U.S. v. Fultz, 97-30337

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation146 F.3d 1102
Docket NumberNo. 97-30337,97-30337
Parties98 Cal. Daily Op. Serv. 4875, 98 Daily Journal D.A.R. 6881 UNITED STATES of America, Plaintiff-Appellee, v. Virgil R. FULTZ, Defendant-Appellant.
Decision Date24 June 1998

Page 1102

146 F.3d 1102
98 Cal. Daily Op. Serv. 4875, 98 Daily Journal
D.A.R. 6881
UNITED STATES of America, Plaintiff-Appellee,
v.
Virgil R. FULTZ, Defendant-Appellant.
No. 97-30337.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 21, 1998.
Decided June 24, 1998.

Page 1103

Mark S. Werner, Assistant Federal Defender, Billings, Montana, for the defendant-appellant.

William Mercer and C. Ed Laws, Assistant United States Attorneys, Billings, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-96-00059-JDS.

Before: PREGERSON, TASHIMA, and THOMAS, Circuit Judges.

PREGERSON, Circuit Judge:

Virgil R. Fultz appeals his conviction for possessing an unregistered firearm in violation

Page 1104

of 26 U.S.C. § 5861. He argues that the district court erred by denying his motion to suppress part of the stock and part of the barrel of a shotgun. Law enforcement officers found the parts in a closed cardboard box that contained Fultz's belongings. The cardboard box was kept in Tiffany Kassedyne's garage. Kassedyne allowed Fultz to stay at her house after Fultz was evicted from his apartment for nonpayment of rent. The officers seized the shotgun parts after Kassedyne allowed them to search the garage.

We must decide whether Fultz had a reasonable expectation of privacy in the closed cardboard box and, if so, whether Kassedyne had authority to authorize the officers to search Fultz's cardboard box. We believe that Fultz did have a reasonable expectation of privacy in the cardboard box and that Kassedyne had no authority to consent to its search, even assuming that she gave such consent. We therefore reverse and remand.

BACKGROUND

In April 1996, Stillwater County law enforcement officers suspected that Fultz was involved in a store burglary. The officers learned that Fultz was residing with Kassedyne. The officers went to her house as part of their investigation.

The officers arrived at the house and found Kassedyne at home but not Fultz. Kassedyne told the officers that Fultz stayed with her on and off and that she had not seen him for about twenty-four hours. The officers requested permission to search the house, and Kassedyne gave the officers written permission for a search.

Kassedyne told the officers that Fultz's belongings were piled up in the garage. She directed the officers to the specific area in the garage where Fultz stored his belongings. She told the officers that only Fultz's belongings were kept in that specific area and that none of her belongings were intermingled with his. Kassedyne never specifically consented to the search of Fultz's belongings.

Fultz stored his belongings in a closed suitcase, in closed, black plastic bags, and in closed cardboard boxes. Kassedyne allowed Fultz to store his belongings in her garage because Fultz had been evicted from his apartment about three months earlier. During that time, Kassedyne had never looked through Fultz's belongings, nor had Fultz given her permission to do so.

During the search of Fultz's belongings, the officers opened up a closed box where they found a sawed-off butt-end of a wooden gun stock and the sawed-off end of a gun barrel. The officers did not find any of the items stolen during the store burglary.

The officers arrested Fultz, obtained incriminating statements from him, and, with Fultz's help, found the sawed-off shotgun among Fultz's belongings in another closed cardboard box in Kassedyne's garage. The officers had failed to find the sawed-off shotgun in their initial search.

Fultz was indicted for possessing an unregistered firearm in violation of 26 U.S.C. § 5861. Fultz moved to suppress the evidence found as a result of the officers's search. After a hearing, the district court denied Fultz's motion. With the consent of the Government and pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Fultz entered a conditional plea of guilty and was sentenced to eighteen months with three years of supervised release. He now appeals that adverse ruling. 1

DISCUSSION

We review de novo whether Fultz had a reasonable expectation of privacy in the cardboard boxes stored in the garage. See United States v. Broadhurst, 805 F.2d 849, 851 (9th Cir.1986) (reviewing de novo district court's ruling that defendants had standing to invoke Fourth Amendment). We also review de novo whether Kassedyne had authority to consent to a search of Fultz's property. See United States v. Kim, 105 F.3d 1579, 1581 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 353, 139 L.Ed.2d 274 (1997).

Page 1105

I.

A person has an expectation of privacy in his or her private, closed containers. See United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993). A person does not forfeit that expectation of privacy merely because the container is located in a place that is not controlled exclusively by the container's owner. See id. Thus, in Welch, we held that a person retained her expectations of privacy in her purse even though the purse was in a trunk of a car over which she and someone else both had control. See id.

The Government argues that Welch does not govern this case because Welch involved a purse rather than a cardboard box and a person possesses "the highest expectations of privacy" in a purse. See id. ("[A] purse is a type of container in which a person possesses the highest expectations of privacy."). The Government argues that Fultz could not have had a reasonable expectation of privacy in the cardboard boxes that contained his personal belongings.

Although certain types of containers-suitcases, valises, purses, and footlockers, for instance-do command high expectations of privacy, this does not mean that other types of containers in which people store their personal belongings command no expectation of privacy. The Fourth Amendment protects people from unreasonable searches; whether a search is reasonable depends on all the circumstances, not just on whether a container happens to be a suitcase, valise, purse, footlocker, or cardboard box. See United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) ("What is reasonable depends...

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    ...if the officers who conduct the search reasonably believe that the third party has actual authority to consent.” United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir.1998), citing United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993). These cases discuss two situations in which the third p......
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    ...• Homeowner’s consent to search boxes in her garage that were being stored there by homeless person invalid. United States v. Fultz , 146 F. 3d 1102 (9th Cir. 1998). • Caretaker could not give consent to search. United States v. Kim , 105 F. 3d 1579 (9th Cir. 1997). • Girlfriend could not c......
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