United States v. Botelho, Crim. No. 13126.

• Decision Date: 29 June 1973
• Docket Number: Crim. No. 13126.
• Citation: 360 F. Supp. 620
• Parties: UNITED STATES of America, Plaintiff, v. Ricky James BOTELHO, Defendant.
• Court: U.S. District Court — District of Hawaii

360 F. Supp. 620

UNITED STATES of America, Plaintiff, v. Ricky James BOTELHO, Defendant.

Crim. No. 13126.

United States District Court, D. Hawaii.

June 29, 1973.

William C. McCorriston, Asst. U. S. Atty., Harold M. Fong, U. S. Atty., Honolulu, Hawaii, for plaintiff.

James T. Leavitt, Jr., Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, Hawaii, for defendant.

DECISION AND ORDER

SAMUEL P. KING, District Judge.

Defendant is charged with possession of an unregistered firearm—a sawedoff shotgun—in violation of 26 U.S.C. § 5861(d) (Supp.1973). The shotgun was taken from defendant's bedroom on July 15, 1972, during a warrantless police search authorized by the nonresident owner of the premises.

On March 16, 1973, defendant moved to suppress the shotgun as evidence on the ground that it was seized in violation of his Fourth Amendment right to be secure from unreasonable searches and seizures. This motion was heard and denied on May 8, 1973. Thereafter on May 18, 1973, defendant filed a Motion For Reconsideration and it is this motion that is now before the court.

After careful consideration, I have concluded that my original ruling was incorrect and that the shotgun must be suppressed as the fruit of an unlawful search.

Facts

The facts developed at the hearing on the Motion To Suppress established that the defendant and others resided in a beach cottage located at 94 Alii Drive, Kailua, Kona, Hawaii, leased from Mrs. Mary L. MacIsaac. The lease was oral and was understood to be from period to period with payments of rent to be prepaid every two weeks. Mrs. MacIsaac reserved a specific right of re-entry upon the premises in the event of a default in rental payments.

The original lessees were two men, one of whom had moved and been replaced by defendant in an informal manner that left his exact relationship to the landlady unclear. However, testimony by Mrs. MacIsaac showed that she was aware of defendant's presence and had accepted one rental payment from him. There was at least one other person, besides the two lessees, occupying the premises.

After June 30, 1972, the defendant and the other occupants of the cottage were at all times delinquent in their rental payments to Mrs. MacIsaac. They also failed to make required payments for electricity and toll telephone calls. After several unsuccessful demands for these payments, Mrs. MacIsaac and her husband met with the defendant and the other lessee on July 10, 1972, and informed them that they would be evicted on July 15th unless all bills due and owing were paid by July 14th. Mrs. MacIsaac did not, however, give the tenants any written notice of eviction.

No monies were received by July 14, 1972. On the following day, July 15th, Mrs. MacIsaac and her husband went to the beach cottage for the purpose of cleaning it preparatory to leasing it to new tenants. They arrived at approximately 2:15 p. m. When no one responded to their knock, they entered the cottage where they discovered the sawed-off shotgun mounted on the wall of defendant's bedroom. Mrs. MacIsaac then summoned the county police.

When the police arrived, Mrs. MacIsaac and her husband were waiting for them outside of the cottage. Upon request, Mrs. MacIsaac freely consented to a search of the premises and led the police to the shotgun. The shotgun was then seized as evidence and removed from the cottage. A warrant was never obtained, and the police relied exclusively on Mrs. MacIsaac's consent as authorization for their search and seizure.

Following this search, the cottage was placed under surveillance. When the defendant returned home later that day, the police questioned him and requested his consent to make a further search. At this point the record is unclear. Defendant apparently gave his permission, but no additional evidence was found. In any event, defendant was not arrested at this time.

In the subsequent weeks, defendant and the other co-tenants continued to live in the cottage. Mrs. MacIsaac was advised by both the police and her attorney to "stay away" from the cottage, and made no further efforts to personally evict the tenants. Instead, she instituted summary eviction proceedings. However, before the sheriff could serve any of the tenants, they vacated the premises. This occurred at approximately the end of July.

Despite the tenants' continued possession of the cottage, Mrs. MacIsaac has never received rental payments for any period after June 30th.

The shotgun seized on July 15th was subsequently turned over to federal authorities. On the basis of this evidence, defendant was indicted on October 6, 1972, by a federal grand jury for possession of an unregistered firearm. He was arrested soon thereafter.

Discussion

There are actually three searches involved in this case: first, the initial search by Mrs. MacIsaac and her husband which discovered the shotgun; second, the police search authorized by Mrs. MacIsaac which confirmed the existence of the shotgun and in the course of which the shotgun was seized as evidence of a violation of 26 U.S.C. § 5861(d); and third, the police search authorized by the defendant.

In his Motion To Suppress, defendant raised objections to the first and second searches.¹ However, in his Motion For Reconsideration, he has not renewed his objection to the search conducted by Mrs. MacIsaac and her husband. Defendant apparently concedes that the Fourth Amendment is solely directed at police misconduct, not at that of private persons. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Eisentrager v. Hocker, 450 F.2d 490, 492 (9th Cir. 1971); Duran v. United States, 413 F.2d 596, 608 (9th Cir. 1969). Thus even assuming arguendo that Mrs. MacIsaac and her husband were trespassing, any evidence that they produced would not be excludible on Fourth Amendment grounds in the absence of any taint of police connivance or cooperation.

The only issue before the court, then, is the legality of the first police search in the course of which the shotgun was seized. Warrantless police searches are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564 (1971), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is that of a consent search and it is on this ground that the government seeks to justify the search in question here. The government bears a special burden under the circumstances of this case because "a consent search, in general, is a search consented to by the person affected. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Thus, in most cases the warrantless search of leased premises with only the permission of the landlord is unconstitutional. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961)." State v. Taggart, 491 P.2d 1187, 1188 (Ct.App.Or.1971). See also, Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L.Ed.2d 856 (1964).

The government argues that Chapman, Stoner and Taggart are not applicable here because the defendant's tenancy had been terminated at the time his landlady gave her consent to the police search either by reason of his nonpayment of rent after June 30th or the notice to vacate given on July 10th.² Thus his continued possession of the cottage on July 15th, the day of the search, was unlawful and Mrs. MacIsaac had full authority to permit the police to enter and search. Three cases have been cited as support for this contention— Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Eisentrager v. Hocker, supra; and United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962)—but none of them actually reach the issue presented here.³

The proper inquiry is, I believe, whether the defendant had a reasonable expectation of privacy in the area searched. As discussed by Justice Harlan in his concurring opinion in Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516, this test involves "a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable'."

With respect to the first part of this test, there is little doubt that defendant subjectively believed that he had a right to privacy in the cottage. No effort was made to hide the shotgun; indeed, it had been mounted on the wall of defendant's bedroom.⁴ And despite the notice of eviction given by Mrs. MacIsaac, defendant and the other co-tenants did not vacate the premises or manifest any intention of doing so until several weeks after the July 15th search. Thus it only remains to determine whether defendant's expectation of privacy was "one that society is prepared to recognize as `reasonable'." Id.

Rephrased in the terms of Justice Harlan's test, it is the government's argument that the notice to vacate terminated defendant's tenancy and therefore any expectation of privacy he may have had was unreasonable. It seems to me that this argument would be sound except for the fact that the notice given by Mrs. MacIsaac on July 10th was clearly inadequate under Hawaii law. Hawaii Rev.Stat. § 666-2 provides in pertinent part, that:

Notwithstanding other provisions of law to the contrary, when real property is rented for an indefinite time with . . . periodic rent reserved, such holding shall be construed to be a tenancy . . . from period to period on which rent is payable, and shall only be terminated by written notice to vacate . . . given twenty-five days or more preceding the end of any . . . period by either landlord or tenant to the other; provided . . . that when a tenant under such a tenancy fails to pay the rent reserved at the time agreed upon, the landlord may terminate the tenancy by giving to the tenant a written notice to

...