United States v. Arthur Joseph Trickey

KEITH, Circuit Judge,

dissenting.

If this court were writing on a clean slate, I would agree that the defendant had standing to challenge a fourth amendment violation by authorities. However, the Supreme Court in United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980), held that only a person who has “a legitimate expectation of privacy in the invaded place” is entitled to challenge allegedly illegal searches (quoting Rakas v. Illinois, 439 U.S. 128, 140 , 99 S.Ct. 421, 429 , 58 L.Ed.2d 387 (1978)). Because defendant had no legitimate expectation of privacy in the outbuilding, I dissent from the majority’s holding that the evidence seized should be suppressed.

The test to be applied calls for a searching review of the underlying facts. The trial court must ask two questions:

(1) Is there a legitimate expectation of privacy?

(2) Was the procedure used by the police illegal?

Rawlings v. Kentucky, 448 U.S. 98, 111 , 100 S.Ct. 2556, 2564 , 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring). These are two analytically distinct questions, and a defendant can meet one prong of this test without necessarily fulfilling the other. Only when both prongs are met should the evidence be suppressed. 1

The majority’s attempt to analogize this case to other fourth amendment contexts is no substitute for the searching factual review called for by Salvucci and its progeny. See United States v. Knotts, — U.S. —, 103 S.Ct. 1081 , 75 L.Ed.2d 55 (1983) (Black-mun, J., concurring) (case involving electronic surveillance device not analogous to case involving “open fields” doctrine). The facts reveal that this was neither a residence nor a business building. It was an outbuilding which was allegedly being rented from a relative. The building had been boarded up, but there was testimony to the effect that the defendant had opened up the doors to the building because he wanted people to come in. The windows were not covered during the day the building was searched. There were no indicia of residence since there was no running water, no bathroom facilities, no lighting, nor was there furniture of any kind. The only indication that a business enterprise was being maintained in the building was the printing paraphernalia set up in the kitchen. Nor is this a case in which the outbuilding adjoined the main house or facilities of the owner of the property. It appears to have been no more than an abandoned building next to a public thoroughfare which was being used for allegedly clandestine purposes.

Since the defendant did not treat the building in a way that demonstrated that he expected it to be private, I cannot agree that he had a legitimate expectation of privacy. United States v. Bailey, 628 F.2d 938 (6th Cir.1980). Nor is it clear that this is the type of building which society is willing to invest with privacy interests. Id. The fact that the defendant might have been renting the building from someone who owned it is not conclusive, since “no one circumstance is talismanic to the Rakas inquiry.” United States v. Haydel, 649 F.2d 1152, 1154 (5th Cir.1981), cert. denied, 455 U.S. 1022 , 102 S.Ct. 1721 , 72 L.Ed.2d 140 (1982). In sum, I agree with the district court that the defendant fails to meet the first prong of the test for standing under *60 the fourth amendment. I, therefore, dissent from the majority’s opinion reversing the judgment in this case.

. I agree with the majority that the search was illegal under this court’s holding in United States v. Shorter, 600 F.2d 585 (6th Cir.1979). Since Shorter is controlling on this point, if the defendant has standing to challenge the search, the evidence must be suppressed.