WALTER TURNER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6367 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 opinion of the court of appeals, Pet. App. 7a-13a, is unreported, but the judgment is noted at 908 F.2d 974 (Table). JURISDICTION The judgment of the court of appeals was entered on July 27, 1990. The petition for a writ of certiorari was filed on October 29, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner showed a sufficient privacy interest in the apartment of another to challenge a search of it, when he was given a key to the apartment for the first time on the day of the search, was never an overnight guest and did not intend to stay there overnight, and was not present at the time of the search. STATEMENT Upon the entry of his conditional guilty plea in the United States District Court for the Eastern District of Michigan, petitioner was convicted on one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 87 months' imprisonment, to be followed by 60 months' supervised release. He was also fined $1,000. The court of appeals affirmed. Pet. App. 7a-13a. /1/ 1. On July 25, 1988, David Kwong provided a sample of cocaine to a government cooperating witness, with whom he was negotiating the sale of two kilograms of cocaine, in Chicago. Kwong told the witness that, after he completed their transaction, he intended to travel to Detroit, Michigan. Kwong said he was going to distribute another 30 kilograms of cocaine in Detroit. Kwong told the witness he planned to leave Chicago on July 26, 1988, on a 2:35 p.m. train. Pet. App. 7a; Gov't C.A. Br. 2-3. The next day, Kwong met the cooperating witness and completed the sale of cocaine. The witness paid Kwong $44,000 in government funds. Kwong then left his hotel with two large suitcases and boarded the 2:35 p.m. train bound for Detroit. Surveillance agents traveled on the same train and observed Kwong with the two suitcases, which appeared to be quite heavy. The agents saw Kwong take a taxi from the Detroit train station to a hotel. On the following day, the agents saw a man later identified as co-defendant Paul Hiles arrive at the hotel and pick up the two suitcases Kwong had brought with him. The agents followed Hiles as he placed the two bags in the trunk of a car and drove to an apartment building at 23750 Frisbee Street in Detroit. There Hiles met petitioner. Each man carried one of the suitcases into the apartment building and both entered Apt. No. 2, the residence of Anjanette Jones. Petitioner and Hiles left a few minutes later, without the suitcases; one was carrying a small cardboard box. Pet. App. 7a-8a; Gov't C.A. Br. 3-5. At about 9 p.m. that night, petitioner returned to the apartment with two other men. Petitioner and one of the men entered the apartment, while the third man stayed in the car with the engine running. When an agent approached the building and tried to get inside the outer door, petitioner opened the door of Apt. 2 and motioned for him to leave. Pet. App. 8a; Gov't C.A. Br. 5. Meanwhile, shortly before 8 p.m., surveillance agents had arrested Paul Hiles in downtown Detroit. Hiles stated that he was staying at the Omni Hotel; a consent search of his hotel room resulted in the recovery of Hiles's luggage, clothing, and other personal items. Hiles said he knew nothing about the apartment on Frisbee Street and denied ever having gone there. Pet. App. 8a; Gov't C.A. Br. 5. Anjanette Jones returned to her apartment at about 10 p.m.; no other person was present. She found the two suitcases in her bedroom closet; she also found a set of scales and some wrappings. At 10:26 p.m., a search warrant was issued. Shortly thereafter, FBI agents arrived at the apartment and seized the two suitcases, which contained more than 22 kilograms of cocaine. Pet. App. 8a-9a; Gov't C.A. Br. 6. Jones testified that petitioner had called her earlier that day and said he had a friend from out of town who needed a place to stay. Jones agreed to let the friend stay at her apartment, and she gave a set of keys to petitioner. Pet. App. 8a; Gov't C.A. Br. 4; H. Tr. 11-19. /2/ Jones said she contacted petitioner later that evening through his beeper and asked him if it was all right for her to return home. H. Tr. 36-37. 2. Petitioner and his co-defendant challenged the validity of the search warrant, claiming that the affidavit (which at that time was under seal to protect the identity of the cooperating witness) contained intentionally false statements and lacked probable cause. The government argued that the defendants lacked standing to challenge the search. By the time of the evidentiary hearing on the motions to suppress, the identity of the cooperating witness had been compromised in another unrelated investigation, and the affidavit in this case was unsealed. Pet. App. 9a. The district court ruled that the defendants did not have standing to contest the search of Jones's apartment, finding that they were no more than casual visitors to the apartment. They had access to the apartment, the court held, but did not exercise dominion or control and had no expectation of privacy there. Pet. App. 9a, 11a-12a. The district court gave defendants an additional seven days after they received the affidavit and additional discovery materials to file an additional challenge to the warrant. No further pleadings were filed. Pet. App. 9a. 3. The court of appeals affirmed. It agreed with the district court that petitioner and Hiles did not enjoy the kind of unrestricted use of the apartment that would establish a legitimate expectation of privacy there. The court found that "whatever dominion or control (petitioner) and Hiles had over the apartment was for a very limited time" and noted that it was not credible that Hiles actually intended to spend the night when he had taken a room at a hotel. The court of appeals distinguished the decision of this Court in Minnesota v. Olson, 110 S. Ct. 1684 (1990), pointing out that neither petitioner nor Hiles were overnight guests, neither was arrested on the premises, and neither was present in the apartment at the time of the search. Pet. App. 12a-13a. ARGUMENT Petitioner renews his claim that he had standing to contest the search of Jones's apartment, arguing that the decision below conflicts with this Court's decisions in Minnesota v. Olson, supra, Jones v. United States, 362 U.S. 257 (1960), and United States v. Jeffers, 342 U.S. 48 (1951), as well as with several other federal and state court decisions. The court of appeals correctly determined that the cases on which petitioner relies are distinguishable and that he was no more than a casual visitor to Jones's apartment without a legitimate expectation of privacy there. To claim the protection of the Fourth Amendment, a person must establish both that he had a subjective expectation of privacy in the place searched or item seized, and that the expectation is one that society is prepared to recognize as legitimate. Rakas v. Illinois, 439 U.S. 128, 143 (1978). A casual visitor has no legitimate expectation of privacy in the dwelling he visits. See id. at 142. Although this Court has ruled in several cases that a guest in a home may have a legitimate expectation of privacy, those cases are each quite different from the instant one. The Court held in Minnesota v. Olson that an overnight guest could challenge as violative of the Fourth Amendment his warrantless arrest in the home of someone else. 110 S. Ct. at 1688. While Olson's home was elsewhere in the same city, he had been staying at the residence where he was arrested for several days before the robbery with which he was charged, he spent the night of the robbery there, and he had a change of clothes with him. Id. at 1688 n.6. /3/ By contrast, petitioner in this case was not an overnight guest, or even a guest; rather, he sought access to Jones's apartment on behalf of his out-of-town friend. There is no evidence that petitioner intended to stay in Jones's apartment overnight, or that he had ever done so. /4/ Petitioner was a casual visitor, pure and simple, who was not even present when the search occurred. He accordingly lacked a legitimate expectation of privacy to object to a search of Jones's apartment. See Rakas v. Illinois, 439 U.S. at 142. Because the facts of Jones v. United States, supra, are similar to those of Olson, see 110 S. Ct. at 1688 -- both involved overnight guests -- Jones is no precedent for petitioner's claim of an expectation of privacy in this case. The defendant in Jones was arrested in his friend's apartment. He had been given the use of the apartment by the friend, he had a key to the apartment, he kept some clothes there, and he had slept there overnight. Like Olson, and unlike petitioner, the defendant in Jones was an overnight guest in his friend's apartment, kept clothes there, had a continuing and unlimited access to the apartment, and he was arrested on the premises. Similarly, the defendant in Jeffers had been given a key to someone else's hotel room and permission to use it at will, and he had entered the room for various purposes over a period of time. 342 U.S. at 50. By comparison, petitioner had known Anjanette Jones for about a year, yet had never been given the key to her apartment before the day of the search. Petitioner had never stayed overnight at Jones's apartment, nor did he intend to that night. Petitioner kept no personal belongings in Jones's apartment, and he was not present when federal agents came to execute the search warrant. Pet. App. 12a; H. Tr. 11-19. The courts below correctly concluded from these facts that petitioner did not have a legitimate expectation of privacy in Jones's apartment. Rather, the facts here are consistent with an intention on petitioner's part to gain a one-time access to his friend's apartment for the sole purpose of temporarily storing a cache of cocaine. He cannot claim from this limited usage the legitimate privacy rights that society normally accords to a bona fide guest who uses another's home as a temporary residence. The other cases relied upon by petitioner are also distinguishable. In United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988), the court found that one defendant, Betts, had demonstrated a sufficient privacy interest in the apartment of another. But Betts was shown to have had a key to the apartment for about a year, he had been afforded unrestricted access, staying overnight frequently and whenever he pleased; he also kept clothes and other items in the apartment. 859 F.2d at 1510. The court of appeals here found petitioner's situation quite unlike that of Betts, contrasting his one-time use of Jones's apartment with the unrestricted use over a period of time that Betts enjoyed. Pet. App. 12a. /5/ In United States v. Dotson, 817 F.2d 1127 (5th Cir.), modified on other grounds, 821 F.2d 1034 (1987), the defendant claiming an interest in another's car showed that while it was registered to his sister, he had been in lawful possession of the car for more than a month. He was not driving the car at the time it was searched, but he had lent it to a friend only so that the friend could wash and clean it. And the defendant in United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984), had participated in moving a methamphetamine laboratory to the house that was later searched, he used the laboratory to manufacture large amounts of drugs during the late night and early morning hours, and he was present in the house when he was arrested. Id. at 1465. The defendants in both those cases showed an unrestricted access to the place searched and an interest in it of much longer duration than that shown by petitioner. /6/ 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 KATHLEEN A. FELTON Attorney FEBRUARY 1991 /1/ Petitioner's co-defendant, Paul Hiles, who was charged with the same offense, also entered a conditional guilty plea and joined in the appeal. Hiles has not joined in this petition, however, nor has he filed a separate petition for a writ of certiorari. /2/ "H. Tr." refers to the transcript of the suppression hearing. /3/ The basis of decision in Olson turned in large part on Olson's status as an overnight guest: We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. 110 S. Ct. at 1689. /4/ Moreover, the court of appeals found it not credible that his co-defendant intended to stay overnight, when he had rented a hotel room and deposited his luggage there. Pet. App. 12a. /5/ Both state cases cited by petitioner as conflicting with the decision in this case are similarly distinguishable. In State v. Corpier, 793 S.W.2d 430, 437 (Mo. App. 1990), the defendant had been a frequent visitor to his friend's apartment, he had been an overnight guest on several occasions, and he was arrested in the apartment. The defendant in State v. Tapio, 459 N.W.2d 406, 413-414 (S.D. 1990), had checked into a hotel down the street, but in fact he was spending the night in the home that was searched. /6/ Even if petitioner were found to have exhibited a sufficient privacy interest in Jones's apartment to be able to assert a Fourth Amendment challenge to the search, the record shows that his ultimate claim is without merit. The search of Jones's apartment was made pursuant to a warrant; petitioner's bare assertion of the warrant's invalidity was never supplemented with specific allegations of its inaccuracy or insufficiency, once the warrant and affidavit were unsealed and he was provided with copies of the actual documents. Pet. App. 9a. Although neither the district court nor the court of appeals made any findings on the merits of the Fourth Amendment claim, the record demonstrates that petitioner's completely unsupported allegations, made before he had even seen the affidavit he was challenging, are without merit. See Gov't C.A. Br. 15; Affidavit In Support Of Search Warrant 1-5.