United States v. Lewis

• Citation: 864 F.3d 937
• Decision Date: 27 July 2017
• Docket Number: No. 16-3308,16-3308
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Joseph B. LEWIS, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

864 F.3d 937

UNITED STATES of America, Plaintiff–Appellee

v.Joseph B. LEWIS, Defendant–Appellant

No. 16-3308

United States Court of Appeals, Eighth Circuit.

Submitted: February 9, 2017

Filed: July 27, 2017

Adam Caine, Special Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO, for Plaintiff–Appellee.

William M. Ermine, Assistant Federal Public Defender, Rebecca L. Kurz, Federal Public Defender's Office, Kansas City, MO, for Defendant–Appellant.

Joseph B. Lewis, Pro se.

Before SMITH,¹ GRUENDER and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Two detectives entered a work area of Freaks Tattoo Shop without a warrant to talk to Joseph B. Lewis about a person of interest. They saw a gun on a shelf and seized it. Lewis then volunteered that he was a felon. He was charged with being a felon in possession of a firearm. Lewis moved to suppress the discovery and seizure of the firearm. The district court denied the motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

On July 7, 2015, Detective Loran Freeman of the Independence Police Department went undercover to Freaks Tattoo Shop in Independence, Missouri. He was looking for a person of interest in an unrelated case. When he entered the shop, Lewis, an employee there, was sitting at a reception desk in a common area inside the front door. Detective Freeman spent five to ten minutes looking at tattoo art. Not seeing the person of interest, he left.

Ten or fifteen minutes later, Detective Freeman returned to Freaks Tattoo with Detective Aaron Gietzen. They dressed in plain clothes, displaying their neck chains and badges. They did not have a warrant. No one was at the reception desk, but one customer was sitting in the common area. The detectives rang a bell on the desk, trying to get someone to answer. No one answered. The customer told the detectives he was waiting while Lewis drew him a tattoo in the back of the shop.

Behind the reception desk was an open doorway to a work area with individual stations for tattooing customers. There were no signs telling people to stay out of the work area, but a Freaks Tattoo employee testified that the reception desk was meant to be a visual barrier keeping people from walking into the work area uninvited. Detective Freeman knocked on the doorframe for two to three minutes, identifying himself and Detective Gietzen and asking if anyone was there.

Hearing no answer, Detective Gietzen entered the work area and knocked on a closed door to a back room. Lewis answered and joined both detectives in the work area. The detectives identified themselves and told Lewis they wanted to talk about the person of interest. Detective Freeman asked if it was okay to talk there. Lewis said yes.

Detective Freeman asked Lewis if the person of interest worked at Freaks Tattoo. Detective Gietzen then noticed a handgun in a nylon holster on a shelf on the side of the room. He grabbed the handgun, removed it from the holster, and checked to see if it was loaded. Lewis then told the detectives he was a felon and did not need any hassles. The detectives did not know Lewis was a felon until he told them. Detective Freeman told Lewis they would keep the handgun. The detectives left with the handgun.

Detective Freeman and another officer returned to Freaks Tattoo the next day to talk to Lewis about the firearm. They asked him if there was somewhere private they could speak. Lewis led them through the work area, through a door, to the back room. Lewis told them he got the gun from a customer a year or two earlier.

The Government charged Lewis with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Lewis moved to suppress the evidence obtained by search of the shop and the seizure of the handgun. After a hearing, a magistrate judge recommended denying the motion. The district court adopted the magistrate judge's findings of fact and conclusions of law, denying the motion to suppress. Lewis pled guilty, reserving the right to appeal the denial of the motion to suppress. Lewis appeals.

II.

"On review of a motion to suppress, this court reviews factual findings for clear error and legal conclusions de novo . This court affirms the denial unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Ortega-Montalvo, 850 F.3d 429, 433 (8th Cir. 2017) (citations omitted) (internal quotation marks omitted).

Lewis argues the officers violated his Fourth Amendment rights by searching the work area and seizing the handgun without a warrant. The Government responds that the work area was not "searched" because Lewis had no reasonable expectation of privacy, and the seizure of the handgun was permitted by the plain-view doctrine and to protect officer safety.

A.

To assert a Fourth Amendment right to be free from unreasonable searches, Lewis "must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." United States v. Russell, 847 F.3d 616, 618 (8th Cir. 2017).² The district court did not address whether Lewis had a subjective expectation of privacy. Assuming he had a subjective expectation, this court examines whether it was reasonable. Whether an individual's expectation of privacy is reasonable is a question of law. United States v. DE L'Isle, 825 F.3d 426, 432 n.4 (8th Cir. 2016).

An individual can have a reasonable expectation of privacy in commercial premises, although that expectation "is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). "A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant." Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), quoting Lewis v. United States , 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966). An employee has no reasonable expectation of privacy against ordinary use of "areas of [a] store where the public [is] invited to enter and to transact business." Id. at 469-70, 105 S.Ct. 2778. See United States v. Perry , 548 F.3d 688, 691 (8th Cir. 2008) ("[S]omeone present in a commercial establishment in an area open to the general public has no objectively reasonable expectation of privacy therein."). See also Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). Cf. United States v. Long , 797 F.3d 558, 565 (8th Cir. 2015) ("When a commercial property is not open to the public, a reasonable expectation of privacy may exist."); id. ("Commercial establishments do not extend an implicit invitation to enter during non-business hours or when there are no employees on the premises." (quoting United States v. Swart, 679 F.2d 698, 701 (7th Cir.1982) )).

Lewis shows that, by Freaks Tattoo policy, the work area was not open to the general public—customers were welcome into the work area only if invited by a Freaks Tattoo employee. But that fact, standing alone, does not resolve whether Lewis had an objectively reasonable expectation of privacy in the work area. Even if the general public is not invited onto commercial premises, an individual's expectation of privacy is not reasonable if he or she would reasonably expect the general public to enter the premises anyway. See Long , 797 F.3d at 565-66 (suggesting convenience store employee had no reasonable expectation of privacy in closed store if store looked open); Perry, 548 F.3d at 692 (holding individual can have no reasonable expectation of privacy at "members-only" club if club did not enforce "members-only" policy).

The district court found Lewis had no reasonable expectation of privacy in the work area "[b]ased on the lack of affirmative steps in place to exclude the public"—there was no door, no "signage or other indication that customers could not enter the work area." Lewis contests this finding, arguing that the shop's setup—entrance into a waiting room, with a reception desk with call bell placed in front of the doorway to the work area—indicates the public may not enter the work area. Lewis is partly right. The position of the reception desk and the existence of the call bell tell the public they may not walk directly into the work area. The officers here, however, did not walk directly into the work area. They followed the protocol that a reasonable member of the general public seeking to do business with Freaks Tattoo would follow. See Macon , 472 U.S. at 470, 105 S.Ct. 2778 ("An undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public."). Cf. Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 329, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) ("[T]here is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees."). They rang the call bell, but got no response. A waiting customer told them Lewis was in the back drawing a tattoo. Wanting to talk to Lewis, they knocked on the doorframe to the work area and called out for two to three minutes. Again getting no response, they entered the work area to knock on the door to the back room where Lewis was working.

Like reasonable members of the general public wishing to do business at Freaks Tattoo, the officers first tried to get an employee's attention by ringing the bell and knocking. When that failed, they escalated their attempts, passing through the work area to knock on the back-room door in order to speak to an employee. On these...