# DePugh v. Penning

> District Court, N.D. Iowa · May 26, 1995 · 888 F. Supp. 959

URL: https://www.frixlaw.com/law-library/cases/1644071

## Case

- **Full name:** Robert B. DePUGH, Plaintiff, v. Rick D. PENNING, Sheriff of Grundy County, Iowa, in His Personal and Official Capacities, John L. McCarter, in His Personal Capacity, Todd A. Geer, in His Personal Capacity, Et Al.
- **Court:** District Court, N.D. Iowa
- **Decided:** May 26, 1995
- **Citations:** 888 F. Supp. 959; 1995 U.S. Dist. LEXIS 8101; 1995 WL 318741
- **Precedential status:** Published
- **Opinion:** Opinion by Bennett
- **Judges:** Bennett
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
BENNETT, District Judge.
TABLE OF CONTENTS
7.
INTRODUCTION AND PROCEDURAL
BACKGROUND....................965
77.
STANDARDS FOR SUMMARY
JUDGMENT...............................967
777.
FINDINGS OF
FACT.....................................................968
A. Undisputed
Facts.......................................................968
B. Disputed
Facts.........................................................970
IV. LEGAL
ANALYSIS.......................................................971
A Standing...............................................................971
1. Expectation of
privacy...............................................972
2. Property
interest.....................................................975
a.
Abandonment.....................................................977
b. Abandonment of the property seized
here...........................979
3. Summary On
Standing..............................................979
B. Lack Of
Harm.........................................................980
C. DePugh’s Substantive
Claims............................................982
1. Fourth Amendment
Requirements.....................................982
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2. Validity of the warrant and “probable
cause”..........................983
a. “Probable cause” and the First
Amendment.........................984
b. Confidential informants and
corroboration..........................984
c.
Staleness.........................................................986
d. Probable cause in this
case........................................987
3. Validity of the warrant and
“particularity”............................989
A
Misleading
information..............................................991
5. Validity of a warrantless search and seizure
..........................992
a.
Consent..........................................................992
b.
Abandonment.....................................................994
c. Plain view
.......................................................995
d. Duplication of a private
search....................................997
D. Qualified
Immunity....................................................998
a. Analysis of a qualified immunity
defense...........................998
b. The test for qualified immunity on summary judgment
.............999
c. Qualified immunity for an unconstitutional search or
seizure........999
d. Qualified immunity
here.........................................1000
V.
CONCLUSION...........................................................1002
One of the hallmarks of our form of government is protection of personal privacy, particularly the sanctity of one’s home and personal effects, matters deeply respected by some societies since Roman times.
1
Despite the fact that American colonists went to war against England in part because of the abuses of the right to personal privacy, that right was deeply respected in the law of England from which so many of our cherished principles have been adopted. For example, William Pitt, Earl of Chatham, in 1763 is said to have declaimed in the throes of a parliamentary debate on searches incident to the enforcement of an excise on cider,
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!
2
This case raises the question of whether the sheriff of Grundy County, Iowa, exceeded the authority which restrained the King of England in William Pitt’s time and, in the process, violated the Fourth Amendment of the United States Constitution, our own embodiment of the right to privacy in our homes and property.
In this lawsuit brought pursuant to 42 U.S.C. § 1983 , a
pro se
plaintiff seeks money damages against a county sheriff, in both his official and individual capacities, as the result of issuance of a search warrant and seizure of personal property allegedly in violation of plaintiff’s First Amendment rights to freedom of speech and expression, Fourth Amendment right to be free from unreasonable search and seizure, and Fourteenth Amendment right to due process. On cross-motions for summary judgment, plaintiff asserts that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. The defendant county sheriff argues that issues of fact preclude summary judgment in plaintiffs favor, but that on the undisputed facts he is entitled to summary judgment on a number of grounds. The sheriff argues plaintiffs lack of standing or damages, the validity of the warrant in question, or, if the warrant was invalid, the receipt of consent for the search, abandonment of the property seized, applicability of the “plain view” exception, and duplication of a private search, as well as qualified
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immunity, as establishing his entitlement to summary judgment.
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On October 12, 1993, plaintiff Robert B. DePugh filed his complaint in this action pursuant to 42 U.S.C. § 1983 alleging ten causes of action for violation of his civil rights as the result of execution of a search warrant for his former residence in Reinbeck, Iowa, on October 22, 1991. Defendants were John L. McCarter, a magistrate of Iowa’s First Judicial District in Grundy County, Iowa, who issued the search warrant for DePugh’s former residence, Rick D. Penning, the Sheriff of Grundy County, who sought and executed the warrant, and Todd A. Geer, an Assistant Grundy County Attorney, who purportedly refused to return the property seized pursuant to the warrant.
3
In his complaint, DePugh sought $10,000 in compensatory damages and $40,000 in punitive damages against each defendant. In addition, DePugh sought declaratory judgment to the effect that the conduct of the defendants violated various of his constitutional rights. In lieu of answering, on November 16, 1993, defendants Penning and Geer filed a motion to dismiss pursuant to
Fed.R.Civ.P.
12(b)(6). Following renewed service on all of the defendants, on May 17, 1994, defendant McCarter also filed a motion to dismiss pursuant to
Fed.R.Civ.P.
12(b)(6). Defendants Penning and Geer then renewed their motion to dismiss on May 25, 1994. The court permitted limited discovery in light of the motions to dismiss. Although none of the defendants had yet answered the complaint in this matter, on November 3, 1994, plaintiff filed a motion for summary judgment, asserting that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law.
On January 10, 1995, this court granted the motion to dismiss of defendant McCarter, on the grounds of judicial immunity and lack of a “live” controversy for the purposes of declaratory judgement. The court also granted defendant Geer’s motion to dismiss, because the court concluded that DePugh had failed to state a claim that Geer violated his constitutional rights of access to the courts and due process: what the complaint alleges is that Geer identified for DePugh the appropriate process for vindication of those rights. However, the court concluded that DePugh had adequately pleaded claims against defendant Penning in his official and individual capacities. The court concluded that DePugh’s allegation that Penning, as the Sheriff of Grundy County “possessed final authority over the subject matter at issue and used that authority in an unconstitutional manner,” if proven, would be sufficient to establish official-capacity liability. Any claim for punitive damages against defendant Penning in his official capacity was stricken, however, because an official-capacity claim is in all but name a claim against the governmental entity, and such a governmental entity is immune from punitive damages under § 1983. DePugh has also stated a claim against Penning in his individual capacity because he alleged that Penning acted under color of law by committing constitutional violations under the authority of a warrant from an Iowa state court.
The court reserved ruling on DePugh’s motion for summary judgment until such time as defendant Penning had answered the complaint and filed a response to the motion for summary judgment. This matter therefore has proceeded only upon claims for money damages against defendant Penning in his official and individual capacities.
4
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Penning answered the complaint on January 26, 1995, and on February 1, 1995, he resisted DePugh’s motion for summary judgment. Penning asserted as grounds for denial of DePugh’s motion for summary judgment that the warrant authorizing search of the premises in Reinbeck, Iowa, and seizure of DePugh’s property was supported by probable cause. On February 6, 1995, Penning filed his cross-motion for summary judgment. In that motion, Penning asserts that he is entitled to summary judgment on a number of grounds.
First, Penning again argues that the warrant in question was supported by probable cause that the property to be seized had been obtained in violation of law, was illegal to possess, was possessed with intent to commit a public offense, or was evidence of a crime. Next, Penning argues that DePugh has no cause of action for damages, because he cannot establish actual damages from the conduct of which he complains. Third, Penning contends that DePugh does not have standing to complain of the search or seizure, because he had no privacy or ownership interest in the property searched or seized. Penning also argues that he is entitled to summary judgment even if the warrant in question was invalid, because no warrant was required. As grounds for this assertion, Penning argues that the property seized was abandoned and that he conducted the search pursuant to the consent of the bank that was seeking to recover the premises following default of the leaseholder. He also argues that the items seized were in plain view of an officer in the building by permission and the incriminating value of these items was immediately apparent. Penning also argues that the search and seizure were “duplicitous” of a prior private search,
5
and that no damages resulted to DePugh from Penning’s conduct “following the private party search.”
DePugh resists Penning’s motion for summary judgment on each and every ground. DePugh asserts that the warrant was not supported by probable cause, and that he has standing to complain of the seizure of his property whether or not he had a privacy or property interest in the place from which it was seized. He also argues that he need not show actual damages in order to pursue a cause of action for violation of his fundamental rights. DePugh responds to the arguments that no warrant was required for the search and seizure by vehemently denying that the property seized was abandoned;
*967
rather, DePugh presents evidence that it had been left in the care of a friend and business associate of many years, who was the leaseholder of the property searched. DePugh also asserts that the bank could not give or appear to give valid consent to any search, because it had no present possessory interest in the property searched and this situation was known to Penning.
II. STANDARDS FOR SUMMARY JUDGMENT
The Eighth Circuit Court of Appeals recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.”
Wabun-Inini v. Sessions,
900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.”
Celotex Corp. v. Catrett,
477 U.S. 317, 327 , 106 S.Ct. 2548, 2555 , 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”
Wabun-Inini,
900 F.2d at 1238 (quoting
Celotex Corp. v. Catrett,
477 U.S. 317, 327 , 106 S.Ct. 2548, 2554-55 , 91 L.Ed.2d 265 (1986));
Hartnagel v. Norman,
953 F.2d 394, 396 (8th Cir.1992).
The standard for granting summary judgment is well established.
Rule
56 of the Federal Rules of Civil Procedure states in pertinent part:
Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.
(c) Motions and Proceedings Thereon ____
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P.
56(b) & (c) (emphasis added);
see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 , 106 S.Ct. 2548, 2552-53 , 91 L.Ed.2d 265 (1986);
Munz v. Michael,
28 F.3d 795, 798 (8th Cir.1994);
Roth v. U.S.S. Great Lakes Fleet, Inc.,
25 F.3d 707, 708 (8th Cir.1994);
Cole v. Bone,
993 F.2d 1328, 1331 (8th Cir.1993);
Woodsmith Publishing Co. v. Meredith Corp.,
904 F.2d 1244, 1247 (8th Cir.1990);
Wabun-Inini,
900 F.2d at 1238 (citing
FedR.Civ.P.
56(c)).
6
A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that can be drawn from the facts.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986) (quoting
United States v. Diebold, Inc.,
369 U.S. 654, 655 , 82 S.Ct. 993, 994 , 8 L.Ed.2d 176 (1962));
Munz v. Michael,
28 F.3d 795, 796 (8th Cir.1994);
Allison v. Flexway Trucking, Inc.,
28 F.3d 64, 66 (8th Cir.1994);
Johnson, v. Group Health Plan, Inc.,
994 F.2d 543, 545 (8th Cir.1993);
Burk v. Beene,
948 F.2d 489, 492 (8th Cir.1991);
Coday v. City of Springfield,
939 F.2d 666, 667 (8th Cir.1991),
cert. denied,
502 U.S. 1094 , 112 S.Ct. 1170 , 117 L.Ed.2d 416 (1992).
Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.”
Hartnagel,
953 F.2d at 395 (citing
Celotex,
477 U.S. at 323 , 106 S.Ct. at 2552-53 );
see also Reed v. Woodruff County, Ark.,
7 F.3d 808, 810 (8th Cir. 1993). The moving party is not required by
*968
Rule
56 to support its motion with affidavits or other similar materials negating the opponent’s claim.
Id.
“When a moving party has carried its burden under
Rule
56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.”
Matsushita,
475 U.S. at 586 , 106 S.Ct. at 1356 . The non-moving party is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.”
Fed. R.Civ.P.
56(e);
Celotex, 477
U.S. at 324, 106 S.Ct. at 2553. Although “direct proof is not required to create a jury question, ... to avoid summary judgment, ‘the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.’ ”
Metge v. Baehler,
762 F.2d 621, 625 (8th Cir. 1985) (quoting
Impro Products, Inc. v. Herrick,
715 F.2d 1267, 1272 (8th Cir.1983),
cert. denied,
465 U.S. 1026 , 104 S.Ct. 1282 , 79 L.Ed.2d 686 (1984)),
cert. denied sub nom. Metge v. Bankers Trust Co.,
474 U.S. 1057 , 106 S.Ct. 798 , 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986);
Allison v. Flexway Trucking, Inc.,
28 F.3d 64, 66 (8th Cir. 1994).
In
Anderson, 477
U.S. at 249, 106 S.Ct. at 2510-11,
Celotex, 477
U.S. at 323-24, 106 S.Ct. at 2552-53, and
Matsushita,
475 U.S. at 586-87 , 106 S.Ct. at 1355-56, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
Johnson v. Enron Corp.,
906 F.2d 1234, 1237 (8th Cir.1990). The trial court, therefore, must “assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial.”
Hartnagel,
953 F.2d at 396 (citing
Celotex, 477
U.S. at 322, 106 S.Ct. at 2552). If the nonmoving party fails to make a sufficient showing of an essential element of a claim with respect to which it has the burden of proof, then the moving party is “entitled to judgment as a matter of law.”
Celotex, 477
U.S. at 323, 106 S.Ct. at 2552;
Woodsmith,
904 F.2d at 1247 . However, if the court can conclude that a reasonable trier of fact could return a verdict for the nonmovant, then summary judgment should not be granted.
Anderson, 477
U.S. at 248, 106 S.Ct. at 2510;
Burk,
948 F.2d at 492 ;
Woodsmith,
904 F.2d at 1247 . With these standards in mind, the court turns to consideration of the parties’ cross-motions for summary judgment.
III. FINDINGS OF FACT
A
Undisputed Facts
The record reveals that the following facts are undisputed. For some time prior to October 22,1991, when the search giving rise to plaintiff’s lawsuit occurred, DePugh had lived at a building in Reinbeck, Iowa, which served both as his place of business and residence. However, before the search occurred, DePugh had ceased living in the building in Reinbeck, although some of his personal property remained there. The budding was still in use as a place of business for a company operated by DePugh’s former business associate, David Powell. DePugh had no continuing interest in the property, although he was still serving as a consultant to Powell’s business and from time to time used the living quarters in the building during visits to Reinbeck. David Powell retained a leasehold on the property. Although at the time of the search, Penning asserts that the building’s owner, Lincoln Savings Bank of Reinbeck, considered Powell to be in default on the lease and was trying to recover the premises from him, Powell continued to occupy the building for approximately another ten months.
On October 22,1991, Grundy County Sheriff Penning sought and obtained a search warrant for DePugh’s former residence. The application for the warrant was based
*969
almost exclusively on a tip from a confidential informant, now acknowledged to be an employee of Lincoln Savings Bank. The application for the warrant states that information from the confidential informant indicated the presence in the building of “Minute Men” literature and a box of photographic materials on top of which was a photograph of a juvenile female in a swimming suit.
7
The search warrant authorized search for and seizure of a
[sjtorage box approx 3 ft x 15 in containing ‘Minute Men’ literature and a box containing photographs of models, cassette tapes, film, and address book[.]
Search Warrant, Appendix 1 to Complaint. The grounds for seizure of the material were that it was
Property that has been obtained in violation of law.
Property, the possession of which is illegal.
Property used or possessed with the intent to be used as the means of committing a public offense or concealed to prevent an offense from being discovered.
Property relevant and material as evidence in a criminal prosecution.
Id.
There is no clarification of any of these grounds for seizure nor any indication of any support for the conclusion that any of the property was obtained in violation of the law, was illegal to possess, could be used to commit a public offense, or was evidence of criminal activity.
The search warrant is signed by magistrate McCarter.
Id.
The Inventory of Seized Property describes the following items as having been seized pursuant to the warrant:
1. Cardboard box w/film, video, pictures, address book
2. Plastic basket w/film and mise, papers/receipts
3. letter from Mrs. Hazel Dennison
4. cardboard box w/Minutemen literature
Inventory of Seized Property, Appendix 2 to Complaint. The presumed owner of all of the items of property seized is identified in the inventory as Robert DePugh.
Id.
The seizing officer is identified as Rick Penning, and his signature appears on the inventory.
Id.
It is undisputed that items not identified in the warrant were also seized in the October 22, 1991, search.
On February 20, 1992, DePugh was convicted on criminal charges unrelated to execution of this search warrant in the United States District Court for the Western Division of Missouri. At the time this complaint was filed DePugh was incarcerated at the Englewood Federal Corrections Institution in Littleton, Colorado. DePugh has since been released from custody. DePugh asserts that he learned of the search and seizure of his property from the building in
*970
Reinbeek, Iowa, only late in 1992 or early in 1993, while he was still incarcerated, during a telephone conversation with David Powell. DePugh states that Powell subsequently sent him copies of the search warrant and inventory, which he received on January 29, 1993. DePugh wrote to Sheriff Penning requesting return of the property and to magistrate McCarter requesting copies of any affidavit of probable cause on which the magistrate had relied in issuing the warrant, but received no answer. Next, DePugh wrote Assistant County Attorney Geer requesting return of his property and copies of materials in support of the application for the search warrant. In reply, DePugh received a letter dated March 5, 1993, which advised him that he could receive back “any property ceased [sic] which you can show belongs to you and which has now [sic] evidentiary value in any pending or potential legal proceedings.” The letter from Geer further advised DePugh to “file an application for return of property and documents, which application will be set for hearing.” Appendix 3 to Complaint. DePugh never made such an application. The property seized remains in the possession of Iowa law enforcement officials.
B. Disputed Facts
The parties have each advanced a number of disputes of fact they argue are sufficiently material to require denial of their opponent’s motion for summary judgment, but no impediment to the grant of their own motion for summary judgment. Penning denies that David Powell had a possessory interest in the building searched or that he was in compliance with his lease for the building at the time of the search. However, the record shows that Powell continued to occupy the premises for some ten months after the search and seizure in question here. Penning asserts that Lincoln Savings Bank, as the owner of the building, had the sole possessory interest at the time of the search. However, Penning’s affidavit in support of probable cause for the warrant demonstrates that he knew that the bank was only in the process of evicting Powell. Although Penning indicated in the seizure inventory that the presumptive owner of the property seized was DePugh, Penning now asserts that the property seized was abandoned in the building prior to the search. Penning also asserts that he made no determination that the items sought pursuant to the warrant were contraband, but that it was instead the confidential informant who determined that the items were contraband.
DePugh asserts that he has never provided a complete inventory of his personal property left in the building in Reinbeek, Iowa, which could establish that certain items seized but not listed in his inventory were abandoned. Rather, he asserts that any incompleteness of his inventory of items left in the building is the result of faulty memory, not an intention to abandon anything. DePugh vehemently denies the suggestion that anyone but Powell had any authority over the building searched at the time of the search, and further denies that Lincoln Savings Bank was in the process of evicting Powell at the time of the search. DePugh asserts that he retained a privacy interest in the building searched, because he remained a consultant for Powell’s business and from time to time used the living quarters of the building in Reinbeek, Iowa.
The court finds that Lincoln Savings Bank had no present possessory interest in the premises at the time of the search, because the bank had only begun, not concluded, eviction proceedings against Powell and Powell in fact occupied the premises for another ten months. The court finds further that there is no genuine issue of material fact that the property seized was not abandoned, nor was it contraband, issues which will be discussed more fully below, beginning at page 34, and page 51, respectively.
DePugh disputes the assertion that John Stull observed most of the items ultimately seized on the ground that all of the evidence indicates that Stull made only a superficial observation about the contents of certain boxes by looking at the top items in those boxes. DePugh also contends that there is no evidence that John Stull or any bank official was qualified to determine that anything in the building searched or that any of the property seized was contraband. DePugh also denies that all of the items seized were in plain view or that they were of obvious value as evidence of criminal con
*971
duct. DePugh makes a number of other assertions as disputes of fact that this court deems to be disagreements with the legal inferences Penning seeks to draw from the facts. The court will not discuss those purported disputes of fact here.
However, the court finds that there is a dispute concerning who exactly was the confidential informant in this case and whether that confidential informant actually had been in the building prior to Penning’s search. Although the warrant application indicates that the confidential informant “was in Interstate Foods last week and observed two boxes that C/I determined to be contraband,” the record suggests that the confidential informant was not actually the person who had been in the building or made any of the observations relied on in the application for the warrant. A letter from Penning to his attorney, provided as an exhibit by DePugh in support of his resistance to Penning’s cross-motion for summary judgment, states that Penning was contacted by Gerald Monk, an attorney for Lincoln Savings Bank, who stated that a bank official, John Stull, had been in the budding in question and had made the observations used in the warrant application. Penning has also stated in his response to DePugh’s statement of undisputed facts that he does not recall whether or not he contacted Stull directly prior to applying for the warrant. There is therefore a dispute of fact as to the identity of the confidential informant, either as John Stull or as Gerald Monk, and the extent of that confidential informant’s first-hand knowledge of items in the building searched. The court will consider in the pertinent place whether this dispute, or any of the other disputes of fact pressed by the parties, creates a genuine issue of
material
fact.
See Fed.R.Civ.P.
56(c);
Anderson,
477 U.S. at 248 , 106 S.Ct. at 2510 ;
Matsushita Elec. Indus. Co.,
475 U.S. at 586-87 , 106 S.Ct. at 1355-56;
Hartnagel,
953 F.2d at 396 .
IV. LEGAL ANALYSIS
(Including Some Further Findings Of Fact)
Each of the parties has advanced a number of grounds either for granting his own motion for summary judgment or for denying his opponent’s motion. The court feels compelled to consider each of these arguments, but will do so in the fashion the court deems best suited to a logical disposition of this matter, not necessarily in the order in which the parties have presented their respective cases. For example, the court concludes that treating separately the cross-motions for summary judgment, which are necessarily founded on similar bodies of fact and interwoven legal arguments, would be inefficient and artificial. The court will therefore consider first Penning’s arguments that DePugh’s claims are flawed
ab initio,
for lack of standing and insufficient allegations of damages, before turning to other arguments advanced by the parties.
A, Standing
Penning argues that DePugh does not have standing to complain about the search or seizure in question here, because he had no privacy interest in the area searched or the items seized. Penning states that although DePugh asserts a subjective expectation of privacy, there is nothing in the record that makes such an expectation of privacy objectively reasonable. Penning points to the fact that, under the lease between Lincoln Savings Bank and David Powell, DePugh has no interest in or authority over the premises searched. Penning also asserts that the items seized were simply abandoned by DePugh, because he had no control over them and historically had ceased using them. DePugh counters that he had a
property
interest in the items seized that gives him standing to complain of the seizure. He argues that at no time did he abandon the items in the premises searched, but instead left them in care of a friend and business associate.
The Eighth Circuit Court of Appeals recently listed the factors relevant to the determination of standing to assert a Fourth Amendment
8
claim in
United States v. Gomez,
16 F.3d 254 (8th Cir.1994). That list is as the follows:
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ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.
Gomez,
16 F.3d at 256 (citing
United States v. Sanchez,
943 F.2d 110, 113 (1st Cir.1991)). This court views the first two of these factors to emphasize property interests, while the last two emphasize privacy interests, and the middle two partake of both the property and privacy interests protected by the Fourth Amendment.
See Soldal v. Cook County,
— U.S. -, 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992) (confirming that the Fourth Amendment protects
property
as well as privacy interests). Thus, this court will consider both DePugh’s privacy and property interests.
1. Expectation of privacy
A person’s Fourth Amendment rights cannot be violated by a search unless the person has a legitimate expectation of privacy in the area or items searched.
Rakas v. Illinois,
439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387 (1978) (the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place,” citing
United States v. Chadwick,
433 U.S. 1, 7 , 97 S.Ct. 2476, 2481 , 53 L.Ed.2d 538 (1977);
United States v. White,
401 U.S. 745, 752 , 91 S.Ct. 1122, 1126 , 28 L.Ed.2d 453 (1971);
Katz v. United States,
389 U.S. 347, 353 , 88 S.Ct. 507, 512 , 19 L.Ed.2d 576 (1967));
see United States v. Stallings,
28 F.3d 58, 60 (8th Cir. 1994);
United States v. Knoll,
16 F.3d 1313, 1321 (2d Cir.1994);
Gomez,
16 F.3d at 256 . It is clear that Fourth Amendment rights are personal and may not be vicariously asserted.
See United States v. Payner,
447 U.S. 727, 731 , 100 S.Ct. 2439, 2444 , 65 L.Ed.2d 468 (1980) (a person’s “Fourth Amendment rights are violated only when the challenged conduct invaded
his
legitimate expectation of privacy rather than that of a third party,” with emphasis in the original, citing
Rakas,
439 U.S. at 143 , 99 S.Ct. at 430 ;
Combs v. United States,
408 U.S. 224, 227 , 92 S.Ct. 2284, 2286 , 33 L.Ed.2d 308 (1972);
Mancusi
*973
v. DeForte,
392 U.S. 364, 368 , 88 S.Ct. 2120, 2123-24 , 20 L.Ed.2d 1154 (1968));
Rakas,
439 U.S. at 148-49 , 99 S.Ct. at 433 ;
United States v. Jones,
16 F.3d 275, 279 (8th Cir. 1994) (conspirator had no legitimate expectation of privacy in the house of another co-conspirator);
United States v. Gutberlet,
939 F.2d 643, 646 (8th Cir.1991) (same);
United States v. Wright,
826 F.2d 938, 945 (10th Cir.1987) (“Indeed, it is not grounds for suppression [of evidence allegedly seized in violation of the Fourth Amendment] at all that the reasonable expectation of privacy of a third party was even flagrantly violated,” citing
Payner,
447 U.S. 727 , 100 S.Ct. 2439 ).
Although an ownership or possessory interest in the premises is not necessarily required, the mere legitimate presence of the person on the searched premises by invitation or otherwise is not sufficient to create a protectable expectation of privacy.
Rakas,
439 U.S. at 142-43 , 99 S.Ct. at 429-30 ;
United States v. Meyer,
656 F.2d 979, 981 (5th Cir.1981),
cert. denied,
464 U.S. 1001 , 104 S.Ct. 507 , 78 L.Ed.2d 697 (1983). Rather, in order to show a legitimate expectation of privacy, the person challenging the search must show that [he or she] had a subjective expectation of privacy in the searched premises or items and that the expectation of privacy is one that society is willing to accept.
See Smith v. Maryland,
442 U.S. 735, 740 , 99 S.Ct. 2577, 2580 , 61 L.Ed.2d 220 (1979);
Katz v. United States,
389 U.S. 347, 361 , 88 S.Ct. 507, 516-17 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring);
United States v. Ford,
34 F.3d 992, 995 (11th Cir.1994);
Stallings,
28 F.3d at 60 ;
9
Zimmerman v. Bishop Estate,
25 F.3d 784, 787 (9th Cir.1994);
United States v. Kiser,
948 F.2d 418, 423 (8th Cir.1991),
cert. denied,
503 U.S. 983 , 112 S.Ct. 1666 , 118 L.Ed.2d 387 (1992);
United States v. Monie,
907 F.2d 793, 794 (8th Cir.1990);
United States v. Chuang,
897 F.2d 646, 649 (2d Cir.),
cert. denied,
498 U.S. 824 , 111 S.Ct. 77 , 112 L.Ed.2d 50 (1990). Thus, in
Minnesota v. Olson,
495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990), the Supreme Court held that “status as an overnight guest is alone enough to show that [the claimant] had an expectation of privacy in the home that society is prepared to recognize as reasonable.”
Olson,
495 U.S. at 96-97 , 110 S.Ct. at 1688 . A casual visitor has a lesser expectation of privacy, but may also challenge a search if his own property is seized.
Rakas,
439 U.S. at 142 n. 11, 99 S.Ct. at 430 n. 11.
The threshold issue, on which DePugh bears the burden, is whether he had a subjective expectation of privacy in the premises or items searched here.
See Rawlings v. Kentucky,
448 U.S. 98, 104-05 , 100 S.Ct. 2556, 2561 , 65 L.Ed.2d 633 (1980);
Rakas,
439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1;
Stallings,
28 F.3d at 60 ;
United States v. Macklin,
902 F.2d 1320, 1330 (8th Cir.1990);
United States v. Fahnbulleh,
748 F.2d 473, 477 (8th Cir.1984),
cert. denied,
471 U.S. 1139 , 105 S.Ct. 2685 , 86 L.Ed.2d 702 (1985). Even where the person claiming violation of the right has a subjective expectation of privacy, however, that expectation must be objectively reasonable.
See Zimmerman,
25 F.3d at 787 (squatters and guest of squatters had no objectively reasonable expectation of privacy, because none of them had a legal right to occupy the land and build structures on it);
and compare United States v. Wilson,
36 F.3d 1298, 1303 (5th Cir.1994) (person retained subjective and reasonable expectation of privacy in checkbook found in trash can in friend’s residence; because the person was an overnight guest of the resident, he could also claim standing under
Olson,
495 U.S. 91 , 110 S.Ct. 1684 ).
The Supreme Court has held that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a
*974
subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Katz,
389 U.S. at 351 , 88 S.Ct. at 511 ;
see also Stallings,
28 F.3d at 61 (quoting
Katz).
Thus, “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.”
Oliver v. United States,
466 U.S. 170, 182-83 , 104 S.Ct. 1735, 1738 , 80 L.Ed.2d 214 (1984).
Whether a party has a legitimate expectation of privacy therefore depends on several factors. Courts have looked to whether the party had a possessory interest in the things seized or place searched, whether the party has the right to exclude others from that place, whether the party has exhibited a subjective expectation that the place would remain free from governmental intrusion, whether the party took normal precautions to maintain the party’s privacy, and whether the party was legitimately on the premises.
See, e.g., Rawlings,
448 U.S. at 105 , 100 S.Ct. at 2561 (Fourth Amendment protections apply when person claiming violation of the Amendment took “normal precautions to maintain his privacy”);
United States v. Nabors,
761 F.2d 465, 469 (8th Cir.1985) (listing all of above factors and finding that a casual guest did not have a legitimate privacy interest at a host’s home);
United States v. Haydel,
649 F.2d 1152, 1155 (5th Cir.1981) (finding that the defendant possessed a legitimate expectation of privacy in his parents’ home);
see also Gomez,
16 F.3d at 256 (holding that defendant did not have a sufficient expectation of privacy in an automobile he was driving). A person seeking to challenge a search of a commercial premises has the burden of establishing a reasonable expectation of privacy in the premises.
See Rakas,
439 U.S. at 130 n. 1, 99 S.Ct. at 424 n. 1;
Gomez,
16 F.3d at 256 ;
United States v. Acosta,
965 F.2d 1248 , 1256 n. 9 (3d Cir.1992).
10
Applying the factors identified,
e.g.,
in
Nabors
to this case, it is apparent that DePugh had no possessory interest in the place searched. He no longer had a leasehold or other possessory interest in the property searched, and was not named as a tenant in the lease held by David Powell. He was at most a casual visitor to the premises. A person’s legitimate presence on the searched premises, however, without more, is insufficient to establish standing.
See Rakas,
439 U.S. at 142-43 , 99 S.Ct. at 429-30 ;
United States v. Ford,
34 F.3d 992, 995 (11th Cir. 1994) (only owners, lessees, and occupants who can demonstrate significant and current interest in the searched premises have an expectation of privacy sufficient to confer standing to object to search, citing
United States v. Garcia,
741 F.2d 363, 366 (11th Cir.1984));
United States v. Antone,
753 F.2d 1301, 1306 (5th Cir.1985) (same). DePugh plainly had no right to exclude others from the place searched.
Nabors,
761 F.2d at 469 .
*975
However, DePugh may have exhibited a subjective expectation that the place would remain free from governmental intrusion by selecting it as a place in which his property could be safely kept.
Id.
DePugh did not pick a public area in which to dispose his property, or one open to public view, even though the place he selected was a business, and his choice was with the permission of the occupant.
Id.
It was not the business aspect of the location that was relevant to DePugh’s choice, but the control of the premises by a long-time friend and business associate. Thus, the fact that it was a business location of another is insufficient in these circumstances to remove his expectation of privacy.
Cf. Dickens,
750 F.2d at 1254. However, DePugh’s expectation of privacy in the premises does not rise to the level reasonably enjoyed by an owner, overnight guest, or other person with some interest in occupancy.
See Rakas,
439 U.S. at 142-43 , 99 S.Ct. at 429-30 ;
Ford,
34 F.3d at 995 ;
Antone,
753 F.2d at 1306 . On balance, the court concludes that DePugh had no legitimate expectation of privacy in the place searched.
However, the court will also consider whether DePugh had a legitimate privacy interest in the
items
searched and seized.
Rakas,
439 U.S. at 142-43 , 99 S.Ct. at 429-30 . The parties dispute whether DePugh had a possessory interest in those items,
Nabors,
761 F.2d at 469 , a matter to which the court will turn in some detail below. However, DePugh took normal precautions to maintain his privacy interest in the property by entrusting it to the care of a friend and business associate, rather than simply leaving it in an otherwise abandoned building.
Id.
11
By contrast, the complaining person in
Stallings
had left a tote-bag containing drugs in some brush in a neighbor’s field without obtaining permission to do so, and the Eighth Circuit Court of Appeals concluded that the person had no objectively reasonable expectation of privacy in the tote bag.
Stallings,
28 F.3d at 61 . Here, the property was left in a building leased by a friend and business associate with that friend’s permission and acceptance of responsibility for it. An expectation of privacy of property left in care of a friend is objectively reasonable,
cf. Stallings,
28 F.3d at 61 , and is certainly a normal precaution to maintain one’s privacy.
Nabors,
761 F.2d at 469 . To put it another way, DePugh did not knowingly expose these items to the public, but sought to preserve them as private.
Katz,
389 U.S. at 351 .
Although the court concludes that DePugh had no legitimate expectation of privacy in the place searched, he had such an expectation as to the property seized. Yet the court will not rely on this conclusion alone, but will also turn its attention specifically to whether DePugh had a property interest in the items seized sufficient to provide standing for him to challenge their seizure under the Fourth Amendment.
2. Property interest
Even had the court found DePugh had no
privacy
interest to protect, that would not end its inquiry. In
Soldal v. Cook County,
— U.S. -, 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992), the Supreme Court confirmed that the Fourth Amendment protects
property
as well as privacy interests.
Soldal ,
— U.S. at -, 113 S.Ct. at 549 ;
Hroch v. City of Omaha,
4 F.3d 693, 696 (8th Cir.1993). Courts often end their Fourth Amendment inquiry with consideration of the expectation of privacy in the place searched, because the person claiming violation of Fourth Amendment rights denies any property interest in the item seized, usually contraband.
See, e.g., Gomez,
16 F.3d at 256 (claimant denied interest in cocaine found in car and court found no privacy interest in vehicle for which claimant was not the owner because claimant’s use upon the authority of the owner did not create an expectation of privacy);
Sanchez,
943 F.2d at 114 (court found the defendant’s lack of authority from the owner of the car and his denial of an interest in the drugs
*976
contained in the care crucial to its determination that defendant lacked standing to assert Fourth Amendment claim). However, courts must determine whether a
seizure
of the property in question is reasonable as well as whether a search of the place where it was found is reasonable.
Hroch,
4 F.3d at 697 (defendant’s seizure of plaintiffs property was reasonable in light of the “careful balancing of governmental and private interests” required by Soldal);
see also Bonds v. Cox,
20 F.3d 697, 703 (6th Cir.1994) (considering expectation of privacy and property interests as separately establishing standing to assert violations of the Fourth Amendment, citing
Soldal).
In
United States v. Padilla,
— U.S. -, 113 S.Ct. 1936 , 123 L.Ed.2d 635 (1993), the Supreme Court expressly identified the alternative nature of the interests sufficient to provide standing for a Fourth Amendment claim:
The case is remanded so that the court may consider whether each respondent had
either
a property interest protected by the Fourth Amendment that was interfered with by the [government officials],
or
a reasonable expectation of privacy that was invaded by the search [of the property in question].
Padilla ,
— U.S. at -, 113 S.Ct. at 1939 (emphasis added) (citing cases establishing the alternative nature of these interests for the purposes of standing under the Fourth Amendment).
12
In
Soldal ,
the Court rejected interpretation of its precedents as suggesting that the Fourth Amendment is only marginally concerned with property rights.
Soldal ,
- U.S. at -, 113 S.Ct. at 545. Rather, “the message of those cases is that property rights are' not the sole measure of Fourth Amendment violations.”
Id.
The Court was “unconvinced that any of the Court’s prior eases supports the view that the Fourth Amendment protects against unreasonable seizures of property only where privacy or liberty is also implicated.”
Id.
The Court reasoned further that its “plain view” cases made such a view untenable, because seizure of items in plain view is still subjected to rigorous Fourth Amendment standards to avoid “invasion of] the owner’s possessory interest.”
Id.
at -, 113 S.Ct. at 546 (citing
Horton v. California,
496 U.S. 128, 134 , 110 S.Ct. 2301, 2306 , 110 L.Ed.2d 112 (1990);
Texas v. Brown,
460 U.S. 730, 739 (1983) (opinion of Rehnquist, J.)). The Court thus reiterated that the “central requirement” of the Fourth Amendment is “reasonableness” of the government’s intrusion upon the individual’s rights.
Id.
13
Similarly, in
Bonds ,
the Sixth Circuit Court of Appeals found that a person asserting Fourth Amendment rights had no reasonable expectation of privacy in a house in which she allowed another to live, and therefore did not have standing to challenge the
search
of the house.
Bonds,
20 F.3d at 701-02 . Nonetheless, the court found that the same person had standing to challenge the
seizure
of her property from the house.
Id.
at 702 . The court wrote
[t]he Fourth Amendment protects against seizure of property even if it occurs in a
*977
context in which privacy or liberty interests are not implicated.
Soldal ,
— U.S. at -, 113 S.Ct. at 545. Thus, our finding that Bonds had no reasonable expectation of privacy in the house at 4174 Dunn Avenue does not affect our conclusion that Bonds has standing to challenge the seizure of her property [resulting from damage to the house].
Bonds,
20 F.3d at 702 .
Thus, if DePugh has a possessory or property interest in the property seized, he has standing under the Fourth Amendment to complain about seizure of that property even if he has no standing to complain about the search of the premises from which the property was seized or to complain of the search or seizure of his items on privacy grounds. DePugh asserts that he has such a property or possessory interest, but Penning argues that the property seized was simply abandoned by DePugh.
a. Abandonment
A number of courts have held that an individual has no standing to complain about the search or seizure of property that he or she has voluntarily abandoned.
See, e.g., United States v. Quiroz-Hernandez,
48 F.3d 858, 864 (5th Cir.1995) (citing Fifth Circuit cases to so hold);
United States v. Alvarez,
6 F.3d 287, 289 (5th Cir.1993),
cert. denied,
— U.S. -, 114 S.Ct. 1384 , 128 L.Ed.2d 59 (1994). Although the person asserting a Fourth Amendment right bears the burden of proving a legitimate expectation of privacy in the thing searched, the government bears the burden of proving that the person has abandoned the property in question.
United States v. Ramos,
12 F.3d 1019, 1023 (11th Cir.1994). The district court’s ruling as to abandonment is reviewed on a clearly erroneous standard.
United States v. Thompkins,
998 F.2d 629, 632 (8th Cir.1993);
United States v. Ruiz,
935 F.2d 982, 984 (8th Cir.1991).
In
Thompkins ,
the Eighth Circuit Court of Appeals considered what factors evidenced abandonment:
In
Ruiz,
[ 935 F.2d at 984 ,] this Court heard an abandonment argument under similar facts. Upon arrival at a bus station, Ruiz had placed luggage containing drugs into the trunk of one car, then prepared to leave in another car. Police, who had been tipped as to Ruiz’ arrival, stopped both cars and began questioning the occupants. Ruiz denied ownership of the luggage, and the driver of the car containing the bags allowed the officers to search them. On appeal, this Court affirmed the magistrate’s ruling that Ruiz had voluntarily abandoned his privacy interest by denying ownership. The instant facts present even a more compelling argument for abandonment than those in
Ruiz
— because here Thompkins not only disclaimed ownership of the suitcase, but he then told officers to go ahead and search it. In
Ruiz
the defendant’s mere disclaimer, then remaining silent while he watched the search, was held to constitute abandonment as to him. Indeed, it is clear that Thompkins did everything in his power to distance himself from the suitcase at issue here — and there is no evidence whatsoever (nor even a claim by Thompkin) to contradict the government’s assertion that he had abandoned the suitcase at the time it was searched.
Thompkins,
998 F.2d at 632 . Thus, the inquiry in
Thompkins
focused on disclaimers of ownership as evidence of a voluntary abandonment of property seized by law enforcement officials. However, in
Thompkins ,
the appellate court noted that the district court “did not reach any conclusions on the issues of illegal seizure, consent, or standing — but simply stated that the government had “absolutely no right to open [the suitcase].”
Thompkins,
998 F.2d at 632 . Although the appellate court concluded that the suitcase in question was abandoned, it did not then directly declare that the criminal defendant had no standing to challenge its seizure, relying instead on a conclusion that the seizure was proper.
Id.
at 932-33. Obviously, if the property in question is abandoned, its seizure is proper, and the question of standing to challenge the seizure is moot.
Other circuit courts of appeals have formulated tests for abandonment in the specific context of determining the claimant’s standing to challenge seizure of the property under the Fourth Amendment. In determining
*978
whether there has been an abandonment, depriving the complaining party of standing to assert Fourth Amendment rights, the Eleventh Circuit Court of Appeals has focused on intent:
[T]he “‘critical inquiry is “whether the person prejudiced by the search ... voluntarily discarded, left behind, or otherwise
relinquished his interest in the property
in question so that he could no longer retain a reasonable expectation of privacy with regard to it
at the time of the
search.” ’ ”
United States v. Winchester,
916 F.2d 601, 603 (11th Cir.1990) (quoting
[United States v.] McKennon,
814 F.2d [1539,] 1546 [ (11th Cir.1987) ] (citation omitted)). Whether abandonment occurred is a question of intent which may be inferred from acts, words and “other objective facts.”
United States v. Pirolli,
673 F.2d 1200, 1204 (11th Cir.),
cert. denied,
459 U.S. 871 , 103 S.Ct. 157 , 74 L.Ed.2d 131 (1982).
Ramos,
12 F.3d at 1022-23 (emphasis in original). In
Ramos ,
the court held that a person who overstayed the termination of his lease by four hours on New Year’s Day had not thereby exhibited an intent to abandon a locked briefcase under his bed.
Id.
at 1024— 26 (also surveying other cases on abandonment from the Eleventh Circuit). By way of contrast, the Eleventh Circuit Court of Appeals discussed its decision in
United States v. Lehder-Rivas,
955 F.2d 1510 (11th Cir.),
cert. denied sub nom. Reed v. United States,
— U.S. -, 113 S.Ct. 347 , 121 L.Ed.2d 262 (1992), in which it had held that a person who left a suitcase with a slight acquaintance, stating an intention to return for it within three months, but who did not retrieve it for more than a year before the acquaintance turned it over to the police, had abandoned the suitcase.
Ramos,
12 F.3d at 1024 (citing
Lehder-Rivas,
955 F.2d at 1522 ).
The Fifth Circuit Court of Appeals has also focused on intent to abandon property, for example, distinguishing between an intent to abandon property shown by repeated disclaimers of knowledge and ownership, from refusal to identify property followed by grudging admission of control or ownership of property, held insufficient to constitute abandonment.
United States v. Ponce,
8 F.3d 989 , 994-95 & n. 4 (5th Cir.1993) (finding no abandonment in refusal to identify vehicle to police followed by admission that vehicle in question was complainant’s brother-in-law’s when police started the vehicle with keys found in complainant’s pocket, contrasting these circumstances with repeated disclaimers in
United States v. Roman,
849 F.2d 920, 922 (5th Cir.1988)). In
Quiroz-Hernandez ,
the same circuit court of appeals found abandonment depriving the person of standing to object to a search and seizure of a van on Fourth Amendment grounds where that person initially began to produce registration papers to the vehicle, but suddenly raised his hands and exclaimed that the van was stolen.
Quiroz-Hernandez,
48 F.3d at 864 .
See also Alvarez,
6 F.3d at 289 (claimant voluntarily abandoned garment bag by stating that it belonged to his “old lady,” and therefore had no standing to object to warrantless seizure of a pistol from the garment bag).
In
United States v. Hernandez,
7 F.3d 944 (10th Cir.1993), the Tenth Circuit Court of Appeals looked primarily at “whether an individual has retained a reasonable expectation of privacy in the object” as the test for abandonment.
Hernandez,
7 F.3d at 947 . However, the expectation of privacy in question was further defined as “a question of intent which may be inferred from words, acts, and other objective facts.”
Id.
(identifying cases from that circuit requiring voluntary intent to abandon the seized property). Thus, the court held that a person had shown intent to abandon property, a backpack, thereby depriving himself of standing to challenge seizure of the backpack, where the person had “elected to distance himself from the backpack upon boarding the bus and repeatedly failed to acknowledge ownership of the backpack after [a boarder patrol agent] repeatedly questioned the bus passengers regarding the backpack’s ownership.”
Id.
Lack of intent to abandon the property seized is irrelevant where a third person validly takes possession of the property, and the claimant of the property is aware that such a consequence will follow from his or her actions.
United States v. Poulsen,
41
*979
F.3d 1330, 1331 (9th Cir.1994) (claimant was aware that storage facility manager would seize property for non-payment of rent, so claimant had no standing for Fourth Amendment challenge to manager’s consent to police search and seizure of contents of locker after manager’s seizure of contents for nonpayment of rent). However, in
United States v. Wilson,
36 F.3d 1298 (5th Cir.1994), the Fifth Circuit Court of Appeals held that a person who subsequently claimed a possessory interest in a checkbook found in a trash can
inside
a friend’s residence had not abandoned the checkbook and therefore had standing to challenge its seizure.
Wilson,
36 F.3d at 1303 .
The Ninth Circuit Court of Appeals found that even property “unwittingly” left behind could be abandoned, looking not to intent, but to the “totality of the circumstances.”
See United States v. Arias-Villanueva,
998 F.2d 1491, 1501-02 (9th Cir.1993). In Anas-
Villanueva,
the criminal defendants challenged the seizure of a key left in a police car after an encounter with police.
Arias-Villanueva,
998 F.2d at 1501 . The appellate court found that the criminal defendants
were never searched; they had no incentive to leave the key in the police car. The totality of the circumstances therefore shows that the key was abandoned. The defendants thus lack standing to challenge the seizure of the key.
See United States v. Nordling,
804 F.2d 1466, 1469 (9th Cir.1986).
Id.
at 1501-02 . The focus on the “totality of the circumstances” was the guiding principle for an earlier determination of abandonment by the Ninth Circuit Court of Appeals in
United States v. Gonzales,
979 F.2d 711, 714 (9th Cir.1992). In
Gonzales ,
the person subsequently objecting to search and seizure of bags by the border patrol was held to have abandoned the property, not just “unwittingly,” but by disclaiming ownership of the bags and stating that he had no objection to their search even though the bags were sitting in close proximity to him.
Gonzales,
979 F.2d at 714 . The court held that in the “totality of the circumstances,” the criminal defendant had abandoned the bags, and “therefore lacked standing to object to a search of the bags.”
Id.
b. Abandonment of the property seized here
Under any of these tests, this court concludes that DePugh had not abandoned the property seized by Penning. DePugh never disclaimed ownership of the property or in any way distanced himself from it.
Thompkins,
998 F.2d at 632 ;
Ruiz,
935 F.2d at 984 ;
see also Quiroz-Hernandez,
48 F.3d at 864 ;
Ponce,
8 F.3d at 994 -95 & n. 4;
Hernandez,
7 F.3d at 947 ;
Alvarez,
6 F.3d at 289 ;
Gonzales,
979 F.2d at 714 ;
Roman,
849 F.2d at 922 . Although Penning asserts that DePugh “abandoned” the premises and its contents to the bank when he declared bankruptcy, Penning has presented absolutely no evidence that the property seized was “abandoned” at that time. Thus, Penning has failed to meet his burden to identify some portion of the record as showing a lack of a genuine issue that the property was abandoned.
Reed,
7 F.3d at 810 ;
Hartnagel,
953 F.2d at 395 . Rather, the uncontradicted evidence in the record is that DePugh arranged to leave the property in question in Powell’s keeping at the premises and has never disclaimed its ownership. Penning’s argument that the property seized was simply abandoned “trash” is also wholly unsupported by the record. The items seized were boxed and stored in a privately occupied building by permission of the leaseholder.
See Wilson,
36 F.3d at 1303 . Either focusing on intent, or upon the “totality of the circumstances,” the only conclusion this court can come to is that DePugh has continuously asserted ownership of his property and provided for its safekeeping with a friend and business associate. This court has already held that DePugh retained an expectation of privacy in the items seized.
See Hernandez,
7 F.3d at 947 . Consequently, DePugh has standing to pursue his claim of violation of his Fourth Amendment rights, because he had a possessory interest in the property seized.
Soldal ,
— U.S. at -, 113 S.Ct. at 545.
3. Summary On Standiny
By way of summary on the issue of DePugh’s standing to assert his Fourth Amend
*980
ment claims, the court returns to the factors stated by the Eighth Circuit Court of Appeals in
Gomez,
16 F.3d at 256 . As to ownership, possession and/or control of the area searched or item seized,
id.,
DePugh had no ownership or possessory interest in the
premises
searched; however, he retained an ownership interest in the
items
searched and seized. As to historical use of the property or item,
id.,
DePugh had never abandoned the property, but instead placed in it the safe-keeping of a friend and business associate of long-standing. DePugh was incarcerated at the time of the search, so that he could hardly be expected to be making regular use of these materials. Furthermore, DePugh never disclaimed ownership of the materials or in any way distanced himself from them. Admittedly, DePugh had no ability to regulate access to the premises, id., but, in the totality of the circumstances surrounding the search, id., it is apparent that DePugh had a subjective anticipation of privacy in the items seized and that expectation was objectively reasonable. Id. DePugh did not leave his materials at a business for service by that business, thus subjecting them to public view. Rather, the items seized were boxed and stored in a privately occupied building by permission of the leaseholder, and it was not the business of the leaseholder’s company to store materials. In other words, DePugh’s arrangements for the safekeeping of his materials were a purely private arrangement between himself and Powell. Consideration of the factors stated in Gomez thus leads to the conclusion that DePugh has standing to pursue his Fourth Amendment claims.
Because DePugh has standing to pursue his Fourth Amendment claims, Penning’s cross-motion for summary judgment on the ground of lack of standing must be denied. The court therefore turns to Penning’s assertion that DePugh’s claims are fatally flawed by lack of evidence of harm.
B. Lack Of Harm
As his next ground for summary judgment, Penning argues that DePugh “has no cause of action according to the holding in
Heck v. Humphrey,
— U.S. -, 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994).” Defendant’s Memorandum In Support Of Cross-Motion For Summary Judgment (“Defendant’s Memorandum”), at 4. Penning argues that
Heck
“made it clear that a Plaintiff in a 42 U.S.C. Section 1983 lawsuit based upon an alleged unlawful search and seizure must demonstrate compensable injury that is distinct from any injury attendant to being convicted of a crime and incarcerated.”
Id.
Penning then argues that DePugh has identified as damages only that he was convicted because he could not get a witness’s name owing to the seizure of the material in question here. Penning asserts that DePugh cannot get damages for his incarceration unless and until his conviction is vacated, impugned, overturned, or otherwise called into question, and that no such precondition has been met. Penning argues further that DePugh can show no other damage from the allegedly improper search and seizure of his property, and therefore asserts that DePugh has “no cause of action as his damages are based upon a criminal conviction.” Defendant’s Memorandum, at 3.
DePugh counters that he need show no damage beyond violation of his constitutional rights in order to sustain a cause of action, and that he has shown such a violation. Furthermore, DePugh argues that even if he can show no actual damages, a violation of his civil rights entitles him to recover at least nominal damages and possibly punitive damages.
The court finds that Penning has misapprehended the meaning of
Heck
and that no other authority supports the proposition he has asserted. In support of his argument, Penning quotes the following from
Heck :
In order to recover compensatory damages, however, the Section 1983 Plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see
Memphis Community School District v. Stachura,
477 U.S. 299, 308 , 106 S.Ct. 2537, 2543 , 91 L.Ed.2d 249 (1986), which, we hold today, does
not
encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned).
*981
Heck ,
— U.S. at -, n. 7, 114 S.Ct. at 2372 n. 7. Thus, what
Heck
makes clear is the requirement of “actual, compensable injury” for a plaintiff under § 1983 to “recover
compensatory damages.” Id. Heck
says nothing whatsoever about the viability of a civil rights plaintiffs claims based on lack of actual, compensable injury.
In
Carey v. Piphus,
435 U.S. 247, 266 , 98 S.Ct. 1042, 1053-54 , 55 L.Ed.2d 252 (1978), the Supreme Court considered the availability of suits to vindicate civil rights even when the plaintiff could show no actual injury:
Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal smn of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the ease of exemplary or punitive damages, to deter or punish malicious deprivations of rights.
Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.
Carey,
435 U.S. at 266 , 98 S.Ct. at 1053-54 (footnotes and citations omitted). The Court recognized, without contrary comment, that a number of federal appellate and district courts had approved the award of nominal damages under § 1983 where deprivations of constitutional rights were not shown to have caused actual injury.
Id.
at 266 n. 24, 98 S.Ct. at 1054 n. 24 (listing cases). The Court therefore held that even if the plaintiffs before it failed on remand to prevail on the merits of their claim that they had been wrongfully suspended from school, they “nevertheless w[ould] be entitled to recover nominal damages not to exceed one dollar” for the violation of their due process rights.
Id.
at 266-67 , 98 S.Ct. at 1054 . In
Memphis Community School Dist. v. Stachura, 477
U.S. 299, 106 S.Ct. 2537 , 91 L.Ed.2d 249 (1986), the Court clarified that
Carey
had not authorized damages based on the abstract “value” of civil rights where no injury had been proven.
Memphis Community School Dist., 477
U.S. at 308-10, 106 S.Ct. at 2543-45 . But, again, in
Memphis Community School Disk,
the Court did
not
hold that lack of an injury, apart from the violation of rights itself, barred a plaintiffs cause of action pursuant to § 1983.
On at least two occasions, the Eighth Circuit Court of Appeals has held that nominal damages were proper where a § 1983 plaintiff could not show actual damages as the result of a violation of the Fourth Amendment. In
Wayland v. City of Springdale, Ark.,
933 F.2d 668 (8th Cir.1991), the court held that the district court improperly granted summary judgment on the plaintiffs entire suit on the ground that the plaintiff had suffered no actual harm as the result of a
“Gerstein
violation,”
14
concluding that if such a violation of the Fourth Amendment occurred, the plaintiff was entitled to nominal damages.
Wayland,
933 F.2d at 671 n. 3. In
Hunter v. Auger,
672 F.2d 668 (8th Cir.1982), the court of appeals directed the district court to allow nominal damages for a Fourth Amendment violation resulting from strip searches of relatives visiting prisoners at the Iowa State Penitentiary even though the court found there was no showing of actual damages.
Hunter,
672 F.2d at 677 . Similarly, the Fifth Circuit Court of Appeals held that a violation of the Fourth Amendment entitles the § 1983 plaintiff at least to nominal damages, because the Fourth Amendment protects “absolute rights.”
Melear v. Spears,
862 F.2d 1177, 1186 (5th Cir.1989) (“In the absence of a successful defense, the existence of a Fourth Amend
*982
ment violation sufficiently predicates Section 1983 liability. A plaintiff is entitled to at least nominal damages for such a violation of an absolute right.”);
see also Davet v. Maccarone,
973 F.2d 22, 29 (1st Cir.1992) (discussing both
Carey
and
Memphis Community School Dist.
as providing a cause of action for nominal damages where constitutional rights have been violated);
Ruggiero v. Krzeminski
928 F.2d 558, 563 (2d Cir.1991) (court properly required jury to award nominal damages after jury had found in favor of plaintiffs on an unlawful search claim but nonetheless found that no compensable damages had been proved, stating “[w]e have directed lower courts to award nominal damages when substantive constitutional rights had been violated but no compensatory damages had been proved”).
Thus, even assuming that DePugh can show no actual damages as the result of a search and seizure violative of the Fourth Amendment, a proposition this court finds by no means certain, he is entitled to pursue his cause of action pursuant to § 1983 and, if a violation is shown, to obtain at least nominal damages and possibly punitive damages. Penning is not entitled to summary judgment on the basis of an alleged lack of harm.
Having dispensed with preliminary impediments to DePugh’s causes of action asserted in Penning’s cross-motion for summary judgment, the court may now consider the merits of the parties’ cross-motions for summary judgment on substantive issues.
C. DePugh’s Substantive Claims
DePugh contends that there is no genuine issue of material fact that his Fourth Amendment rights were violated by the search and seizure in question here.
15
DePugh’s principal assertion is that the warrant purportedly authorizing the search and seizure was wholly lacking in probable cause and that no officer executing the warrant could reasonably have believed that it was supported by probable cause. Penning counters, as grounds for denying DePugh’s motion for summary judgment and granting his own, that the warrant demonstrably was supported by probable cause, and that, even if the warrant was invalid, there are a variety of reasons why a warrantless search and seizure in these circumstances was also constitutionally valid.
1. Fourth Amendment Requirements
The Fourth Amendment dictates that.
*983
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const Amend. IV (emphasis added). The reasonableness standard of the Fourth Amendment applies to any seizure by the government in any context.
Soldal v. Cook County,
— U.S. -, - - -, 118 S.Ct. 538 , 543-48, 121 L.Ed.2d 450 (1992);
Coleman v. Watt,
40 F.3d 255, 263 (8th Cir.1994). The Supreme Court has reiterated that ‘“reasonableness is still the ultimate standard’ under the Fourth Amendment____”
Soldal,
— U.S. at -, 113 S.Ct. at 549 (quoting
Camara v. Municipal Court of San Francisco,
387 U.S. 523, 539 , 87 S.Ct. 1727, 1736 , 18 L.Ed.2d 930 (1967)). Thus, “the reasonableness determination will reflect a ‘careful balancing of governmental and private interests.’”
Id.
at -, 113 S.Ct. at 549 (citation omitted);
Coleman,
40 F.3d at 263 .
A property seizure occurs when the government’s intrusion “meaningfully interferes” with an individual’s possessory interest.
United States v. Jacobsen,
466 U.S. 109, 120 , 104 S.Ct. 1652, 1660 , 80 L.Ed.2d 85 (1984);
Coleman,
40 F.3d at 263 ;
Lesher v. Reed, 12
F.3d 148, 150 (8th Cir.1994). Thus, “the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question of whether the [Fourth] Amendment applies. What matters is the intrusion on the people’s security from governmental interference.”
Soldal,
— U.S. at -, 113 S.Ct. at 548. Plainly, the Fourth Amendment applies here, because the search and seizure in question took place in a privately occupied building and resulted in “meaningful interference” with DePugh’s possessory interest in the items seized. The court must therefore consider the various bases upon which the parties have argued that the search and seizure were, or were not, reasonable.
2. Validity of the warrant and “probable cause”
DePugh’s principal challenge to the warrant in this case is that it was lacking in probable cause to believe that evidence of criminal activity would be found on the premises. In finding that “probable cause” exists to issue a warrant, a judge or magistrate must ordinarily determine that, in light of all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates,
462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983) (enunciating this “totality of the circumstances” test);
United States v. Gladney,
48 F.3d 309, 312 (8th Cir.1995);
United States v. Olson,
21 F.3d 847, 849 (8th Cir. 1994);
United States v. Bieri,
21 F.3d 811, 815 (8th Cir.1994);
United States v. Koelling,
992 F.2d 817, 823 (8th Cir.1993);
United States v. Tagbering,
985 F.2d 946, 949 (8th Cir.1993);
United States v. Martin,
866 F.2d 972, 976 (8th Cir.1989);
United States v. Reivich,
793 F.2d 957, 959 (8th Cir.1986). The Eighth Circuit Court of Appeals has very recently formulated the test of probable cause in
Gates
as a determination that, in the totality of the circumstances, there is a “ ‘fair probability that’ (1) the items sought are connected to criminal activity and (2) the items sought will be found in the place to be searched.”
United States v. Edmiston,
46 F.3d 786, 789 (8th Cir.1995) (quoting Gates).
In determining whether evidence seized subject to a warrant must be suppressed because of lack of probable cause, and therefore because it violates the Fourth Amendment, the court considering suppression must decide whether the issuing judge or magistrate “had a ‘substantial basis’ for his [or her] probable cause determination.”
Tagbering,
985 F.2d at 949 (citing
Illinois v. Gates,
462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983). Courts should not invalidate a warrant “by interpreting the affidavit [of probable cause] in a hypertechnical, rather than commonsense, manner.”
Id.
at 950 (quoting
United States v. Ventresca,
380 U.S. 102, 109 , 85 S.Ct. 741, 746 , 13 L.Ed.2d 684 (1965)).
*984
a. “Probable cause” and the First Amendment
DePugh asserts that the warrant in question here authorized seizure of materials presumptively protected by the First Amendment. Penning apparently sought them because he believed them to be sexually explicit or obscene, and therefore evidence of sexual exploitation of minors. However, there is no heightened probable cause standard for the seizure of sexually explicit or obscene materials:
The standard for probable cause for the issuance of a search warrant for obscene material has been authoritatively established in
New York v. P.J. Video, Inc.,
475 U.S. [868,] 875, 106 S.Ct. [1610,] 1615 [ 89 L.Ed.2d 871 ] [ (1986) ], in which the Court rejected the contention that a higher standard of probable cause should be used than in other areas of Fourth Amendment law and concluded, “Any application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” Id. That standard had been determined in
Illinois v. Gates,
462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983).
United States v. Levinson,
991 F.2d 508, 510 (9th Cir.1993). Thus, there is no heightened “probable cause” requirement where the materials seized were presumptively protected by the First Amendment.
16
However, the Fifth Circuit Court of Appeals has recently stated that
[i]t is, of course, well-settled that the government may not seize presumptively protected expressive materials without a prior judicial determination of obscenity.
Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46, 63 , 109 S.Ct. 916, 927 , 103 L.Ed.2d 34 (1989);
Universal Amusement Co. v. Vance,
587 F.2d 159, 169 (5th Cir.1978) (en banc),
aff'd,
445 U.S. 308 , 100 S.Ct. 1156 , 63 L.Ed.2d 413 (1980).
United States v. Jenkins,
974 F.2d 32, 35 (5th Cir.1992). Notwithstanding the broad sweep of the statement in
Jenkins, Fort Wayne Books, Inc.,
does provide a very narrow exception to the pre-seizure judicial determination requirement: “a police officer may seize single copies of [materials presumptively protected by the First Amendment] ... for the purpose of preserving them as evidence in a criminal proceeding so long as the seizure is based on probable cause” without a prior judicial determination that the materials are obscene.
Supreme Video, Inc. v. Schauz,
15 F.3d 1435, 1442 (7th Cir.1994) (citing
Fort Wayne Books, Inc.,
489 U.S. at 63 , 109 S.Ct. at 927 ). In
United States v. DePugh,
993 F.2d 1362 (8th Cir. 1993), the Eighth Circuit Court of Appeals held that an actual review of materials to be seized by the issuing court before a warrant was issued was part of the “totality of the circumstances” weighing in favor of upholding a warrant where the materials to be seized were presumptively protected by the First Amendment.
DePugh,
993 F.2d at 1363 (no error in determination of probable cause to search for evidence of child pornography where magistrate considered the totality of the circumstances and district court affirmed magistrate’s recommendation and also based decision to issue warrant on an actual review of the photographs sought). However, whether or not a pre-seizure judicial determination has been made, if police properly seize material alleged to be obscene, upon the request of the owner there must be a prompt adversarial hearing on the issue of whether the items seized are in fact obscene.
Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46, 63 , 109 S.Ct. 916, 927 , 103 L.Ed.2d 34 (1989);
Lo-Ji Sales, Inc. v. New York,
442 U.S. 319, 327-28 , 99 S.Ct. 2319, 2324-25 , 60 L.Ed.2d 920 (1979);
Supreme Video, Inc. v. Schauz,
15 F.3d 1435, 1442 (7th Cir.1994). It is undisputed that no such pre-seizure or post-seizure judicial review of the actual photographs seized took place in this ease.
b. Confídential informants and corroboration
The warrant in this case issued largely on the basis of information supplied
*985
by a confidential informant. One area of scrutiny under the “totality of the circumstances” test of probable cause enunciated in
Illinois v. Gates
is “the Veracity’ and ‘basis of knowledge’ of persons supplying hearsay information.”
Gates,
462 U.S. at 238 , 103 S.Ct. at 2332 ;
see also United States v. Robertson,
39 F.3d 891, 893 (8th Cir.1994) (Under the “totality-of-the-eircumstances” test of
Gates ,
“ ‘the informant’s reliability, veracity, and basis of knowledge are relevant considerations — but not independent, essential elements — in finding probable cause,’ ” quoting
Reivich,
793 F.2d at 959 );
United States v. Hyten,
5 F.3d 1154, 1156 (8th Cir.1993) (basis of information and credibility are “highly relevant” to a probable cause determination based on information supplied by a confidential informant). The Eighth Circuit Court of Appeals has said that the “core question” in assessing probable cause based upon information from a confidential informant is whether the information is reliable.
United States v. Williams,
10 F.3d 590, 593 (8th Cir.1993). Reliability of information is established either by the track record of reliability of the informant or by corroboration by independent evidence.
Id.
Reliability also involves whether the information is obtained from first-hand observation or second-hand from reliable sources, rather than from unreliable means such as rumor or innuendo.
United States v. Wagner,
989 F.2d 69, 73 (2d Cir.1993). DePugh contends that Penning insufficiently corroborated the information provided by the confidential informant and that the information is simply insufficient to establish probable cause that any evidence of criminal conduct was to be found in the premises searched.
Although “there [are] inherent ... indicia of reliability in ‘the richness and detail of a first hand observation,’ ”
Robertson,
39 F.3d at 893 (quoting
United States v. Jackson,
898 F.2d 79, 81 (8th Cir.1990)), and an “ ‘explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [an informant’s] tip to greater weight than might otherwise be the case,’ ”
id.
(quoting
Gates,
462 U.S. at 234 , 103 S.Ct. at 2330 ), the Eighth Circuit Court of Appeals held in
Robertson
that where the informant and alleged criminal activity were previously unknown to the investigating officer, some independent corroboration or verification of the tip is needed to establish probable cause for a search warrant to issue.
Id.
In
United States v. Olson,
21 F.3d 847 (8th Cir.1994), the criminal defendant challenged a warrant on the basis that an informant had inadequate “basis of knowledge” and that law enforcement officials had conducted an inadequate investigation to corroborate informants’ tips to test the informants’ veracity and reliability.
Olson,
21 F.3d at 849 . The district court had found that “there was in fact no basis of knowledge for the informants’ information, but nonetheless held that the agents’ corroboration of the information supported a finding of probable cause.”
Id.
at 849-50 . The court found that there had been an adequate investigation to corroborate the confidential informants’ tips, because the investigating officers had at least verified a number of facts, although individually these facts were consistent with innocence.
Id.
at 850 . Furthermore, some of the informants had a “proven track record” of reliability.
Id.
The court in
Olson
explained the relationship between the two requirements of confidential information, basis of knowledge and reliability, as follows:
We hold ... that notwithstanding the lack of a basis of knowledge for the informants’ information, the search warrant was not fatally defective, because there was sufficient, other evidence from which a finding of probable cause could be made. Our holding is supported by the teachings of both the Supreme Court and this court. In
Gates ,
the Supreme Court explained that an informant’s reliability and basis of knowledge “are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” 462 U.S. at 233 , 103 S.Ct. at 2329. Similarly, in
United States v. Anderson,
relying on
Gates ,
we noted that “an informant’s
*986
basis of knowledge [is] an important consideration, but not a rigid requirement, in the probable cause determination.” 933 F.2d 612, 615 (8th Cir.1991);
see also United States v. Broussard,
987 F.2d 215, 222 (5th Cir.1993) (probable cause for issuance of warrant to search defendant’s mobile home was provided even though affidavit did not contain basis of informant’s knowledge, where there were corroborating facts in form of increased electrical usage, blackened windows, and purchase of hydroponic gardening equipment, consistent with marijuana cultivation).
Olson,
21 F.3d at 850 ;
see also United States v. Hohn,
8 F.3d 1301, 1306 (8th Cir.1993) (affidavit supporting search warrant set forth probable cause, because the police officers sufficiently corroborated the information given by the informant). Similarly, in
Gladney ,
the Eighth Circuit Court of Appeals held that when an informant’s information is at least partly corroborated, “‘attacks upon credibility and reliability are not crucial to the finding of probable cause.’ ”
Gladney,
48 F.3d at 313 (quoting
United States v. Humphreys,
982 F.2d 254, 259 (8th Cir.1992) (however, affidavit also set forth informant’s proven reliability)).
In
United States v. Edmiston,
46 F.3d 786 (8th Cir.1995), the court reiterated its earlier holding “that if some ‘information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides,
though uncorroborated,
is also rehable.’ ”
Edmiston,
46 F.3d at 789 (quoting
United States v. Williams,
10 F.3d 590, 593 (8th Cir.1993), With emphasis added by the
Edmiston
court). The
Edmiston
court then held that “[b]ecause the affidavit showed that many of the informants’ statements had been corroborated, it was permissible for the magistrate judge to infer that the informants’ uncorroborated statements also were rehable.”
Id.
The court then rejected the argument that corroboration of only circumstantial matters was insufficient and that, instead, the law enforcement officers “must independently corroborate” the central facts asserted by the informant.
Id.
The court found that corroboration of circumstantial evidence provided by the informant was sufficient, because “[i]f circumstantial evidence can be sufficient to prove the elements of a crime beyond a reasonable doubt, ... then
a fortiori
such evidence can be sufficient to estabhsh probable cause for the issuance of a search warrant.”
Id.
(internal citation omitted);
see also Robertson,
39 F.3d at 894 (corroboration of minor, innocent details can suffice to estabhsh probable cause).
In the present case, DePugh argues that there is nothing in the affidavit to indicate that the confidential informant’s information was rehable and that Penning made no effort to corroborate it. Penning counters that his prior investigation of DePugh, in 1988, and DePugh’s arrest for aheged sexual exploitation of minors about a month before he sought the search warrant suffice to corroborate the confidential information in this case. DePugh contends that this proffered “corroboration” is too remote to estabhsh probable cause.
c.
Staleness
Information must be timely for probable cause to exist, because probable cause must exist at the time the judge issues the search warrant.
United States v. Green,
40 F.3d 1167, 1172 (11th Cir.1994);
United States v. Harris, 20 F.3d
445, 450 (11th Cir.1994). There is, however, no bright-line test for determining when information is too stale to support probable cause for a warrant.
Koelling,
992 F.2d at 822 . The Eleventh Circuit Court of Appeals has held that “[s]tale information is not fatal where the government’s affidavit ‘updates, substantiates, or corroborates the stale material.’ ”
Green,
40 F.3d at 1172 (quoting
Harris,
20 F.3d at 450). On this issue, the Eighth Circuit Court of Appeals has observed that
[w]hether the averments in an affidavit are sufficiently timely to estabhsh probable cause depends on the particular circumstances of the case and the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.
United
*987
States v. McCall,
740 F.2d 1331, 1336 (4th Cir.1984). Time factors must be examined in the context of a specific case and the nature of the crime under investigation.
Koelling,
992 F.2d at 822 ;
see also United States v. Sturmoski,
971 F.2d 452, 457 (10th Cir.1992) (where “offense is ongoing and continuing ... the passage of time is not of critical importance”);
United States v. Bucuvalas,
970 F.2d 937, 940 (1st Cir.1992) (“Stateness does not undermine the probable cause determination if the affidavit contains information that updates, substantiates, or corroborates the stale material.”),
cert. denied,
— U.S. -, 113 S.Ct. 1382 , 122 L.Ed.2d 758 (1993);
United States v. Scalia,
993 F.2d 984 , 986 n. 1 (1st Cir.1993) (appellate court did not reach “staleness” issue, because it found that recent information provided by the informant was sufficient to establish probable cause);
United States v. $149, 44243 in U.S. Currency,
965 F.2d 868 , 873 (10th Cir.1992) (information is not stale if, when combined with other, more recent information, it demonstrates a “strong probability of continuous ongoing criminal involvement covering a broad span of time”). If the information concerning past investigations of DePugh was stale, it cannot supply probable cause, and, this court concludes, cannot corroborate more recent information unless the totality of the information establishes ongoing criminal activity at the place in question.
d. Probable cause in this case
In this case, even though there is no heightened standard for probable cause to seize material presumptively protected by the First Amendment,
Levinson,
991 F.2d at 510 , the court concludes that probable cause to seize the items was wholly lacking. Although the application for the warrant indicates, on the basis of confidential information, that “the items sought will be found in the place to be searched,”
Edmiston,
46 F.3d at 789 , it fails utterly to establish that “the items sought are connected to criminal activity.”
Id.
The application for the warrant indicates that a box of “Minutemen” literature was present on the premises to be searched, but nowhere does the warrant indicate in what way “Minutemen” literature is supposedly connected to criminal activity of any kind. There is no indication of the contents of this literature, such that the issuing magistrate, or anyone else, could suppose it to contain pornography, obscenity, subversive material, or anything else that might make “Minutemen” literature contraband. There is also no showing in the warrant application that the mere possession of such literature is either criminal or in some way evidence of criminal activity.
Furthermore, “a photo of a young female in a bathing suit and other items such as film, cassettes, and address book” are not items that appear to be anything but innocuous on their face. These are simply personal belongings of a type any person might have boxed for storage. There is nothing in the description of these items by the confidential informant, according to the application, that suggests that they are or contain pornography, obscenity, or evidence of crime. It would take a tremendous leap of faith to turn a photograph of a young female in a bathing suit into evidence of child pornography. The suggestion of the application appears to be that any photograph of a young female, however clothed, was, in the property of Robert DePugh, evidence of sexual exploitation of a minor. Such a suggestion is simply not supported by this application for a warrant. Thus, there is no “substantial basis” for the issuing magistrate’s probable cause determination based solely on description of the items sought.
Tagbering,
985 F.2d at 949 .
Even if the items identified by the confidential informant as being present in the premises searched could reasonably have been believed to be contraband or evidence of crime, “the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information” in this case were inadequately corroborated to establish probable cause.
Gates,
462 U.S. at 238 , 103 S.Ct. at 2332 ;
Robertson,
39 F.3d at 893 ;
Hyten,
5 F.3d at 1156 . Penning made no effort to corroborate even circumstantial information provided by the confidential informant.
Gladney,
48 F.3d at 313 ;
Edmiston,
46 F.3d at 789 ;
Olson,
21 F.3d at 849 . Penning did not corroborate that De
*988
Pugh might have left any personal property at the premises after he turned the premises over in his bankruptcy proceedings. The information available to Penning, according to the affidavit, was that Powell, not DePugh, was the current occupant of the building. Thus, any implications that might arise from supposed past misconduct on DePugh’s part could only be distantly related to items sought from premises now occupied by someone else without significant corroboration that DePugh was still associated with the premises.
Nor can Penning rely on “indicia of reliability in ‘the richness and detail of a first hand observation,”’
Robertson,
39 F.3d at 893 , because Gerald Monk had no first-hand observation upon which to base his information. It is true that the chain through which information was relayed from the person who actually saw the materials in the premises to Penning was probably reliable, originating as the observations did with one bank official of apparent honesty and probity, and passing through another bank official on its way to Penning’s ears. However, a tale may always grow in the telling, and it is certain that Monk had no first-hand knowledge, and doubtful at best, based on Penning’s own evidence, that he ever went directly to Stull for a first-hand account. Thus, Monk had no “basis of knowledge,” and Penning made no effort to corroborate his information by contacting someone who did. Olson, 21 F.3d at 849 .
Penning relies for corroboration on his own investigation of DePugh some two years previously for alleged sexual exploitation of minors, which failed to result in prosecution owing to a lack of evidence. Penning also relies on DePugh’s more recent arrest in Polk county for alleged sexual exploitation of minors involving photographs as establishing both corroboration and probable cause that the photographs here were contraband or evidence of criminal activity. The court finds the first episode both too stale and too tenuous and the second too tenuous to establish probable cause for the warrant issued here.
Time factors must be examined in the context of a specific case and the nature of the crime under investigation.
Koelling,
992 F.2d at 822 . Here, the confidential informant’s information does not “ ‘update[ ], substantiate[ ], or corroborate[ ] the stale material’” garnered from an investigation concluded some two years before,
Green,
40 F.3d at 1172 , because there was nothing to indicate that the supposed criminal activity was “on-going” at that location. The record shows instead that DePugh had not conducted any business or resided in the premises for some time; therefore, DePugh could not have been conducting on-going crime from that location.
Cf. Sturmoski,
971 F.2d at 457 (old and new information indicated on-going drug manufacturing and sales at same location over two-year period). Furthermore, DePugh’s arrest elsewhere for alleged sexual exploitation of minors fails to tie that allegedly on-going activity to a former residence without some strong probability that DePugh was still associated with the premises. Penning failed to obtain any such corroboration of DePugh’s continued association with the premises.
Furthermore, the court finds that the current information was not sufficient to establish probable cause without corroboration. Therefore, the staleness of the proffered corroboration by Penning is insufficient to support probable cause in this case.
Cf. Scalia,
993 F.2d at 986 n. 1 (appellate court did not reach “staleness” issue, because it found that recent information provided by the informant was sufficient to establish probable cause). Once again, the suggestion of the application appears to be that any photograph of a young female, however clothed, was, in the property of Robert DePugh, evidence of sexual exploitation of a minor, because at some time two years previously, and then a month previously at some other, distant location, DePugh had been involved in possible sexual exploitation of minors in the form of improper photographs. Without more corroboration, such a suggestion does not establish a probability that contraband or evidence of crime would be found on the premises searched. The court concludes that upon the undisputed record, the warrant in question lacked probable cause and was therefore invalid.
*989
As a final flaw in the probable cause determination here, in issuing the warrant, the magistrate did not review any of the material which the warrant authorized be seized.
DePugh,
993 F.2d at 1363. Thus, no part of the probable cause determination in this ease protected DePugh’s First Amendment rights, and the seizure without prior review violated both DePugh’s First Amendment and Fourth Amendment rights.
Fort Wayne Books, Inc.,
489 U.S. at 63 , 109 S.Ct. at 927-28 ;
United States v. Jenkins,
974 F.2d 32, 35 (5th Cir.1992);
Universal Amusement Co.,
587 F.2d at 169 .
The court turns next to another alleged deficiency in the warrant, a failure to identify the items to be seized with the particularity required by the Fourth and First Amendments.
3. Validity of the warrant and “particularity”
A search warrant must describe with particularity the items to be seized.
Andresen v. Maryland,
427 U.S. 463, 480 , 96 S.Ct. 2737, 2748 , 49 L.Ed.2d 627 (1976);
Bieri,
21 F.3d at 815 ;
Rickert v. Sweeney,
813 F.2d 907, 909 (8th Cir.1987). DePugh again asserts that the items sought by the warrant were presumptively protected by the First Amendment. Thus, he argues that the warrant violated heightened particularity requirements of the Fourth Amendment.
The particularity of a warrant for Fourth Amendment purposes is of heightened importance when the warrant seeks seizure of materials presumptively protected by the First Amendment.
Marcus v. Search Warrant,
367 U.S. 717, 732 , 81 S.Ct. 1708, 1716 , 6 L.Ed.2d 1127 (1961). However, materials presumptively protected by the First Amendment that are not seized for their ideas are indistinguishable from any other goods.
Stanford v. Texas,
379 U.S. 476 , 485 n. 16, 85 S.Ct. 506 , 512 n. 16, 13 L.Ed.2d 431 (1965). In the present case, however, the materials were seized precisely because of their content or the ideas they were expected to contain, alleged child pornography; therefore, the First Amendment is strongly implicated.
The Eighth Circuit Court of Appeals recently considered the particularity with which a warrant to seize evidence of sexual exploitation of children must be stated to avoid violations of either the Fourth Amendment or the First Amendment in
United States v. Koelling,
992 F.2d 817, 821 (8th Cir.1993). In
Koelling ,
the court made the following observations:
The warrant was graphic. It authorized the search for and seizure of depictions of minors engaging in sexually explicit conduct as defined by 18 U.S.C. § 2256 (1988). In general, we agree with both the Fourth Circuit and the Ninth Circuit that “when a warrant describes the sought for material ‘in the graphic terms of the statute on the sexual exploitation of children the ... [material] is described with all the particularity necessary to satisfy the Fourth Amendment.’ ”
United States v. Dornhofer,
859 F.2d 1195, 1198 (4th Cir.1988),
cert. denied,
490 U.S. 1005 , 109 S.Ct. 1639 , 104 L.Ed.2d 155 (1989) (quoting
United States v. Wiegand,
812 F.2d 1239, 1243 (9th Cir.),
cert. denied,
484 U.S. 856 , 108 S.Ct. 164 , 98 L.Ed.2d 118 (1987)). See also
United States v. Rabe,
848 F.2d 994, 997-98 (9th Cir.1988) (warrant issued for search of residence which limited search to materials “depicting minors engaged in sexually explicit conduct as those terms are defined in [the statute]” held sufficiently particular). We believe the warrant at issue in this case satisfied the particularity requirements of the Fourth Amendment and therefore obviated any justifiable concern that First Amendment values might be trampled on.
Koelling,
992 F.2d at 821 . The court first concluded that the statute, and hence the warrant which quoted the statute, were explicit about what the sexual conduct depicted must involve.
17
Id.
Next, the court found that the warrant limited the discretion of law enforcement officers by requiring that the
*990
contraband involve “child pornography” regarding “minors.”
Id.
at 822 .
18
Third, the court found that there was only a very slight possibility that the warrant might allow seizure of “child pornography,” the mere possession of which, as opposed to shipment, transportation, or mailing, was not otherwise criminal, thus reducing any likelihood that First Amendment values would be implicated. Id.;
19
see also United States v. Layne,
43 F.3d 127, 133 (5th Cir.1995) (particularity requirement for search or seizure of materials presumptively protected by the First Amendment);
20
Supreme Video, Inc. v. Schauz,
15 F.3d 1435, 1439 (7th Cir.1994);
21
United States v. Levinson,
991 F.2d 508, 510 (9th Cir.1993).
22
In the present case, the warrant never explicitly states what evidence of sexu
*991
al exploitation is sought by the warrant, either in terms of the Iowa statute making such sexual exploitation a crime, or in any other commonsense terms.
Koelling,
992 F.2d at 821 . In fact, the warrant application never explicitly states what crime the materials sought are supposed to be evidence of. It is left to the issuing officer’s imagination to decide that the materials sought are evidence of sexual exploitation of a minor, because that was the alleged crime for which DePugh had previously been investigated and recently arrested. Nothing about the warrant here limited the discretion of law enforcement officers by requiring that the contraband involve “child pornography” regarding “minors.”
Id.
at 822 . In fact, the warrant identifies items only in generic terms, and nothing about that description automatically associates the items to be seized with child pornography. Thus, unlike the warrant in
Koelling ,
the warrant here does not satisfy the particularity requirements of the Fourth Amendment and made it likely that First Amendment values would be trampled on.
Id.
at 821 . Thus, the warrant in question here also violated the DePugh’s Fourth Amendment rights owing to the lack of sufficient particularity in the description of the items to be seized.
4. Misleading information
DePugh has not expressly raised a
“Franks
” style challenge to the warrant in
See Franks v. Delaware,
438 U.S. 154, 155-56 , 98 S.Ct. 2674, 2676-77 , 57 L.Ed.2d 667 (1978) (if affidavit of probable cause is flawed by intentional or reckless omission of facts making the affidavit misleading, and the warrant lacks probable cause with the misleading information set aside, the warrant must be set aside and fruits of search suppressed);
Moody v. St. Charles County,
23 F.3d 1410, 1411-12 (8th Cir.1994) (§ 1983 action alleging violation of
Franks
by “lies” in the affidavit of probable cause for a warrant);
23
United States v. Jacobs,
986 F.2d 1231, 1233-34 (8th Cir.1993) (discussing and applying Franks);
United States v. Reivich,
793 F.2d 957, 960 (8th Cir.1986) (same). However, the record suggests that the affidavit could be misleading, because the confidential informant who actually contacted Penning, Gerald Monk, was not the person, John Stull, who had been in the premises in question. The affidavit suggests that the confidential informant had first-hand knowledge of the contents of the boxes sought, when at best Monk had such knowledge second-hand from Stull. Penning does not remember whether or not he contacted Stull directly before seeking the warrant.
Cf. Gladney,
48 F.3d at 313
(“Franks”
challenge failed when based on merely negligent relation in affidavit of how informant’s information was received, where affiant question here.
*992
typed affidavit as another officer relayed informant’s information to affiant while the other officer was on the telephone with the informant).
24
Even without a
“Franks
” style claim here, this uncertainty about the actual source of the confidential information relied upon goes into the consideration of the “totality of the circumstances” applicable to whether the search and seizure were unreasonable and whether the officer seeking the warrant and executing it can claim the warrant as a shield to liability.
See Moody,
23 F.3d at 1412 (no reasonable officer could think his or her actions were permissible under the Fourth Amendment where the officer knew information in the affidavit of probable cause was untruthful).
Because the court finds that the warrant in this case was constitutionally flawed in its lack of probable cause and insufficient particularity, resulting in violations of both the Fourth and First Amendments, the court finds that Penning’s motion for summary judgment on the grounds of the validity of the warrant must fail. Consequently, DePugh’s motion for summary judgment as to the invalidity of the warrant must be granted. However, that conclusion does not end the matter, because Penning has asserted that the search and seizure in question here still pass constitutional muster, because no warrant was required in the specific circumstances of this case. The court therefore turns to consideration of whether Penning’s search and seizure were constitutional under the Fourth Amendment even without a valid warrant.
5. Validity of a warrantless search and seizure
Searches conducted outside of the judicial process, without prior approval of a judge or magistrate, are
per se
unreasonable under the Fourth Amendment subject only to a very few specifically established and well-delineated exceptions.
United States v. Estrada,
45 F.3d 1215, 1218 (8th Cir.1995) (citing
Katz,
389 U.S. at 357 , 88 S.Ct. at 514 ). Penning claims, however, that even if his warrant was invalid, his search required no warrant, because it was based on a number of well-defined exceptions under which the Fourth Amendment was not implicated. He asserts that he had the consent of bank officials to enter the premises, the property seized was abandoned, and was in plain view, and his search was merely a duplication of a private search. The court finds the proffered grounds for a warrantless search to be nothing more than “straw men” or groundless attempts to justify unconstitutional conduct.
a. Consent
As one ground justifying a warrantless search if the warrant actually provided was invalid, Penning argues that he obtained consent from Lincoln Savings Bank officials to conduct the search. DePugh contends that Lincoln Savings Bank officials had no authority to give such consent, because they had no present possessory interest in the premises searched which were still legitimately occupied and controlled by David Powell. DePugh contends further that Penning knew the bank had no sufficient authority to consent to the search, because he knew Powell was still in legitimate possession of the premises.
The Fourth Amendment is not violated when either the affected party or someone with common authority over the property has consented to a search of that property.
See United States v. Matlock,
415 U.S. 164, 171 , 94 S.Ct. 988, 993 , 39 L.Ed.2d 242 (1974);
Capraro v. Bunt,
44 F.3d 690, 691 (8th Cir.1995) (recognizing consent exception to unconstitutionality of warrantless search of plaintiffs home in § 1983 litigation);
United
*993
States v. Wright,
971 F.2d 176, 180 (8th Cir.1992) (search conducted pursuant to valid consent does not violate the Constitution);
United States v. Ramey,
711 F.2d 104, 107 (8th Cir.1983) (“A search conducted pursuant to a valid consent does not violate the Constitution.”). In
Matlock ,
the Supreme Court wrote that
[e]ommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see
Chapman v. United States,
365 U.S. 610 , 81 S.Ct. 776 , 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another),
Stoner v. California,
376 U.S. 483 , 84 S.Ct. 889 , 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer’s room), but rests rather on
mutual use of the property by persons generally having joint access or control for most purposes,
so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock,
415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7 (emphasis in the original);
Wright,
971 F.2d at 180 (valid consent may be given by third party who possessed common authority or sufficient relationship to premises);
United States v. Wade,
740 F.2d 625, 629 (8th Cir.1984) (valid consent may be given by a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected).
Thus, a warrantless search
may be justified by a preponderant showing of the evidence that voluntary consent to search was given by “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”
United States v. Matlock,
415 U.S. 164, 171 , 94 S.Ct. 988, 993 , 39 L.Ed.2d 242 (1974);
see also id.
at 177, 94 S.Ct. at 996 . This common authority is a function of mutual use, joint access, and control of the property.
See id.
at 171 n. 7, 94 S.Ct. at 993 n. 7.
United States v. Bradley,
869 F.2d 417, 419 (8th Cir.1989) (consenting party, although not present at search, rented the house in her name and paid the rent with her public assistance funds, her name was on mailbox and lease, and she had a key, and therefore had authority to consent to search, even though complaining party was occupant of house and was present at time of search; complaining party did not object to search at time it occurred); see
also United States v. Elliott,
50 F.3d 180, 185 (2d Cir.1995) (citing identical standards).
Even if the third party did not have the requisite relationship to the premises, and therefore lacked authority to give valid consent to a search, official reliance on the consent may validate the search if it was reasonable for the officers to believe that the third party had the requisite relationship.
Illinois v. Rodriguez,
497 U.S. 177, 179 , 110 S.Ct. 2793, 2796-97 , 111 L.Ed.2d 148 (1990);
Iron Wing v. United States,
34 F.3d 662, 665 (8th Cir.1994) (“There is no Fourth Amendment violation if ‘the facts available to the officer’ at the time of the search would warrant a reasonable man in the belief that someone with authority over the premises consented to the search,” quoting
Illinois v. Rodriguez,
497 U.S. 177, 188 , 110 S.Ct. 2793, 2801 , 111 L.Ed.2d 148 (1990)). To put it another way, “[i]t is apparent that in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded ... [of] the police officer conducting a search or seizure under one of the exceptions of the warrant requirement ... is not that they always be correct, but that they always be reasonable.”
Rodriguez,
497 U.S. at 185 , 110 S.Ct. at 2800 ;
United States v. Sanchez,
32 F.3d 1330, 1333 (8th Cir.1994)
(Rodriguez
held that “a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so.”),
cert. denied,
— U.S. -, 115 S.Ct. 1119 , 130 L.Ed.2d 1082 (1995).
Rodriguez
validates only searches that are based on a reasonable mistake as to the
*994
facts, not those based on an erroneous legal conclusion drawn from the known facts.
See Elliott,
50 F.3d at 186 ;
United States v. Brown,
961 F.2d 1039, 1041 (2d Cir.1992) (per curiam);
United States v. Salinas-Cano,
959 F.2d 861, 865-66 (10th Cir.1992);
United States v. Whitfield,
939 F.2d 1071, 1073-75 (D.C.Cir.1991).
In
Iron Wing ,
the Eighth Circuit Court of Appeals found that police officers reasonably believed that a woman had authority to give consent to a warrantless search where, even though she had no key to the premises, because she told police she was living in the premises, confirmed that statement by her familiarity with the house and the fact that she knew that she had left her bedroom window unlocked.
Iron Wing,
34 F.3d at 665 . Similarly, in
United States v. Brokaw,
985 F.2d 951 (8th Cir.), cert.
denied,
— U.S. -, 114 S.Ct. 300 , 126 L.Ed.2d 249 (1993), the court found that there was reasonable basis for assuming valid consent to search a camper when it was obtained from the resident and owner of a nearby cabin, the cabin owner said that he owned the camper, and that the camper was on his land, and the owner further assumed authority to consent to the search.
Id.
at 954.
Courts have held that a landlord does not have common authority over an apartment or other rental unit leased to a tenant so as to be able to give consent to a search.
Chapman v. United States,
365 U.S. 610, 616-18 , 81 S.Ct. 776, 779-80 , 5 L.Ed.2d 828 (1961);
Elliott,
50 F.3d at 186 . Nor would an officer’s erroneous belief that landlords generally have such authority to consent to a search provide the necessary authorization for a warrantless search.
Elliott,
50 F.3d at 186 .
In the present case, the undisputed record indicates no basis upon which Penning could have believed bank officials had the authority to consent to search of the premises where DePugh’s property was located. Penning argues now, and stated in the warrant application, that the bank was attempting to evict the current tenant of the premises, David Powell, but nothing indicates the bank’s “common authority” over the premises or its mutual use of the property, joint access or control for most purposes.
Mat-lock,
415 U.S. at 171 & n. 7, 94 S.Ct. at 993 & n. 7. The record establishes at most that Penning knew the bank was a disgruntled landlord. Status as a landlord, however disgruntled, does not give the bank the authority to consent to a search of the premises.
Chapman v. United States,
365 U.S. 610, 616-18 , 81 S.Ct. 776, 779-80 , 5 L.Ed.2d 828 (1961);
Elliott,
50 F.3d at 186 . Although Penning may have believed that the bank’s efforts to recover control of the premises from the current tenant somehow gave the bank greater authority over the premises than it would otherwise have enjoyed, such a belief would be erroneous and therefore cannot provide the necessary authorization for a warrantless search.
Elliott, 50 F.8d
at 186.
Furthermore, Penning has failed to produce any other evidence indicating the bank’s common authority over the premises sufficient to establish its power to give consent to a search. Thus, Penning has faded to meet the burdens of demonstrating the bank’s authority either to sustain his own motion for summary judgment or to defeat DePugh’s.
See Hartnagel, 953
F.2d at 395 (burden of moving party to establish lack of a genuine issue of fact);
Celotex,
477 U.S. at 324 , 106 S.Ct. at 2553 (nonmovant’s burden to designate specific facts showing there is a genuine issue for trial). Nothing Penning has offered attains the “dignity of substantial evidence” that the bank had authority to consent to his search.
Metge,
762 F.2d at 625 . Therefore, there is no evidence “such that a reasonable jury could” find Penning had consent to conduct a warrantless search.
Anderson,
477 U.S. at 248 , 106 S.Ct. at 2510 . Penning’s motion for summary judgment on the ground of consent to a the search must be denied. Penning has also failed to defeat DePugh’s motion for summary judgment that the search and seizure violated DePugh’s constitutional rights on the ground that Penning had consent for his search.
b. Abandonment
The court concluded above, in a discussion beginning at page 34, that Penning has failed to demonstrate that the property seized was abandoned. Thus, just as the argument that the property was abandoned did not defeat DePugh’s standing to bring his claims of
*995
violation of his Fourth Amendment rights, abandonment provides no justification for a warrantless search in this case. Penning’s motion for summary judgment on the ground that the seizure involved only abandoned property must be denied. Furthermore, Penning has failed to defeat DePugh’s motion for summary judgment that the search and seizure violated DePugh’s constitutional rights on the ground that Penning seized only abandoned property.
c.
Plain view
Penning has suggested that the items seized were in “plain view,” and therefore no warrant was required for their seizure.
25
What is in plain view of police officers is not subject to Fourth Amendment protection.
United States v. Lloyd,
36 F.3d 761, 763 (8th Cir.1994). When evidence seized was in plain view, a warrantless search and seizure of those items is not unlawful and there is no reason to suppress the evidence in a subsequent criminal prosecution.
United States v. Arias-Cardenas,
36 F.3d 36, 38-39 (8th Cir.1994);
Thomas v. Hungerford,
23 F.3d 1450, 1453 (8th Cir.1994);
United States v. Hughes,
940 F.2d 1125, 1126-27 (8th Cir.),
cert. denied,
502 U.S. 896 , 112 S.Ct. 267 , 116 L.Ed.2d 220 (1991). The “plain view” doctrine or “plain view” exception to the warrant requirement permits police to seize an item not specified in a search warrant if the police are lawfully in a position to observe the item and its mcriminating character is immediately apparent.
Horton v. California,
496 U.S. 128, 136-38 , 110 S.Ct. 2301, 2307-09 , 110 L.Ed.2d 112 (1990);
United States v. Evans,
966 F.2d 398, 400 (8th Cir.1992).
26
The Supreme Court has said that
[a]n example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified Objects, and in the course of the search come across some other article of incriminating character.
Coolidge v. New Hampshire,
403 U.S. 443, 465 , 91 S.Ct. 2022, 2037 , 29 L.Ed.2d 564 (1971) (plurality opinion). The Eighth Circuit Court of Appeals found circumstances exactly fitting this example in
Evans
in circumstances that led police to seize a number of photographs:
The search warrant for [the criminal defendant’s] house authorized the police to seize, among other things, drugs and drug paraphernalia, either of which could have been stored in a box in a closet. The police were, therefore, acting within the scope of the warrant when they opened the box containing the photos. Moreover, the incriminating nature of photos picturing [the defendant] with large quantities of marijuana must have been immediately apparent to the officer who opened the box. The photographs were, therefore, lawfully seized and admissible at trial.
Evans,
966 F.2d at 400 .
However, “plain view” provides grounds for seizure of an item only when an officer’s access to the object has some prior justification under the Fourth Amendment, such as execution of a search warrant for other items.
Texas v. Brown,
460 U.S. 730 , 738 & n. 4, 103 S.Ct. 1535 , 1541 & n. 4, 75 L.Ed.2d 502 (1983);
United States v. Riedesel,
987 F.2d 1383, 1392 (8th Cir.1993). Thus, the Supreme Court has said
“What the ‘plain-view’ cases have in common is that the police officer in each of
*996
them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification— whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of court the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain-view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.”
Horton,
496 U.S. at 135-86 , 110 S.Ct. at 2307 (quoting
Coolidge,
403 U.S. at 465-66 , 91 S.Ct. at 2037-38 , with footnote omitted). Under
Coolidge ,
there were two limitations on the doctrine: “First, that ‘plain view
alone
is never enough to justify the warrantless seizure of evidence,’
[Coolidge,
403 U.S.] at 468, 91 S.Ct. at 2039; and second, that ‘the discovery of evidence in plain view must be inadvertent.’
Id.,
at 469 [91 S.Ct. at 2040].”
Horton,
496 U.S. at 136 , 110 S.Ct. at 2307-08 . In amplifying the plurality opinion in
Coolidge ,
the majority opinion in
Horton
held that
It is, of course, an essential predicate of any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1644071. Public record. Not legal advice.