United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
MYRON
H. THOMPSON UNITED STATES DISTRICT JUDGE [*]
Defendant
Cyrus Phyfier was charged in a nine-count superseding
indictment with seven drug-offense counts; one count of
possession of a firearm by a prohibited person; and one count
of possession of a firearm in furtherance of a
drug-trafficking crime. He moved to suppress evidence
obtained by law enforcement when they arrested him in a
friend's apartment pursuant to an arrest warrant. This
case is before the court on the recommendation of the United
States Magistrate Judge that Phyfier's amended motion to
suppress be denied because Phyfier lacks standing. The court
held oral argument on the recommendation. Upon an independent
and de novo review of the record, the court concludes that,
regardless of whether Phyfier had standing as an
“overnight guest, ” his motion to suppress should
be denied because the police saw the gun in plain view while
performing a legal protective sweep after arresting him.
I.
Standing
Phyfier
argued that, although he did not live at the apartment where
he was arrested, he has standing to seek suppression of the
evidence gathered there because he was an overnight guest in
the apartment at the time of his arrest. In his
recommendation, the magistrate judge concluded that Phyfier
presented insufficient evidence of to establish his
overnight-guest status and therefore did not have standing.
Although the court bases its decision here on a ground other
than standing, the court pauses here, because of the
importance of the issue, to explain the error in the
magistrate judge's reasoning on standing.
At the
evidentiary hearing on the suppression motion, Phyfier's
contention that he was an overnight guest in the apartment
rested on the testimony of the leaseholder of the apartment.
She testified that he was a frequent overnight guest, that he
had stayed at her apartment the night before the arrest and
planned to stay there the night he was arrested, and that
they were romantically involved. However, immediately before
Phyfier's arrest, the leaseholder had told law
enforcement that he had come to her apartment that morning to
use the shower because his gas was off, that he was not an
overnight guest, and that she was not romantically involved
with him. Dispite this contradiction, the magistrate judge
made no credibility determination because he concluded that,
even if he credited the leaseholder's statement that
Phyfier was an overnight guest, Phyfier failed to establish
standing because he did not present evidence that he had an
unrestricted right of control over the apartment or,
specifically, the master bedroom closet. In so finding, the
magistrate judge overlooked the main Supreme Court case on
overnight-guest standing and applied the wrong legal
standard.
When a
defendant seeks to suppress evidence obtained in a home where
he was an overnight guest, the controlling case is the
Supreme Court's decision in Minnesota v. Olson,
495 U.S. 91, 96-97 (1990). In Olson, the defendant
sought to suppress an inculpatory statement he made when
arrested without a warrant in a home where he was an
overnight guest. In finding that Olson had standing to
challenge the warrantless entry, the Supreme Court held that
“Olson's status as an overnight guest is alone
enough to show that he had an expectation of privacy in
the home that society is prepared to recognize as
reasonable.” 495 U.S. 91, 96-97 (1990) (italics added).
In so holding, the Court rejected the State's argument
that a guest should be found to have standing only when he
has a key to the premises, is alone in the home, and has the
power to admit or exclude others; in other words, only where
the guest has “complete dominion and control”
over the premises. Id. at 98. The Court found such
distinctions “not legally determinative” of
Olson's standing. Id. Whether or not an
overnight guest has complete dominion and control of the
home--the Court made clear--the overnight guest has a
legitimate expectation of privacy. Id. at 99. The
Court explained: “That the guest has a host who has
ultimately control of the house is not inconsistent with the
guest having a legitimate expectation of privacy. ... The
point is that hosts will more likely than not respect the
privacy interests of their guests, who are entitled to a
legitimate expectation of privacy despite the fact that they
have no legal interest in the premises and do not have the
legal authority to determine who may or may not enter the
household.” Id. at 99-100 In his
recommendation on Phyfier's amended motion to suppress,
the magistrate judge overlooked Olson and
mischaracterized the law on overnight-guest standing by
stating: “In order to afford Defendant overnight-guest
status, he must prove that he had ‘an unrestricted
right of occupancy or custody and control of the
premises' that would create a legitimate expectation of
privacy in the area of the Apartment where the firearm was
discovered.” Report and Recommendation (doc. no. 467)
at 6 (citing United States v. Cossio, 336 Fed.Appx.
909, 912 (11th Cir. 2009) (citing United States v.
Baron-Mantilla, 743 F.3d 868, 870 (11th Cir. 1984)
(quoting United States v. Bachner, 706 F.2d 1121,
1126 n.6 (11th Cir. 1983)))). Unfortunately, this legal
standard was taken from an unpublished opinion that did not
discuss Olson and derived its analysis from two
pre-Olson cases. Thus, it does not matter that
Phyfier “has not presented any evidence that he,
regardless of whether he was an overnight guest in the
Apartment, had an unrestricted right or control over [the
leaseholder's] Apartment or, specifically, the master
bedroom closet.” Report and Recommendation (doc. no.
467) at 7.
The
magistrate judge also concluded that Phyfier showed
insufficient evidence of his overnight-guest status because
he relied on only the leaseholder's testimony. Courts
applying Olson frequently consider various facts
argued by the parties as evidence that a defendant was an
overnight guest, such as that the defendant had personal
belongings in the home, possessed keys to the home at the
time of arrest, or stayed overnight more than once. See,
e.g., United States v. Bain, 155 F.Supp.3d 107,
115-16 (D. Mass. 2015) (Talwani, J.), aff'd, 874
F.3d 1 (1st Cir. 2017); United States v. Romain, 393
F.3d 63, 68 (1st Cir. 2004). However, Olson did not
require such evidence. The Olson Court did not hold
or even suggest that any specific type of evidence must be
presented for a defendant to show he is an overnight guest.
While the Court noted that Olson had spent the night of the
robbery on the floor of the home where he was arrested and
had a change of clothes with him at the duplex, it did so in
a footnote; it was not setting forth these details as
necessary factors to be considered. Olson, 495 U.S.
at 97 n.6. The Court suggested that Olson stayed at the
apartment for only the night before the search; thus, staying
at the home more than one night is not required to show
overnight status. See id.; id. at 96 n.5.
The Court also made clear that possession of a key is not
required. See Id. at 98. Thus, a court could
conclude that a defendant is an overnight guest, even if he
does not store personal belongings in a home,
does not possess keys to the home, and does
not stay frequently, so long as he was an overnight
guest at the time of the search.
In
short, the issue is simple and straightforward: the defendant
need show only that he was an overnight guest. The
circumstance need not include more. See Minnesota v.
Carter, 525 U.S. 83, 96 (1998) (Scalia, J., joined by
Thomas, J., concurring) (although overnight guest status may
be at “the absolute limit of what text and tradition
permit” under the Fourth Amendment, it is still within
the limits of the Fourth Amendment). Therefore, Phyfier's
evidentiary burden to show overnight status was not as heavy
as the magistrate judge suggested.
While
the court could remand Phyfier's suppression motion back
to the magistrate judge to determine which of the
leaseholder's statements about Phyfier's
overnight-guest status he credits, doing so is not necessary,
for Phyfier's motion is due to be denied for another
reason.
II.
Protective Sweep
Phyfier
seeks to suppress the gun found in the closet of the master
bedroom during a protective sweep of the apartment
immediately following his arrest and his spontaneous
statement that the gun was his. The government contends that
the gun was in plain view in the open closet when the officer
entered the bedroom during the sweep. Phyfier contends that
the officers had no reason to perform a protective sweep
because they had information that no one else was in the
apartment.
As an initial matter, the police had a warrant to arrest
Phyfier and were entitled to enter the leaseholder's
apartment to execute it because they knew Phyfier was
there.[*] “[A]n arrest warrant founded on
probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives ...
when there is reason to believe the suspect is within.”
Payton v. New York, 445 U.S. 573, 603 (1980). While
Phyfier was not arrested in his own home, that does not
matter. “[T]he subject of an arrest warrant cannot
challenge the execution of [an arrest] warrant ... in a
third-party's home” so long as the officer had
“reason to believe the person named in the warrant is
present.” Willis v. Arp, 165 F.Supp.3d 1357,
1364 (N.D.Ga. 2016) (Totenberg, J.) (quoting United
States v. Hollis, 780 F.3d 1064, 1068-69 (11th Cir.
2015)). This is so because “[a] person has no greater
right of privacy in another's home than in his own. If an
arrest warrant and reason to believe the person named in the
warrant is present are sufficient to protect that
person's [F]ourth [A]mendment privacy rights in his own
home, they necessarily suffice to protect his privacy rights
in the home of another.” Id., 780 F.3d at
1068.
After
arresting Phyfier in the apartment, the officers were
permitted to conduct a limited protective sweep of the
apartment. In Maryland v. Buie, the Supreme Court
held that, “as an incident to the arrest the officers
could, as a precautionary matter and without probable cause
or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an
attack could be immediately launched.” 494 U.S. 325,
334 (1990). To justify a protective sweep beyond the
immediately adjoining areas, however, “there must be
articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest
scene.” Id.
At oral
argument on the magistrate judge's recommendation,
Phyfier and the government agreed that the bedroom where the
gun was found was immediately adjoining the living room,
where Phyfier was arrested. Thus, it was lawful for the
police to conduct a protective sweep of the bedroom even
absent any ...