©2011 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) United States v. Curlin, 7th Cir. 2011
Law enforcement officers, particularly deputies, are often called to execute Writs of Possession, civil court orders that evict tenants and place property back in the control of the rightful owner. On April 25, 2011, the Seventh Circuit Court of Appeals decided the United States v. Curlin [i], a case which involved the admissibility of evidence discovered during an eviction.
The facts of Curlin are as follows:
On October 17, 2008, Curlin’s landlord filed a small claims action against Curlin in Franklin Township, Indiana, seeking possession of Curlin’s leased residence for failure to pay rent. A Notice of Claim for Possession of Real Estate and Summons were served on Curlin by mail and by delivery to his residence. The summons ordered Curlin to appear in court on November 5, 2008. When Curlin did not appear as ordered, the case was continued until November 12, 2008, and notice of the new court date was mailed to him. Curlin again failed to appear. The small claims court then entered judgment in favor of the landlord. The court clerk issued a Writ of Restitution and Notice to Move on November 14, 2008. The Writ—which essentially was an eviction order— ordered Curlin to vacate the property on or before 6:00 p.m. on November 17, 2008. The Writ further ordered “any constable of Marion County” to put the landlord in possession of the residence, and to remove Curlin and his belongings from the property. Finally, the Writ authorized officers to sell any of Curlin’s nonexempt property to satisfy the court’s restitution order.
Constables twice attempted to personally serve the Writ on Curlin. First, on November 15, 2008, constables left a copy of the Writ on the door of Curlin’s residence. On November 24, 2008, constables made a second attempt to serve the Writ. Again they left a copy on the door because, despite the fact that the lights were on in the residence, no one answered the door…
Constable Bob Walden, with the assistance of officers from the warrant section of the Marion County Sheriff’s Department, executed the Writ on December 2, 2008. Prior to carrying out the eviction, the Sheriff’s Department ran a criminal history check on Curlin and learned that he had two prior felony convictions. When the officers arrived at the residence, Walden knocked and announced his presence. Curlin answered the door a few minutes later and Walden explained the purpose of their visit. Officers then entered the residence, secured Curlin in the entryway, and conducted what the government characterizes as a “safety sweep” of the home. That sweep extended to the upstairs master bedroom, where officers found a plastic bag containing approximately 15 grams of marijuana on the bed. Deputies also entered the walk-in closet of the master bedroom, where they discovered a rifle and a 12-gauge shotgun, on a shelf. After seizing the drugs and firearms (which federal law prohibited Curlin, a convicted felon, from possessing), officers arrested Curlin and advised him of his Miranda rights. Curlin then informed the deputies that a third firearm, a .38 revolver, was in the home, which police also seized. [ii]
Curlin was indicted on federal weapons violations, and he filed a motion to suppress. The trial court denied his motion to suppress. Curlin entered a conditional plea and appealed the denial of his motion to suppress to the Seventh Circuit Court of Appeals.
The issues before the court were (1) whether Curlin possessed a reasonable expectation of privacy under the Fourth Amendment in his residence where a judge had issued a Writ of Possession ordering him evicted and his belongings removed, and (2) whether the plain view doctrine authorized a warrantless seizure of Curlin’s firearms and other evidence.
ISSUE ONE: Did Curlin possess a reasonable expectation of privacy under the Fourth Amendment in his residence where a judge had issued a Writ of Possession ordering him evicted and his belongings removed?
In deciding this issue, the Seventh Circuit first noted several important rules. The rules are stated as follows:
Fourth Amendment claims present two distinct questions: (1) whether a search or seizure actually occurred; and (2) if so, whether the search or seizure was unreasonable. [iii]
A search takes place when governmental action infringes upon an individual’s legitimate expectation of privacy, meaning a subjective expectation of privacy that society is prepared to consider reasonable. [iv]
The Fourth Amendment specifically protects homes and entry into a home is normally considered a search.[v]
A search (in the constitutional sense) occurs when (1) a person manifests a subjective (personal) expectation of privacy in the location searched and (2) society is willing to recognize the person’s expectation as reasonable.[vi]
The court then considered the facts of Curlin’s case in light of the above rules. Here, they noted, importantly, that Curlin had no right to be in the home. Two weeks prior to the deputies encounter with Curlin, a judge issued an order that he be evicted and his belonging removed by November 17. Further, Curlin had been given notice of the eviction when deputies had left copies of the order at his residence. The incident at issue took place on December 2. The court then stated:
Like a “burglar plying his trade in a summer cabin during the off season,” Curlin’s presence was “wrongful,” and consequently any subjective expectation of privacy he may have had is not “one that society is prepared to recognize as ‘reasonable. [vii]
As such, the Seventh Circuit held that since Curlin did not possess a reasonable or legitimate expectation of privacy in the residence, the deputies did not conduct a Fourth Amendment search when they entered his home and conducted the protective sweep. [viii] This was because an eviction order had been issued by a judge, and Curlin had notice of the order.
The court also cited numerous cases from other federal circuits that have reached a similar conclusion regarding this issue. [ix] However, it is important to note that if Curlin did not have notice of the eviction order, he likely would have a reasonable expectation of privacy in the home. [x]
ISSUE TWO: Did the plain view doctrine authorize the warrantless seizure of Curlin’s firearms?
At the outset, it is important to note that this issue is really only applicable if Curlin were found to have a Fourth Amendment reasonable expectation of privacy in the home. Although, in the previous issue the court held that Curlin did not, they still analyzed this issue. In their analysis, the court first noted the requirements of the “plain view doctrine.” The court stated:
That doctrine justifies a warrantless seizure when three conditions are met. First, the officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. Second, the incriminating character of the evidence in plain view must be immediately apparent. Third, the officer must have a lawful right of access to the object itself. [xi] [Internal citations and quotations omitted]
The court then considered whether the requirements of the plain view doctrine were satisfied in this case. First, since the deputies had a valid eviction order which authorized them to enter the house and remove Curlin, the deputies did not violate the Fourth Amendment in arriving at the place where they viewed the firearms. Second, prior to executing the order, the deputies knew that Curlin was a convicted felon. As such, the incriminating nature of the firearms was immediately apparent since they knew the law prohibited Curlin from possessing firearms. Lastly, the officers had a “lawful right of access” to the firearms because the Writ of Possession ordered the officers to remove all of Curlin’s belongings. As such, all requirements of the plain view doctrine were met and warrantless seizure was allowed.
Therefore, the district court’s denial of the motion to suppress was affirmed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i] No. 10-3033, 2011 U.S. App. LEXIS 8426 (7th Cir. 2011 Unpub.)
[ii] Id. at 2-4
[iii] Id. at 7-8 (citing Carlson v. Bukovic, 621 F.3d 610, 618 (7th Cir. 2010))
[iv] Id. at 8 (citing United States v. Jacobson, 466 U.S. 109, 113 (1984)
[vii] Id. at 9 (quoting Rakas v. Illinois, 439 U.S. 128, 143-144 (1978))
[ix] Id. at 9-10 (“Our conclusion is consistent with previous decisions of our sister circuits that individuals who occupy a piece of property unlawfully have no claim under the Fourth Amendment. See United States v. Struckman, 603 F.3d 731, 746 (9th Cir. 2010) (trespassers cannot claim the protections of the Fourth Amendment); United States v. Washington, 573 F.3d 279, 284 (6th Cir. 2009) (same); United States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980) (same); Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975) (squatters formally evicted from public land had no expectation of privacy [*10] in homes they unlawfully constructed there); United States v. Ruckman, 806 F.2d 1471, 1472-74 (10th Cir. 1986) (individual lacked reasonable privacy expectation in cave in which he resided on federal land); United States v. Gale, 136 F.3d 192, 195, 329 U.S. App. D.C. 49 (D.C. Cir. 1998) (individual lacked legitimate expectation of privacy in apartment he occupied without permission of its tenant or other legal authority); United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir. 1986) (hotel occupant who was asked to leave by police officers acting on behalf of hotel management no longer had a reasonable expectation of privacy in the hotel room.”)
[x] Id. at 10-11 (“See Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 859 (7th Cir. 1999) (where officers attempting to serve tenants with a summons in landlord’s eviction action conducted a warrantless search, tenants could maintain Fourth Amendment claim because landlord had not yet obtained a valid order granting him exclusive possession of the premises); Washington, 573 F.3d at 284 (tenant retains objectively reasonable expectation of privacy despite being in technical [*11] violation of lease until landlord takes legal action to evict); United States v. Young, 573 F.3d 711, 720 (9th Cir. 2009) (individual had reasonable expectation of privacy in hotel room from which he had not been evicted at the time of the warrantless search.”)
[xi] Id. at 11-12 (citing Horton v. California, 496 U.S. 128, 136, (1990))