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Be Careful Where You Park: Circuit Finds No Legitimate Expectation of Privacy in Common Residential Lot

Earlier this year, in Collins v. Virginia, the U.S. Supreme Court held that the “automobile exception” to the warrant requirement does not authorize “a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.”  138 S.Ct. 1663, 1668 (2018).  Earlier this week, in United States v. Jones, No. 16-87 (Jacobs, Cabranes, Raggi) (June 19, 2018), the Circuit had its first opportunity to grapple with the import of Collins.  But it had little difficulty finding that a vehicle parked in a common lot shared by multi-family apartment buildings is not entitled to the same expectation of privacy as a vehicle parked “within the curtilage of one’s home,” and in a published opinion, affirmed the district court’s denial of a motion to suppress.  In a separate summary order, the Circuit addressed and disposed of the defendant’s other arguments, and affirmed his conviction and sentence in full.  

In August 2012, DEA Task Force officers began conducting daily surveillance of defendant Rashid Jones based on anonymous tips that he was a drug dealer and may have been involved with weapons.   Through their surveillance, the officers learned that Jones lived in a three-story, multi-family apartment building at 232 Westland Street in Hartford, Connecticut and that he kept narcotics there.  On the morning of December 15, 2012, the officers observed Jones park a Dodge Magnum in 232 Westland Street’s rear lot, which was shared by the tenants of that building and those of an adjacent multi-family building.  Two hours later, Jones left as a passenger in a different car.  The officers stopped that car soon after it left 232 Westland Street, arrested Jones, and brought him back to that address.  After doing so, the officers noticed a tow truck removing the Dodge Magnum from the driveway leading to 232 Westland Street’s parking lot.  The officers directed the tow-truck driver to return the Dodge Magnum to the lot, and, upon looking through the car’s rear hatch window, observed a box of ammunition inside.  The officers searched the car and recovered crack cocaine, powder cocaine, a digital scale, weapons and ammunition. 

Jones was charged with seven drug trafficking and firearms offenses.  At trial, Jones moved – unsuccessfully – to suppress the evidence seized from the Dodge Magnum.  He was convicted of all seven counts and sentenced to more than 14 years’ imprisonment.

On appeal, Jones raised three arguments contesting the suppression ruling: 

First, Jones argued that the officers lacked probable cause to search the Dodge Magnum.  The Circuit held that probable cause was established when the officer observed an ammunition box when peering through the car’s rear hatch window, and in any case, that the other events of December 15 leading up to the search could support probable cause.

Second, invoking Collins, Jones argued that he “had a heightened expectation of privacy in the Dodge Magnum because he parked the car in a lot within his home’s curtilage.”  The Circuit disagreed, concluding he was not entitled any legitimate expectation of privacy.  The lot in which Jones parked the Dodge Magnum “was not within the curtilage of Jones’ home” but was rather “a common area accessible to” tenants of two multi-family buildings, and Jones therefore “could not reasonably expect that it should be treated as part of his private home.”  Any expectation of privacy was further diminished because the lot – a “‘common area [that is] accessible to the other tenants in the multi-family apartment’” – was not subject to Jones’ “exclusive control.” (citing United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997)).

Finally, Jones contended that no exigent circumstances justified a warrantless search of his car.  But the Circuit noted that exigency is not required for a warrantless search of the automobile, and brushed aside the argument as “misplaced.”  Perhaps an argument could have been fashioned that because this car was being towed away, it was not “readily mobile” and therefore should have been outside the scope of the automobile exception.  But there is no indication from the opinion that such an argument was presented.

In the accompanying summary order, the Circuit rejected Jones’ challenges to other aspects of his conviction and sentence.  It found no error in the district court’s rulings that there was sufficient probable cause to support the search warrant executed for the second floor of 232 Westland Street even without information that had been obtained by the officers’ unlawful entry, and permitting an indicted co-conspirator of Jones’ to testify about her history of trafficking drugs with Jones in light of its probity to “the illegal nature of the[ir] relationship.   It concluded that the jury instruction that Jones’ sole occupancy of a residence or vehicle could support an inference that he was aware of the items contained therein was “fair to both parties.”  And it held that Jones’ sentencing enhancement for obstruction of justice was warranted because he gave false testimony.

The Circuit’s differentiation of Collins raises questions about the expectations of privacy for residents of multi-family apartments, condominiums, and townhouses.  Based on the Circuit’s analysis, it is not clear that even a car parked in the driveway of a home occupied by two families – or in a driveway shared by two freestanding residences – falls without a zone of privacy.  The driveway is not within the resident’s “exclusive control.”  A different legal rule for those who live in gated mansions and those who live in more modest circumstances could be the result of the current state of the law.  As the Circuit continues to test the limits of Collins’s defendant-friendly conception of privacy, it will be interesting to see if different classes of privacy evolve based on how “communal” a defendant’s living situation is.