PHILLIP WOODY, PETITIONER V. UNITED STATES OF AMERICA No. 90-6391 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (App., infra) is unreported, but the decision is noted at 909 F.2d 1485 (Table). JURISDICTION The judgment of the court of appeals was entered on July 31, 1990. A petition for rehearing was denied on September 28, 1990. The petition for a writ of certiorari was filed on November 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner had standing to challenge a search of his neighbors' house. STATEMENT Petitioner entered a conditional guilty plea in the United States District Court for the Eastern District of Tennessee to the charge of possession of firearms by a convicted felon, in violation of 18 U.S.C. 922(g). He was sentenced to 96 months' imprisonment, a $6000 fine, and a five-year term of supervised release. The court of appeals affirmed. App., infra. 1. As set out in the government's trial memorandum (C.A. App. 32-34), petitioner, along with his co-defendant, Harold Sosebee, forcibly removed Vanessa Suggs from a car. Jack Goodwin, Suggs' travelling companion, reported the kidnapping and told law enforcement officials that petitioner and Sosebee -- both of whom had a reputation for violence -- had been dealing in drugs at their home. The police obtained a search warrant and searched petitioner's home in rural Ocoee, Tennessee. See C.A. Gov't Br. 1. In petitioner's home, the police found only Sosebee. While executing the search, however, the officers thought they saw someone move in a neighboring house. Based on that observation, the officers believed that petitioner might be in that house with the kidnap victim. The officers approached the neighbors' house, knocked, and received no response. They then forced their way into the house and found petitioner and the victim there. C.A. App. 33. The police debriefed the victim and obtained a second warrant to search the neighbors' house. When the police found weapons during that search, they notified federal agents. The federal agents obtained a warrant to search the neighbors' house and seized weapons, a silencer, and some personal papers. C.A. App. 33-34. /1/ 2. Petitioner moved to suppress the firearms, the silencer, and the papers found in the neighbors' house. At the suppression hearing the residents of that house, Brad and Sally Ouzts, testified that petitioner did not have permission to be in their house. See C.A. App. 159, 167, 185, 211, 214. The district court accordingly ruled that petitioner had no standing to challenge the search there. The court found that, although at one time petitioner had been given a key to the neighboring house so that petitioner could check the house's security and water the plants while the Ouztses were away, the Ouztses were unaware that petitioner had kept that key. Id. at 70-71. The court held that petitioner "did not have a reasonable expectation of privacy at the Ouzt(ses') home," C.A. App. 71, and therefore denied the motion to suppress the evidence found there. The court explained that petitioner "was not legitimately in that home," and he "had no permission to stay the night in the home." Ibid. As the court found, ibid., "(t)he credible testimony on this matter is that (petitioner) had never spent the night at the Ouzt(ses') before, except perhaps as a television watching or partying buddy of Brad Ouzt(s) -- and that in the presence and company of Ouzt(s)." The court noted that, "(r)eally what happened here is that the Ouzts(es) were away from their home for an extended period of time," and "(n)o one had been permanently living in the home for at least a month." Id. at 72. Petitioner "just helped himself to the house when he was trying to hide the subject weapons and also possible Ms. Suggs from law enforcement officials." Ibid. 3. The court of appeals affirmed by judgment order. App. 1, infra. ARGUMENT Petitioner contends (Pet. 6-22) that the district court erred in ruling that he had no standing to challenge the search of his neighbors' house. This contention is without merit. The "capacity to claim the protection of the Fourth Amendment depends * * * upon whether the person who claims the protection of the (Fourth) Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). A subjective expectation of privacy is legitimate, however, only if it is "'one that society is prepared to recognize as 'reasonable.'" Id. at 143-144 n.12; see also California v. Greenwood, 486 U.S. 35, 39-43 (1988). The district court correctly found that petitioner did not have a reasonable expectation of privacy in his neighbors' house. As the district court found, petitioner had no permission to stay at the house while the neighbors were away, much less sleep and store weapons there. /2/ Simply put, a trespasser -- such as petitioner -- who invades the property of another has no standing to challenge the search of that property. See Rakas, 439 U.S. at 143 n.12; United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986); United States v. Pitt, 717 F.2d 1334, 1338 (11th Cir. 1983), cert. denied, 465 U.S. 1068 (1984). /3/ Petitioner's reliance (Pet. 7) on Minnesota v. Olson, 110 S. Ct. 1684 (1990), is misplaced. Unlike the defendant in Olson, petitioner had no permission to stay overnight in the Ouztses' house. Accordingly, although "society recognizes that a houseguest has a legitimate expectation of privacy in his host's home," 110 S. Ct. at 1680, it does not accord the same recognition to someone like petitioner who has no permission from the host to stay in his home. Rakas v. Illinois, 439 U.S. at 143 n.12. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney FEBRUARY 1991 /1/ The federal agents also obtained a second warrant to search petitioner's house. During their search of petitioner's house, they found a spent bullet, which corroborated the victim's statement that petitioner had fired a gun in her presence. C.A. App. 34. /2/ Although petitioner claims he had a key to the house and authority to use it (Pet. 9), the owner of the house, Ms. Ouzts testified that petitioner had no permission to use the house. C.A. App. 159-162. To be sure, prior to the suppression hearing the Ouztses signed affidavits suggesting that petitioner had permission to stay in the house. At the suppression hearing, however, both of the Ouztses testified that the affidavits were false and that they signed them because of threats from petitioner's associates. C.A. App. 160-161, 186-187, 191; Gov't C.A. Br. 2. /3/ Even if petitioner had standing, the seized weapons and papers were admissible as fruits of a lawful search. As the government pointed out below (C.A. App. 33), the police conducted a warrantless search because, among other things, they had reason to believe that the kidnapping victim might be secreted inside the neighbor's house with petitioner. Under those circumstances, a warrantless search reasonably designed to rescue a victim who might be in grave danger does not violate the Fourth Amendment. See Minnesota v. Olson, 110 S. Ct. 1684, 1690 (1990); Warden v. Hayden, 387 U.S. 294, 298-299 (1967). /4/ There is no merit to petitioner's suggestions (Pet. 22-33) that the lower courts should have considered the constitutionality of the search of the Ouztses' house despite petitioner's lack of standing. As this Court has recognized, its "Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices." United States v. Payner, 447 U.S. 727, 735 (1980). APPENDIX