On July 9, 2019, the Seventh Circuit Court of Appeals decided the United States v. Sawyer[i], in which the court examined whether a trespasser in residence has reasonable expectation of privacy in his belongings that he leaves inside the residence. The relevant facts of Sawyer, taken directly from the case, are as follows:
On July 26, 2016, Chicago police officers responded to a report of a residential burglary in progress. After they approached the home and looked for signs of a forced entry, someone named M.G. arrived, and told the officers that he and his wife owned the home. He explained that it was a rental property with no current tenants and that no one should be inside. M.G. then saw that one of the home’s front windows was cracked open and, peering inside, he saw a figure in the house. He yelled through the window, demanding that any occupants leave the house. The officers banged on the front door and ordered all the occupants to come outside. Ultimately, Sawyer and three others came out and stood with the officers on the porch.
M.G. then asked the officers to “go inside and check my house.” In the basement, officers found a backpack; they opened it immediately and discovered four guns inside. The searching officers used the radio to inform the officers outside, who placed Sawyer and the three others in custody. The officers who had searched the backpack brought it outside. Officer Jorie Wood, who had remained outside, then opened the backpack and found a cell phone. She gave Miranda warnings to the arrestees and asked them who owned the phone. Sawyer responded that it was his phone and his bag. Wood later asked Sawyer again if it was his bag, and that time, he said no.[ii]
Sawyer was indicted under federal law for being a felon in possession of a firearm. He filed a motion to suppress the guns found in his backpack and argued that the search violated his rights under the Fourth Amendment because he had a reasonable expectation of privacy in the backpack. The district court denied the motion to suppress. Sawyer pleaded guilty with the right to appeal the denial of the motion to suppress.
Sawyer filed a timely appeal to the Seventh Circuit Court of Appeals. On appeal, he argued that the search of his backpack violated his rights under the Fourth Amendment because he possessed a reasonable expectation of privacy in the backpack, even though he lacked a reasonable expectation of privacy in the residence since he was a trespasser.
The Seventh Circuit first noted the general constitutional principles applicable in this case and stated
To determine whether someone has a legitimate expectation of privacy, courts must consider (1) whether that person, by his conduct, has exhibited an actual, subjective expectation of privacy and (2) whether his expectation of privacy is one that society is prepared to recognize as reasonable. See Carlisle, 614 F.3d at 756-57. Sawyer bears the burden of showing that he had a legitimate expectation of privacy in the backpack. See id. at 758.[iii]
The court then examined the relevant facts of this case and considered them in light of the principle above. First, the court noted that the police responded to a dispatch where a homeowner told them that the residence at issue should be unoccupied and it appeared that people were in the residence. The officers, at the homeowner’s request ordered everyone out of the house, and Sawyer and three others emerged. The homeowner then asked the officers to search the house. Therefore, Sawyer and his companions were trespassers. During the search, officers located a backpack, opened it, and immediately observed four guns. The Seventh Circuit stated
A privacy interest is not reasonable when one’s presence in a place is “wrongful.” Rakas, 439 U.S. at 143, n.12.[iv]
Sawyer did not assert that he was lawfully present in the residence. Therefore, Seventh Circuit stated that Sawyer lacked a legitimate expectation of privacy because society is not prepared to recognize that a trespasser in a house has such a reasonable expectation of privacy. Further, the Seventh Circuit cited cases from the First, Sixth, and Ninth Circuits that have held similarly.[v] As such, the court held
Because Sawyer has not shown a legitimate privacy interest in the home where the backpack was found, he also cannot contest the search of his effects that he left within the home.[vi]
Thus, since Sawyer was a trespasser in the residence, he also lacked a reasonable expectation of privacy in the items (such as the backpack) that he left inside the residence.
The Seventh Circuit also discussed another principle upon which they concluded the warrantless search was reasonable under the Fourth Amendment, particularly consent to search the premises from a person with apparent authority over the premises. The court stated
An otherwise unreasonable search is permissible when a third party with common control over the searched premises consents, or when someone with apparent authority to consent does so. United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000). A general consent to search the premises can include consent to search containers within it if those containers would reasonably hold the expressed object of the search. Fla. v. Jimeno, 500 U.S. 248, 251 (1991).[vii]
In the case at hand, the homeowner told the police that he owned the house, nobody should be inside, and that it was currently an unoccupied rental house. He also asked the police to search the house. The court stated that it was therefore reasonable for the officers to believe that the consent to search the residence included consent to search a container, such as the backpack, within the house, as it could contain evidence related to the burglary or trespass.
As such, the Seventh Circuit affirmed the denial of the motion to suppress.
[i] No. 18-2923 (7th Cir. Decided July 9, 2019)
[ii] Id. at 2
[iii] Id. at 4
[iv] Id. (emphasis added)
[v] Id. at 5 (See United States v. Battle, 637 F.3d 44, 49 (1st Cir. 2011) (defendant who overstayed his visit became a trespasser with no “legally sufficient interest in the apartment to mount a Fourth Amendment challenge”); United States v. Struckman, 603 F.3d 731, 747 (9th Cir. 2010) (trespassers cannot claim the protections of the Fourth Amendment); United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005) (trespasser who had tenuous connection with otherwise empty house had no legitimate expectation of privacy to contest its search).
[vi] Id. (See United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006); see also United States v. Gale, 136 F.3d 192, 194-95 (D.C. Cir. 1998) (defendant wrongfully occupying apartment lacked legitimate expectation of privacy to contest search of box containing drugs in apartment); United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978) (defendant who placed bag in vacant, otherwise empty home had no legitimate reasonable expectation that his effects would remain undisturbed).
[vii] Id. at 6 (emphasis added)