United States v. Gerald Schram , 901 F.3d 1042 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30055
Plaintiff-Appellee,
D.C. No.
v. 1:14-cr-00457-
MC-1
GERALD THOMAS SCHRAM,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted July 11, 2018
Portland, Oregon
Filed August 21, 2018
Before: Kim McLane Wardlaw and John B. Owens,
Circuit Judges, and Joan H. Lefkow, * District Judge.
Opinion by Judge Owens
*
The Honorable Joan H. Lefkow, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 UNITED STATES V. SCHRAM
SUMMARY **
Criminal Law
Affirming the district court’s denial of a suppression
motion, the panel held that a person who is prohibited from
entering a residence by a court’s no-contact order lacks a
legitimate expectation of privacy in that residence and may
not challenge its search on Fourth Amendment grounds.
The panel reversed the defendant’s conviction in a
concurrently filed memorandum disposition.
COUNSEL
Brian C. Butler (argued), Assistant Federal Public Defender;
Lisa Ma Research and Writing Attorney; Office of the
Federal Public Defender, Medford, Oregon; for Defendant-
Appellant.
Amy E. Potter (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Eugene,
Oregon; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SCHRAM 3
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Gerald Schram appeals from the
denial of his suppression motion. The district court held that
Schram could not challenge the search of a residence that a
no-contact court order barred him from entering. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm. 1
I. FACTUAL BACKGROUND
On September 24, 2014, detectives from the Medford
Police Department were called to investigate the robbery of
a local U.S. Bank branch. 2 After interviewing eyewitnesses
and further police work, the detectives had probable cause to
believe that Schram was responsible. A records check
showed, among other things, that there was a no-contact
order prohibiting Schram from contacting his girlfriend,
Zona Satterfield.
The detectives began their search for Schram at
Satterfield’s residence, as it was the only address the
detectives had that was associated with him. Without a
warrant (and, for the purposes of this appeal, we assume
without Satterfield’s consent), the detectives entered the
residence, found Schram inside, and arrested him. They then
obtained a search warrant and searched Satterfield’s home.
1
In a concurrently filed memorandum disposition, we reverse
Schram’s conviction for one count of Hobbs Act robbery in violation of
18 U.S.C. § 1951.
2
We rely primarily on the district court’s factual findings, which
neither party contests.
4 UNITED STATES V. SCHRAM
Schram was later indicted for bank robbery in violation
of 18 U.S.C. § 2113(a), and he moved to suppress the
evidence obtained in the search. The district court denied
the suppression motion, concluding that Schram could not
“object to the entry into [Satterfield’s] house” because “[h]e
has no expectation of privacy in a residence that he is legally
barred from entering.” Schram pled guilty, conditioned on
his right to appeal the denial of his suppression motion.
This timely appeal followed.
II. STANDARD OF REVIEW
We review a district court’s denial of a suppression
motion de novo and its factual findings for clear error. See
United States v. Cunag, 386 F.3d 888, 893 (9th Cir. 2004).
III. DISCUSSION
“[S]earches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated
exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
But “[w]hether a warrant is required is a separate question
from the one [we] address[] here, which is whether the
person claiming a constitutional violation ‘has had his own
Fourth Amendment rights infringed by the search and
seizure which he seeks to challenge.’” Byrd v. United States,
138 S. Ct. 1518, 1526 (2018) (quoting Rakas v. Illinois,
439 U.S. 128, 133 (1978)). A person may not claim his
Fourth Amendment rights have been violated if that person
lacks “a ‘legitimate expectation of privacy in the premises’
searched.” Id. (quoting Rakas, 439 U.S. at 143).
UNITED STATES V. SCHRAM 5
Here, we must decide whether a person who is prohibited
from entering a residence by a court’s no-contact order still
may have a legitimate expectation of privacy that would
entitle him to Fourth Amendment protection in that
residence. Supreme Court case law, our case law, and the
law of other circuits make clear that the answer is no.
An individual has a “legitimate expectation of privacy”
if: (1) the individual demonstrates a subjective expectation
of privacy in the place being searched, and (2) this subjective
expectation is one “that society accepts as objectively
reasonable.” California v. Greenwood, 486 U.S. 35, 39
(1988); see also United States v. Struckman, 603 F.3d 731,
746–47 (9th Cir. 2010). In Rakas, the Supreme Court
clarified that a privacy interest is not reasonable when one’s
presence in a place is “wrongful.” 439 U.S. at 143 n.12.
(citation omitted). By way of example, the Court explained,
“[a] burglar plying his trade in a summer cabin during the
off season may have a thoroughly justified subjective
expectation of privacy [in the cabin],” but lacks a legitimate
expectation of privacy because “his expectation is not ‘one
that society is prepared to recognize as reasonable.’” Id.
(quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).
Similarly, we have concluded that a defendant may not
invoke the Fourth Amendment to challenge a search of land
upon which he trespasses, calling this argument “frivolous.”
United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1246
(9th Cir. 1979); see also Struckman, 603 F.3d at 747 (“Thus,
had [the defendant] been an actual trespasser, he would not
be able to claim the protections of the Fourth Amendment
with regard to his arrest in the backyard.”). We have also
held that once a hotel takes affirmative steps to repossess a
room that a patron procured “by criminal fraud and deceit,”
the patron lacks a legitimate expectation of privacy in the
6 UNITED STATES V. SCHRAM
room and so “does not enjoy the protection afforded by the
Fourth Amendment.” Cunag, 386 F.3d at 893–95.
Applying parallel reasoning, the Second Circuit has held
that an escaped inmate may not claim a legitimate
expectation of privacy in his automobile because the escapee
is “no more than a trespasser on society.” United States v.
Roy, 734 F.2d 108, 110–12 (2d Cir. 1984); see also United
States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980) (“[A] mere
trespasser has no Fourth Amendment protection in premises
he occupies wrongfully.”). Likewise, the First Circuit has
concluded that squatters lack a legitimate expectation of
privacy to challenge on Fourth Amendment grounds their
eviction from government land. Amezquita v. Hernandez-
Colon, 518 F.2d 8, 11–12 (1st Cir. 1975) (noting that the
plaintiffs “knew they had no colorable claim to occupy the
land” and that the commonwealth had twice asked them to
depart voluntarily). And in holding that a defendant who
fails to pay rent for a private residence may not challenge a
search of that property, the Seventh Circuit clearly
articulated the principle motivating this line of cases:
“individuals who occupy a piece of property unlawfully have
no claim under the Fourth Amendment.” United States v.
Curlin, 638 F.3d 562, 565–66 (7th Cir. 2011) (collecting
cases).
The Third Circuit addressed the question directly before
us and relied on these cases to conclude that, “like a
trespasser, a squatter, or any individual who occup[ies] a
piece of property unlawfully,” an individual whose presence
in a home is barred by a court no-contact order lacks “any
expectation of privacy” in such place “that society is
prepared to recognize as reasonable.” United States v.
Cortez-Dutrieville, 743 F.3d 881, 884–85 (3rd Cir. 2014)
(alteration in original) (footnotes and citations omitted). In
UNITED STATES V. SCHRAM 7
so holding, the Third Circuit rejected the defendant’s
contention that the no-contact order was vitiated by the
consent of the person whom the order barred the defendant
from contacting. Id. at 884.
Like the defendant in Cortez-Dutrieville, Schram argues
that Satterfield’s consent to his presence overrode the terms
of the no-contact order. He relies on United States v. Gamez-
Orduño, 235 F.3d 453 (9th Cir. 2000), to argue that a
property owner’s invitation grants an individual a legitimate
expectation of privacy on a premises, even if the individual
is there for illegal purposes. This principle sweeps far
broader than the holding of Gamez-Orduño. In that case, we
held that narcotics smugglers had a legitimate expectation of
privacy as overnight guests in a home. Id. at 458–59. But
the narcotics smugglers’ criminal conduct was not the act of
being on the premises in question: their criminal conduct
was narcotics smuggling. Thus while a defendant does not
lose his Fourth Amendment rights simply by engaging in
illegal acts, a defendant still may lack Fourth Amendment
rights to challenge the search of a residence when the law
prevents him from being there in the first place. See United
States v. Vega, 221 F.3d 789, 797 (5th Cir. 2000) (“[T]he
burglar’s expectation of privacy loses its legitimacy not
because of the wrongfulness of his activity, but because of
the wrongfulness of his presence in the place where he
purports to have an expectation of privacy.”), abrogated on
other grounds, as recognized by United States v. Aguirre,
664 F.3d 606, 611 n.13 (5th Cir. 2011).
Schram also argues that the Supreme Court’s recent
holding in Byrd cautions against drawing a per se rule in this
case. In Byrd, the Court held that a defendant who had not
signed a rental car agreement may still have a legitimate
privacy expectation in the rental car to challenge its search.
8 UNITED STATES V. SCHRAM
138 S. Ct. at 1529–30. But in so holding, the Court explicitly
left intact its conclusion from Rakas that a “car thief would
not have a reasonable expectation of privacy in a stolen car,”
“[n]o matter the degree of possession and control.” Id. at
1529 (citing Rakas, 439 U.S. at 141 n.9). To explain the
difference between the defendant in Byrd and a car thief, the
Court likened a car thief to Rakas’s hypothetical “burglar
plying his trade in a summer cabin during the off season,”
thus reaffirming Rakas’s teaching that, like a defendant who
may not challenge a search of stolen property, a defendant
whose presence on a premises violates the law may not
“object to the legality of [the premises’] search.” Id.
(quoting Rakas, 439 U.S. at 141 n.9).
Like a burglar, trespasser, or squatter, an individual
violating a court no-contact order is on property that the law
prevents him from entering. We therefore hold that such an
individual lacks a legitimate expectation of privacy in that
place and may not challenge its search on Fourth
Amendment grounds. In doing so, we join not only the Third
Circuit, but every other court that has considered the matter. 3
AFFIRMED.
3
See, e.g., Cortez-Dutrieville, 743 F.3d at 884–85; Washington v.
St. Albans Police Dep’t, 30 F. Supp. 2d 455, 457–58 (D. Vt. 1998);
Commonwealth v. Morrison, 710 N.E.2d 584, 586 (Mass. 1999); State v.
Stephenson, 760 N.W.2d 22, 26–27 (Minn. Ct. App. 2009); see also
United States v. Bey, 825 F.3d 75, 79 (1st Cir. 2016) (noting that
“[s]everal other courts have specifically held that a defendant cannot
claim a reasonable expectation of privacy to the interior of a home where
the defendant’s very presence is unlawful due to a restraining order,” but
declining to reach the issue).