Defendant had no expectation of privacy in a gun hidden on the roof of a garage

Defendant who hid a gun on the roof of a garage had no expectation of privacy there. United States v. Pankey, 2007 U.S. Dist. LEXIS 86785 (D. Minn. October 25, 2007)*:

The critical threshold question is whether the Defendant had a legitimate expectation of privacy on the roof of the garage where Wilson found the weapon, which would allow him to assert a Fourth Amendment claim. The Defendant acknowledges that he does not have a possessory or ownership interest in the garage. However, he argues that he had constructive control of the garage, based on the fact that he resided in a building which was located on the street immediately below the garage, and that he was present on October 26, 2006, at the Seventh Street residence rented by Dickerson, which was immediately adjacent to the garage, and that constructive control gave him a reasonable expectation of privacy on the roof of the garage.

At the Hearing, Wilson testified that he had spoken with Johnson, who owns both the garage, and the building immediately below the garage, where the Defendant was renting an apartment at the time that the search took place. According to Wilson’s uncontradicted testimony, Johnson reserved the garage for his own personal use, and had not given the Defendant, or any other tenant, permission to use the garage, or its roof. See, United States v. Wiley, 847 F.3d 480, 481 (8th Cir. 1988) (defendant lacked standing when he had no legitimate access to premises without the presence of the owner and had no personal belongings stored there). The Defendant does not claim that he had a key to the garage, or had previously stored belongings there, either with or without Johnson’s permission, and did not have the ability to exclude others from accessing the garage. Likewise, the Defendant did not pay any rent to use the garage, or claim that any portion of the rent that he paid to Johnson, for his apartment, was so allocated. See, United States v. Juchem, 2001 WL 34152082 at *4 (N.D. Iowa, April 23, 2001)(no expectation of privacy in garage when defendant had key and permission of owner to enter, but did not pay rent or have permission to exclude others).

Moreover, the Defendant cannot claim that he had a legitimate expectation of privacy in the roof of the garage, based on his presence in the Seventh Avenue residence. Johnson told Wilson that he had not given anyone, including Dickenson, permission to access the garage. Even if Dickenson had the ability to give the Defendant permission to access the garage, she also told Wilson that she had not granted the Defendant permission to store any items, either in or on the garage, or inside her residence.

Defendants prevailed in a civil action for serving a search warrant on the wrong premises. Defendants then sought attorneys fees for a frivolous action, which the district court denied. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 86847 (E.D. Cal. November 9, 2007).*