United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
On August 12, 2014, a federal grand jury returned a three-count indictment charging Gerard Porter ("defendant") with possession with intent to distribute heroin (Count One), possession of a firearm in furtherance of a drug trafficking crime (Count Two), and possession of a firearm by a convicted felon (Count Three).
Currently pending before the court is defendant's motion to suppress physical evidence (Document No. 23). Defendant seeks suppression of, inter alia, 50 bricks of heroin, a quantity of marijuana, 3 loaded firearms and approximately $17, 000 in cash that were seized from a residence located at 2641 Shelton Avenue in Pittsburgh, Pennsylvania, on October 11, 2013.
In its response (Document No. 26), the government opposes the motion, inter alia, on the ground that defendant does not have standing to challenge the search because he lacked a reasonable expectation of privacy in 2641 Shelton Avenue ("the Shelton house"). A suppression hearing was held on February 10, 2015. Because the court finds that defendant has failed to meet his burden of proving that he had a reasonable expectation of privacy in the Shelton house on the day of the search, his motion to suppress will be denied.
The evidence adduced at the suppression hearing through the testimony of Deputy United States Marshal Michael Namey established the following. On October 11, 2013, Deputy Marshal Namey and other members of the Western Pennsylvania Fugitive Task Force, which includes deputies employed by both the United States Marshals Service and the Allegheny County Sheriff's Office, went to the Shelton house for the purpose of serving five outstanding arrest warrants for defendant. Upon their arrival, the officers knocked on the front door. They observed Keona Williamson, defendant's girlfriend, come to the door and look out a small viewing window. The officers stated their purpose and, after some initial hesitation, Williamson opened the door and permitted the officers to enter.
Upon entry and in the course of a sweep looking for defendant, the officers observed in plain view a small clear plastic baggie of suspected marijuana on a television stand in the living room. While the officers were unable to locate defendant, other contraband also was observed in plain view in an open night stand drawer in a bedroom, including a semi-automatic handgun, baggies containing heroin and unidentified blue pills and a large amount of cash. Officers left the scene and obtained a search warrant. They then returned to the Shelton house and seized the items at issue.
Reasonable Expectation of Privacy
Defendant contends that the officers lacked probable cause to enter the residence to serve the arrest warrants in the first instance and that any evidence seized must be suppressed as the fruit of this initial unlawful entry. The government argues, however, that as a threshold matter defendant first must establish that he had a reasonable expectation of privacy in the Shelton house on the day of the search before he even may challenge the legality of the initial arrest warrant search, and that he has failed to do so. Upon due consideration of the evidence presented at the hearing, the court agrees with the government.
The Fourth Amendment guarantees 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." However, "Fourth Amendment rights are personal rights which... may not be asserted vicariously.'" Rakas v. Illinois, 439 U.S. 128, 143-44 (1978) (citation omitted). Accordingly, "capacity to claim the protection of the Fourth Amendment depends... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. at 143.
A defendant moving to suppress evidence seized in a search thus bears not only the burden of proving the search was illegal, but also that he had a legitimate expectation of privacy in the subject of the search. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). An individual's expectation of privacy is legitimate if: (1) the individual demonstrated a subjective expectation of privacy in the subject of the search; and, (2) this expectation of privacy is objectively reasonable. United States v. Cortez-Dutrieville, 743 F.3d 881, 884 (3d Cir. 2014); Rakas, 439 U.S. at 143-44.
The subjective prong requires a court to determine whether the defendant "by his conduct, has exhibited an actual expectation of privacy."' Cortez-Dutrieville, 743 F.3d at 884 ( quoting Bond v. United States, 529 U.S. 334, 338 (2000)). Thus, in order to demonstrate that he had a subjective expectation of privacy, the defendant must show that he "took normal precautions to maintain his privacy." Rawlings, 448 U.S. at 105.
In this case, defendant has not shown that he had a reasonable expectation of privacy in the Shelton house on October 11, 2013. Initially, there is no evidence that defendant was residing at that address in October of 2013. None of the 5 outstanding arrest warrants, all issued between March and June of 2013, list 2641 Shelton Avenue as defendant's current address, with 4 of them listing 109 Imogene Road, Pittsburgh, and the other listing 7902 Inglenook Drive, Pittsburgh. See Defendant's Exhibit 1. Although one arrest warrant does list the Shelton house as a previous address, and Deputy Namey also testified that there are court records relating to a domestic incident in May of 2012 involving defendant at the Shelton house in which defendant provided 2641 Shelton as his address, no intervening records of any kind list the Shelton house as defendant's address between May of 2012 and October of 2013. Defendant also has not shown that he had a key to the residence or that he could exclude others from it. See Warner v. McCunney, 259 Fed.Appx. 476-77 (3d Cir. 2008) (several factors pertinent to a defendant's expectation of privacy include whether he has a possessory interest in the place searched, whether he can exclude others from the place, whether he took precautions to maintain privacy and whether he had a key to the premises).
Moreover, contrary to defendant's argument, the mere fact that defendant's girlfriend, Keona Williamson, was residing at the Shelton house is insufficient to establish that defendant had a reasonable expectation of privacy in that place. See, e.g., United States v. Pettiway, 429 Fed.Appx. 132, 135 n. 3 ("the mere fact that [defendant] was in a relationship with [his ex-girlfriend] does not automatically give him a reasonable expectation of privacy in her house.") While it is true that "an overnight guest has a legitimate expectation of privacy in his host's home, " Minnesota v. Olson, 495 U.S. ...