On August 21, 2018, the Ninth Circuit Court of Appeals decided the United States v. Schram[i], in which serves as instructive regarding whether a person who has been barred from a residence by a court order, can possess a reasonable expectation of privacy at that residence. The relevant facts of Schram, taken directly from the case, are as follows:
On September 24, 2014, detectives from the Medford Police Department were called to investigate the robbery of a local U.S. Bank branch. After interviewing eyewitnesses and further police work, the detectives had probable cause to believe that Schram was responsible. A records check showed, among other things, that there was a no-contact order prohibiting Schram from contacting his girlfriend, Zona Satterfield.
The detectives began their search for Schram at Satterfield’s residence, as it was the only address the detectives had that was associated with him. Without a warrant (and, for the purposes of this appeal, we assume without Satterfield’s consent), the detectives entered the residence, found Schram inside, and arrested him. They then obtained a search warrant and searched Satterfield’s home.
Schram was later indicted for bank robbery in violation of 18 U.S.C. § 2113(a).[ii]
Schram filed a motion to suppress and argued that he had a reasonable expectation of privacy in the residence in which he was arrested when detectives entered the residence without a warrant. The district court denied his motion finding that he could not have a reasonable expectation of privacy in a residence that he is legally barred from entering. He pled guilty with a right to appeal the denial of his motion. He then filed an appeal with the Ninth Circuit Court of Appeals.
On appeal, the court defined the issue as follows:
[W]hether a person who is prohibited from entering a residence by a court’s no-contact order still may have a legitimate expectation of privacy that would entitle him to Fourth Amendment protection in that residence.[iii]
The court then examined the Fourth Amendment principles that apply in this case. The court stated
[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). But “[w]hether a warrant is required is a separate question from the one [we] address here, which is whether the person claiming a constitutional violation ‘has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.'” Byrd v. United States, 138 S. Ct. 1518, 1526 (2018) (quoting Rakas v. Illinois, 439 U.S. 128, 133 (1978)). A person may not claim his Fourth Amendment rights have been violated if that person lacks “a ‘legitimate expectation of privacy in the premises’ searched.” Id. (quoting Rakas, 439 U.S. at 143).[iv] [emphasis added]
The court further noted that the Supreme Court,
In Rakas, […] clarified that a privacy interest is not reasonable when one’s presence in a place is “wrongful.” 439 U.S. at 143 n.12. (citation omitted). By way of example, the Court explained, “[a] burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy [in the cabin],” but lacks a legitimate expectation of privacy because “his expectation is not ‘one that society is prepared to recognize as reasonable.'” Id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).[v] [emphasis added]
The court also noted that the Second, Third, and Fifth Circuit all have precedent that supports the conclusion that a person who is legally barred from entry into a residence cannot have a reasonable expectation of privacy in that residence. In fact, in the United States v. Cortez-Dutrieville,[vi] the Third Circuit held that person who is barred from entry into a residence does not possess reasonable expectation of privacy in the residence, even if the victim in the protection order consents to the suspect’s entry into the residence.
Schram argued that the Ninth Circuit case, the United States v. Gamez-Orduno[vii], supports his position that he should be afforded a reasonable expectation of privacy. In that case, the Ninth Circuit held that a person who was an authorized, invited overnight guest at a residence, albeit present for the purpose of selling illegal drugs, did possess a reasonable expectation of privacy at the residence. However, court in Schram explained that, while a person does not lose their reasonable expectation of privacy in a residence because they are present for an unlawful purpose, the lack of a reasonable expectation of privacy in Schram stems from the fact that he was legally barred from being in the residence for any purpose. The court stated
Thus while a defendant does not lose his Fourth Amendment rights simply by engaging in illegal acts, a defendant still may lack Fourth Amendment rights to challenge the search of a residence when the law prevents him from being there in the first place. See United States v. Vega, 221 F.3d 789, 797 (5th Cir. 2000) (“[T]he burglar’s expectation of privacy loses its legitimacy not because of the wrongfulness of his activity, but because of the wrongfulness of his presence in the place where he purports to have an expectation of privacy.”), abrogated on other grounds, as recognized by United States v. Aguirre, 664 F.3d 606, 611 n.13 (5th Cir. 2011).[viii] [emphasis added]
In light of the reasons discussed, the Ninth Circuit affirmed the denial of the motion to suppress and held that a person who is legally barred from being at a residence cannot claim a reasonable expectation of privacy at that residence. Specifically, the court stated
Like a burglar, trespasser, or squatter, an individual violating a court no-contact order is on property that the law prevents him from entering. We therefore hold that such an individual lacks a legitimate expectation of privacy in that place and may not challenge its search on Fourth Amendment grounds.[ix] [emphasis added]
[i] No. 17-30055 (9th Cir. Decided August 21, 2018)
[ii] Id. at 3
[iii] Id. at 5
[iv] Id. at 4
[v] Id. at 5
[vi] 743 F.3d 881 (3rd Cir. 2014)
[vii] 235 F.3d 453 (9th Cir. 2000)
[viii] Schram, No. 17-30055 at 7
[ix] Id. at 8