Kathy Bonds v. C.W. Cox H.J. Harris and D.R. Aldridge

CHARLES W. JOINER, Senior District Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion insofar as it allows Bonds to challenge the manner in which the search was allegedly executed. Sodal v. Cook County, — U.S. -, 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992). However, I find no legitimate basis in the record to deny Bonds the opportunity to advance her claim that the search violated her right to privacy, and dissent from the affirmance of the judgment against Bonds- on this claim.

As a preliminary matter, I dissent from the majority’s discussion of the procedural issues presented by virtue of the district court’s dismissal of the ease on standing grounds. Standing was not one of the bases on which defendants moved for summary judgment,' but merely was mentioned in a single sentence in a reply brief, in the context of defendants’ acknowledgment of a fact issue regarding whether Basham lived in Bonds’ home with her consent. Understandably, this single reference to standing escaped plaintiffs attention. See Bonilla v. Nazario, 843 F.2d 34, 37 (1st Cir.1988). Promptly after the court granted defendants’ motion for summary judgment, plaintiff filed a timely motion under Fed.R.Civ.P. 59(e). Due to the ambiguous manner in which standing was raised, and the fact that defendants did not even séek summary judgment on this basis, the district court should have been liberal in affording plaintiff the opportunity to litigate this issue. Instead, it refused to consider her motion and the evidence submitted because it was not offered in a reply to defendants’ reply. 1 I would hold that this was error.

When a Rule 59(e) motion seeks reconsideration of a grant of summary judgment, this court conducts de novo review. Columbia Gas Trans. Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir.1991). In words repeated so frequently that their import may at times be overlooked, the standard of review requires us to assess the record in the light most favorable to the nonmovant, and draw all reasonable inferences in her favor. Klepper v. First Am. Bank, 916 F.2d 337, 341 (6th Cir.1990). Summary judgment has a legitimate and valuable place in the procedural framework of the district courts, as it eliminates the necessity to devote valuable resources to the resolution of eases on which there are no fact issues meriting trial. However, it is not the function of this court or the district court to decide fact questions, but only to determine whether there is sufficient *704 evidence to raise a genuine issue of fact for trial. There is in this case. 2 The critical question is whether Bonds maintained a legitimate expectation of privacy in her home on Dunn Avenue, an issue that cannot be resolved on the record presented.

The majority concludes that Bonds failed to establish that she had a reasonable expectation of privacy in her home based on two factors. First, the majority points to the fact that Bonds, the undisputed owner of the home, had left the home, “completely unoccupied, and ... locked up ” (majority op. at 701), to reside with her son. The record reflects that illness required Bonds to make this move, and that she left her personal belongings and pets at her own home. Her son lived only fifteen minutes away. Rather than indicating that Bonds had no expectation of privacy in her home, these facts point squarely in the opposite direction.

The majority also relies on the “unrebut-ted evidence” that Basham was living at Bonds’ home during this time. From this evidence, and contrary to Bonds’ affidavit, the majority infers.that Bonds allowed Bas-ham to live at her home, and, from this inference, concludes that Bonds failed to manifest a subjective expectation of privacy in the home. Even if it were proper to engage in this type of fact finding in reviewing an entry of summary judgment, the facts found by the majority are not sufficient to justify the dismissal of Bonds’ claim.

Like the district court, the majority assumes that either Bonds or Basham, but not both, could have a privacy interest in the home. Not so. It is well established that more than one person can have a legitimate expectation of privacy in a home. Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990) (overnight guest has legitimate expectation of privacy in host’s home). Accord United States v. Osorio, 949 F.2d 38 (2d Cir.1991) (overnight guest); United States v. Davis, 932 F.2d 752, 756-57 (9th Cir.1991) (former tenant who retained key, had free access, and stored items in apartment had reasonable expectation of privacy); United States v. Rettig, 589 F.2d 418, 423 (9th Cir.1978) (fact that defendant paid portion of rent and had key and unlimited access, sufficient to confer standing to challenge search, even though defendant lived elsewhere).

Just as shared residency does not automatically preclude a resident from having a legitimate expectation of privacy in a home, temporary absence from a home does not automatically deprive its resident of a privacy interest. In United States v. Robinson, 430 F.2d 1141 (6th Cir.1970), for example, the court concluded that the defendant had standing to challenge the warrantless search of his apartment, conducted one month after he had been incarcerated, stating that “mere absence from the premises without an intent to abandon could not legitimize [the] search. While the intent of one in possession of property often cannot be directly shown but must be inferred from his actions, abandonment will not be presumed.” Id. at 1143 (citations omitted). Throughout the short life of this lawsuit, Bonds consistently asserted that the house on Dunn Avenue remained her home, that her belongings were stored there, and that only the persons who cared for her possessions were there with her permission. “One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” Rakas v. Illinois, 439 U.S. 128 , 143-44 n. 12, 99 S.Ct. 421 , 430-31 n. 12, 58 L.Ed.2d 387 (1978) (citation omitted). While factual development of this case through discovery might have demonstrated that Bas-ham’s alleged possessory interest in the house was to the exclusion of any interest and right Bonds had, that crucial fact is by no means evident on the record before this court.

We deal here with a fundamental constitutional right, because “ ‘physical entry of the *705 home is the chief evil against which the wording of the Fourth Amendment is directed.”’ Payton v. New York, 445 U.S. 573, 585 , 100 S.Ct. 1371, 1379 , 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972)). 3 The majority’s resolution of this case has disturbing implications for persons of all callings and means. Circumstances often require people to leave their homes for months at a time, with most of their personal belongings, from pots and pans to heirlooms and financial records, securely stored in the home. Professors leave for a semester to pursue research or other teaching opportunities. Senior citizens leave their northern homes in the winter to take advantage of the southern climate. Persons experiencing illness or recuperating from surgery reside with their children, parents or friends. Their homes are often left in the care of a live-in or visiting house-sitter. These travellers would be astonished to learn that by leaving their homes in the care of trusted family, friends or neighbors, they relinquished their right to privacy, and thereby granted the police an unfettered right to invade their homes and search their belongings.

The interests at stake are too important, and the court’s treatment of them peremptory. I must dissent.

. The local rule on motion practice in effect in 1992 provided for a response to a motion for summary judgment, but made no mention of a reply to the response, or impose any obligation to reply to a reply. W.D.Tenn.L.R. 8 (1992).

. While not perfect in form, the declarations made under penalty of perjury which were submitted in support of Bonds’ Rule 59(e) motion were entitled to the same weight as sworn affidavits. See EEOC v. World’s Finest Chocolate, Inc., 701 F.Supp. 637, 639 (N.D.Ill.1988) ( 28 U.S.C. § 1746 requires only substantial compliance with its terms, and affiant's failure to date statement is not fatal if date or approximate date is demonstrable).

. For this reason, I am unpersuaded by the majority's reliance on United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir.), cert. denied, 439 U.S. 982 , 99 S.Ct. 570 , 58 L.Ed.2d 653 (1978), where the court held that the alleged lessor of an airplane had no legitimate expectation of privacy because other persons had exclusive possession of the plane. This circuit has recognized that airplanes, like automobiles, are mobile, and seldom serve as " 'one's residence or the repository of personal effects.' ” United States v. Nigro, 727 F.2d 100, 107 (6th Cir.1984) (en banc) (quoting United States v. Gooch, 603 F.2d 122, 124-25 (10th Cir.1979)). These same characteristics, as well as the ease with which an airplane or automobile can be emptied of personal effects and transferred to another, make the comparison with a residence unjustified.