth Amendment challenge, and that his rights were violated as a result of the warrantless entry that led to the seizure of evidence. He claims that his expectation of privacy was reasonable because of his prior relationship with Fonseca.² As to the warrantless entry, he argues that Rosa did not have actual or implied authority to consent to the police entry, that any implied consent was trumped by Battle's actual refusal to consent, and that the gun found underneath the couch was not in plain view. He claims, therefore, that the seizure of the gun was unlawful and that the subsequent items found were inadmissible.

We dispose of Battle's Fourth Amendment challenge because we find he lacked a legitimate expectation of privacy to assert it. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. To prevail on a claim that a search or seizure violated the Fourth Amendment, a defendant must show as a threshold matter that he had a legitimate expectation of privacy in the place or item searched. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The inquiry involves a two-part test: first, whether the defendant had an actual, subjective, expectation of privacy; and second, whether that expectation “is one that society is prepared to recognize as objectively reasonable.” United States v. Rheault, 561 F.3d 55, 59 (1st Cir.2009) (citing Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

A defendant may have a legally sufficient interest in a place other than his own home, such as in the home of a host who welcomes the defendant as an overnight guest. Olson, 495 U.S. at 98–100, 110 S.Ct. 1684. A defendant lacks a legitimate expectation of privacy in a place, however, when he does not have permission to be present. See United States v. McCarthy, 77 F.3d 522, 535 (1st Cir.1996) (finding no legitimate expectation of privacy because defendant left items in a trailer after the trailer's owner told defendant to leave); United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987) (finding no legitimate expectation of privacy in hotel room after hotel guest failed to pay room bill), cited with approval in McCarthy, 77 F.3d at 535; see also United States v. Lnu, 544 F.3d 361, 366 (1st Cir.2008) (finding no legitimate expectation of privacy in storage locker because defendant failed to pay rent and facility operator had removed lock and imposed a lien on contents); United States v. Melucci, 888 F.2d 200, 202 (1st Cir.1989) (finding no legitimate expectation of privacy in storage locker because defendant failed to pay rent and facility operator removed lock); cf. Olson, 495 U.S. at 99, 110 S.Ct. 1684 (commenting that an overnight guest may have a legitimate expectation of privacy because “[t]he houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest”).

Here, although Battle may have exhibited a subjective expectation of privacy in Fonseca's...