USA v. Eldridge et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
Thamud Eldridge, Kashika Speed,
Kevin Allen, and Galen Rose,
Defendants.
Hon. Hugh B. Scott
09CR329A
Order
Among the various motions pending in this matter is defendant Eldridge’s motion seeking
to unseal the search warrant application to determine whether a file a motion to challenge the
search of 118 Homer Street (Docket No. 147). The residence at issue was that of Tanya
Calloway, who the defendant describes as his girlfriend. The defendant asserts that he had given
her some of his personal property to hold while he was incarcerated. The government challenged
the defendant’s standing to challenge the search of this residence. The Court directed that the
defendant submit an affidavit and legal arguments establishing such standing. (Docket No. 156).
The defendant was directed to file such papers by May 25, 2012 and the government was directed
to file a response by June 1, 2012.
On May 25, 2012, the defendant filed a supplemental motion and affidavit supporting his
claim that he has standing to challenge the search at 119 Homer Street (the residence of Tanya
Calloway, his girlfriend) because he used that property to store his private belongings while he
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was incarcerated. Eldridge claims that a bailee/bailor relationship exists, and that he retained an
expectation of privacy in the storage of his personal property. The defendant relies upon United
States v. Perea, 986 F.2d 633 (2d Cir.1993). In Perea, the Court held that in order to have
standing to challenge a search, the defendant must demonstrate “(a) that he had an expectation of
privacy that society is prepared to recognize as reasonable, and (b) that he had conducted himself
and dealt with the property in a way that indicated a subjective expectation of privacy.” Perea,
986 F.2d at 639. There, the defendant was paid to keep a duffel bag in his apartment for another
person. The Court in Perea held that “in the Fourth Amendment context, bailees can have
sufficient interest in bailed property to give them standing to object to its seizure or search.”
Perea, 986 F.2d. at 640. (Docket No. 157). In the instant case, Eldridge is not a bailee, but a
bailor. Perea does not discuss the Fourth Amendment rights of bailors. Indeed, the Second
Circuit in Perea, in reversing the District Court, noted that the Court below had relied upon
Rawlings v. Kentucky, 448 U.S. 98 (1980), which could be distinguished from the facts in Perea
because Rawlings “involved the privacy expectations of the narcotics' owner who had
relinquished custody, i.e., the bailor; it did not involve the privacy interests of the person in
whose purse the narcotics had been placed, i.e., the bailee.” Perea, 986 F.2d. at 641. As
discussed more fully below, in Rawlings, the defendant had placed narcotics in the purse of
another individual just prior to being arrested, in what was termed a “sudden bailment.” The
Supreme Court held that under such circumstances, the defendant did not have a legitimate
expectation of privacy in the individual’s purse.
The defendant also relies upon United States v. Miller, 148 F.3d 207 (2d. Cir. 1998). In
Miller, the defendant was accused, among other things, of transporting minors in interstate
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commerce for the purposes of prostitution. The defendant had been residing at a hotel with the
girls. It appears that upon their arrest at another location, one of the girls told the police that they
had left (incriminating) property at the hotel. Police contacted the hotel manager who advised
that because the guests had not paid their hotel bill, the property belonging to Miller and the girls
was packed and stored in a different room. The hotel manager told the police that he intended to
dispose of the property. A search warrant was obtained for the room the three individuals had
occupied, as well as for the room in which the property was being stored. Subsequently, Miller
claimed that he asked the hotel manager to pack up the belongings and to “store them safely” for
him. Thus, he made a motion to suppress the evidence. The District Court held that Miller lacked
standing to protest the search because he had no expectation of privacy in the room in which the
property was stored. The District Court relied upon United States v. Rahme, 813 F.2d 31, 35 (2d
Cir.1987), in which the Second Circuit had held that “[o]nce the hotel, in a position adverse to
the guest, properly takes possession of ... luggage, the guest no longer has the right to control
access to it and can have no legitimate expectation of privacy in it.” Upon appeal, Miller argued
that his agreement with the hotel manager to store the property created a bailment, and that under
Perea, such a bailment does not terminate his legitimate expectation of privacy. Miller, 148 F.2d.
at 210. Upon appeal in Miller, the Second Circuit held:
The issue whether Miller had standing to challenge the search is a
close one. While the reasoning in Rahme makes good sense, this
case involves several complicating factors not present in that case.
The government has not disputed that Lewis agreed to store
Miller's property. Therefore, it is arguable that at least for some
length of time, Miller had an expectation of privacy in the goods
that society might consider reasonable whether or not payment
was involved. Lewis's statement that he was getting ready to
dispose of the goods further complicates matters.
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Miller, 148 F.2d. at 214 (emphasis added). Ultimately, the Second Circuit in Miller determined
that they did not have to decide the issue in that case:
We need not decide the standing issue, however, and we therefore
express no opinion upon it. Even assuming for argument that
Miller had standing and that the business cards, cell phone,
beepers, and hotel directory should not have been admitted, the
government is correct that any error was harmless beyond a
reasonable doubt. The items seized during the search establish only
that Miller and the girls ran a massage business. Notwithstanding
Miller's suggestion that he would have disputed the existence of
the massage business but for the admission of the disputed
materials, the existence of BMI [Body Masseuse International]
was established by overwhelming evidence, including the
testimony of MG and LK, Miller's tape-recorded statement to
Martinez that he had a girl on an outcall, Miller's post-arrest
admission that he ran a massage business with the girls, and the
fact that when MG was found after Miller's arrest, she was handing
out BMI business cards at a downtown hotel.
Miller, 148 F.2d. at 214.
The government has not responded to the defendants’ papers.
It appears that the Second Circuit has not directly addressed the Fourth Amendment rights
of an individual who has left personal property in storage with another while incarcerated. The
Ninth Circuit, in United States v. Johns, 851 F.2d 1131 (9th Cir. 1988), has held that an
individual has an expectation of privacy in a rental storage unit. In doing so, the Court noted that
“[n]either ownership nor presence are required to assert a reasonable expectation of privacy
under the Fourth Amendment. A ‘formalized arrangement among defendants indicating joint
control and supervision of the place is sufficient to support a legitimate expectation of privacy.’ ”
Johns, 851 F.2d. at 1136 citing to United States v. Broadhurst, 805 F.2d 849, 851-52 (9th
Cir.1986). Similarly, whether or not the defendant stored items in an apartment was cited as one
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of the indicia to consider when determining if the defendant had standing to challenge the search
of the apartment. United States v. Reyes-Bosque, 596 F.3d 1017 (9th Cir. 2010). See also United
States v. Davis, 361 Fed.Appx. 704 (8th Cir. 2010)(standing did not exist where the defendant
failed to show, among other things, that he did not store personal items at the residence which he
admitted to owning); Garcia v. Dykstra, 260 Fed.Appx. 887, 892–93 (6th Cir.2008) (unpublished
decision) (holding that individuals had standing to pursue a Fourth Amendment claim
challenging a search of a storage unit in which they had stored items, even though the unit was
leased in another individual's name); United States v. Waller, 426 F.3d 838, 844 (6th Cir.2005)
(holding that the defendant maintained legitimate expectation of privacy in closed bag he had
requested residents of searched apartment to store for him, when he had not told residents the
contents of bag and residents believed they did not have the authority to open it); United States v.
Salinas–Cano, 959 F.2d 861, 864 (10th Cir.1992)(People generally have a reasonable expectation
of privacy in a storage unit, because storage units are secure areas that command a high degree of
privacy.).
In his affidavit, Eldridge states when he was incarcerated after December 7, 2005,
Calloway took possession of his personal belongings, clothes, books and other personal items.
(Docket No. 157-1 at ¶ 6). He states that he executed a Power of Attorney granting Calloway
authority to handle his affairs while he was incarcerated and that this Power of Attorney was in
force at the time of the search of 118 Homer Street. (Docket No. 157-1 at ¶ 7). Eldridge asserts
that he has used, and continues to use, 118 Homer Street as his mailing address apart from his
residence in prison, and that he intends to reside at that address when he is released from prison.
(Docket No. 157-1 at ¶¶8-9). Eldridge states that had an “expectation of privacy in 118 Homer
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Street to the extent that [his] personal property stored there was private, secure, and in the
custody of the woman to whom I am in a committed relationship and who has Power of Attorney
over my affairs.” (Docket No. 157-1 at ¶ 10).
In light of these unrefuted representations by Eldridge, the Court finds that Eldridge had a
legitimate expectation of privacy in 118 Homer Street to challenge the search of that residence
relating to his personal property stored at that location. Unlike Rawlings, this was not a “sudden
bailment” wherein minutes before being arrested the defendant placed contraband into the purse
of another individual who he had known for only a few days. Further, in Rawlings, there was a
dispute as to whether the individual had agreed to allow the defendant to store the narcotics in
her purse. There, the Supreme Court found that “the precipitous nature of the transaction hardly
supports a reasonable inference that petitioner took normal precautions to maintain his privacy.”
Rawlings, 448 U.S. at 105. In the instant case, the undisputed record reflects that Eldridge asked
Calloway to store his personal belongings for him while he was incarcerated; that Eldridge
asserts that he is in a “committed relationship” with Calloway; that Eldridge used the 118 Homer
Street address as his mailing address; that Eldridge intends to reside at 118 Homer when he gets
out of prison; and that Eldridge has provided Calloway with a Power of Attorney over his affairs.
The Second Circuit has held that the Court is obligated to credit the facts asserted by the
defendant and “could not properly deny [a] motion for lack of standing unless the facts ...
asserted, seen in the light most favorable to [the defendant], were legally insufficient to sustain
his burden.” United States v. Hamilton, 538 F.3d 162 (2d. Cir. 2008). The fact that Eldridge did
not live at the residence is not, by itself, determinative. In Hamilton the Second Circuit held,
“there is no authority for the proposition that one need live in the premises, or exercise control
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over them, in order to enjoy a privacy interest in those premises.” Hamilton, 538 F.3d. at 169. In
this regard, the Second Circuit held:
Privacy interests have been found with respect to business
premises and storage lockers. See Chuang, 897 F.2d at 649 (“It is
well-settled that a corporate officer or employee in certain
circumstances may assert a reasonable expectation of privacy in his
corporate office, and may have standing with respect to searches of
corporate premises and records.”); Johns, 851 F.2d at 1136 (finding
reasonable expectation of privacy in rented storage space). They
have been found where one was merely a guest at the premises.
Olson, 495 U.S. at 99, 110 S.Ct. 1684. Nor has possession of a key
or a deed or lease in one's own name been deemed indispensable to
establishment of a privacy interest, where the claimant's
understanding with those in charge of the premises was the basis of
the expectation of privacy.
Hamilton, 538 F.3d. at 169. In light of the Second Circuit’s approval of Johns as cited in
Hamilton, as well as the suggestion contained in the language quoted above in Miller, it appears
that the Second Circuit recognizes that an individual may have a subjective expectation of
privacy in property he places in storage and that society would recognize this expectation as a
reasonable one regardless if the defendant has paid the storage fees. Similarly, under the
circumstances presented here, it does not appear unreasonable for Eldridge to have had an
expectation of privacy in the property he gave to Calloway for storage even without a formal
bailment contract, and thus, he has standing to challenge a search warrant directed at searching
the area in which that property is stored. See United States v. Fields, 113 F.3d 313, 320 (2d
Cir.1997) (“To contest the validity of a search, a defendant must demonstrate that he himself
exhibited an actual subjective expectation of privacy in the area searched, and that this subjective
expectation is one the society is willing to accept as reasonable.”).
Upon review of the totality of the circumstances, Eldridge possessed a legitimate
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subjective expectation of privacy with respect to the personal property Calloway stored for him at
her residence. Based on the above, and the fact that the government has not refuted the
defendant’s assertions or otherwise responded with respect to this issue, the Court finds that
Eldridge has standing to challenge the search of 118 Homer Street.
The fact that Eldridge has standing to challenge the search of 118 Homer Street with
respect to his property does not mean that the record reflects that the police lacked probable
cause sufficient to obtain a warrant for the search of that premises. Indeed, the defendant has not
yet filed a motion to suppress the evidence obtained as a result of that search, but instead seeks
an opportunity to review the search warrant application and an inventory of what evidence was
obtained as a result of the search. (Docket No. 147 at page 4). The government has maintained
that disclosure of the search warrant affidavit is inappropriate because it would “create an
environment ripe for witness intimidation.” (Docket No. 150 at page 6). On or before June 20,
2012, the government is directed to provide the Court, for in camera review, an unredacted
copy of the search warrant and supporting affidavits, along with a proposed redacted
version which might be could be produced to the defendant without compromising the
safety of any confidential sources (still unknown) to the defendant.
The Court will determine whether a hearing regarding these issues will be included
among the subjects to be explored at the evidentiary hearings set for June 21-22, 2012.
So Ordered.
/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
June 12, 2012
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