United States v. Charles Kimber , 395 F. App'x 237 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0583n.06
No. 07-4060 FILED
Sep 02, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
) On Appeal from the United States
CHARLES KIMBER, ) District Court for the Southern
) District of Ohio
Defendant-Appellant. )
)
)
Before: MARTIN, BOGGS, and COLE, Circuit Judges.
PER CURIAM. Defendant Charles Kimber conditionally pleaded guilty to being a felon
in possession of a firearm after the district court denied his motion to suppress evidence of a
handgun, which Kimber claims was seized in violation of the Fourth Amendment. We find that the
arresting officers’ entry into the apartment building where Kimber was found with the handgun
violated the Fourth Amendment. Accordingly, we reverse the district court’s ruling on the
suppression motion, vacate Kimber’s conditional guilty plea and sentence, and remand.
BACKGROUND
A. Underlying Events
On November 11, 2006, between 11 p.m. and midnight, approximately six City of Cincinnati
police officers, acting without a warrant, entered the Alms Hill Apartments at 2525 Victory Parkway
in Cincinnati, Ohio. The Alms Hill Apartments is a former hotel that has been converted into a
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residential apartment building. The officers were members of the District 4 Violent Crime Squad,
which is charged with investigating drug complaints, drug activity, shootings, and robberies. They
had no reason to believe that any specific criminal activity was occurring at the Alms Hill
Apartments that evening, other than their generalized knowledge that the building was a crime “hot
spot.”1 Rather, on account of inclement weather, they had decided to visit the building in lieu of
patrolling the city streets.
The officers entered through the building’s back door, which featured a keycard-based lock
mechanism; as they did not have a keycard, they forced the door open. Upon entering, the officers
proceeded through the rear vestibule to the lobby. At some point thereafter, Kimber entered the
building through the back door and approached the lobby. When Kimber saw the officers, he
appeared surprised and attempted to turn and walk away. As he did so, one of the officers saw the
handle of a handgun protruding from Kimber’s jacket pocket. The officers searched Kimber and
found a loaded Cobra .380-caliber pistol on his person. They then placed him under arrest for
carrying a concealed weapon; Kimber told the officers that he was a convicted felon.2
Subsequently, the officers drafted sworn criminal complaints in Hamilton County Municipal
Court. Thereafter, the prosecution was referred to federal authorities, and Kimber was charged in
1
One of the officers testified at the suppression hearing that he had been on the premises
about fifty times and had made arrests there for drugs, prostitution, firearms possession, and
robberies.
2
Kimber also informed the officers that he had a small bag of crack cocaine on his person,
which the officers located. There is some inconsistency in the record as to whether Kimber told the
officers about the crack before or after he was Mirandized. This is immaterial for purposes of the
present appeal, however, as the federal indictment here does not include any drug offenses.
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a two-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g) and being a felon in possession of a firearm in a school zone in violation of 18 U.S.C.
§ 922(q)(2)(a). Kimber filed this motion to suppress.
B. Evidence Presented at the Suppression Hearing
The district court held hearings on the motion on April 26, 2007 and May 1, 2007. The
government offered the testimony of two of the arresting officers, Kenneth Grubbs and Brian
Stewart, as well as certain documentary evidence described below. Kimber did not testify.
1. Consent to Enter
Grubbs testified that at the time of the arrest in November 2006, the Alms Hill Apartments
were owned by Downtown Property Management (“DPM”), a private entity, but acknowledged that
he was “aware that the building ha[d] changed ownership three times since 2005.” Grubbs explained
that when property owners “have problems with people trespassing on their property,” they place
what is known as a “trespass letter” on file with the Cincinnati Police Department authorizing the
police to “act as their agent[s] whenever [they] come onto their property.” The government placed
into evidence a trespass letter signed by the manager of DPM reading, in relevant part:
I, Kera Raminemi, being the owner or person in control of the premises located at
2525 Victory Parkway in Cincinnati, Hamilton County, Ohio, do hereby name all
sworn members of the Police Department as my agents for the limited purpose of
enforcing criminal trespassing laws on the above property, which includes the land[,]
all buildings and structures, walkways and parking lots.
I agree to have prominently displayed on my property, signs notifying persons of my
restrictions imposed upon entry onto my property. I hereby authorize any member
of the Police Department to warn a person found to be in violation of the sign to
leave the property. Any person who ignores said warning, or returns to the property
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without proper permission, shall be subject to arrest by members of the Police Dept.
with my permission and full support. . . .3
This authorization shall remain in effect until a written notice of revocation is
provided.
Grubbs testified that this letter “reflect[s] the most accurate correspondence from [DPM] to the
Cincinnati Police Department.” However, as the court noted, the letter was dated January 31, 2007
– over two months after Kimber’s arrest.
On cross-examination, Grubbs testified as follows:
Q. Ha[d] there been any previous letters?
A. From what I recall, yes, there ha[d] been. I personally don’t keep them in my
possession. We have – well, they have a cop team, they call them cop team officers,
who basically keep these letters on file in their office.
Q. But you would not know if you had permission to be on the property on
November 11th?
A. I do. I am aware that I knew that we had permission to be on that property that
particular day.
Q. But this is not evidenced by this letter?
A. By the date of this letter, it does not go back to the November date.
Q. Okay. Now –
THE COURT: Let me ask a question. Maybe I’m anticipating. Was there a letter that
covered . . . November 11th, 2006?
3
There is no evidence in the record that any such sign was posted at the Alms Hill
Apartments. Kimber argues that the posting of such a sign was a condition precedent to the grant
of permission to enter the property, and that the alleged failure to post a sign thus rendered any
trespass letter inoperative. He cites no legal authority for this argument, however, and in any event,
he did not make it before the district court, so it is waived.
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THE WITNESS: I am aware that, yes, there was a letter on file at the time, yes.
THE COURT: And where is that letter? Why is this letter being offered then?
Where’s the letter that covers the period?
THE WITNESS: Well, I do know that periodically what our cop team officers do is
they will go back to properties and businesses and basically renew a letter. I know
that there have been problems, I’m aware of problems that have occurred over at the
Hamilton County Courthouse where if a letter is older, that judges have not liked the
letter being very old. They want an up-to-date letter.
THE COURT: Well, we don’t have an up-to-date letter in this case, do we?
THE WITNESS: Well, this letter – yes, it is dated after the date of the incident.
THE COURT: So it is your word – are you aware, personally, that there was a letter
in the file that covered this date of November 11th, ’06?
THE WITNESS: I am aware of a letter. I can give you a little more explanation, if
you would like. I’m also aware that security officers who are in charge of the
property – the property has its own private security. I’ve been personally asked on
numerous occasions within the last two years, I can go back, of them asking us to
please come to the property, and they have a problem with trespassers.4
Stewart, meanwhile, testified as follows:
A. The riffraff coming into the building was [a] problem, so we had a trespassing
letter that was signed by the representative of the building to give us access to come
in and arrest anyone who was there unlawfully.
Q. Okay. Now, do you know if there was such a letter giving you permission to be
there on file on November 11th, 2006?
A. Yes, yes.
4
There is no evidence in the record that the private security company tasked with patrolling
the building gave the officers open-ended permission to enter the property at will, or that the security
company had the authority to grant such permission.
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Q. Had you had any conversations with the private security element that also worked
at that location?
A. Yes.
Q. Had they ever said anything to you about your presence at that location?
A. That it was needed and they went on and gave us other information about other
apartments in the building that were a problem.
Subsequent to the hearing, but before the motion was decided, the government entered into
the record a second trespass letter with materially identical operative language. This letter was dated
April 15, 2004 – approximately two years and seven months before Kimber’s arrest. The letter
identified the relevant property as the Alms Hill Apartments and was signed by “Candice Ratcliff.”
It did not mention DPM and listed a different contact address and telephone number from the
trespass letter from DPM.
2. Manner of Entry
Regarding the officers’ manner of entry, Grubbs testified:
Q. And can you tell Your Honor how [the back door of the Alms Hill Apartments
through which the officers entered] can be accessed?
A. At the particular date and time, I would say about a week, a week prior to this
particular night or so, myself and officers doing basically the same thing, trying to
investigate the trespass complaints and complaints of drug activity, we were actually
shown by an individual. We were trying to get in the door. It was locked and an
individual came up and said here’s how you get in the door. And that individual
turned and kicked the door at the bottom and then pulled the door open.
Q. And were you able to access it without any kind of security card?
A. Yes.
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Meanwhile, Stewart testified that “[t]he door . . . is supposed to be secure and you’re supposed to
use a pass card to gain entry through that door, [but f]or some odd reason, you can yank the door and
it will open.”
3. Kimber’s Residence
Kimber entered into evidence sworn state-court complaints signed by Stewart that describe
Kimber as residing at “2525 Victory Pkwy Apt 1008” – the address of the Alms Hill Apartments –
as well as an Ohio non-driver identification card issued on June 12, 2006 identifying Kimber’s
address as “2525 Victory Pkwy.”5
Grubbs testified that he himself never inquired as to Kimber’s residence, but that it “was . . .
determined” through unspecified means that Kimber did not live at the Alms Hill Apartments,
although his aunt did. Meanwhile, Stewart testified that at the scene, “Mr. Kimber, himself,
verbally” gave 2525 Victory Parkway as his address, although Stewart said that Kimber did not give
this information to him at that time; rather, he “th[ought Kimber] gave it to Officer Grubbs.” Stewart
further testified that during an interview at the station-house, Kimber said that “he goes in and out
of 2525 Victory, but he doesn’t live there.”6
5
To obtain an Ohio non-driver identification card, an applicant must present documents
sufficient to establish the person’s “resident street address.” Ohio Department of Public Safety -
Bureau of Motor Vehicles, Acceptable Documents List, http://publicsafety.ohio.gov
/links/bmv2424.pdf (last accessed July 22, 2010).
6
While it is not competent “evidence,” Kimber’s sister gave an unsworn statement at
Kimber’s sentencing hearing that he had lived at the Alms Hill Apartments for a year or more and
that she had visited him there often.
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C. District Court Decision
The district court found the testimony of Grubbs and Stewart with regard to their encounter
with Kimber “highly credible and corroborated.” United States v. Kimber, No. 1:07-CR-00019, 2007
WL 1299266, at *3 (S.D. Ohio May 1, 2007). Accordingly, the court concluded that “as soon as
Stewart saw the gun in plain view, [the officers] . . . immediately had probable cause to make a
weapons arrest.” Id. at *4.
As for Kimber’s assertion that the officers had no right to enter the Alms Hill Apartments
in the first place, the court concluded: “[t]he [o]fficers were present in a common area at the
premises in the context of a valid trespassing investigation. The Court accepts the testimony that the
location is a crime ‘hot spot,’ and that the [o]fficers’ presence was justified, and indeed welcomed
by the owner of the building.” Ibid. In a footnote, the court elaborated:
At the May 1, 2007 hearing the government proffered a letter from Alms Hill
building management, dated April 15, 2004, which shows the [previous] property
owner authorized Cincinnati Police to enforce trespassing laws on the property. This
letter, taken together with the more recent letter from the current property owner,
dated January 31, 2007, and the [o]fficers’ testimony, leaves no doubt that [they
were] authorized to enter the building on November 11, 2006.
Id. at *4 n.1 (internal citations omitted). The court declined to make a finding as to whether Kimber
was a resident of the Alms Hill Apartments, reasoning that the issue was irrelevant in light of the
court’s finding that the officers were “authorized to enter the building.”
After his suppression motion was denied, Kimber entered a conditional guilty plea, reserving
the right to appeal the denial of the motion. Following his sentencing to 77 months’ imprisonment
and three years of supervised release, he timely appealed.
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STANDARD OF REVIEW
When reviewing a district court’s decision on a motion to suppress, “we use a mixed standard
of review: we review findings of fact for clear error and conclusions of law de novo.” United States
v. See, 574 F.3d 309, 313 (6th Cir. 2009) (quoting United States v. Davis, 514 F.3d 596, 607 (6th
Cir. 2008)). A factual finding is clearly erroneous “when, although there may be evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). When a
district court has denied a motion to suppress, we “review[] the evidence in the light most likely to
support the district court’s decision.” Ibid. (quoting United States v. Navarro-Camacho, 186 F.3d
701, 705 (6th Cir. 1999) (internal quotation marks omitted)).
In particular, the district court’s decision turned on the issue of consent.7 With respect to
that issue, “the ultimate question of whether there was consent” is a legal conclusion which we
review de novo, though underlying factual findings and credibility determinations are, as always,
entitled to deference. United States v. Moon, 513 F.3d 527, 536-37 (6th Cir. 2008).
7
To be precise, the district court’s opinion did not use the word “consent” at all. However,
we conclude from the statements that the officers’ presence was “authorized” and “welcomed by the
owner of the building” that the district court intended to rely on the consent exception to the Fourth
Amendment’s warrant requirement. Kimber, 2007 WL 1299266, at *4 & n.1. It appears that the
district court may in fact have overstepped the bounds of the consent exception in concluding from,
inter alia, the testimony that “the location is a crime ‘hot spot’” that “the [o]fficers’ presence [in the
building lobby] was justified.” Id. at *4 (emphasis added). There is, of course, no broad exception
to the Fourth Amendment’s warrant requirement for home entries that are “justified,” even by
probable cause that evidence of a crime lies within. See Donovan v. Dewey, 452 U.S. 594, 599 n.6
(1981) (“Absent consent or exigent circumstances, a private home may not be entered to conduct a
search or effect an arrest without a warrant.”). The question before us, therefore, is whether the
record supports the district court’s narrower determination that valid consent was given.
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DISCUSSION
A. Consent to Enter
1. Legal Principles
“To the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s
house as unreasonable per se, one ‘jealously and carefully drawn’ exception recognizes the validity
of searches with the voluntary consent of an individual possessing authority.” Georgia v. Randolph,
547 U.S. 103, 109 (2006) (quoting Jones v. United States, 357 U.S. 493, 499 (1958)) (internal
citations omitted). Upon a suppression motion, “[i]t is the government’s burden, by a preponderance
of the evidence, to show through clear and positive testimony that . . . valid and voluntary consent
to the search was obtained.” United States v. Davis, 283 F. App’x 370, 373 (6th Cir. 2008) (quoting
United States v. Worley, 193 F.3d 380, 385 (6th Cir. 1999)).
A search pursuant to third-party consent will not violate the Fourth Amendment so long as
the party granting consent had either actual authority or apparent authority to do so. United States
v. Morgan, 435 F.3d 660, 663 (6th Cir. 2006). To possess actual authority, a third party must
“possess[] common authority over or other sufficient relationship to the premises . . . sought to be
inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Apparent authority exists if “the
facts available to the officer[s] at the moment [would] warrant a man of reasonable caution in the
belief that [there was] consent[ from a] party [that] had authority over the premises . . . .” Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990) (internal quotation marks omitted); see also Morgan, 435 F.3d
at 663 (“Apparent authority is judged by an objective standard. . . . [It exists] if the officers
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reasonably could conclude from the facts available that the third party had [actual] authority to
consent to the search.” (quoting United States v. Hunyady, 409 F.3d 297, 303 (6th Cir. 2005)).
The district court’s opinion did not specify whether its conclusion that the officers were
“authorized to enter” was premised on a theory of actual authority or a theory of apparent authority;
nor can we clearly discern as much from context. Since “we are free to affirm . . . on any basis
supported by the record,” Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002), we therefore
examine the record to determine whether it supports a finding of consent under either theory.
2. Actual Authority
There is no question that the only party with actual authority to consent to the search was
DPM, the building’s contemporaneous owner.8 At the time of the search, the former owner who
signed the 2004 trespass letter no longer “possess[ed] common authority over or other sufficient
relationship to the premises . . . sought to be inspected,” Matlock, 415 U.S. at 171; therefore, the
district court’s reliance on the 2004 letter is inconsistent with a theory of actual authority.
Furthermore, it goes without saying that even a party with authority over the premises at the time of
a search cannot grant consent retroactively. See United States v. Lewis, 231 F.3d 238, 241 (6th Cir.
2000). Accordingly, the 2007 letter from DPM on which the district court relied is not direct
evidence of consent under this theory.
8
Although a landlord does not generally possess authority to grant consent to the search of
a tenant’s private living quarters, Chapman v. United States, 365 U.S. 610, 616 (1961), a landlord
obviously may enter and control his building’s common spaces and may thus consent to a search of
such spaces. See United States v. Elliott, 50 F.3d 180, 186 (2d Cir. 1995); United States v. Kelly,
551 F.2d 760, 764 (8th Cir. 1977).
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Thus, any finding of consent under an actual-authority theory must turn on “the [o]fficers’
testimony.” Kimber, 2007 WL 1299266, at *4 n.1. However, neither Grubbs nor Stewart
specifically testified that DPM had given the Cincinnati Police Department consent to enter the
building prior to the arrest. Grubbs testified that he was “aware that [he] knew that [the officers]
had [someone’s] permission to be on that property that particular day” and that “there was a letter
[from someone] on file at the time” of the arrest, without stating that the permission and the letter
of which he spoke came from DPM, as opposed to a previous owner (e.g., the “Candice Ratcliff”
mentioned in the 2004 trespass letter) or another person or entity. Stewart, meanwhile, initially
testified that the officers “had a trespassing letter that was signed by the representative of the
building,” although he did not specify when the police “had [the] letter” of which he spoke; nor did
he make clear whether that letter was from a representative of the building’s owner when Kimber
was arrested, as opposed to a prior owner. When Stewart was subsequently asked whether there was
“a letter giving . . . permission to be there on file on November 11th, 2006” (emphasis added), he
answered “Yes, yes,” but, once again, he did not state that the letter on file at that time was from
DPM.
Thus, we are faced with a record devoid of any “clear and positive testimony” of timely
consent from a person or entity with actual authority. Davis, 283 F. App’x at 373. On this record,
a finding that the preponderance of the evidence establishes such consent would be clear error.
Accordingly, we cannot affirm on the ground that the officers had consent to enter from a party with
actual authority.
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3. Apparent Authority
We might still affirm if we could conclude that the officers entered the building with the
consent of a party with apparent authority. Whether the officers “had . . . a reasonable basis to
conclude that a third party had authority to consent to a search [is a] question[] of law and we
therefore review [it] de novo.” United States v. Grayer, 232 F. App’x 446, 448 (6th Cir. 2007)
(quoting United States v. Hudson, 405 F.3d 425, 431 (6th Cir. 2005)). On this record, we cannot
conclude that, officers “of reasonable caution” would have believed there was consent from a party
with actual authority. Rodriguez, 497 U.S. at 188.
First, just as the after-the-fact January 2007 letter from DPM is largely irrelevant under an
actual-authority analysis, it is irrelevant under an apparent-authority analysis, since that letter was
not among “the facts available to the officer[s] at the moment” of the search. Ibid.Regarding the 2004 letter from “Candice Ratcliff,” as the Supreme Court emphasized in
Rodriguez, the existence of a statement of consent from someone claiming authority is not always
enough. See ibid. (“Even when the invitation is accompanied by an explicit assertion that the person
lives there, the surrounding circumstances could conceivably be such that a reasonable person would
doubt its truth and not act upon it without further inquiry.”). This circuit has repeatedly sounded the
same theme. See United States v. Purcell, 526 F.3d 953, 963 (6th Cir. 2008) (“[A]pparent authority
cannot exist if there is ambiguity as to the asserted authority and the searching officers do not take
steps to resolve the ambiguity.”); United States v. Waller, 426 F.3d 838, 846 (6th Cir. 2005) (“If the
agents do not learn enough, if the circumstances make it unclear whether . . . the person giving
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consent [had actual authority], then warrantless entry is unlawful without further inquiry.” (internal
quotation marks omitted)).
Thus, while there is no dispute that the 2004 letter was a facially satisfactory statement of
consent, we do not believe that “a man of reasonable caution” would have relied on it as
authoritative under the circumstances. Rodriguez, 497 U.S. at 188. Grubbs knew that the Alms Hill
Apartments had “changed ownership three times since 2005,” so there was reason to “doubt [the
2004 letter’s continuing validity] and not act upon it without further inquiry,” ibid. – especially
where Grubbs was aware that “problems . . . ha[d] occurred over at the Hamilton County
Courthouse” when his fellow officers had attempted to rely on outdated trespass letters.
Finally, while the officers testified that they had someone’s consent to enter the property at
the time of the search, their testimony did not establish whom this consent had come from or how
long before the arrest it was given. If the officers’ testimony that “there was a letter” of unspecified
age and provenance on file reflected the full extent of their knowledge at the time of the arrest – and
the record provides no basis to believe otherwise – we do not believe that such vague knowledge
would justify a “man of reasonable caution” in acting. Accordingly, we cannot affirm on the ground
that the officers had consent from a party with apparent authority. This exhausts the possibilities for
affirmance under the Fourth Amendment’s consent exception.
B. Reasonable Expectation of Privacy
The government argues that we may affirm the district court’s decision not to suppress the
evidence on the alternative ground that Kimber lacked a reasonable expectation of privacy. In
United States v. Carriger, 541 F.2d 545 (6th Cir. 1976), we held that “a tenant in [a locked]
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apartment building has a reasonable expectation of privacy in the common areas of the building not
open to the general public.” Id. at 549, 550-51; see also United States v. Heath, 259 F.3d 522, 534
(6th Cir. 2001) (“[T]he most casual reading of Carriger reveals that any entry into a locked
apartment building without permission, exigency or a warrant is prohibited.”).9 The government
argues that the present case falls outside our holding in Carriger, and that Kimber therefore had no
constitutionally protected expectation of privacy, because (1) he was not a tenant or resident of the
Alms Hill Apartments, and (2) the building was not sufficiently secure to qualify as “locked.”
1. Kimber’s Residence
While Carriger spoke explicitly of “tenants,” the Supreme Court has since clarified that
one’s “status as an overnight guest [in someone else’s home] is alone enough to show . . . an
expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota
v. Olson, 495 U.S. 91, 96-97 (1990) (overnight guest of resident in duplex apartment); see also
9
Carriger’s holding has “never [been] overruled in this circuit” and thus “remain[s]
controlling,” United States v. Dillard, 438 F.3d 675, 683 (6th Cir. 2006), notwithstanding the fact
that “[t]he Sixth Circuit stands alone in taking th[is] position . . . .” United States v. Miravalles, 280
F.3d 1328, 1332 (11th Cir. 2002). See United States v. Nohara, 3 F.3d 1239, 1241-42 (9th Cir.
1993) (no reasonable expectation of privacy in locked apartment hallway); United States v.
Concepcion, 942 F.2d 1170, 1172-73 (7th Cir. 1991) (no reasonable expectation of privacy in locked
hallway of six-unit dwelling); United States v. Holland, 755 F.2d 253, 255-56 (2d Cir. 1985) (no
reasonable expectation of privacy in locked hallway of duplex); United States v. Eisler, 567 F.2d
814, 816 (8th Cir. 1977) (no reasonable expectation of privacy in locked apartment hallway); but cf.
United States v. Villegas, 495 F.3d 761, 771-72 (7th Cir. 2007) (Rovner, J., dissenting) (“When the
common hallway of a multi-unit building is secured, . . . a resident of that building reasonably may
expect that a non-resident – including a police officer – can lawfully enter the building only with the
permission of himself or another resident.”); Sean M. Lewis, Note, The Fourth Amendment in the
Hallway: Do Tenants Have a Constitutionally Protected Privacy Interest in the Locked Common
Areas of Their Apartment Buildings?, 101 Mich. L. Rev. 273 (2002) (discussing cases from various
circuits and identifying our rule, as established in Carriger, as the superior one).
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United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (“The Sixth Circuit has generously
construed the Fourth Amendment as protecting nearly all overnight guests, even when the guest
occupies a common area in the apartment that is not private from other residents.”). Thus, the
controlling inquiry is not whether Kimber was a tenant of the Alms Hill Apartments, as the
government suggests, or even a resident – but rather, whether he was, at the very least, an overnight
guest.
Kimber argues that the record establishes that he was a resident. He points to the sworn
state-court criminal complaint signed by Stewart listing Kimber’s address as “2525 Victory Pkwy
Apt 1008,” as well as Kimber’s official state identification card listing the same address. The
government, by contrast, relies on Grubbs’s testimony that it “was . . . determined” – by unspecified
persons, and in an unspecified manner – that Kimber did not live at the Alms Hill Apartments (but
that Kimber’s aunt did), and Stewart’s testimony that, while Kimber told someone at the scene of
the arrest that he lived in the Alms Hill Apartments, he changed his story after arriving at the station-
house, where he stated that “he goes in and out of 2525 Victory, but he doesn’t live there.”
Irrespective of what this evidence establishes regarding Kimber’s residence, none of it
suggests that Kimber was not, at the very least, an overnight guest of someone who resided at the
Alms Hill Apartments (where, after all, he was arriving shortly before midnight). Accordingly, we
cannot affirm the district court’s order on this basis.
2. The Building’s Security
The Government also argues that “Carriger is distinguishable because [the] common area
of that building was secure,” while “[t]he rear entrance door [of the Alms Hill Apartments] was
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equipped with a key pad security lock that was easily and frequently circumvented with a shove or
kick.” Appellee Br. at 14-15.
In Carriger, we held that the tenant of a locked apartment building possessed a reasonable
expectation of privacy even though the officer used no force at all to enter; in that case, the officer
accessed the building by waiting for two workmen to enter and following them inside before the door
closed. 541 F.2d at 548. We observed that “[w]hether the officer entered forcibly . . . or by guile
through a normally locked entrance door, there can be no difference in the tenant’s subjective
expectation of privacy, and no difference in the degree of privacy that the Fourth Amendment
protects.” Id. at 551. In other words, the appropriate inquiry was not whether it was physically
possible for an officer to gain entry, but rather, whether the tenant would have expected him to do
so and whether society would regard such expectation as reasonable. Cf. United States v. Dillard,
438 F.3d 675, 682 (6th Cir. 2006) (“A person has [a legitimate] expectation of privacy if he has a
subjective expectation of privacy, and if society is prepared to recognize that expectation as
objectively reasonable.” (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring))).
If it was subjectively unexpected and objectively unreasonable for the officer in Carriger to
circumvent a lock by following workmen into the building, it was certainly no less so for Grubbs,
Stewart, and their colleagues to circumvent a lock by forcing open the door in this case. With regard
to Kimber’s subjective expectation of privacy, there is no evidence that Kimber knew or should have
known that the lock could be circumvented in this manner. Nothing in the record suggests that the
lock’s fallibility was common knowledge to residents and guests of the Alms Hill Apartments. To
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No. 07-4060
United States v. Kimber
the contrary, Grubbs testified that when he had visited the building the previous week, he was unable
to gain entry until an unidentified person (not necessarily a resident or guest) demonstrated the door-
opening technique to him. This is affirmative evidence that the lock’s fallibility was not open and
obvious, and therefore, that it had no bearing on Kimber’s subjective expectation of privacy. The
government’s assertion that the lock was “frequently circumvented” has no basis in the record.10
Further, we have no doubt that society would recognize Kimber’s subjective expectation of
privacy as reasonable. The Anglo-American tradition has long regarded the forcing open of locked
doors by law enforcement officials with special disapproval (even where, unlike here, the police have
a warrant supported by probable cause). See Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep.
194, 195-96 (K.B. 1603) (“[T]he law . . . abhors the destruction or breaking of any house (which is
for the habitation and safety of man) by which great damage and inconvenience might ensue . . . .”);
see also Wilson v. Arkansas, 514 U.S. 927, 931-34 & n.2 (1995) (discussing common-law and
colonial authorities). Accordingly, we cannot affirm on this alternative basis, either.
10
We do not mean to imply that the mere existence of a lock mechanism will always create
a subjective expectation of privacy. In United States v. Conti, 361 F.2d 153 (2d Cir. 1966), a case
that we distinguished in Carriger, the Second Circuit found no reasonable expectation of privacy
where “[t]he apartment building had a hall door which was meant to be kept locked, but there was
testimony that the door was often open, and even if closed, its lock was broken . . . .” Carriger, 541
U.S. at 549 (citing Conti). Similarly, in United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002),
the Eleventh Circuit distinguished Carriger, noting that the officers had entered through a door that
was “designed to be locked and function with an electronic card mechanism,” but the lock “at times
did not work and was not working when the officers arrived,” such that “[t]here was nothing to
prevent anyone and everyone who wanted to do so from walking in . . . .” Id. at 1329, 1333. In those
cases, the total, habitual lack of security would have been obvious to all residents, thus precluding
any subjective expectation of privacy. Here, by contrast, the record does not suggest that residents
(or guests) would have had any reason to believe that the lock was compromised.
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No. 07-4060
United States v. Kimber
CONCLUSION
For the reasons set forth above, we REVERSE the district court’s denial of Kimber’s
motion to suppress, VACATE Kimber’s conditional guilty plea and sentence, and REMAND for
further proceedings not inconsistent with this opinion.
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