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A question regarding a police officer’s right to open and inspect a suitcase during a warrantless search of a defendant’s home has resulted in a decision by the 2nd U.S. Circuit Court of Appeals. The panel, in overturning a lower court’s suppression of guns found in luggage that the defendant had borrowed from a roommate, said the trial judge should have examined whether the defendant had a “reasonable expectation of privacy” in the suitcase. The decision in United States v. Haqq, 01-1029, was unanimous. However, Senior 2nd Circuit Judge Thomas J. Meskill wrote a concurring opinion saying the decision posed the potential to “facilitate government intrusion into what we think of as private space.” Executing arrest warrants for Samad Haqq on Feb. 9, 2000, police raided the two-bedroom New York apartment shared by Haqq and three others. During a “protective sweep” of the apartment, Detective Ralph Hanna opened a suitcase in a bedroom occupied by Haqq’s roommate and found three guns. Haqq later admitted buying the guns to repay a debt to a drug dealer and gave his consent to a continued search of the apartment. The search yielded two more guns. Haqq asked Southern District of New York Judge Naomi Reice Buchwald to suppress both the guns and his confession, arguing that the initial search of the suitcase was unreasonable under the Fourth Amendment. Hanna testified at the suppression hearing that he saw the outline of a handgun against the fabric of the luggage, and opened the case only after feeling a gun. Despite several efforts by the government to repack the suitcase so that the outline of a gun might be visible, Judge Buchwald said the shape of a gun could not be seen. There was also a factual dispute about the ownership of the suitcase, and whether Haqq had borrowed it from one of his roommates, as well as the circumstances under which it was returned. “Even assuming arguendo that the defendant lacked a specific property interest in the container within his home preventing the object inside from being viewed, he had a reasonable expectation of privacy to object to an allegedly unlawful search of his home,” Buchwald said. The judge ruled that the guns were not in plain view and could not be used as evidence at trial. On appeal, the government argued that Haqq could not have a reasonable expectation of privacy in the suitcase because he was not its owner. Even if Haqq had borrowed the case, the government said, he had returned it to his roommate. Writing for the 2nd Circuit, Judge Jose A. Cabranes said the district court had “misapprehended” the U.S. Supreme Court’s holding in Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, a police officer was responding to a report that a bullet had been fired from the defendant’s apartment into the apartment below. Suspecting that expensive stereo equipment in the defendant’s apartment was stolen, the officer moved the equipment to record its serial numbers, and the defendant was indicted for robbery. The U.S. Supreme Court ruled that the officer’s inspection of the stereo equipment was not supported by probable cause, saying it was a search “separate and apart from the search for the shooter, victims and weapons that was the lawful objective of his entry into the apartment.” Judge Cabranes said that “all of the concurring and dissenting opinions in Hicks reflect an understanding that the search at issue in that case was a search of the stereo equipment — and not of Hicks’s home.” PRIVACY EXPECTATION In the case at hand, however, the lower court read Hicks differently, Cabranes said. “In the district court’s view, Hicks supports the broad proposition that a defendant’s ‘reasonable expectation of privacy in his home [is] sufficient to permit him to object to the seizure of objects’” not in plain view. Cabranes said that “when considering the legality of a search of an object within a home, courts have properly focused on the defendant’s expectation of privacy in the object apart from his expectation of privacy in the home.” “We conclude that Hicks was not a departure from the Supreme Court’s earlier Fourth Amendment jurisprudence,” Judge Cabranes said. “Because the Supreme Court in Hicks held that the search of the stereo equipment was unlawful, it also found, contrary to the district court’s assumption, that the defendant had a legitimate expectation of privacy in that equipment, despite its having been stolen.” It does not necessarily follow, he said, that Haqq had that same expectation of privacy in the suitcase. Unlike Hicks, he said, the government charged that Haqq had relinquished custody and control of the suitcase when he returned it to his roommate, an important consideration in determining expectation of privacy. Therefore, Cabranes said, the circuit was remanding the case for further proceedings, “including consideration of whether Mr. Haqq had a reasonable expectation of privacy in the suitcase.” MESKILL CONCURRENCE In his concurring opinion, Judge Meskill said: “On this record the district court would not err if it found that Haqq had a reasonable expectation of privacy in the suitcase.” A key factor that should weigh heavily in Haqq’s favor, Meskill said, was whether the defendant was “verbally or physically barred by his co-residents from accessing certain places or items within his home . …” Meskill added that allowing the police to expand their search beyond items seen in plain view would have two undesirable consequences, both bearing on the presumption of a resident that items in the home are protected from intrusion. First, he said, “the lack of a presumption could necessitate a probing inquiry by the police every time they attempt to perform a valid search that is not bound by the constraints of a warrant.” “Alternatively, the police could be permitted to search every object in a home for contraband or evidence of crimes without any presumption that the resident of the home expects those objects to be free from governmental intrusion,” he said. “This would exact an enormous cost on the privacy and sanctity of citizens’ home while offering little promise of any resulting benefit to law enforcement because it is more likely than not that the citizens would have an expectation of privacy in all of the things within their home that are searched.” Judge Meskill also noted the critical difference between searches conducted in public places and searches conducted in a private home. He said the police’s legitimate presence in Haqq’s home and their legitimate right to perform a protective sweep “did not suddenly transform for Fourth Amendment purposes the interior of the apartment into a public plaza.” Assistant U.S. Attorneys William F. Johnson and Christine H. Chung represented the government. Steven M. Statsinger of the Legal Aid Society’s Federal Defender Division Appeals Bureau represented Haqq.

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