United States v. Cassity

• Decision Date: 28 August 1981
• Docket Number: Crim. A. No. 77-80932.
• Citation: 546 F. Supp. 611
• Parties: UNITED STATES of America, Plaintiff, v. Larry Wayne CASSITY, Raymond Lee Dean, Terry Gene Hines, Stephen Gordon Lenk, and Billy Sword, Defendants.
• Court: U.S. District Court — Western District of Michigan

546 F. Supp. 611

UNITED STATES of America, Plaintiff, v. Larry Wayne CASSITY, Raymond Lee Dean, Terry Gene Hines, Stephen Gordon Lenk, and Billy Sword, Defendants.

Crim. A. No. 77-80932.

United States District Court, E. D. Michigan, S. D.

August 28, 1981.

Ross Parker, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Edward Wishnow, Southfield, Mich., for defendants Cassity and Lenk.

John Mayer, Detroit, Mich., for defendant Hines.

Thomas Rosender, Pontiac, Mich., for defendant Sword.

Thomas E. Jackson, Federal Defender Office, Detroit, Mich., for defendant Dean.

OPINION

FEIKENS, Chief Judge.

Defendants successfully challenged their 1978 convictions for conspiring to manufacture and manufacturing amphetamine, a controlled substance, on the grounds that the evidence by which they were convicted was the fruit of illegal electronic surveillance. The United States Court of Appeals for the Sixth Circuit held that the search warrants pursuant to which the beepers were installed in two cans of chemicals and a heating mantle did not meet the requirements of the Fourth Amendment because they contained no expiration date or time limit, see United States v. Cassity, 631 F.2d 461 (6th Cir. 1980), and remanded the case to me for an evidentiary hearing on whether beeper (i. e., electronic homing device) surveillance violated each defendant's reasonable and legitimate expectation of privacy. I have been instructed to undertake the analysis set forth in United States v. Bailey, 628 F.2d 938 (6th Cir. 1980), to determine whether the evidence seized as a result of the beeper surveillance should be suppressed.

I.

At an evidentiary hearing, defendant Cassity testified that he had resided at 2803 Stair, Detroit, for twenty to twenty-five years with his mother and father. His girlfriend also resided at this address and shared a bedroom with him. Cassity acknowledged that he had stored a green can of chemicals in the garage at the residence, although the can of chemicals was not his. The garage was kept locked and, even though other members of the residence had access to the garage, Cassity expected privacy when he placed the chemicals there for storage.

Defendant Hines testified that he drove a yellow van from Eight Mile and Greenfield Roads to a parking lot at the request of Cody, an alleged co-conspirator. Hines alleges that he had no knowledge there was a blue can of chemicals and a heating mantle in the rear of the van as there was an immovable partition behind the driver and passenger seats which precluded any view into the rear compartment. Similarly, no windows allowed a view of the contents of the compartment. Hines contends that he had a reasonable expectation of privacy in the van even though the van had been rented and he had been requested to move it by someone other than the owner.

The 1494 Calvary, Detroit, address is a quadruplex, part of which was rented by defendant Sword and his friend. Sword lived there with his girlfriend and his friend, the friend's wife, and child. Only Sword and his friend had a key to the basement, which was normally kept locked and where at least one of the cans of chemicals was located. Other individuals were permitted access to the basement, including his friend's mother-in-law who lived next door. Sword maintains that he expected the residence to be private, although it was shared by others, and that those persons living in the apartment had exclusive control of the premises.

The Dean family owned the 6344 Hanson, Detroit, residence where the cans of chemicals and the clandestine laboratory were located. Defendant Lenk was a guest in that house for four days prior to its search on August 17, 1977. Lenk shared meals at the residence, kept his personal belongings there during his stay, and had the right to come and go when he so desired. Lenk contends that he reasonably expected privacy at that address by virtue of his guest status.¹

II.

In this case, since the Court of Appeals has held that the search warrants secured for the installation of the beepers in the cans of precursor chemicals and the heating mantle were invalid because they contained no termination date,²United States v. Cassity, supra, at 464, the intrusion and searches must be analyzed as warrantless searches.

Warrantless searches may be valid if they are not "unreasonable". A search is unreasonable if it violates a person's reasonable, legitimate expectation of privacy. The United States Supreme Court has indicated that a reasonable expectation of privacy is determined by a two-pronged test. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Accord, United States v. Bailey, supra, at 941. First, the defendant must exhibit a subjective expectation of privacy, defined from an examination of the totality of the circumstances. Rawlings v. Kentucky, 448 U.S. 98, n.3 at 104, 100 S.Ct. 2556, n.3 at 2561, 65 L.Ed.2d 633 (1980). Second, the expectation must be one that society is prepared to recognize as legitimate, a more objective test. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.... But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment.

439 U.S. at 144, n.12, 99 S.Ct. at 431, n.12. In undertaking the analysis of each defendant's professed expectation of privacy in this instance, I must bear in mind the admonition of the Supreme Court in its discussion of Fourth Amendment protection:

The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511 (citations omitted).

With these precepts in mind, I now turn to each individual defendant's claim.

I find that Cassity has a reasonable subjective expectation of privacy in his parents' house and, therefore, the garage. Cassity need not have a possessory interest in the house to assert a reasonable expectation of privacy therein, nor does he need to own the chemicals. These are merely factors to consider when determining if a person has established a sufficient interest to be protected pursuant to the Fourth Amendment. A person can have a legally sufficient interest in a place so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place. Jones v. United States, 362 U.S. 257, 263, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960). Cassity testified that he had resided with his parents for twenty to twenty-five years at the Stair Street address. He has reason to expect that his parents' home and, correspondingly, his own interest in it would remain protected from unreasonable searches in the absence of exigent circumstances or consent. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Similarly, Cassity's expectation of privacy is legitimate. Possession of the chemicals was not illegal since they are not contraband per se. See United States v. Bailey, supra. Likewise, they were not being used for an illegal purpose nor was there probable cause at the time of the intrusion to suspect Cassity of participation in a conspiracy to manufacture and distribute amphetamines. There is no evidence of consent to search the garage by any member of the family nor is there evidence of exigent circumstances that would justify a warrantless intrusion. I find that Cassity has demonstrated a reasonable and legitimate expectation of privacy in the garage.

Defendant Sword contends that he had a reasonable expectation of privacy in a quadruplex that he shared with his girlfriend and three other persons. The government argues that Sword had no such expectation since he never admitted ownership or knowledge of the cans and there was no evidence that he stored the cans in a "protected" area of the house.

Absent consent or exigent circumstances, entry into a person's home to conduct a search has consistently been held to be unreasonable under Fourth Amendment protections unless it is conducted pursuant to a warrant. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The degree to which Fourth Amendment protections are extended to apartments and shared dwellings is less certain. The Court of Appeals for the Sixth Circuit has held, however, that tenants have the same expectation of privacy in their apartments as homeowners in their houses. United States v. Carriger, 541 F.2d 545, 550-552 (6th Cir. 1976). The Court referred to McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974), when it held:

"But it seems to me Jackson, J., concurring that each tenant of a building,

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