United States v. Patterson

276 F.Supp.3d 994

UNITED STATES of America, Plaintiff,

v.Kirk PATTERSON, Defendant.

Case No.: 16–cr–2558–BTM

United States District Court, S.D. California.

Signed August 4, 2017

Brandon James Kimura, U.S. Attorney's Office, San Diego, CA, for Plaintiff.

Anthony J. Solare, Solare and Associates, San Diego, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

Barry Ted Moskowitz, Chief Judge, United States District Court

Presently before the Court is Defendant Kirk Patterson's motion to suppress evidence.

(Def.'s Mot. to Suppress ("Def.'s MTS"), ECF No. 33.) The Court held an evidentiary hearing on June 21, 2017 and final arguments on July 14, 2017. For the reasons discussed below, Defendant's motion is GRANTED .

I. FACTUAL BACKGROUND

On July 15, 2015, Probation Officers ("PO") Erich Schmidt, with the assistance of POs Adam Stanton, Carlos Gomez and Omar Pazarin, searched apartment No. 3 located at 5945 Streamview Drive¹ in San Diego, California. (Tr. of Evidentiary Hr'g, ECF No. 26, 7:25–8:2.) In January 2015, PO Schmidt was assigned to Kenneth Miller's ("Miller") case, an individual on parole and subject to a Fourth Amendment search waiver. (Tr. 7:21–24; 20:19–21:7.) Miller had previously disclosed a false address, which led PO Schmidt to investigate Miller's place of residence. (Tr. 8:20–24; 9:7–10.) On June 19, 2015, San Diego Police arrested Miller in front of 5935 Streamview Drive. (Tr. 9:13–17; 29:14–29:17; 31:22–32:7.) Miller was incarcerated for giving PO Schmidt a false address and while in jail, PO Schmidt monitored his phone calls. (Tr. 9:19–23.) During those calls, Miller indicated that he parked his car right in front of his home. (Tr. 9:23–10:2.) Based on these conversations, PO Schmidt believed that Miller lived on the 5900 Streamview Drive block. (Tr. 9:19–10:2.) PO Schmidt used media sources including Facebook and Google maps to gather intelligence on Miller's residence. Using Google maps, PO Schmidt observed that a car belonging to Alex Meyer, Miller's girlfriend, was also parked on the 5900 Streamview block. (Tr. 10:3–6.) PO Schmidt also found a video on Miller's Facebook page of him skateboarding in front of a stairwell that looked very similar to the one at the 5945 Streamview complex. (Tr. 12:16–21.)

While Miller remained incarcerated, PO Schmidt drove by the 5900 Streamview Drive block and observed Miller's car parked in front of 5935 Streamview. (TR. 11:6–9.) Based on these observations, PO Schmidt believed that Miller lived with his girlfriend at 5935 Streamview Drive. (Tr. 11:6–9.) On July 15, 2015, PO Schmidt drove by the 5935 Streamview apartments with hopes of gathering further intelligence on Miller's residence. (Tr. 13:2–6.) PO Schmidt observed Miller's car parked outside 5935 Streamview and attempted to contact Miller who had been released. (Tr. 13:9–15.) Miller drove away but was subsequently pulled over at a nearby liquor store—Sky Liquor. (Tr. 14:19–22.) PO Schmidt interviewed an employee of Sky Liqour who stated that he had often seen Miller around the neighboring area. (Tr. 15:22–16:1.) After contacting Miller, PO Schmidt called Meyer and asked her to pick up Miller's car. (Tr. 16:3–8.) Upon arriving, she confirmed that she lived with Miller, but refused to disclose an address. (Tr. 16:17–21.) PO Schmidt gave Miller's car keys to Meyer, but seized the other keys. (Tr. 16:22–25.)

Believing that both Miller and Meyer lived at 5935 Streamview Drive, PO Schmidt returned to those apartments and began interviewing neighbors. (Tr. 17:8–12; 46:8–12.) PO Schmidt made contact with a few neighbors, showed them a picture of Miller and asked them if they had seen him. (Tr. 17:7–12.) The neighbors stated that they did not know where he lived, but said that he lived in the adjacent building located at 5945 Streamview Drive. (Id.) Based on their statements, PO Schmidt went to 5945 Streamview and spoke to neighbors there. (Tr. 17:13–20.)

PO Schmidt made contact with a man that was standing on the balcony of one of the apartments. (Id.) After asking the individual if he knew Kenneth Miller, the man stated that he did not but asked what his moniker was. (Id.) PO Schmidt informed him that Miller identified as "Scrap," and the individual pointed to apartment No. 3 and stated that "Scrap" lived there. (Id.)

PO Schmidt, accompanied by other POs and San Diego Police, conducted a knock-and-notice on apartment No. 3. (Tr. 17:23–25.) After no one answered, PO Schmidt unlocked the security door with the keys he seized from Miller. (Tr. 17:25–2.) The POs made a second knock-and-notice announcement, but no one answered. (Tr. 18:2–4.) PO Schmidt then proceeded to open the front door of the apartment with Miller's keys. (Id.) PO Schmidt and other POs entered the apartment and performed a protective sweep, which confirmed that no one was there. (Tr. 62:15–24; 63:8–18.) The POs first cleared the common areas, including the living room and kitchen, and then moved towards the back of the apartment where two bedrooms were located across from one another. (Tr. 65:14–17; 93:4–18; Def.'s Supplemental Br., Ex. AA, ECF No. 57.) During their protective sweep, the POs observed items throughout the apartment that belonged to multiple individuals, including Miller, Meyer, and Defendant. (64:2–5; 102:8–20.) In the kitchen, the POs observed drug paraphernalia in plain view. (Tr. 67:4–6.) During their sweep of bedroom No. 1, the POs observed multiple items such as letters, bank cards, and photos that led them to believe that the bedroom belonged to Miller and Meyer. (Tr. 67:10–23; 71:19–21; 133:23–134:6.) When sweeping through bedroom No. 2, the POs did not see any items associated with Miller. (Tr. 72: 11–19.) Instead, the POs observed items belonging to numerous other individuals, including Defendant's graduation picture on top of a desk. (Tr. 68:10–17; 96:4–97:2; 134:10–16; Def's MTS, Ex. 1, 16.)

After clearing the apartment, the POs conducted a more thorough search of both the common areas and individual bedrooms. PO Schmidt searched bedroom No. 1, while other POs including POs Gomez and Pazarin searched bedroom No. 2. (Tr. 75:8–24; 119:19–25; 137:1–2.) During their search of bedroom No. 2, the POs found ammunition in the top dresser drawer, and a handgun and ecstasy pills in the closet. (Def.'s MTS, Ex. 1, 17.)

II. DISCUSSION

The Fourth Amendment protects individuals against unreasonable searches and seizures. ( U.S. Const., Amend. IV.) Defendant moves to suppress evidence seized during a warrantless search of 5945 Streamview Drive, apartment No. 3. The Government responds with two arguments. First, the Government contends that Defendant does not have standing to challenge the search of the apartment. Second, the Government argues that the search is justified under either Miller's parole search condition or Defendant's probation search condition. The Court addresses these arguments below.

A. Standing

"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois , 439 U.S. 128, 133–34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Thus, to claim the protections of the Fourth Amendment, a "defendant must demonstrate a legitimate expectation of privacy in the place or item searched by showing an actual subjective expectation of privacy which society is prepared to recognize." United States v. Davis , 932 F.2d 752, 756 (9th Cir. 1991). A defendant has the burden of establishing that under the totality of circumstances, "the search or seizure violated his legitimate expectation of privacy." Id. Both the Supreme Court and the Ninth Circuit have held that an overnight guest has standing to challenge the search of a host's home. Minnesota v. Olson , 495 U.S. 91, 96–97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ; see also Davis , 932 F.2d at 757 (concluding that defendant had a legitimate expectation of privacy as an overnight guest where he had a key to the apartment, was free to come and go as he pleased, stored things there, and paid at least a portion of the rent for the apartment). However, bald assertions that a defendant was an overnight guest are insufficient to establish that he had a legitimate expectation of privacy in the house. United States v. Armenta , 69 F.3d 304, 308 (9th Cir. 1995) (holding that defendant's wallet, baptismal certificate, and social security card application, coupled with his sworn declaration stating that he was an overnight guest and a police officer's testimony that the defendant had stayed in the house the night before the search, were insufficient to establish a legitimate expectation of privacy).

Defendant asserts that he was a frequent overnight guest at 5945 Streamview Drive, apartment No. 3. In support of this argument, Defendant points to the evidence found in bedroom No. 2, coupled with the POs' own beliefs that the room belonged to him. The POs found the following items associated with Defendant in bedroom No. 2: (1) a graduation photograph of Defendant; (2) a graduation photograph of Defendant's child; (2) jail emails to Defendant; (3) a tow receipt for Amanda Beasley—Defendant's girlfriend; and (4) probation paperwork for Defendant. (Def.'s Mot. to Suppress, ECF No. 33–2, 16–17.) Some of these items, such as the emails, probation paperwork, and tow receipt were found inside either a dresser or a PS4 box near the bed. (Id.)

Additionally, Defendant submitted a sworn declaration stating the following:

During July of 2015, I was a regular overnight guest at 5945 Streamview Drive, Apartment #3, San Diego, California. I would sleep in the northeast bedroom, which has been described as "bedroom two" during our court proceedings. I slept in that room on July 14, 2015—the night before the contested search in this case. I planned to return to sleep in that room on July 15 or July 16.

(Def.'s Supplemental Br., Ex. ZZ.)

Finally, at the July 14, 2017 hearing, Defendant took the stand and testified that he began staying in...