USA v. Lowe

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Criminal Case No. 20-cr-326-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
SCOTT LOWE,
Defendant.
ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE DUE TO
FOURTH AMENDMENT VIOLATIONS AND SUPPORTING MEMORANDUM, AND
DENYING AS MOOT DEFENDANT’S MOTION FOR LEAVE TO FILE REPLY TO
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO SUPPRESS
The Government charges Defendant Scott Lowe with: (1) one count of
possession with intent to distribute a mixture and substance containing a detectable
amount of 3,4-Methyl-enedioxy-methamphetamine (MDMA), a Schedule I controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (2) one count of
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i); and (3) one count of possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1). (ECF No. 52.)
This matter is before the Court on Defendant’s Motion to Suppress Evidence Due
to Fourth Amendment Violations, and Supporting Memorandum (“Motion”), filed on April
26, 2021. 1 (ECF No. 34.) The Government responded on May 12, 2021 (ECF No. 44),
1 Defendant filed the Motion (ECF No. 34) in response to his original Indictment. (ECF
No. 1.) Thereafter, a Superseding Indictment was filed against Defendant on June 22, 2021.
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and Defendant replied on June 23, 2021 (ECF No. 55). The Court held an evidentiary
hearing on the Motion on August 26, 2021. (ECF No. 80.)
This matter is also before the Court on Defendant’s Motion for Leave to File
Reply to Government’s Response to Defendant’s to Suppress [sic] (“Motion for Leave”).
(ECF No. 47.)
For the reasons set forth herein, the Motion is denied, and the Motion for Leave
is denied as moot.
I. FACTUAL FINDINGS
Based on the parties’ filings and the documentary and testimonial evidence
received at the evidentiary hearing, the Court makes the following findings of fact for
purposes of resolving the Motion. 2
Beginning on September 21, 2018, Defendant was on supervised release after
being convicted of a violation of 18 U.S.C. § 922(g)(1), which required him to submit to
searches of his residence and property. (ECF No. 44 at 2; ECF No. 84 at 6, 8.) In
January 2019, November 2019, December 2019, and February 2020, Probation Officer
Jordan Buescher received information from a confidential informant suggesting that
Defendant was hiding narcotics and firearms in a storage unit within his apartment
(ECF No. 52.) Notwithstanding the fact that Defendant has not filed a motion to renew the
Motion against the Superseding Indictment, the Court will nonetheless deem the Motion as
addressing the Superseding Indictment, which is now the operative charging document. (ECF
No. 52.) Accordingly, in deciding the Motion, the Court is mindful that it is applying the law and
facts in the context of the Superseding Indictment.
2 All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination. It appears that the parties have
ordered a transcript for only portions of the August 26, 2021 evidentiary hearing. The Court will
cite the final version of the transcript for those portions. (See ECF No. 84.) Otherwise, the
Court will cite a draft version of the transcript prepared by the undersigned’s court reporter.
Pagination for these portions may differ from a final version of the transcript to the extent it is
prepared.
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building. (ECF No. 84 at 9–10.) At the end of April 2019, Buescher asked Defendant
whether he had a storage locker, which he denied. (Id. at 10.) Around the same time,
Buescher also contacted the building management for Defendant’s apartment, who
informed him that Defendant did not have a storage unit. (Id.)
Thereafter, on February 24, 2020, Buescher conducted a home visit at
Defendant’s apartment and discovered contraband items. (Id. at 12–13.) During this
visit, Buescher heard Defendant’s young child say, “Daddy goes in there all the time,”
while running down the seventh-floor hall and pointing at the door of sprinkler room
where the storage units are located. (Id. at 14.) Denver Police officers called a K-9 unit
to run through the seventh-floor sprinkler room, but they did not discover any narcotics
at that time. (Id. at 14–16.) Defendant was thereafter arrested on state charges. (ECF
No. 44 at 2; ECF No. 84 at 16.)
In the early morning of February 27, 2020, Buescher learned from a confidential
informant that: (1) Defendant had placed narcotics and firearms in a storage unit on the
eighth floor of his apartment complex, specifically in the first or second storage unit on
the right-hand side when entering the storage area; and (2) that “people were on their
way to go clean out the contents of the storage locker.” (ECF No. 84 at 17.) Because
Buescher was on vacation at the time, he contacted District 6 Denver Police
Department’s narcotics department and asked it to investigate the tip that he had
received. (Id. at 16–17.)
That same day, Denver Police Department officers Ryan Roybal and Jose Diaz
arrived at Defendant’s apartment building to investigate Buescher’s tip. (Id. at 43.) Diaz
spoke with Virginia Addleman, the property manager, who gave Diaz and Roybal
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access to the building, including the eighth-floor storage unit space. (Id. at 46–48.)
Thereafter, Addleman provided Diaz a map marking the storage units that should have
been vacant and gave him consent to search storage unit 6—the second unit to the
right of the entrance—which had items inside and was locked notwithstanding the fact
that the unit should be vacant. (Id. at 50–54.) Addleman also signed a written consent
to search form for “8th floor Sprinkler Room Unit 6.” (Id. at 54; ECF No. 44-2.) Police
then cut the lock and searched the unit, finding guns and narcotics inside a zipped
suitcase. 3 (ECF No. 84 at 55–56, 71.)
II. BURDEN OF PROOF
The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” However, “[t]he Amendment says nothing about suppressing
evidence obtained in violation of this command. That rule—the exclusionary rule—is a
prudential doctrine created by th[e Supreme] Court to compel respect for the
constitutional guaranty.” Davis v. United States, 564 U.S. 229, 236 (2011) (internal
3 In its response, the Government originally stated that a K-9 alerted to the possible odor
of narcotics before police officers searched the storage unit. (ECF No. 44 at 3.) However, in its
Supplement to the Government’s Motion to Suppress Response, the Government represents
that “while preparing for the hearing, the Denver Police detectives involved in the investigation
stated they could not recall if the K-9 assisted the investigation prior to law enforcement entering
the storage unit and searching its contents” and that it “therefore, withdraws its claims that the
K-9 assisted the investigation prior to police entering the storage unit, and that the K-9 played a
role in developing reasonable suspicion to search.” (ECF No. 74 at 2.) Based on the
Government’s representation, the Court will not analyze the impact of a K-9 sniff on the
constitutionality of the search.
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citations and quotation marks omitted). Under the exclusionary rule, a defendant may
move for suppression of evidence obtained in violation of the Fourth Amendment. Id.
It is undisputed that the Denver Police Department officers did not have a
warrant when they initially searched the storage unit. On a motion to suppress
evidence derived from a warrantless search and/or seizure, the defendant bears the
burden of presenting a prima facie case that the Fourth Amendment has been
“implicated,” at which point the burden shifts to the Government to prove “that its
warrantless actions were justified (i.e., as a lawful investigatory stop, or under some
other exception to the warrant requirement).” United States v. Carhee, 27 F.3d 1493,
1496 (10th Cir. 1994); see also id. at nn.1–2 (citing authorities).
III. ANALYSIS
In his Motion, Defendant argues that the Court should suppress all of the
evidence seized from storage unit 6, as well as all other evidence obtained as fruit of
the police’s search of the storage unit, because the warrantless search violated his
Fourth Amendment rights. (ECF No. 34 at 1.)
However, before determining whether the warrantless search of storage unit 6
was supported by an exception to the Constitution’s warrant requirement, the Court first
must determine whether Defendant has standing to challenge the search of the storage
unit.
“A defendant may not challenge an allegedly unlawful search or seizure unless
he demonstrates that his own constitutional rights have been violated.” United States v.
Conway, 73 F.3d 975, 979 (10th Cir. 1995) (quoting United States v. Rubio–Rivera, 917
F.2d 1271, 1274–75 (10th Cir. 1990)). Standing to lodge such a challenge depends
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upon two factors: (1) whether the defendant demonstrated by his conduct a subjective
expectation of privacy, and (2) whether society is prepared to recognize that expectation
as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). The party moving to
suppress evidence obtained as a result of an allegedly unconstitutional search has the
duty to demonstrate a subjective expectation of privacy that society is prepared to
recognize as reasonable. United States v. Carr, 939 F.2d 1442, 1444 (10th Cir. 1991);
see also Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978) (“[t]he proponent of a motion to
suppress has the burden of establishing that his own Fourth Amendment rights were
violated by the challenged search or seizure”).
A. 	Whether Defendant Has Demonstrated A Subjective Expectation of Privacy
in the Storage Unit
Defendant argues that “[r]esidents have a legitimate expectation of privacy in
indoor storage areas” and that “by placing property inside a suitcase, there was a
manifestation of intention to shield property from the prying eyes of others.” (ECF No.
34 at 7.) In response, the Government contends that Defendant has not established
that he had a subjective expectation of privacy in the storage unit because he has not
affirmatively indicated that he was the party using the storage unit. (ECF No. 44 at 4.)
The Court agrees with the Government.
Critically, it is Defendant, not the Government, who bears the burden of
establishing his subjective privacy interest in storage unit 6. Carr, 939 F.2d at 1444. It
appears as though Defendant attempts to meet this burden through attorney argument
regarding the expectation of privacy that “residents” have in indoor storage areas.
However, Defendant has neither submitted an affidavit attesting to his subjective
expectation of privacy in the storage unit, nor did he testify as much during the
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evidentiary hearing. As such, the Court is without evidence from which it can conclude
that Defendant exhibited an actual expectation of privacy in storage unit 6 or the items
within the storage unit. See, e.g., United States v. Ruth, 65 F.3d 599, 605 (7th Cir.
1995) (recognizing that “without an affidavit or testimony from the defendant it is almost
impossible to find a privacy interest because this interest depends, in part, on the
defendant’s subjective intent and his actions that manifest that intent”); United States v.
Meyer, 157 F.3d 1067, 1080 (7th Cir. 1998) (rejecting Fourth Amendment standing
arguments where defendant does not claim that the refrigerator in question was his or
otherwise present any evidence showing that he had a subjective expectation of privacy
in the refrigerator).
Therefore, Defendant has failed to establish that he had a reasonable
expectation of privacy in storage unit 6 and its contents, and he does not have standing
to challenge the search.
B. 	Whether Society is Prepared to Recognize Defendant’s Expectation of
Privacy as Reasonable
Even if Defendant had established a subjective privacy interest in the contents of
the storage unit, the Court finds that Defendant still lacks standing to challenge the
search of the storage unit because society is not prepared to recognize his expectation
of privacy as reasonable.
Defendant contends that the storage unit was a constitutionally protected area
because it contains the following features: (1) it was located inside his residential
apartment building; (2) it was not in a “common area” accessible to the public or to all
residents of the building; and (3) it was fenced in, had doors, and was padlocked. (ECF
No. 34 at 5.) While he concedes that the exterior of the storage unit was not his
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property, Defendant argues that “[b]y locking Storage Unit 6, [he] attained de facto
exclusive control over it, and the ability to exclude others from entrance into the unit.”
(Id. at 6; ECF No. 55 (citing United States v. Chaves, 169 F.3d 687, 690–91 (11th Cir.
1999) (finding defendant had a reasonable expectation of privacy in a warehouse he did
not own or rent where he had the only key to the warehouse)).) He further argues that
the fact that the unit was padlocked demonstrates that he had not abandoned his
property. (ECF No. 34 at 6 (citing United States v. Hill, 805 F.3d 935, 938–40 (10th Cir.
2015) (finding defendant retained sufficient “possessory interest” in suitcase seized by
DEA investigator from common area of Amtrak train coach)).)
In response, the Government argues that because Defendant’s use of the
storage unit was “without authorization” and “improper,” he has failed to establish that
he has a reasonable expectation of privacy in the storage unit and lacks standing to
challenge the search of that storage unit. (ECF No. 44 at 4–5.)
For support, the Government cites United States v. Johnson, 584 F.3d 995, 999–
1004 (10th Cir. 2009), in which the Tenth Circuit concluded that a defendant lacked a
reasonable expectation of privacy in a storage unit that his girlfriend rented using a
stolen identity. Id. at 1001–02 (“[w]hatever expectation of privacy [Mr. Johnson] might
assert is not a legitimate expectation that society is prepared to honor”); see also United
States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990) (recognizing that while a
defendant “need not always come forward with legal documentation establishing that he
lawfully possessed the area searched, the proponent must at least state that he gained
possession from the owner or someone with the authority to grant possession.” (internal
citations omitted)).
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The Government further argues that Defendant’s “act of leaving the contraband
in a storage unit he had no right to use was the equivalent of leaving his property in the
hands of a stranger,” and that by doing so, Defendant “assumed the risk that the rightful
owner of the storage unit . . . would allow authorities to access the items inside.” (ECF
No. 44 at 7.)
After carefully considering the parties’ positions and the facts of this case, the
Court concludes, on the specific facts presented here, that society is not prepared to
accept Defendant’s expectation of privacy in storage unit 6 and the contents held
therein as reasonable. In Carr, the Tenth Circuit recognized that “[i]mportant
considerations in the expectation of privacy equation include ownership, lawful
possession or lawful control of the premises searched.” 939 F.2d at 1446.
Notwithstanding Defendant’s attempts to keep others out of the storage unit by placing
a lock on the storage unit, he chose not to rent the storage unit from his apartment
building; therefore, he had neither lawful possession or control over the storage unit nor
the right to exclude others. See United States v. Ruckman, 806 F.2d 1471, 1472–74
(10th Cir. 1986) (finding squatter lacked privacy expectation to challenge search of cave
in which he resided on federal land and therefore concluding antipersonnel booby traps
in the cave were not suppressible).
Moreover, by placing his belongings in storage unit 6 without permission to do
so, Defendant assumed the risk that the true owner of the storage unit (i.e.,
representatives of the apartment building) would discover his unauthorized use of the
storage unit, regain access to the unit, and allow law enforcements to search the unit.4
4 During the evidentiary hearing, Brady Martinez, a property manager for the apartment
complex, testified that when the apartment building staff observes a storage unit being used
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See United States v. Austin, 66 F.3d 1115, 1119 (10th Cir. 1995) (concluding that
individual did not retain a legitimate expectation of privacy when he voluntarily left his
bag in a stranger’s possession and “assumed the risk that [the stranger] would allow the
authorities access to the bag”); Carr, 939 F.2d at 1446 (concluding defendant’s three-
week occupancy of a hotel room that was not registered to him, or someone he was
sharing it with, could not be the basis of a legitimate expectation of privacy in the room);
see also United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir. 2005) (recognizing
that “one who takes property by theft or fraud cannot reasonably expect to retain
possession and exclude others from it once he is caught”); United States v. Gale, 136
F.3d 192, 195–96 (D.C. Cir. 1998) (defendant who changed the locks on an apartment
rented to another and used it for packaging drugs did not have a legitimate expectation
of privacy in the apartment because he did not have legal authority to be there); United
States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (holding defendant had no
legitimate expectation of privacy in vacant house where he had been staying for a
week).
Based on the foregoing, the Court concludes that Defendant lacks a reasonable
expectation of privacy in the contents of storage unit 6 and therefore does not have
standing to challenge the warrantless search of the storage unit. Based on this
conclusion, the Court need not analyze whether the search of storage unit 6 is justified
without permission, they generally put a note on the storage locker and give the tenant a chance
to claim the belongings. (Tr. at 87–89.) He further testified that the apartment building still
considers the property improperly held in an unrented storage locker to belong to the tenant.
(Id.) However, the apartment company’s policies do not bear on the ultimate legal question
about whether Defendant had a right to the storage locker.
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pursuant to an exception to the warrant requirement. 	The Court therefore denies the
Motion.
The Court also denies as moot the Motion for Leave, which seeks leave to file a
reply to the Government’s response to the Motion. (ECF No. 47.) The Court did grant
Defendant leave to file a reply to the Motion (ECF No. 51), which Defendant did (ECF
No. 55).
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. 	Defendant’s Motion to Suppress Evidence Due to Fourth Amendment
Violations, and Supporting Memorandum (ECF No. 34) is DENIED; and
2. Defendant’s Motion for Leave to File Reply to Government’s Response to
Defendant’s Motion to Suppress (ECF No. 47) is DENIED as MOOT.
Dated this 15th day of November, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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